ATT Monitor, Vol. 16, No. 2
Report on the Sub-Working Group on Current and Emerging Implementation Issues
22 February 2024
Laura Varella
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On 21 February 2024, the Arms Trade Treaty (ATT)’s Working Group on Effective Implementation held its first meeting of a sub-working group on current and emerging implementation issues, under the facilitation of Panama. The agenda of the group included three main items: the role of industry in responsible international arms transfers; the risk of conventional arms being used for gender-based violence (GBV) or violence against women and children; and an ad hoc discussion on current and emerging implementations issues, which focused on “the impact of arms transfers on the Israel-Palestine conflict,” proposed by the State of Palestine and Control Arms.
The establishment of this Group follows the call from WILPF and others that the ATT was not fulfilling its goal of reducing human suffering by avoiding discussing transfers of concerns. In its statement to the sub-working group, which was not able to be delivered to the lack of time, WILPF welcomed the development of this group and the convening of the meeting on Israel’s war on Gaza. Control Arms also welcomed the discussion, noting, “Discussions on compliance can help us to understand how States Parties are interpreting their treaty obligations, and how and whether implementation is meeting the Treaty’s object and purpose.”
The meeting was brought to a close with several delegations still on the speakers list due to the exhaustion of time allocated for the debate. It was clear that the three hours made available to discuss the three agenda items was far from sufficient. The high participation of states in this debate demonstrates that there is interest in continuing the discussion. The recently established sub-working group should have more time allocated in the agenda in future meetings, so that delegations can keep discussing transfers of concern and other topics relevant for achieving the Treaty’s purpose of reducing human suffering.
The role of industry in responsible arms transfers
The meeting started with a presentation from Ms. Raïssa Vanfleteren, from the Government of Flanders, who explained her government’s approach to export control. She particularly highlighted the importance of the Internal Compliance Programme (ICJ) as a tool to assess the risk associated with a transaction. Ms. Vanfleteren stressed that the ICP is an essential component in granting prior autorisation to companies, which is a requirement to be granted the right to for export and transfer licenses by the Flemish Government.
The meeting proceeded with a presentation from Ms. Lana Baydas, from the American Bar Association Center for Human Rights. She referenced the United Nations Guiding Principles on Business and Human Rights (UNGP) and the Defense Industry Human Rights Due Diligence Guidance produced by the American Bar Association. Among many issues, she highlighted that corporations have a responsibility to respect human rights independent from states, citing the recent announcement from the Japanese company Itochu, which ended its contract with the Israeli firm Elbit Systems due to international humanitarian law and international human rights law concerns. Ms. Baydas also stressed that human rights due diligence policies should be preventative, aimed at preventing human rights abuses, as opposed to purely defensive, aimed at protecting the company itself.
This presentation was followed by Ms. Machiko Kanetake, from Utrecht University. She presented the findings of the report, “Due diligence and corporate liability of the defence industry: Arms exports, end use and corporate responsibility,” which she co-authored with Mr. Cedric Ryngaert. Ms. Kanetake highlighted that a corporation’s failure to properly carry out due diligence could lead to legal liability. She also stressed the “state-industry nexus,” meaning the strong connection between the state and the arms industry, and addressed some challenges that weapons manufacturers specifically faces in exercising due diligence regarding arms trade.
The State of Palestine delivered a statement stressing that the war crimes currently being committed in Gaza would not have been possible without the flow of weapons being supplied to Israel. It affirmed that companies such as Caterpillar, Lockheed Martin, General Dynamics, and United Kingdom (UK)-based companies are fueling Israel with weapons and equipment that are being used to massacre civilians in Gaza. Palestine also highlighted weapons sold by Israeli companies are tested on Palestinians, and that countries purchasing them are encouraging the violence being waged against the Palestinian people.
The UK shared about a conference it hosted at Wilton Park to discuss the “Role of Industry in the ATT.” It reported that many participants at the conference held the view that the ATT needs to increase transparency and predictability around arms transfer processes and eliminate inconsistent application of rules and regulations. The UK also said that the conference discussed “how the current ATT process does not provide a conducive environment for industry to engage with and contribute to discussions.”
The European Union (EU) stressed the importance of following up on the decisions taken at the Ninth Conference of States Parties (CSP9) and their ongoing implementation, and the need to recognise the role of the private sector to ensure transfers are made responsibly. It further stated that the UNGP offer a good basis to enhance the ATT and its implementation efforts. Control Arms, in a statement that was not delivered in session but is posted on the ATT website, also echoed the value of the UNGP, stressing the industry’s human rights and IHL due diligence responsibilities and the obligation of states parties to regulate all actors involved in arms transfers are separate and distinct sets of responsibilities that complement and reinforce one another.
China asked the panelists their views on how to balance the non-discriminatory objective in ATT and due diligence requirements for business. Ms. Vanfleteren said that exchanging best practices on how to understand human rights due diligence is a good basis. Ms. Baydas stressed need for the industry to engage in this debate, and Ms. Kanetake clarified that the ATT’s non-discriminatory objective does not mean that all states would handle the same issue in the same manner. She said that some states export more than others and that entails extensive engagement with the screening of transactions, noting that the same is valid for business due diligence. “If state parties have much more industry that are involved in transferring weapons, that requires much more engagement and investment in order to exchange best practices with industry,” she said.
Ireland, which presented the paper “Responsible Business Conduct and the ATT” last year during CSP9, was not able to deliver its remarks due to lack of time. It stressed the need for more time allocated to the working group, suggesting that states continue the discussion on Friday, after the meeting of the Working Group on Transparency and Reporting, as that meeting will likely end earlier than predicted.
Risk of conventional arms being used for gender-based violence or violence against women and children
Argentina briefed the sub-working group on the results of the survey that was circulated to states parties last year and the proposal to elaborate a Guide to Good Practices in arms control for the prevention of gender-based violence (GBV). Canada, Control Arms, Small Arms Survey, and others expressed support for this initiative. France stressed that the guide should be voluntary. Canada, Mexico, Netherlands, and Spain welcomed the survey presented by Argentina.
Small Arms Survey also drew attention to the working paper submitted along with Mexico and Spain on mitigating the risk of armed violence against people on the basis of their actual or perceived sexual orientation, gender identity, gender expression and sex characteristics (or SOGIESC). Mexico also referenced the paper, underlining the need for ATT state parties to address SOGIESC violence. Netherlands and Control Arms welcomed the working paper.
Australia, Japan, and the Netherland outlined their government’s actions to support Women, Peace, and Security. The UK and the EU expressed their commitment to ending GBV.
Australia acknowledged that states parties might face challenges implementing article 7(4) of the ATT due to the difficulties in obtaining GBV information for risk assessment processes. In this sense, it welcomed existing guidance, including by Control Arms and the International Committee of the Red Cross (ICRC). The UK said it is committed to improve the collection of disaggregated data, especially on small arms and light weapons (SALW), and that it considers the risk of GBV in assessing arms exports.
The UK welcomed further discussion, expressing preference for an open debate rather than in a voluntary guide. The EU and Canada welcomed further discussion in the working group. Control Arms suggested that states parties further discuss how the ATT relates to violence against children.
Israel said that Hamas used GBV as a weapon on 7 October 2023 and that the testimony of women and girls held captive by them raise harrowing accounts of sexual violence in captivity. It said that diversion of conventional arms to Hamas is a global threat and called for further discussions on this issue to prevent diversion to terrorist organisations. Israel also said it submitted a working paper on the topic.
The State of Palestine stated that there is a systematic pattern of GBV being perpetrated by Israel in Gaza. It highlighted the UN experts’ alarm over credible allegations of egregious human rights violations to which Palestinian women and girls continue to be subjected in the Gaza Strip and the West Bank. Palestine particularly highlighted the experts’ words that they were “shocked by reports of the deliberate targeting and extrajudicial killing of Palestinian women and children in places where they sought refuge, or while fleeing. Some of them were reportedly holding white pieces of cloth when they were killed by the Israeli army or affiliated forces.” It also stressed several other instances of GBV perpetrated by Israel against Palestinian people in years of occupation.
Ad hoc discussions on current and emerging implementation issues: Impact of arms transfers on the Israel-Palestine conflict
Ms. Nada Tarbush, from the State of Palestine, briefed the sub-working group on the current situation in Gaza. She stated that Israel is sustaining a heavy bombing campaign with the intent to maximise destruction. She highlighted that more than 13,000 children have been killed and that not a single hospital remains fully operational. Palestine said that Israel’s carpet bombing has resulted in the destruction of more than 70 per cent of infrastructure and that 85 per cent of population has been forcibly displaced to alleged safe zones—where they have also been bombed. She underlined the fact that there is plenty evidence of war crimes, crimes against humanity, and genocide. Ms. Tarbush stated that Israel’s actions are facilitated with imported weapons and urged states to explain the reasoning behind their arms exports to Israel, including the US, Germany, the UK, Italy, Netherlands, France, Canada, Japan, Australia, Czech Republic, and Norway. She also asked for explanation from transit states, including Greece and Belgium. She further asked states to explain if licenses have been suspended or issued since 7 October, and if there are any under consideration.
After Palestine’s briefing, Ms. Shirine Jurdi from Control Arms delivered a statement welcoming the discussion and stressing its relevance for the integrity of the Treaty. Ms. Jurdi stressed that in light of the International Court of Justice (ICJ) decision, those parties continuing to supply weapons to Israel risk contributing to the commission of genocide. She also said that in accordance with customary international law, all states have an obligation to ensure respect for IHL and that major exporting states are in a position to use their influence to bring an end to the suffering being witnessed in Gaza. Control Arms welcomed the announcements made by Italy, Norway, Spain, and the Wallonia region in Belgium regarding decisions to deny the supply of arms exports to Israel, and encouraged all exporting parties to share their policies concerning transfers to Israel.
Ms. Shahd Mousalli, from Oxfam, delivered a presentation about the humanitarian response to Gaza. She said that the Palestinian people are being starved and being denied essential aid, including medical aid. She said that another factor impeding humanitarian operation is the intensity of hostilities and the Israeli-imposed movement restrictions. Ms. Mousalli said there were multiple instances of aid convoys being attacked and bombarded since 26 January. She further stressed that a ceasefire is a prerequisite to be able to deliver humanitarian aid and to allow humanitarian workers to do their work safely in Gaza.
Ms. Hiruni's Alwishewa followed with a presentation about how ATT Articles 6 and 7 should be applied in light of the recent ICJ decision. She said that while the knowledge requirement in Article 6(3) is generally a high threshold, with the ICJ finding that there is a plausible claim of genocide, the knowledge requirement is clearly fulfilled. She stated that authorising new exports of arms to Israel, either through commercial arms sales or military aid could amount to an act of complicity in an international wrongful act, specifically genocide, due to the amount of evidence in this regard, which has also now been explicitly identified in the ICJ decision. She said that in light of Article III(e) of the Genocide Convention, which includes complicity in genocide as a punishable act, complicity in a plausible claim for genocide should therefore be taken into account by states prior to the authorization of exports. Ms. Alwishewa also explained that the industry should also be aware of the significant risks of continuing to manufacture and export weapons to Israel when there is a plausible claim of genocide. Finally, she highlighted that previous authorisations should be reassessed in accordance with Article 7(7) in light of relevant new information, including the ICJ ruling.
The Organization of Islamic Cooperation (OIC) said that indiscriminate attacks in Gaza are a grave violation of international law, especially IHL and IHRL. It added that the bombardment of densely populated areas, in particular schools and refugee camps, is a violation of the principle of distinction, proportionality, and military necessity. The Maldives condemned these acts, also saying they constitute a disregard for IHL and IHRL. The Maldives called for a ceasefire, the Netherlands for a “humanitarian ceasefire,” and Germany for a “humanitarian pause.”
Türkiye welcomed the focus of the meeting and said that the ATT might be facing the most serious implementation challenge since its adoption. Brazil, whose statement was not delivered due to lack of time, reminded that "respecting and ensuring respect for international humanitarian law" is one of the guiding principles of the ATT, and recalled the content of Article 7, which requires exporting state parties to objectively and without discrimination assess the potential use of conventional arms in serious violations of IHL and IHRL. The OIC noted with concern that states from the global north continue to export weapons to Israel even after the ICJ ruling. It called upon states to suspend those licenses immediately and to end complicity with international crimes. Libya also urged countries to respect articles 6 and 7 of the ATT. Türkiye noted that the ICJ ruling is binding on all parties to the Genocide Convention.
The UK contraposed this argument, saying that the ICJ decision is binding on Israel. It further said that it “carefully review Israel’s capability and commitment to IHL. On concluding a review of extant licences to Israel on 18 December 2023, the UK’s Business and Trade Secretary decided not to suspend licencing, but to keep licences under continuing, careful review, in view of the current hostilities in Gaza.” The Netherlands said that all licenses are assessed in light of specific instances of the application and in a case-by-case basis, and that they are granted as long as there is no overriding risk in line with the ATT and the EU common position. It said that in recent years, application requests to Israel have been granted in certain cases and denied in others. Similarly, Germany said that it also evaluates arms exports in a case-by-case basis and in context, and that its decisions are also based on the ATT and the EU Common Position. It said that respect for human rights and compliance with IHL are key factors. It also said that a situation where a country exercises self-defense is taken in consideration as part of the decision-making process. Germany stated that Israel’s security is not negotiable and that it has the right to defend itself from Hamas in line with IHL.
Israel said that Hamas terrorists invaded Israel using weapons supplied by Iran, the Democratic People’s Republic of Korea (DPRK), and other states and non-state actors. It said that these weapons are used to perpetuate violence against Israel and the Palestinian population, and that the international community must be steadfast calling for an end to the supply of weapons to Hamas. Israel alleged that Hamas has been embedding its military operations beneath densely populated civilian areas in homes, mosques, United Nations facilities, schools, and hospitals, and that this a violation of IHL. Israel asserted that it directs its attacks to military objectives and “does everything it can” to facilitate safe passage and the humanitarian aid. Israel further argued that the ICJ, in its decision on provisional measures, “unanimously rejected almost all of South Africa's requests, including the request that Israel suspend its military operations in Gaza, thus clearly indicating its full understanding that military operations will continue.” It said that Hamas has genocidal intention against the people of Israel. Israel—which was not one of the 100 states that supported the inclusion of a legally binding provision on GBV in the ATT—also asserted that most organisations involved in the negotiation of the ATT and in particular the gender provision have remained silent regarding Hamas’ acts of sexual violence on 7 October and have tried to “contextualise” these violations.
In its closing remarks, the State of Palestine stressed that the right of self-defense does not exist for an occupying power as per the ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. It stressed that leadership is coming primarily from the global south, not from those who refuse to condemn Israel, who continue to define Israel’s actions as self-defense, or who are more offended by people calling out and trying to stop genocide then by genocide itself. Palestine further questioned the reasons for continuing trading weapons with Israel:
So we need to ask ourselves, why? Why states that otherwise claim to champion international law, to champion the Arms Trade Treaty, willing to put themselves in a situation of criminal liability, of immorality, in a situation where double standards risk irreversibly eroding the credibility of international law, the international system, built since the Second World War, in a situation where their reputation in the eyes of millions of people around the world has been severely damaged and is unlikely to ever recover. Indeed, demonstrations around the world make it very clear. While a small number of powerful states stand with Israel as it pummels Gaza, the overwhelming majority of states and world public opinion stands firmly with Palestine, with the law, with peace. So we ask again to those states who insist on sending arms: For what purpose? To what end? Is the answer apathy? Indifference? A head in the sand? Continuation of business as usual? Is it profit? The desire to sell your weapons and make defence profits, no matter the costs? Legal, moral or reputational, or is it political considerations? Or is it ideology emanating from a racist logic whereby different values are placed on different lives, people of the global south or of a certain colour or nationality are seen as more disposable, less deserving of life, less worthy of empathy, outrage and respect for the law? There is no diplomatic way of calling out racism, and it's time to call the state a state. To those states who have been and are still sending weapons, despite the unfolding genocide picking place in Gaza, despite your knowledge of the facts and of the law, this is your moment of truth. Ask yourself, will you continue your arms trade with Israel? Or will you finally recognise the damage that your complicity is doing? Not only to countless innocent Palestinian civilians, but also to yourselves, to the credibility of the law, to international peace and security, and finally change course and act responsibly. We are here to say that it is not too late to save Palestine, nor is it too late to save yourselves from continued complicity. To conclude, it is not only a moral duty, but also illegal duty incumbent upon all states to impose a two-way arms embargo on transfers of military items to and from Israel.
The meeting ended due to lack of time while several delegations were still on the speaker list, including WILPF. Delegations were invited to send their statements in written format to the ATT Secretariat. In its statement, WILPF highlighted the extensive evidence of violations of IHRL and IHL, as well as gender-based violence and violence against children. Based on this, and considering Articles 6 and 7 of the ATT, WILPF called on all states to immediately stop arms transfers and the licensing of arms and related equipment to Israel, warning that choosing to continue with these transfers will exacerbate the suffering and the genocide of the Palestinian people.
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