Negotiating the Arms Trade Treaty, and learning from Gaza

As work finally gets underway at the UN on a treaty to govern international arms transfers, Amnesty International’s call for an arms embargo on all parties to the Gaza conflict points to principles and processes by which such a treaty will have to be implemented.

The pursuit of an effective arms trade treaty deserves to be revisited,[i] given that this is the week negotiations finally begin. On January 23rd the newly-established United Nations open-ended working group on arms transfers[ii] will meet to organize a series of one-week negotiating sessions focused on producing a “legally binding treaty on the import, export and transfer of conventional arms.”

The intended treaty is to be based, as the mandating resolution puts it,[iii] on “the principles of the Charter of the UN and other existing obligations.” And the relevance of those principles and obligations to arms transfers is summarized by the International Law Commission in its articulation of the basic principle that “a State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: a) that State does so with knowledge of the circumstances of the internationally wrongful act; and b) the act would be internationally wrongful if committed by that State.”[iv]

In the context of the proposed arms trade treaty, the act of aiding or assisting “another State in the commission of an internationally wrongful act” involves providing weapons to another state when there is a known and credible risk that those weapons will be used by the recipient state in the commission of a wrongful act.

Canadian military export regulations embody the same principle, namely that arms are not to be provided to any States “whose governments have a persistent record of serious violations of the human rights of their citizens, unless it can be demonstrated that there is no reasonable risk that the goods might be used against the civilian population.”[v] In other words, arms should not be provided if there is a credible risk that they might be used against civilians, and the onus is on the exporter to demonstrate that there is no serious risk.

The effective monitoring and application of that principle through a treaty requires several kinds of detailed information. There is a requirement for information to confirm instances of the use of imported arms for unlawful purposes. There is also a requirement for full disclosure of the sources or suppliers of the particular arms that were used for unlawful purposes. And then there is especially a requirement for detailed advance information on intended transfers along with credible evidence that there is no significant risk that the proposed recipient will use them for unlawful purposes.

Amnesty International, publicly calling for that principle to be honoured in the context of the Gaza conflict, sets out its charge of instances of actions that violate either the UN Charter or international humanitarian law (and calls for a full investigation of these instances):

“Israeli forces have carried out air strikes (bombardments with F16 fighter jets and missile strikes with Apache and similar helicopters and unmanned drones), artillery shelling (with MRLS – multi rockets launch system) and shelling from tanks and gunboats off Gaza’s coast) and other attacks which are directed at civilians or civilian buildings, or are indiscriminate or disproportionate, and have already killed hundreds of unarmed civilians and injured thousands in Gaza, including more than 150 children since 27 December 2008.”

“Hamas and other Palestinian armed groups have fired indiscriminate rockets into southern Israel, which have killed three Israeli civilians and injured scores of others since 27 December 2008.”

Amnesty then goes on to preliminarily point to the foreign sources of such weapons:

“Since 2001, the USA has been by far the major supplier of conventional arms to Israel based on the value of export deliveries of all conventional arms including government to government as well as private commercial sales….Other major arms exporting states such as Germany, France and the UK have exported far less to Israel but nevertheless significant amounts. As a result of political pressure in some European Union countries concerned about the ongoing conflict in Israel and the Occupied Palestinian Territories, states such as Germany and the UK have tended to reduce their exports of conventional arms overall. Nonetheless export data show that such states have exported infantry weapons, military vehicles and components for arms sent to Israel. Other significant suppliers of military equipment to Israel since 2001 have been Spain, the Slovak Republic, Czech Republic, Canada, Slovenia, Australia, Romania, Austria, Belgium, Hungary, Serbia-Montenegro, and Bosnia-Herzogovina. The Netherlands has been a major transit country for military equipment sent to Israel.”

The US Congressional Research Service, in its most recent military exports report, shows Israel’s imports from all sources to be $5.8 billion (US dollars) for the four years 2004-2007, with $5.7 billion of that coming from the US.[vi]

Amnesty also lists Canada as a significant supplier and a report from Ken Epps, who manages the Project Ploughshares Military Industry Database, shows Canadian military exports to Israel of $9.7 million (Canadian dollars) for the years 2000-2005. These figures are based on Government of Canada reports which, while showing broad categories of goods, do not list specific items. The two primary categories of exports to Israel (about two-thirds) are ‘armoured buses & ambulances” and “electronic equipment.” That level of information does not allow any clear assessment of whether any Canadian-origin equipment might have been used for unlawful purposes, indicating in turn that for an arms trade treaty to be effectively monitored and implemented countries like Canada will have to provide more details on the specifics of military goods exported.

Amnesty also reports on possible sources of military equipment used by Hamas:

“Hamas and other Palestinian armed groups have smuggled small arms, light weapons, rockets and rocket components into Gaza, using tunnels from Egypt into Gaza; this weaponry has been acquired from clandestine sources. “Katyusha” rockets are originally Russian-made, but those being used by Palestinian fighters are unlikely to have been acquired directly from Russia.”

Assuming that further investigation would confirm that imported weapons were used unlawfully and that the United States provided those weapons (in the case of Israel), it would then be necessary to make a judgement as to whether the United States, when supplying those arms, should have known that the weapons supplied were likely to be unlawfully used. For that to be the case it would likely be necessary to demonstrate a pre-existing pattern of unlawful uses of arms by Israel.[vii]

The formal operation of the arms trade treaty will have to go beyond relying on such non-governmental organizations to raise instances of possible noncompliance. Instead, key provisions of the arms trade treaty will have to include clear transparency standards that ensure the disclosure of sufficient information, as well as appropriate consultation, investigation, and adjudication mechanisms.

eregehr@ploughshares.ca

Notes

[i] See the posting in this space of 9 January 2009, http://disarmingconflict.blogspot.com/2009/01/israel-in-gaza-and-arms-trade-treaty.html.

[ii] The working group was established by a UN General Assembly vote on December 24/08 (Resolution A/Res/63/240, http://daccessdds.un.org/doc/UNDOC/GEN/N08/485/19/PDF/N0848519.pdf?OpenElement).

[iii] Operational Paragraph 5, A/Res/63/240.

[iv] Article 16 of the ILC Articles which were commended by the General Assembly, A/RES/56/83, 12 December 2001. Amnesty International, “Israel-Gaza: Call for an Arms Embargo,” 12 January 2009 (press release).

[v] Report on Export of Military Goods From Canada, 2003-2005, Department of Foreign Affairs and International Trade, 2007. http://www.international.gc.ca/eicb/military/miliexport07-en.asp.

[vi] Richard F. Grimmett, Conventional Arms Transfers to Developing Nations, 2000-2007, CRS Report for Congress (Order Code RL34723), Foreign Affairs, Defense, and Trade Division, 23 October 2008, pp. 53-54, http://ftp.fas.org/sgp/crs/weapons/RL34723.pdf.

[vii] Posting of 9 January 2009, http://disarmingconflict.blogspot.com/2009/01/israel-in-gaza-and-arms-trade-treaty.html.