The adoption of the Arms Trade Treaty (ATT) one year ago this month was a major step towards stemming the flow of weapons to those that may use them to commit crimes against humanity, war crimes or genocide.
However, with the treaty not yet in force, more states need to follow words with concrete action.
Can the ATT prevent ICC crimes?
The role played by the manufacturers of arms and ammunition arms in the commission of war crimes and other atrocities has been recognized as far back as the Nuremberg Trials.
They play an important, if indirect, role by supplying deadly weapons that often end up in the hands of some of the world’s worst human rights offenders.
All too often renegade governments and unscrupulous war profiteers manipulate trade to ensure the proliferation arms to areas where they are used to commit atrocities and other violations of international criminal law.
The ATT contains strong human rights and international humanitarian law criteria which should serve to save lives and hinder the destabilizing flow of arms to conflict regions.
Article 6 (3) of the treaty prohibits arms transfers if a state has knowledge that they would be used in the commission of “genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes.”
These are closely related to crimes prosecuted under the Rome Statute, the founding treaty of the International Criminal Court (ICC).
According to Amnesty International, the ATT “also obligates all governments to assess the risk of transferring arms, ammunition or components to another country where they could be used to commit or facilitate serious violations of international humanitarian and human rights law. Where that overriding risk is real and cannot be mitigated, states have agreed the transfer will not go forward.”
So while the ICC prosecutes individual perpetrators of grave crimes, the ATT (as a separate treaty of the United Nations) aims to hold states parties accountable for their actions in relation to the commission of the same types of crimes.
Historic under-regulation fuels abuses
Conventional arms play a legitimate role in maintaining civil order and responding to threats to international peace, meaning legitimate arms trade is here to stay.
The global arms trade is estimated to be worth $8.5 billion annually, not taking into account black market or illicit transfers. With enough ammunition and firearms available to kill almost everyone in the world, the need for strong regulation is clear.
However, efforts to control the global arms trade in the 20th century fell short of the comprehensive regulation needed to keep weapons out of the hands of war criminals.
Before the ATT, with a few exceptions, the UN failed to provide any effective regulations for the production, transfer and use of small arms, tending to concern itself with the spread of weapons of mass destruction.
Such failures were exposed by the carnage wrought by conventional arms in the civil wars of the 1990s.
In the past the UN has used non-binding requests for governments to create effective licensing standards to prevent the illicit trade of arms, but this ignored state-authorized arms transfers.
The only instance in which the UN bans the sale of arms to particular countries is through arms embargoes. However, these embargoes are largely toothless, as there are no real consequences for violating them. Violating arms embargoes is not treated as a criminal offense.
Some have suggested that there is an emerging norm against the transfer of arms where they will be used to violate international law or human rights.
For example, under the Code of Conduct for Arms Exports adopted by the Council of the European Union in 1998, the purchasing state must satisfy certain criteria before any small arms sale can be authorized.
But again, as with the UN arms embargoes, such regulations are non-binding and in practice are often disregarded.
The ATT helps to reinforce such measures by prohibiting states parties from authorizing arms transfers that would violate UN arms embargoes and other relevant international obligations.
Treaty not yet in force
In April last year, a total of 155 states voted in the UN General Assembly to adopt the ATT.
The treaty has since been signed by 118 states and ratified by 31. However, it will only enter into force after it has been ratified or acceded to by 50 states.
If the flow of arms to war criminals is to be truly stemmed and grave crimes to be prevented, the world needs to take urgent steps to back the ATT.