The Ethiopian Yearbook of International Law (EtYIL)

We are pleased to share the birth of our new Yearbook.

The Ethiopian Yearbook of International Law (EtYIL) is a peer-reviewed academic journal that publishes scholarly works of the highest standard in the field of international law broadly defined, but with a focus on Ethiopia and the Horn of Africa region. For more information please see http://www.springer.com/series/15093 . The first edition of the EtYIL is due for publication in 2016. It is a pleasure to invite you to submit ideas, abstracts and manuscripts for the 2017 edition of the Yearbook. To do so please contact the Editorial Team at  ethiopianyearbook@gmail.com

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Accountablity of armament inventors and manufacturers in International Law: the confession of Mikhail Kalashnikov

During the League of Nations, there were some attempts, including a drat convention, which were meant to strictly regulate or even ban private manufactures of arms. Interestingly, such efforts were also supported by countries such as the USA. In contrast, the UN and its members appear to see the manufacturing of conventional weapons outside the reach of international law. Some studies have been conducted on the feasibility and desirability  of regulating manufacturing of armaments by the UN, but without any substantive success. 

However, the UN Firearms Protocol 2001 which supplements the UN Convention again  Transnational Organised Crime 2000 came up with a regulatory framework such as the duty to hold a licence, record keeping, marking and reporting of  arms manufacturers, without touching the debate over the accountability of arms manufacturers for the use of their weapons in armed violence abroad (and internally).

 

The debate over manufacturing, although not at the heart of conventional arms control as same as arms transfer across borders, divides countries and others. Some argue that manufacturers (which may or [may not] include inventors) must be accountable for what they produce and the consequences of the use of their products; such accountability may also be attributed to a state provided that the requirements of attribution are satisfied. This is a strong position given that most manufactures are also exporters and dealers of arms. The opposing view is that armament manufactures do their business based on the laws of manufacturing countries; they are important actors in defending a state’s national  security and promoting the  technological and economic advancement of countries.  Mikhail Kalashnikov, the famous Russian engineer who invented the worst killing (but also defending) automatic riffle, Kalashnikov, was among those who defended manufacturers and inventors from any accountability (moral or otherwise) of the consequences of the weapons they make. His position was that those who receive and use the weapons are the ones who must not use and abuse them to commit terrorism and other crimes. 

Kalashnikov died last month at the page of 95; it is reported that the confession he made and sent to the religious leader of the Orthodox Church of Russia includes the following  question: “My spiritual pain is unbearable. “I keep having the same unsolved question: if my rifle claimed people’s lives, then can it be that I… a Christian and an Orthodox believer, was to blame for their deaths?”.

 Please read the rest from the news article here: http://www.bbc.co.uk/news/world-middle-east-25709371

It must be noted that more than 100 million AK-47 rifles are said to be in circulation, and they are the main, but not necessarily the only,  tools of armed violence in most trouble parts of the world. It must also be noted that the position of the Russian Church was not different from state position -we may well hear a confession on this subject from the Church itself sooner or later?


The ‘Massacre’ in Egypt: Implications for International Human Rights Law and Arms Control Law

It is extremely disturbing and sad for the people of Egypt and to humanity that hundreds of people have been killed in Egypt by the army; the interim Government blames the Muslim Brotherhood for engaging in armed violence. The situation may, or may not, deteriorate further. The response of the international community ranges from condemning the violent crackdown against protesters to that of calling restraint on both sides of the equation in Egypt.  It has to be underlined that the AU appears to be the only international organisation which acted decisively and principally, if not without shortcomings, as I argued and highlighted  in my recent post with EJIL: Talk (http://www.ejiltalk.org/author/zyihdego/).

Clearly, the situation was, and still is, complex.  The way the military took power can thus be controversial. What is not controversial, however, is the massive violations of international human rights law – arbitrarily detaining Morsi and his officials and harassing and now killing their supporters.  More specifically, Arts 6 (1) and  9 (1) of the ICCPR requires states and their agents  to respect  and protect the right to life and the dignity and security of a person.  The Egyptian military (and other security forces) have violated this core obligation of the State of Egypt by killing dozens of their citizens. It has to be emphasized that those who participate in religious or other ideological groups are also protected by this fundamental human rights.  The 1979 UN Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law enforcement Officials of 1990 prohibit illegal, disproportionate and unnecessary use of force against civilians. Both instruments reflect rules of customary international law as indicated in McCann v. UK (ECHR, 5 September 1995).  For further and detailed discussion on the principles see Z. Yihdego, The Arms Trade and International Law, Hart: Oxford, 1997, pp 242-250).

Article 9 of the 1990 Basic Principles underlined that:

‘Law enforcement officials shall not use firearms against persons except in self-defence of other against the imminent threat of death or serious injury, to prevent the preparation of a particular serious crime involving grave threat to life, to arrest a person presenting such a danger and extreme means are insufficient to achieve these objectives. In any event , intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life’.

Without going into polemics of what happened in Egypt before yesterday, the killing of more than 600 people in one day including foreign journalists, using the army and their bulldozers was clearly unnecessary and disproportionate.  Even if there were some armed men among the protestors, as claimed by Egyptian State TV that does not give the Army to fire indiscriminately. I would therefore argue, although further investigation might be necessary to establish the details, as demanded by the UN human rights Commissioner, that, what has happened in Cairo was a blatant violation of fundamental human rights in a larger scale.

 These serious violations of international law in Egypt have implications for arms control law in general and the arms trade in particular. The USA announced that it is suspending its joint military training with Egypt;  but questions will further be asked regarding arms supplies to the Egyptian army under those circumstances by the USA or other weapon supplying countries.  Although the UN Arms Trade Treaty (ATT)  is not yet entered into force, the US and other major exporters,  West European States in particular strongly supported the ATT.  84 state signed and 4 of them ratified the Treaty in just one month time since it was made open to signature and ratification.

Article 7 of the Treaty  obliges States to assess the international human rights risk of arms exports in country of destination. If there is overriding risk that the weapons will be used against these and other values of the international order arms exports shall not be authorised.  It may well be argued that the ATT is not yet in force and thus not applicable to the Egyptian situation. However,  the ATT’s most obligations are deduced from existing legal obligation of states to refrain from contributing or assisting a third state who is engaged in seriously offending  international norms. Even if one doubts this assertion most, if not all, arms exporting countries, including the USA have domestic laws which prohibit such practices. The US domestic law  is robust and clear enough, although  not without shortcomings.  For instance, the USA said that among its Red-Lines with respect to the ATT include:

‘There will be no lowering of current international standards.

Existing nonproliferation and export control regimes must not be undermined.

However, it is open-secrete that the USA is one of the major arms suppliers to Egypt which includes the supply of F-16 modern fighters.  The US may justify this by its national security and other regional interests but would it be lawful, ethical and politically acceptable to arm the Egyptian army?

Amnesty International was urging governments to halting their arms transfer to the Egyptian army since 2011.

Global arms suppliers must halt the transfer of small arms, ammunition and other repressive equipment to the Egyptian military and security forces, Amnesty International said today after the army again violently dispersed protests in Cairo.

The situation has now been escalated to a different level where hundreds of civilians who are demanding  for reinstating a democratically elected government, irrespective of their religious ideology or whether they are bad or good, have been massacred on a broad daylight.  The USA and others who supply armaments to Egypt must re-think about their policy of supplying with weapons to Egypt.  Cancelling a joint military exercise is a good move but not enough. 


The Legality of Arming Opposition Groups and the Arms Trade Treaty: Implications for Syria like cases

The ATT was adopted on the 2nd of April 2013. It was adopted by an overwhelming majority vote in the UN GA (154-3-23). It was opened for signature on the 3rd of June and as of 17 June it has been signed by 72 countries.  It is most likely, but not certainly, that its entry into force will happen very soon, given the strong support it has enjoyed from States and others.

This is an important development for arms control law in particular and for international law and the international community in general. Secretary-General Ban Ki-moon said when the ATT was adopted that:

This is a victory for the world’s people. The ATT will make it more difficult for deadly weapons to be diverted into the illicit market and it will help to keep warlords, pirates, terrorists, criminals and their like from acquiring deadly arms. It will be a powerful new tool in our efforts to prevent grave human rights abuses or violations of international humanitarian law. And it will provide much-needed momentum for other global disarmament and non-proliferation efforts.

Indeed, the ATT expressly prohibits supplying weapons in violation of UN Security Council arms embargoes (Art 6[1]), such as the one imposed on Syria by Resolution 2083 (2012). It also prohibits weapon transactions if the weapons will be used to committee the core international crimes, genocide, grave breaches of humanitarian law and crimes against humanity (Art. 6 [3]).  It also bans violating the 2001 Firearms Protocol which supplements the UN Transnational Organised Crime 2000 and other similar treaty obligations (Art. 6[2]). These are express prohibitions under the ATT.

However, as per Article 7 (1) of the Treaty states will be required to:

assess the potential that the conventional arms or items:  (a) would contribute to or undermine peace and security;  (b) could be used to:  (i) commit or facilitate a serious violation of international humanitarian law;  (ii) commit or facilitate a serious violation of international human rights law; (iii) commit or facilitate an act constituting an offence under international conventions or protocols relating to terrorism to which the exporting State is a Party; or  (iv) commit or facilitate an act constituting an offence under international conventions or protocols relating to transnational organized crime to which the exporting State is a Party.

If a state finds that ‘an overriding risk of any of the negative consequences’ to the aforementioned norms is existent it must not authorise any transfer of conventional weapons (Art 7 [3]). The difference between the first category (as codified under Art 6) and the second one as enshrined in  Article 7 is that while the former deals with expressly banned transfers the latter is mainly about the duty to assess potential risks (for more details see Z. Yihdego, ATT.., 23 June, 2012).

In either category there is no express reference to the ban on arms supplies to armed opposition groups such as the Free Syrian Army, although it may be argued that terrorists and transnational organised criminal groups as non-state-actors (NSAs) have been indirectly included in the legal duties of states as shown in Article 7 (1) [iii] & [iv]. This may be strengthened by the fact that the Preamble of the instrument considered the following as one of the principles.

Non-intervention in matters which are essentially within the domestic jurisdiction of any State in accordance with Article 2 (7) of the Charter of the United Nations. 

Such recognition of the principle has not been included as a standard to ban arms transactions with NSAs, however.  Moreover, article 7 of the ATT targets the criminal acts without distinguishing whether the potential perpetrator is a state or a non-state-actor.  What seems to be clear, however, the ATT was not meant to include any general ban on arming NSAs.  This poses the question whether this was a deliberate omission or an issue which was compromised to ensure broader participation. 

In the last decade or so there has been a fierce debate over the legality and legitimacy of prohibiting arms supplies to armed groups, especially those who fight tyranny and cruel regimes of their own .  The first argument is that under exceptional circumstances supplying weapons to such movements must be permitted; this can be justified on the basis of the obligation to prevent and protect populations from serious crimes such as genocide. In the recent past some countries have also recognised some opposition groups as legitimate or legal representatives of a people (see also Stefan Talmon).  The USA has been arguing in favour of such a position stressing that all such actors are not necessarily bad guys. The opposing, and probably more convening view, however, considers arms supplies to such actors unhelpful and also illegal under international law; the latter argument does not appear to include National Liberation Movements (NLMs) who fight colonisation, foreign occupation or racial rule (as the ICJ hinted in Nicaragua).

It is not entirely clear whether the adoption of the ATT evidences a defeat or a success of either argument.  The majority of states were in support of including the ban on arms supplies to armed opposition groups.  But as having important players on board was crucial to the successes of the ATT framework, those states who were champions codifying the non-intervention rule driven ban on arming opposition groups (as confirmed by the ICJ in the Nicaragua Case as a solid international rule) appear to opt for making a compromise on such an omission.  It may be said that it was a deliberate omission from the ATT for purposes of arming the Syrian opposition like movements and the underlying exceptional circumstances such as countering the alleged use of chemical weapons by the Syrian Government.  The fact that not only the USA but also some European countries are vowing to arm Syrian rebels may also be used to strengthen this argument.

Based upon the law of state responsibility and the emerging notion of responsibility to protect, however, the international community or a group of interested states ought to target the regime who commit crimes against its own people, through appropriate and lawful method, most preferably through the UN, without violating the core rules of international law, which includes the duty not to intervene into internal affairs of a state.  The act of recognition of rebels is also a pure political act (Stefan Talmon, CJIL, 2013) the result of which impedes doing business with such actors as same as representatives of sovereign states.   

We also have dozens of legal and political instruments on conventional weapons such as the ECOWAS Convention on Small Arms and Light Weapons 2006, the EU Code of Conduct on Arms Exports 1998 and the [EU] Council Common Position 2008/944/CFSP defining common rules governing the control of exports of military technology and equipment 2009, amongst others, that clearly prohibit the supply of armaments to NSAs.  This suggests that the omission at issue from the ATT is most likely to be an act of compromise rather than a deliberate challenge to the well established customary rule of non-intervention as applied to arming armed groups within a sovereign state (see  Pierre-Emmanuel Dupont interesting and detailed article on the subject at https://armscontrollaw.com/2013/05/27/the-supply-of-arms-to-opposition-groups-in-syria-and-international-law/). This may be the reason why majority of states including European countries are either against arming Syrian rebels or are not openly advocating the supply of lethal armaments to the rebels.  

Despite the absence of an express duty not to supply weapons to non-state-actors within a state in a situation of civil war in the ATT 2013, case law, treaty law and scholarly opinion appears to be sufficiently clear about this; supplying with weapons to armed opposition groups is contrary to international law. Practically, moreover, arming rebels in various conflicts is contributing to destabilizing communities, countries and regions as seen in Iraq, Libya and Afghanistan. It can therefore be concluded that while the omission from the ATT is unfortunate, the legal duty of states to refrain from arming rebels of a third state is strongly embodied in the international legal order, irrespective of its exclusion or inclusion in that Treaty.

 


The forthcoming UN Arms Trade Treaty Final Conference: positive but unpredictable!

The summer 2012 Arms Trade Treaty (ATT) negotiations ended without adopting a Treaty. Majority of states, the UN and dozens of arms control proponent civil societies were highly disappointed. Of course, some arms control opponents were happy of the outcome.  Yet, on January 4, 2013, the General Assembly adopted Resolution 67/234 titled the Arms Trade Treaty. The Assembly referring to the UN Charter, its relevant resolutions on arms transfer, and the failed July 2012 ATT Conference, expressed its disappointment on the failure to conclude a Treaty in that Conference. Noting the Draft Treaty of 2012 (see my previous blogs for details) and the request made by some states to take more time to consider that document, the Assembly has decided to convene  a ‘Final Conference’ on the ATT in March 2013. Interestingly, it also decided that ‘the draft text of the Arms Trade Treaty submitted by the President of the United Nations Conference on the Arms Trade Treaty on 26 July 2012 …shall be the basis for future  work on the Arms Trade Treaty, without prejudice to the right of delegations to put forward additional proposals on that text’. The Conference will be held from 18 to 28 March 2013 in New York and the Assembly has called ‘upon the President of the Final United Nations Conference on the Arms Trade Treaty to report on the outcome of the Conference to the General Assembly at a meeting to be held as soon as possible after 28 March 2013’. What is clear from Resolution 67/234 is that the Draft Treaty will serve as a basis for deliberations but it is still open for negotiations, consultations and even other opposing proposals from participant states. What is not clear is that while the Conference is final on this matter the anticipated outcome is not entirely known, a Treaty, a GA Resolution or nothing?


The UN ATT Conference –a Disappointing but Worthwhile Exercise

The July 2012 diplomatic conference on the Arms Trade Treaty (ATT) in which more than 150 states participated, ended without adopting an ATT but with a Draft ATT submitted by the president of the Conference. An overwhelming majority of states, including arms exporters, importers, and victims of armed violence, were all eager to make a final and legally binding deal, while a few countries such as Syria and Iran were opposed to it. No major arms producer/exporter states officially objected the Draft, although the US (supported by Russia and China) requested more time to think about it. As a result, the negotiations have been suspended for an unspecified period. Opponents of the process celebrated this, although many states, humanitarian organizations and the UN were deeply disappointed.

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The UN Arms Trade Treaty Negotiations: A battle between codifying frail and robust legal principles

The trade/transfer in conventional weapons, including, but not limited to, small arms and light weapons, and major armaments such as tanks and fighter airplanes, has always been controversial for various reasons. First, these are the main tools of armed conflict, gross violations of human rights and humanitarian law, and repression. Recent events in the Arab Spring and in Africa evidence that the problem is not limited to small arms and light weapons but also to major conventional weapons such as combat helicopters and heavy artillery. Secondly, arms supplies from developed to developing countries may well be contrary to the sustainable development agenda of importing countries and populations, the Least Developed Countries (LDCs) and their starving and most deprived populations in particular. Thirdly, weapon transactions are prime spots of corruption, embezzlement of public funds, and abuse of political power.

This is not to say that conventional weapons never serve a good purpose; they are vital for countries’ self-defence, policing, and for participating in United Nations and regional peace keeping operations, as widely and rightly recognised by the international community. They are also economically and technologically important, mainly for arms supplier countries, as they generate trillions of US dollars in sales.

However, distinguishing the legal and legitimate trade in and use of conventional weapons on the one hand, from their illegal trade, use and abuse on the other, is quite a complex matter. The fact that we do not have a global arms trade treaty, setting out global standards and an institutionalised framework for their implementation, adds to this problem. While regional legal instruments such as the ECOWAS Convention on the Import/Export of Small Arms 2006, and the EU Code of Conduct on Arms Exports 1998, have included, to varying degrees, the commitment to abide by the most fundamental principles of international law such as human rights, humanitarian law protection, and the maintenance of peace and security, major differences remain among the top arms producing countries regarding the adoption of a robust and appropriate global treaty on arms trading. Similarly, the UN Firearms Protocol 2001 which supplements the UN Conventions against Transnational Organised Crime 2000, is mainly concerned with trafficking in firearms and excludes the ‘legal’ and ‘legitimate’ trade in armaments from its ambit, although it contributes to the regulation of the arms trade by requiring states parties to implement stringent national measures for the manufacturing, importing and exporting of armaments.

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