27 March 2013, Vol. 6, No. 8
Problems and proposals: how to close loopholes in the draft ATT
Ray Acheson | Reaching Critical Will of WILPF
With only one day left until the final draft text of the arms trade treaty (ATT) is released, all participants have expended tremendous efforts to either improve or further undermine the current draft text. As it stands, the draft is not reflective of the positions of the vast majority of states. It is certainly not reflective of the urgency of regulating the irresponsible arms trade and preventing its most horrifying effects. As the Liberian delegation said, the current draft elevates the views of arms exporters above those of the victims of those exports. Thus states that want a robust treaty have been actively proposing language to close some of the treaty’s biggest loopholes and ensure the treaty is comprehensive and effective.
The limitations of scope
Currently, ammunition, munitions, parts, and components are only subject to some provisions of the treaty. Not all of the risk assessment criteria are applied to them, nor are they subject to rules on brokering, transit, transshipment, or reporting.
Liberia’s delegation argued that the current scope “trivializes” the concerns of African states. Indeed, not just the African delegations but also those of the vast majority of other countries that have demanded that ammunition and parts and components be fully integrated into the scope. Either these items must be directly included in article 2(1), or articles 3 and 4 must be consistently referenced throughout the text so that all of the Treaty’s relevant provisions apply also to these items..
Furthermore, the definitions of both ammunition/munitions and parts and components are so narrow as to leave many important items, such as hand grenades, out of the scope. In fact, the definitions of all arms and items in the scope-related articles are deficient. The list of arms included in article 2(1) are, according to article 5(4), to be based on definitions provided in the UN Register of Conventional Arms at the time that the ATT enters into force. As SIPRI points out, the Register’s scope is defined by items considered “indispensable” at the end of the Cold War. The ATT as currently drafted also does not provide for updating items or re-defining scope items in the future.
Many delegations and civil society organizations have called for the ATT to be “future proofed”. This could be done by having a more robust scope with better definitions from the outset, and by explicitly providing for periodic reviews of the treaty’s scope in the future. Last week, France suggested that the Conference of States Parties “consider the impact of the evolution in the field of conventional arms and the impact on relevant categories in article 2(1) and consider recommendations for their possible update.” This should of course be expanded to also include the items currently covered in articles 3 and 4.
Furthermore, the scope of activities covered by the treaty must be expanded. Most delegations want the treaty’s provisions to apply to non-commercial activities, such as gifts, loans, and leases. Otherwise, many arms transfers could circumvent the treaty altogether.
Capturing all war crimes
Norway and Switzerland, supported by more than 55 other countries, have suggested new language on article 6(3) to fully capture all war crimes, including those covered by customary international law.
Their proposal is to change the wording of 6(3) to: “A State Party shall not authorize any transfer of conventional arms covered under Article 2(1) or of items covered under Article 3 or Article 4, if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, or war crimes as defined by its international obligations, including those under the Geneva Conventions of 1949.”
This proposal is quite good, though as some states have pointed out, knowledge “at the time of authorization” could be changed to “at the time of transfer,” as the situation can change between the time of authorization and that of the actual transfer. However, strengthening article 7(10) could mitigate that concern. 7(10) currently “encourages” exporting states to suspend or revoke the transfer if it becomes aware of new relevant information. It should instead mandate the suspension or revocation, for which many countries have called.
A prohibition on human rights violations
Many countries have suggested adding a prohibition against transfers where the arms are likely be used to commit human rights violations. The delegation of Spain suggested a new paragraph in article 6 that indicates states parties “shall not authorize any transfer of conventional arms covered under article 2(1) or items covered under article 3 or 4 if there is knowledge that items will be used for the commission of gross violations of IHRL constituting violations prohibited by relevant international agreements to which it is a party.”
A new prohibition on this issue is imperative. However, as with war crimes, the prohibition should also encompass customary international law.
Strengthening gender-based violence (GBV) prevention
The language on GBV in the preamble opens up potentially incorrect interpretations of international law. It also continues to highlight women as “particularly vulnerable” and to group women with children. Women and others targeted with gender-based violence are not inherently vulnerable. They are subject to unique effects of a common threat—in this case, armed violence or armed conflict.
More than 100 states and more than 100 civil society organizations are advocating for a gender-sensitive ATT not because women are vulnerable. We do it because states have repeatedly and continually failed to assess the substantial risk of violations of IHL and IHRL related specifically to GBV.
Thus, the preamble must recognize that acts of gender-based violence constitute violations of IHL and human rights law when those legal regimes are applicable. It should not use the patronizing term “women and children” but instead promote the equal, full, and effective participation of both women and men in the prevention and reduction of armed violence and armed conflict.
The GBV criterion should be subject to mandatory risk assessments as well as to transfer denials. An effective ATT must require states to assess whether there is a substantial risk that the items to be transferred could be used to commit or facilitate acts of gender-based violence. This should be done without prejudice to the assessment in 7(4).
The overriding risk of “overriding risk”
In article 7(3), the current draft pits the assessment of IHL and human rights violations against assessment of the weapons’ potential “contribution” to “peace and security”. It does not have language suggesting that if a transfer is assessed to undermine peace and security, the transfer shall not be made. It does not recognize that respect for IHL and human rights themselves contribute to peace and security.
Furthermore, the use of “overriding” rather than “substantial” risk in article 7 means that even if the exporting state is 90% certain the weapons will be used to slaughter civilians, it could decide the weapons contribute to promoting some other, undefined interest, and thus approve the transfer.
As the vast majority of states have suggested, articles 7(7) and 7(10) must refer to “substantial risk”. That is the only way to ensure that an assessment of IHL or human rights violations cannot be subordinated to undefined interests.
The importance of transparency
A large number of delegations support mandatory public reporting under the ATT. As Paul Holtom of SIPRI described during Monday’s side event on transparency, public reporting will enable monitoring of government compliance with the obligations outlined within the ATT; eliminate possibilities of actors undermining congruent international conventions regarding the prevention of armed conflict; and promote mutual cooperation in the efforts to curtail human suffering and safeguard human rights.
On behalf of a substantial number of delegations, Lithuania introduced a new proposal for article 12 that obligates public reporting. It indicates that a state party can request the Secretariat to “not make public those parts of the report that the State Party considers commercially sensitive or national security information.”
Unfortunately, the new proposal does not require reporting on items currently included in articles 3 and 4. If ammunition, munitions, parts, and components are added to article 2(1), this is fine; otherwise, they must be explicitly mentioned in article 12(2).
The “just kidding” clause
Even if all of the above problems with the text are fixed, article 5(2) still allows states to “contract out” of the treaty by signing other agreements such as defence cooperation agreements. Some delegations, including Liechtenstein and Turkey, have described this as the “just kidding” clause—after drafting a full treaty, why add one more that says, “Just kidding, do whatever you want”? The overwhelming majority of states have called for article 5(2) to be deleted or amended.
The above challenges are certainly not the only ones. Much work remains to be done on this treaty; yet we will receive the final draft (barring technical corrections) on Wednesday morning. What will this draft look like? Will it represent the positions of the vast majority of states that want to prevent human suffering and contribute to international peace and security? Or will it promote the interests of the minority that want a treaty to provide legal cover for their profit-seeking arms industries?
As we wait for the final draft text, states should keep in mind that if the latter option is put on the table, they do not have to stand for it. As most of us writing in the ATT Monitor have emphasized, along with many delegations: a weak treaty would be worse than none at all.