Pax Christi International

The poorly regulated trade in conventional arms and ammunition has enormous human costs. Every year, millions of people are killed, injured, raped, and forced to flee from their homes as a result armed groups who acquired weapons through negligent or irresponsible transfers. These transfers also fuel conflict, poverty, decline, and human rights abuses. Many others have to live under the constant threat of weapons.

In 2008, United Nations Secretary General Ban Ki Moon declared that “armed violence undermines development and impedes the achievement of the Millennium Development Goals”. x Non-government organisations and a growing number of governments are calling for a strong and robust Arms Trade Treaty. As governments prepare to meet in July 2012 for the final negotiations for an international Treaty, this document provides information on the vital components of a Treaty that can save lives, protect livelihoods, and prevent human rights abuses.

Timeline

The Control Arms Campaign launched in 2003. Since then, this international coalition has been gathering worldwide support for the Arms Trade Treaty. Three years later, seven states co-author a General Assembly resolution to begin work on a Treaty at the United Nations. An overwhelming majority of 153 United Nations Member States vote in favour of an United Nations-process towards the establishment of an Arms Trade Treaty in December 2006. A successful consultation by United Nations Secretary-General Ban Ki Moon on the feasibility, scope and parameters of a Treaty, receives the views of 101 states, a majority of them calling for a comprehensive treaty based on international human rights law and international humanitarian law.

In December 2008, the United Nations General Assembly establishes an Open Ended Working Group for all United Nations Member States to further consider aspects of an eventual Treaty. The General assembly declares that work should continue on an Treaty. One year later, the UN General Assembly launches a time frame for the negotiation of the Arms Trade Treaty. Four preparatory meetings in 2010, 2011 and 2012 will clear the path for the final negotiating conference scheduled for July 2012. xi

Global principles for a strong and robust international Arms Trade Treaty. xii

A. Accountability of States

States with jurisdiction over any part of an international transfer of conventional arms or ammunition should ensure, on a case-by-case basis, prior to the authorization of any transfer, that it is in accordance with their national laws procedures that conform with states' obligations under international law.

Governments should be held accountable to existing standards of international law and the United Nations Charter. No international transfer of arms and ammunition should be admitted, if there is a substantial risk that it will be used to violate obligations under:

Armed conflicts are fuelled and prolonged by the proliferation of arms. Therefore sub-national, regional, international, multilateral, or international organizations have imposed arms embargoes on territories as well as non-state actors. Yet, embargoes have rarely been an effective instrument to stop the supply of arms. Despite territorial embargoes in Somalia and Sierra Leone and non-state actors in Democratic Republic of Congo, Sudan or Angola, arms have been supplied to armed forces, fuelling armed violence and conflict. xiii Violations on embargoes appear widespread and systematic.

The monitoring and implementation of embargoes cannot be deployed effectively as an instrument to prevent illicit arms trafficking, without better national controls on international arms transfers.

An effective Arms Trade Treaty would require all states to have national control systems for international transfers of conventional arms or ammunition based on agreed international standards, thus considerably reducing irresponsible arms transfers. An Arms Trade Treaty would also strengthen the implementation of United Nations arms embargoes by requiring States to incorporate their international obligations, such as United Nations embargoes, into their national legislation.

B. Legal Obligations and Global Norms: Ensuring Respect for International Human rights

States should not authorize an international transfer of arms or ammunition where there is a substantial risk that they will:

The three-week Israeli military offensive from 2008 2009 in Gaza resulted in more than 1,300 Palestinians killed and over 5,000 injured. A large number of these casualties were civilians, including many children. Also, three Israeli civilians were killed and 182 were injured by Hamas and other militant Palestinian groups firing rockets and mortars from Gaza.

Amnesty International has documented the use by the Israel Defence Forces of white phosphorous and other weapons supplied from abroad to carry out serious violations of international human law. This shows that many attacks were disproportionate or indiscriminate, and others were directed at civilians, schools and humanitarian operations. At least 11 different states have supplied arms and related materials to Israel since 2001, and others have served as major transit countries. Hamas and other Palestinian armed groups fired hundreds of rockets at civilian population centres in southern Israel; these rockets had been smuggled in or made of components from abroad. Such indiscriminate rocket attacks constituted serious violations of international human law.

An effective Arms Trade Treaty should require states to ensure that their national laws and procedures conform to their existing obligations under international law. This includes the obligation to ‘respect and ensure respect for’ international humanitarian law, which prevents states from transferring weapons where there is a substantial risk that they will be used for serious violations of international human law. This responsibility should apply to all States involved, including importers, exporters, transit or transferring states.

The human and economic costs of armed violence are tremendous. It can trigger forced displacement, erode social capital, and destroy infrastructure. It can impede investment in reconstruction and reconciliation. The 2011 Global Burden of Armed Violence Report (Geneva Declaration) examines the complex relationship between armed violence and development. Armed violence is not only a cause of underdevelopment; it is also a consequence of it. Risk factors of armed violence such as weak institutions, systemic economic and horizontal inequalities, exclusion of minority groups, unequal gender relations, limited education opportunities, persistent unemployment, organized crime, and the availability of illicit firearms and drugs can all be associated in one form or another with challenges of underdevelopment.

Irresponsible transfers of arms, including those diverted from their intended end-user to other countries, undermine many countries’ poverty reduction efforts. An effective Arms Trade Treaty would help address this by including criteria for examining on a case-by-case basis the negative impacts of each arms transfer on the socio-economic development of the recipient country.

C. A Comprehensive Scope: Equipment and Transfers

If the Arms Trade Treaty is to be effective, it must regulate the international transfer of the items actually being used to fuel violent conflict, to commit serious violations of international human rights law and humanitarian law, to undermine poverty reduction and socio-economic development, is in violation of United Nations Charter obligations, are used in terrorist attacks, and are in connection with violent and organised crime. Such items include: * All conventional military, security and police armaments, weapons and related materiel of all types, including small arms and light weapons; conventional ammunition and explosives used for the aforementioned; internal security weapons, ammunition and equipment deployed in the use of force; components, expertise, and equipment essential for the production, maintenance, and use of the aforementioned; and dual-use items that can have a military, security, and police application.

Ammunition

Each year, 12 billion bullets are produced, two bullets per person in the world. Ammunition is the most lethal part of a weapon system (arms cannot kill without bullets) and a prerequisite for armed actions. Ammunition flows therefore are a determining factor to either end or prolong armed violence, conflict and crime.

Although several states object the implication of ammunition in the Arms Trade Treaty, a significant number of states – all major arms exporting governments - already regulate the activities related to ammunition: from manufacture to transfer, from transit to re-export, from brokering to commercial trade. Even the United States, one of the main opponents of the implication of ammunition in the Arms Trade Treaty, places export controls over transfers of ammunition, ordnance, components, explosives and propellants for SALW, controls that include direct transfers, re-exports, licensed production and brokering activities. xiv

The inclusion of ammunition into the scope of the Arms Trade Treaty is essential to deliver on its humanitarian imperative to protect the victims of armed violence around the globe. The exclusion of ammunition would severely limit realization of the Treaty’s main objectives. An Arms Trade Treaty not covering ammunition would establish an international standard below national and regional practice.

Security Equipment

The recent events in the Middle East and North Africa have shown how a wide range of security equipment can be persistently misused for serious violations of human rights and excessive or unlawful use of force, often with lethal consequences.

Therefore, an effective Arms Trade Treaty must ensure that States rigorously control the export, import and international transfer of all relevant types of weapons, munitions, armaments and related material/items, including the conventional arms used in internal security operations that can result in death and serious injury.

To avoid the creation of loopholes, the definition of international transfer in the Treaty should include a broad definition of the forms of transfer and types of transactions integral to such transfers. The term “international transfers” means the transfer, shipment, or other movement, of whatever form, of arms from or across the territory of a state. An international arms transfer may also occur without the movement of equipment across state frontiers if a state, or its agent, is granted title and control over the equipment in the territory of the supplier state.

The Treaty should include control mechanisms to monitor:

All conventional arms and ammunition imports, exports, re-exports, temporary transfers, transit, transhipments, retransfers, state-to-state transfers; state-to-private end-user transfers, commercial sales; leases; transfers of licensed foreign arms production and technology; loans, gifts or aid; or any other form of international transfer of arms and related material of all types.
All transactions for the international transfer of conventional arms and ammunition by: dealers or sales agents; arms brokers; those providing for technical assistance, training, transport, freight forwarding, storage, finance, insurance, maintenance, security and other services integral to such transfers.

Arms Brokers

Ukrainian arms broker Leonid Minim was arrested in August 2000 in Italy and charged with arms trafficking. xv Ukrainian weapons were sent to Burkina Faso using false end-user certificates. In Burkina Faso the weapons were shipped to Liberia in an aircraft owned by Minim. Later they were to the Revolutionary United Front (RUF) in Sierra Leone.

Leonid Minim was later released on the grounds that the prosecution lacked jurisdiction on Minin’s arms trafficking activities because the arms transfers did not pass through Italy.

This case illustrates the need for comprehensive national control mechanisms based on agreed common standards. These national controls should cover brokering activities as well as closely related activities such as transport, logistics, technical services and finance. A strong and effective Arms Trade Treaty would require that each transaction of an arms broker or other intermediary be authorized by all States involved before a transaction is allowed to proceed.

D. Implementation of the Arms Trade Treaty

“The credibility and success of every treaty depends on the extent to which States, and the broader public, can see how Treaty obligations are being implemented in practice.”

The Arms Trade Treaty should suggest minimum requirements for national implementation. There should be provisions for transparency and mechanisms for monitoring, review and amendment. Procedures should be specified relating to possible implementation problems, such as the identification of states’ needs and provision of technical cooperation and assistance, and for the clarification of compliance issues and resolution of disputes. Specific criteria should also be laid down for the Treaty’s entry into force.

Practical day-to-day implementation of the Arms Trade Treaty will be carried out by national authorities. The Treaty will require effective national control mechanisms for international transfers of arms including:

* Clear and comprehensive national legislation and systems fulfilling all Treaty obligations which define legal powers (including extra-territorial jurisdiction and universal application), criminalize breaches and define sanctions and penalties.

* Administrative systems for assessing and authorizing/refusing proposed international arms transfers in accordance with the provisions of the Treaty.

* Effective mechanisms, including resources and capacity for monitoring and enforcing compliance of the treaty, including customs, border controls and other enforcement and judicial entities.

* National systems for collation, storage, and retrieval of comprehensive data on international arms transfers and license authorizations/denials within States Parties’ jurisdictions.

* Authenticated end-user documentation and follow-up procedures to prevent diversion through verification of lawful delivery, effective stockpile security, and authorized end-use.

An Arms Trade Treaty should oblige states to publish accurate, comprehensive national reports on international transfers of conventional arms and steps taken to implement the Treaty. Information relating to the former should be produced, at a minimum, on an annual basis; information relating to the latter would be provided in comprehensive terms in states’ first national reports with updates and changes notified subsequently when relevant.

A minimum international institutional requirement would be for an annual Meeting of States Parties (MSP) as the main Treaty oversight and decision-making body. The MSP would address matters of status or implementation of the Treaty, either in annual plenary session or through meetings of specially-convened subsidiary committees.

Provision should also be made for a formal Treaty Review Conference (RevCon) every five years. The possibility of future amendment to the Treaty should be enabled through Amendment Conferences or other procedures as agreed by the MSP.

An independent Treaty institution, such as an Arms Trade Treaty Implementation Support Unit (ISU), should be established in order to fulfil Treaty-related functions. Civil society should be encouraged to make a positive contribution to the Arms Trade Treaty regime by providing information relevant to Treaty implementation to the appropriate state authorities.

The Arms Trade Treaty should provide means for clarifying and addressing problems of compliance. The MSP should be at liberty to mandate a subsidiary committee, group of experts, the ISU, or other body to investigate questions of serious implementation failure. Once that body establishes the relevant facts, the MSP would decide an appropriate course of action.

Where all co-operative means to resolve an implementation failure have been exhausted and a state is confirmed to be in persistent and flagrant violation of an Arms Trade Treaty, recourse to dispute-settlement procedures may be necessary. This should include the possibility of referral to an external body, such as the International Court of Justice. To ensure confidence is maintained in the operation of the Treaty, the outcome of any compliance investigation must be made public.

The Arms Trade Treaty should include a comprehensive framework for international co-operation and support, whereby states can request and receive implementation assistance from other states and relevant international, regional, and sub-regional bodies.

Entry into force should not be dependent on ratification by any one country or specific group of countries. It should be based on the minimum number necessary for the Treaty to be workable, for example, 30 state ratifications.

E. International Cooperation and Assistance

Article 26: Cooperation Within and Among States 1. Member States undertake to promote intra and inter-state cooperation in the implementation of this Convention. To this effect: a) The ECOWAS Executive Secretary shall prepare procedures for interstate cooperation between security forces, the services in charge of border controls and all other services concerned, in the spirit of this Convention. b) The ECOWAS Executive Secretary shall facilitate and seek assistance for the training of officials in intra- and interstate cooperation.

-Excerpt from the “ECOWAS Convention on Small Arms and Light Weapons, their ammunition and other related materials”

Arms Trade Treaty De Facto