Accountablity of armament inventors and manufacturers in International Law: the confession of Mikhail KalashnikovPosted: January 14, 2014
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?
SYRIA AND BIOLOGICAL WEAPONS?
Joby Warrick has a story in today’s Washington Post about emerging concerns that Syria has, and might use, biological weapons. The article states:
Syria’s bioweapons program, which U.S. officials believe has been largely dormant since the 1980s, is likely to possess the key ingredients for a weapon, including a collection of lethal bacteria and viruses as well as the modern equipment needed to covert them into deadly powders and aerosols, according to U.S. and Middle Eastern officials and weapons experts.
This latent capability has begun to worry some of Syria’s neighbors, especially after allegations that the regime of President Bashar al-Assad used internationally banned chemical weapons against civilians in an Aug. 21 attack.
Top intelligence officials in two Middle East countries said they have examined the potential for bioweapons use by Syria, perhaps as retaliation for Western military strikes on Damascus. Although dwarfed by the country’s larger and better-known chemical weapons program, Syria’s bioweapons capability could offer the Assad regime a way to retaliate because the weapons are designed to spread easily and leave few clues about their origins, the officials said.
The story is definitely worth a read, but I am not going to guess what people might read into it.
Very briefly, as for the applicable treaty law on biological weapons, Syria is a party to the Geneva Protocol of 1925 but is not a party to the Biological Weapons Convention. As with chemical weapons, most international lawyers hold that customary international law bans the use of biological weapons in any form of armed conflict. As a member of the UN, Syria is subject to relevant Security Council decisions on biological weapons, such as Resolution 1540 on preventing non-state actors from obtaining WMD material.
SYRIA AND CLUSTER MUNITIONS?
Rick Gladstone in the New York Times reports on allegations that the Syrian military has used cluster munitions:
In the shadow of a confrontation over whether Syria’s government had attacked civilians with internationally banned chemical munitions, a rights group reported Wednesday that Syrian armed forces had repeatedly used cluster bombs, another widely prohibited weapon, in the country’s civil war.
The group, Human Rights Watch, said in a report on cluster bomb use that it had documented dozens of locations in Syria where cluster bombs had been fired over the past year.
Cluster bombs are munitions that may be fired from artillery or rocket systems or dropped from aircraft. They are designed to explode in the air over their target and disperse hundreds of tiny bomblets over an area the size of a football field. Each bomblet detonates on impact, spraying shrapnel in all directions and killing, maiming and destroying indiscriminately.
The Human Rights Watch report mentioned can be found here. Syria is not a state party to the Convention on Cluster Munitions.
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 casesPosted: June 19, 2013
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), 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 ). It also bans violating the 2001 Firearms Protocol which supplements the UN Transnational Organised Crime 2000 and other similar treaty obligations (Art. 6). 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 ). 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 Guardian newspaper has made available the text of a discussion paper by the Foreign Ministry of Austria circulated on 13 May 2013 to EU member states, forcefully rebutting British and French arguments for amending the European embargo on Syria to allow weapons shipments to the rebels.
The document, entitled ‘SYRIA: Austrian Position on Arms Embargo’, first puts forward several political and security arguments, among them the following (summary only):
– Lifting the EU arms embargo undermines the EU-Russia understanding that opens a window of opportunity towards a renewed political process.
– The ‘Syrian National Coalition for Revolutionary and Opposition Forces (SOC)’ does not have full authority and control over all armed opposition groups and cooperates with groups which include various extremist and terrorist fighters.
– There are more than enough weapons in Syria.
– The supply of arms to the opposition by EU member states constitutes an additional threat to the security of UNDOF [United Nations Disengagement Observer Force, which supervises the implementation of the 1974 disengagement agreement and the ceasefire between the Israeli and Syrian forces] peacekeepers, including from Austria.
But the most interesting part of the paper argues that the supply of arms to the Syrian opposition would be in breach of international law and EU law.
The main arguments developed in that respect deserve being quoted in full (I have only made minor typographical changes to the text and omitted certain developments):
1. The supply of arms to the Syrian opposition would amount to a breach of the customary principle of non-intervention and the principle of non-use of force under Art. 2 para. 4 of the UN Charter.
The principle of non-intervention is firmly established in international law. In 2007, former UK Legal Adviser Sir Michael Wood put it in a nutshell: “Intervention on the side of those opposing the Government […] is clearly prohibited” (The Principle of Non-Intervention in Contemporary International Law, Speech by Sir Michael Wood at a Chatham House International Law discussion group meeting held on 28 February 2007). In the 1984 Nicaragua Case the International Court of Justice (ICJ) rejected any alleged right for States to intervene in support of an internal opposition in another State, whose cause appeared particularly worthy for political or moral reasons: “The Court therefore finds that no such general right of intervention, in support of an opposition within another State, exists in contemporary international law” (para. 209). The ICJ also stated that acts constituting a breach of the customary principle of non-intervention would also, if they directly or indirectly involve the use of force, constitute a breach of the prohibition not to use of force in international relations, as embodied in Art. 2 para. 4 of the UN Charter. The continuing relevance of the Nicaragua Case was confirmed by the ICJ in its 2005 judgement in the Case concerning Armed Activities on the Territory of the Congo: “In the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court made it clear that the principle of non-intervention prohibits a State “to intervene, directly or indirectly, with or without armed force, in support of an internal opposition in another State” (para. 164).
2. The supply of arms to the Syrian opposition would violate EU Council Common Position 2008/944/CFSP on the control of arms exports by EU Member States.
All EU Member States have agreed to abide by Common Position 2008/944/CFSP defining common rules governing the control of exports of military technology and equipment when assessing applications to export items listed in the agreed EU Common Military List. An objective assessment of the Criteria in Art. 2 of Common Position 2008/944/CFSP according to the agreed guidance of their interpretation and implementation in the EU’s User’s Guide (User’s Guide to Council Common Position 2008/944/CFSP defining common rules governing the control of exports of military technology and equipment, Doc. 9241/09, 29 April 2009) must lead to a denial of any export licence applications for the envisaged supply of arms to the Syrian opposition:
- Criterion 2(c) (human rights and humanitarian law): Member States shall deny an export licence if there is a clear risk that the equipment might be used in the commission of serious violations of international humanitarian law. The UN Commission of Inquiry reported that “war crimes, including murder, extrajudicial killings and torture, were perpetrated by anti-Government armed groups” (Report of the independent international commission of inquiry on the Syrian Arab Republic, A/HRC/21/50, 16 August 2012).
- Criterion 3 (internal situation): Member States shall deny an export licence for military technology or equipment which would provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination. The User’s Guide does not foresee that arms would be supplied to opposition groups involved in an armed conflict and places particular attention on the role of the end-user in a conflict.
- Criterion 4 (regional peace, security and stability): Member States shall deny an export licence if there is a clear risk that the intended recipient would use the military technology or equipment to be exported aggressively against another country or to assert by force a territorial claim. Despite the 1974 cease-fire agreement, Syria and Israel remain in a state of war, which was recently reignited by Israeli air and missile strikes. The Syrian opposition has not declared to respect the cease-fire, the disengagement agreement or the area of separation.
- Criterion 5(b) (national security of Member States): Member States shall take into account the risk of use of the military technology or equipment concerned against their forces or those of Member States and those of friendly and allied countries. […]
- Criterion 6 (behaviour of the buyer as regards its attitude to terrorism, the nature of its alliances and respect for international law): […]
- Criterion 7 (risk of diversion): […]
3. The supply of arms to the Syrian opposition would amount to a violation of Security Council resolution 2083 (2012) establishing an arms embargo against individuals and entities associated with Al-Qaida. […]
4. Member States supplying arms to the Syrian opposition would incur State responsibility for aiding and assisting in the commission of internationally wrongful acts.
According to Art. 16 of the ILC Articles on State Responsibility a State which aids or assists another State in the commission of an internationally wrongful act is internationally responsible 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. The Commentary inter alia states “a State may incur responsibility if it […] provides material aid to a State that uses the aid to commit human rights violations. In this respect, the UN GA has called on member States in a number of cases to refrain from supplying arms an other military assistance to countries found to be committing serious human rights violations” (para. 9). When applying these principles to the envisaged supply of arms to the Syrian opposition, it is to be considered that war crimes, including murder, extrajudicial killings and torture, are perpetrated by anti-Government armed groups in Syria, as reported by the UN Commission of Inquiry, as well as suicide bombings and attacks against and hostage-taking of UNDOF peacekeepers, as is known from the daily news. Should supplied arms be used by armed opposition groups in Syria in the commission of internationally wrongful acts, the States who had supplied these arms and had knowledge of these acts would incur State responsibility for their aid an assistance in the commission of such acts.
[end of document]
A comment on the Austrian position
The arguments set out in the Austrian paper are in my view well-founded and persuasive, particularly those based on the principle on non-intervention and the relevance of the Nicaragua Case (see on the topic the articles on the Nicaragua Case 25 years after published in 2012 in the Leiden Journal of International Law), and deserve being taken into account very seriously by the decision-makers of countries which advocate allowing weapons shipments to the Syrian rebels.
There is another point that was not mentioned by the paper. Regarding the responsibility issue raised in para. 4 of the document, I would add that if the proposed amendment to the arms embargo is adopted in the framework of the EU CFSP, the 2011 Draft articles on the Responsibility of International Organizations (DARIO) would also be relevant. Indeed, in that situation, international responsibility might also be incurred by the EU itself, in addition to the responsibility of EU member States. Article 17(1) DARIO provides that
[a]n international organization incurs international responsibility if it circumvents one of its international obligations by adopting a decision binding memberStates or international organizations to commit an act that would be internationally wrongful if committed by the former organization.
The ILC’s commentary on that provision refers to a statement of the legal counsel of WIPO according to whom
[. . .] in the event a certain conduct, which a member State takes in compliance with a request on the part of an international organization, appears to be in breach of an international obligation both of that State and of that organization, then the organization should also be regarded as responsible under international law.
It appears thus that in the event that arms supplied to armed opposition groups in Syria be used by the latter in the commission of internationally wrongful acts, the international responsibility of both the EU as an international organization and of the EU Member States might be simultaneously incurred.
In any case, it will be interesting to follow the matter, and in particular to see whether proponents of arms supply to opposition armed groups in Syria will put forward international legal arguments supporting their position.
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?
I just read President Obama’s inaugural address and I was surprised to find no reference whatsoever to disarmament and non-proliferation, which played an important role in Obama’s first four years. I also found that declaring that ‘We [the US] will defend our people and uphold our values through strength of arms’ was a bit too belligerent (but, to be fair, he mentions the rule of law too). And what ‘decade of war’ is ending? I assume the reference is to the ‘war on terror’, an unfortunate expression that is obviously hard to get rid of.
What the UN Secretary-General said at the Monterey Institute of International Studies – And what he did not sayPosted: January 21, 2013
On 18 January, UN Secretary-General Ban Ki-moon delivered a speech on the disarmament and non-proliferation agenda at the Monterey Institute of International Studies. While the Secretary-General highlighted five themes with regard to disarmament and non-proliferation (accountability, the rule of law, partnerships, the role of the UN Security Council, and education), it is what he did not say that I would like to draw your attention to.
Accountability. Ban Ki-moon stresses the special responsibility of the nuclear weapon states in contributing to nuclear disarmament and emphasises that ‘[n]uclear deterrence is not a solution to international peace and stability. It is an obstacle’. This might well be true but flies in the face of reality: the continued reliance of nuclear weapon states’ policies on nuclear deterrence. How those states can be persuaded to change their mind is something the Secretary-General does not address. He also recommends that negotiations are initiated in the Conference on Disarmament to secure legal security assurances for non-nuclear weapon states: while this would certainly be a welcome result at the universal level, it is often forgotten that those assurances are already provided in the protocols attached to the five treaties establishing nuclear weapon-free zones. What the Secretary-General could have also recommended is that the nuclear weapon states that have not done so ratify those protocols as soon as possible.
Rule of law. The Secretary-General maintains that the use of chemical weapons by the Syrian government would be ‘an outrageous crime with dire consequences’. While this is an obvious statement, it would have been interesting if the Secretary-General had expanded on the remedies should such a crime be committed: in particular, does he support the responsibility to protect doctrine to the point of allowing the unilateral use of force by states in reaction to international crimes? (see my previous post on this topic here)
Specific regional issues and the role of the Security Council. Ban Ki-moon singles out the usual suspects, i.e. Iran and North Korea, as his proliferation concerns. He admits that he is deeply concerned about Iran’s nuclear programme and stresses that Iran must comply with relevant Security Council resolutions. It is striking that there is no mention of other proliferators, i.e. India, Pakistan and Israel. True, they are not parties to the NPT and therefore have not violated it, but at the beginning of his speech the Secretary-General had emphatically stated that ‘[t]here are no right hands for wrong weapons’. On the upside, it is welcome to read that the Secretary-General believes that a conference on a zone free of weapons of mass destruction in the Middle East can still be convened in 2013 and that he supports the initiative (more information on the WMDFZ in the Middle East here and here). The Secretary-General does not, however, suggest steps to be taken in order to remove the obstacles that derailed the conference in 2012, in particular Israel’s opposition to the initiative.
Disarmament education. Ban Ki-moon rightly emphasises that funding for disarmament education, training and research is low. The Secretary-General also encourages the academia to include disarmament and non-proliferation issues in their curricula and research agendas. While the contributors to this blog cannot be blamed for not doing their part by researching and publishing on non-proliferation issues, undergraduate or postgraduate courses on non-proliferation law are still rare in universities. Consistently with existing financial resources, this is something that we academics with a non-proliferation expertise perhaps could do more on. If anyone is aware of or teaches university courses on non-proliferation law, why not drop us a line so that we can alert potentially interested students here.
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.
It is tempting for commentators on the UN Arms Trade Treaty negotiations to lose themselves in the diplomatic machinations of the various camps in New York this month or perhaps the more legal analysis of comparing the 2011 and 2012 draft papers of the chair to gauge “progress” or “direction.” Some commentators (including this one) certainly will be troubled by Article 6(A)(3) of the draft Arms Trade Treaty contained in the 2012 draft paper. This provision essentially allows national authorities to authorize the export of conventional arms and related items even where a substantial risk exists of serious violation of international human rights law, international humanitarian law or international criminal law, including genocide, crimes against humanity and war crimes, so long as the State Party takes “appropriate precautionary and preventive measures to mitigate such risk . . . .” One could argue that an equally troubling aspect is the absence of any reference to the dangers of the private manufacture of arms. This stands in stark contrast to the last global arms-trade-related treaty outside the organized crime context to actually enter into force – the Covenant of the League of Nations.
Paragraph 4 of Article 8 of the Covenant provides the following in relation to the private manufacture of arms:
The Members of the League agree that the manufacture by private enterprise of munitions and implements of war is open to grave objections. The Council shall advise how the evil effects attendant upon such manufacture can be prevented, due regard being had to the necessities of those Members of the League which are not able to manufacture the munitions and implements of war necessary for their safety.
Does this provision have any legal weight for states today to the point that they must prohibit the private manufacture of arms? Certainly the non-existent Council no longer can advise on how to prevent these “evil effects” or otherwise create obligations for states. Moreover, the language of the first sentence of Article 8(4) falls short of creating an obligation on states inasmuch as it merely recognizes that the private manufacture of arms is “open to grave objections.” Therefore, it is difficult to conclude here, as the ICJ concluded in its 1950 International Status of South-West Africa advisory opinion with regard to the League’s mandate system, that there is an arms-trade-related obligation that does not “depend on the existence of the League of Nations” and thus continues on after the League’s conclusion (1950 I.C.J. Rep. 128, 132-33 (July 11)).
This does not necessarily mean, however, that Article 8(4) cannot retain any normative weight for states. In particular, the second sentence’s categorical reference to the effects from the private manufacture of arms as “evil” stands out. The drafters of the Covenant did not spell out exactly what those evil effects were, and the available travaux préparatoires seems far more focused on the other provisions of Article 8 to give any meaningful guidance in interpreting Article 8(4) in particular. However, it is not difficult to imagine the drafters had in mind a desire to avoid private manufacturers pushing states into an international arms race and war merely for the sake of making a profit. Regardless of the exact meaning the drafters had in mind, has the situation changed so drastically since the drafting of the Covenant that this sentiment in Article 8(4) can be completely ignored? For example, should the control of private brokers be more of a priority than control of private manufacturers, based on a shift in their relative influence over the contemporary trade in arms? Alternatively, is there so much for the negotiators to consider right now that their overlooking of the private manufacture of arms is excusable? Or is it that governments (or rather key governments) now are so beholden to these private manufacturers that they dare not single them out? If the latter, what options exist for civil society to try to keep these special interests in check, especially if the dangers are as serious as the Covenant’s drafters framed them?