The Rohingya Revisited

Written by:  Regina Paulose

Nearly a year ago, I wrote an article outlining reasons why the ICC should take action in Myanmar (also known as Burma) in order to stop continued religious and ethnic violence towards the Rohingya. During 2013, not surprisingly, the anti-Muslim violence in Myanmar has continued.[1] In fact, violence has spread beyond targeting the Rohingya and against the larger Muslim population.[2] Although the majority displaced from the violence are still the Rohingya. Continue reading

To Kill a Man with a Joystick

Written by: Teymour Aslam

With hindsight, it appears that the horrific events of September 11th, 2001, may have triggered a paradigm shift between established geopolitical alliances, altering conventional perceptions of, and existing relations between nation states, the manner in which international relations are conducted, and perhaps most relevantly, the utilisation of unconventional military tactics in situations which are becoming increasingly difficult to classify as conventional or traditional armed conflicts under IHL.  Continue reading

Undertrials :Sentenced without Conviction

Written by Garima Tiwari

Undertrial

“The laxity with which we throw citizens into prison reflects our lack of appreciation for the tribulation of incarceration; the callousness with which we leave them there reflects our lack of deference for humanity.”[i]    -Supreme Court of India (2013)

The Supreme Court in the above case granted bail to Thana Singh who had been languishing in an Indian prison for more than 12 years, awaiting the commencement of his trial for an offence under the narcotics law.

An undertrial, or a pre-trial detainee denotes an un-convicted prisoner i.e. one who has been detained in prison during the period of investigation, inquiry or trial for the offence she/he is accused to have committed. He is an accused who is assumed to be innocent till proven guilty. He is in custody only to ensure that he appears at court as required or is available to answer questions during investigations. There is no other reason for him to be in prison Undertrials constitute 64.7% of the total prison population in India. There are over 2.41 lakh undertrial prisoners in India.[ii] An extensive investigation across the country has exposed a dark sub-culture thriving in jails across the country, not very different from the murky underworld of organised gangs and criminals. In the absence of proper legal aid, the poor and the vulnerable, especially women and youngsters, unwittingly become part of the sordid system.[iii]

Many prisoners are constrained to languish in prisons because the police do not finish investigation and file the charge-sheet in time. This is a very serious matter because such people remain in prisons without any inkling of a police case against them. Many prisoners remain in prisons for long period because of the delay in trial.

              The grant of bail[iv] is one important remedy available to reduce pre-trial detention. [v] Indian courts have reiterated that the grant of bail should be the rule rather than the exception. Because they are considered to be less likely to abscond or interfere with the investigation, bail provisions in non-bailable offences are more liberal if the accused is under sixteen, a woman, sick or infirm.[vi] Despite sounding fair, the bail provisions and their implementation are highly discriminatory. But the prisoners are unable to serve surety and as has been mentioned in the Legal Aid Committee appointed by the Government of Gujarat noted[vii]:

The bail system causes discrimination against the poor since the poor would not be able to furnish bail on account of their poverty while the wealthier persons otherwise similarly situated would be able to secure their freedom because they can afford to furnish bail.

As the UN Human Rights Committee (UNHRC) noted, pretrial detention can therefore negatively impact the presumption of innocence,[viii] and should be used only as a “last resort.”[ix] States should only detain individuals pending trial where it is absolutely necessary. International and regional human rights instruments are explicit as to the limited circumstances under which pretrial detention is permissible. The UNHRC has stated that,

“bail should be granted, except in situations where the likelihood exists that the accused would abscond or destroy evidence, influence witnesses or flee from the jurisdiction of the state party.”[x]

In criminal proceedings, following the first appearance before a judicial officer, European Court of Human Rights Article 5(1) only permits detention when it is reasonably necessary to prevent further offenses or flight.[xi] Thus, international standards strongly encourage the imposition of noncustodial measures during investigation and trial and at sentencing, and hold that deprivation of liberty should be imposed only when non-custodial measures would not suffice.

Most of those in the Indian prisons are poor, indigent, illiterate or semi-literate. They do not know that they are entitled to free legal aid or that they can be released on personal bond. They therefore, continue to be in jail for long periods. Lack of adequate legal aid and a general lack of awareness about rights of arrestees are principal reasons for the continued detention of individuals accused of bailable offences, where bail is a matter of right and where an order of detention is supposed to be an aberration. [xii]

The overuse of detention is often a symptom of a dysfunctional criminal justice system that may lack protection for the rights of criminal defendants and the institutional capacity to impose, implement, and monitor non-custodial measures and sanctions. It is also often a cause of human rights violations and societal problems associated with an overtaxed detention system. One of the fundamental elements of human rights law which importance grew over time is the concept of “Fair Trial”. Taking this into account, the question rises how far the application of the fair trial rights stretches into the pre trial stage of investigation. Answering this question is far from easy and as Safferling points out correctly, it is by no means obvious what the fair trial concept really encompasses and what the singular rights within this concept really stand for.[xiii]

In India, apart from the Prisoners Act, 1984, there is a Model Prison Manual in place and the various judicial pronouncements have made it clear that prisoners are entitled to human rights, the most important of which is presumption of innocence till proven guilty.

In 1982-83, the All India Jail Reforms Committee under Justice A.N. Mulla came out with suggestions for prison reform. Yet to be implemented, the committee had recommended that undertrial prisoners should be lodged in separate facilities, away from convicted prisoners. It had also called for quick trials, simplification of bail procedures and suggested that bail should be granted to the accused as a matter of right unless the prosecution could prove that releasing the accused on bail endangered the security of society.[xiv]  Another suggestions is that it should be made mandatory for the jail authorities to educate them about their rights and provide them legal aid. The plight of the wrongfully confined prisoners is compounded when jail authorities refuse to release information about them in public domain. One very relevant solution is Section 436A of the Indian Criminal Procedure Code states that the maximum period for which an undertrial prisoner can be detained without being released is not more than 50% of the maximum imprisonment specified for the charge he/she is booked for, except if the offence attracts death as the maximum punishment. According to the law, such prisoners can be released on personal bond if they cannot furnish bail. This provision is hardly used by authorities. Public-spirited citizens and lawyers could also take up these matters. The prison authorities should display the updated information every month on their website and also display hard copies of the information in every prison in a place where prisoners have access.

As Justice P.N Bhagwati, “It is high time that the public conscience is awakened and the government as well as the judiciary begins to realise that in the dark cells of our prisons there are a large number of men and women who are waiting patiently, impatiently perhaps, but in vain, for justice – a commodity which is tragically beyond their reach and grasp.”[xv]

 


[i] Thana Singh v. Narcotics Bureau of Narcotics (23 January, 201)

[ii] National Crime Recorts Bureau Data 2012 (India)

[iv] The Indian Code of Criminal Procedure, 1973 does not define the term “bail” although offences are classified as bailable and non-bailable.

[v] The main bail and bonds provisions are provided in Chapter XXXIII of the Indian Criminal Procedure Code.

[vi] Handbook of Human Rights and Criminal Justice in India, by South Asia Human Rights Documentation Centre, Oxford University Press, 2nd edition, 2007, p. 62.

[vii]Report of the Legal Aid Committee appointed by the Government of Gujarat, 1971 (headed by Justice P.N. Bhagwati) (p. 185)

[viii] Human Rights Committee, Concluding Observations: Argentina, CCPR/CO/70/ARG (2000), para. 10.

[ix] United Nations Minimum Rules of Non-Custodial Measures, Principle 6.1

[x]  Hill v. Spain, Communication No. 526/1993, para. 12.3.

[xi] Council of Europe, Recommendation (2006)13 on the Use of Remand in Custody, the Conditions in which it takes place and the Provision of Safeguards against Abuse, para. 6.

[xiii] SAFFERLING,CHRISTOPH J. Towards an International Criminal Procedure, Oxford 2001 p.26

[xv] Hussainara Khatoon and Others v. Home Secretary, State of Bihar AIR 1979 SC 1360.

Victim Rights: Are We Victimising the Perpetrators?

Victims have rights. No doubt about it. Since the 1960’s the need for the criminal justice system to take into account the needs of the victims has been emphasized. These efforts-mostly driven by non profits-have borne fruits. The international community has paid attention. In 1985 the United Nations Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power was adopted by the General Assembly[1]. This Declaration recognized the vulnerability of victims of crime and that there was a need for judicial and administrative processes to respond better. Part of the better response included “allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system”[2]. In almost similar fashion, the General Assembly subsequently adopted the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law[3]. This instrument provided, inter alia that “A victim of a gross violation of international human rights law or of a serious violation of international humanitarian law shall have equal access to an effective judicial remedy as provided for under international law”[4].

The right of victims to actively participate in the criminal trial process has also been reflected in international criminal law. Thus, whereas previous international tribunals such as the Nuremburg Tribunals, the ICTR, the ICTY among others, did not offer any role to the victim during the trial, the Rome Statute has been very generous in this regard. The Statute sets up a Victim and Witnesses Unit within the Registry charged with the responsibility of undertaking “protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses”[5]. In addition, Article 68 provides that ‘‘Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court”[6]. The only qualification to this right is that it ought to be conducted “in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial”[7]. The ICC has had occasion to interpret this rather wide provision. In the Lubanga case[8], for example, the victims were allowed to directly participate in the investigations and the prosecution of the case. In the Kenyatta case[9] and the William Ruto case[10], victim participation during the trial process included allowing the Victim’s Representative to ask questions during the trial.

Whereas this development in the recognition of the victim rights is applaudable, I am concerned that the international criminal jurisprudence could end up tipping to the other side: ‘victimising’ the alleged perpetrator in the name of recognizing the victim(s)’ rights. Let me explain. The entire adversarial nature of criminal trials hangs on an assumption of the equality of arms between the protagonists. The prosecution and the accused person should have equal resources and the same opportunities to argue their cases. However, this balance will be interfered with when the Victim is provided an opportunity to participate in the trial. Since the victim would naturally be on the opposing side from the accused person, his/her participation would essentially be a second cross examination of the accused person and his witnesses. An unfair result no doubt.

Secondly, victim participation in proceedings negatively affects the pace of proceedings. This also has negative repercussions on the rights of the accused to have his case determined fast. The Victim will not only spend time during the cross examination stage but he will also have a right to make interlocutory applications and appeal on any Rulings therefrom. This could in turn take an inordinate amount of the court’s time. As an example, Elisabeth Baumgartner estimates that in the Lubanga case “out of a total of 45decisions rendered by Pre-Trial Chamber I from the issuing of the warrant of arrest in February 2006 tothe referral of the case to the Trial Chamber in September 2007, 20 decisions (13 per cent of all decisions) were directly related to victim participation (not counting decisions on victim protection issues)”[11]. In a court where each second counts in terms of the cost implications, this is significant.

Thirdly, the primary role of the criminal justice process is to determine the guilt or otherwise of the accused person. In other words, “the criminal law system cannot serve therapeutic purposes, since it does not have the resources needed and was not designed to attend to the victims.”[12] All other roles such as victim support are ancillary and ought to be in support of this objective. The participation or none participation of a victim at this stage does not affect the guilt or otherwise of the accused person[13]. Admittedly the court needs to understand the pain and circumstances of the victim as a result of the alleged crimes. However, such information is only relevant at the sentencing stage, not in trial. When the victim participates at the hearing stage the smooth functioning and possibly the eyes of the court are taken away from the primary goal (guilt or innocence of the accused) to ancillary issues (plight of the victims

Lastly, the victims interests in court are (or ought to) be adequately represented by the Office of the Prosecutor. Limiting the participation of the victims during the trial will compel them to co-operate more with the Office of the Prosecution. Rather than pursuing their own independent strategy, the victims will work with the objective of the prosecutor. This is a good thing for international criminal law.

In a word therefore for the above mentioned reasons there is need to rethink the participation of the victims   in the trial process. Too great an involvement is not only disruptive but “might not be the most judicious path towards the recovery and reparation desired by the victim”[14].


[1] Resolution No. A/RES/40/34,29 November 1985, 96th plenary meeting

[2] Annex to the Resolution, Access to Justice and Fair Treatment, Paragraph No. 6(b)

[3] Adopted by General Assembly Resolution 60/147 of 16 December 2005

[4] Annex to the Resolution, Access to Justice, Paragraph 12

[5] Article 43 Paragraph 6

[6] Paragraph 3

[7] Ibid

[8] ICC, Decision on the applications for participation in the proceedings of VPRS 1 to VPRS 6 in the Case Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-172, 29 June 2006

[9] ICC-01/09-02/11 The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali

[10] ICC-01/09-01/11 The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang

[11] Aspects of victim participation in the proceedings of the International Criminal Court by Elisabeth Baumgartner, International Review of the Red Cross, Volume 90 Number 870 June 2008, Footnote No 39

[12] Victims and International Criminal Justice: A Vexed Question? by Mina Rauschenbach and Damien Scalia, International Review of the Red Cross, Volume 90 Number 870, June 2008.umber 870 June 2008Volume 90 Number 870 June 2008

[13] Of course, the limitation to this is when the victim testifies in court as a witness for the prosecution

[14] Supra Note 12

Humanity Hanging on a Cross of Iron: the Arms Trade Treaty Towards Reducing Human Suffering

Written by Lina Laurinaviciute

 

Setting the Scene

The famous Doctor Who once made a splendid remark on the issue of weapons: “You want weapons? […] Books are the best weapon in the world. […] Arm yourself!”[1] Unfortunately, in a real world, the wide availability of different kind weapons and ammunition has led to human suffering, political repression, crime and terror among civilian populations. The flows of arms in all parts of the world can be sourced through diversion from State stockpiles and other legal circuits, recycling from previous conflicts in the concerned State or in the neighbouring countries, State-sponsored supplies to proxies, strategic caches of arms stored in anticipation of conflict, illegal manufacturing and other means.[2]

Irresponsible transfers of conventional weapons[3] destabilize security in a region, enable the violation of the United Nations Security Council (hereinafter – UNSC) arms embargoes and contribute to human rights abuses. Consequently, in countries experiencing conflict and high levels of violence investment is discouraged and hence development is disrupted.[4] It is evident that, the widespread availability of weapons tends to prolong conflicts, facilitate violations of international humanitarian law (also known as law of war or law of armed conflict), and put civilians at high risk of death or injury from weapons-related violence even after armed conflicts have ended.[5]

On 2 April 2013, the UN General Assembly has witnessed an event, to which the Secretary-General Ban Ki-moon referred as “a victory for the world’s people.”[6] The UN Member-states voted by 154 votes to three, with 23 abstentions (including Russia and China, which are among the world’s biggest exporters[7]), to control a trade worth between $170 million and $320 million per year.[8] As a consequence, the poorly regulated arms trade has devastating, multifaceted effects. These include fueling violence and armed conflict, hindering efforts to promote socioeconomic development and creating a permanent atmosphere of fear and instability in conflict settings.[9]

Therefore, the Article 2 of the newly adopted Arms Trade Treaty (hereinafter – ATT) sets its scope to regulate the international trade in conventional arms, from small arms to battle tanks. Namely it is applied to: battle tanks; armoured combat vehicles; large-calibre artillery systems; combat aircraft; attack helicopters; warships; missiles and missile launchers; and small arms and light weapons.

The treaty prohibits states from exporting conventional weapons in violation of arms embargoes, or weapons that would be used for acts of genocide, crimes against humanity, war crimes or terrorism. It also requires states to prevent conventional weapons reaching the black market. Thus it is expected that it will put a stop to destabilizing arms flows from its signatories to conflict regions. It will prevent human rights abusers and violators of the law of war from being supplied with arms. And it will help keep warlords, pirates, and gangs from acquiring these deadly tools.[10]

Indeed, the majority of modern day intra-State conflicts have been fought mainly with small arms and light weapons. However, recent events in Libya and Syria underscore the continued misuse of heavier conventional weapons – including tanks, heavy artillery, helicopters and aircraft – against civilians. Although it is often difficult to anticipate that a government will eventually use its weaponry against civilian populations, it is expected that the ATT will compel exporters to exercise enhanced diligence in analysing early warning signs that may help them assess the risk that transferred weapons would be used to commit grave human rights violations.[11]

Indeed, the use of explosive weapons in populated areas, including man-portable or vehicle-mounted grenades, rocket-propelled grenade launchers, missiles and mortars, can have indiscriminate and devastating impact on civilians, particularly children.[12] For instance, in Yemen, 71 percent of the child conflict casualties in 2009 were a direct result of shelling of civilian areas by all parties to the conflict.[13]

Moreover, the high availability of small arms and the presence of armed violence create threats to humanitarian personnel and can force humanitarian organizations to evacuate their staff from high-risk areas or suspend their programmes, thus depriving affected people of badly needed assistance.[14] For example, in Pakistan, humanitarian actors indicate ongoing hostilities as the most significant impediment to access.[15] Also, the Lord’s Resistance Army since 2009 has carried out armed attacks, including against refugee settlements, in South Sudan, Central African Republic and in the Democratic Republic of Congo during which scores of civilians were killed, thousands of civilians were forced to flee, serious disruptions to the distribution of humanitarian assistance was evident as well.[16]

Beyond fueling armed conflicts, the availability of firearms due to the poorly regulated arms transfers is a major factor sustaining organized crime and terrorism in all regions. The recent events in Libya, for example, presented an opportunity for various criminal and terrorist groups to procure firearms and ammunitions from looted government stockpiles. While Somali pirates reportedly received about US$170 million in ransom in 2011 for hijacked vessels and crews. It is important to mention, that piracy and armed robbery against ships affect the freedom of shipping and the safety of vital shipping lanes, carrying around 90 percent of the world trade.[17]

There is also a specific relationship between firearm availability and high levels of homicide. It is estimated that 42 percent of the overall global homicides are committed with firearms. This percentage is considerably higher in regions where homicides are often associated with the illicit activities of organized criminal groups. In some regions, misuse and illicit trafficking of firearms and their ammunition is often associated with other crimes, in particular drug trafficking. In these situations, the ability of security institutions, such as the police and the military, to enforce the law is greatly diminished in the face of the power of well-armed organized crime groups with ready access to arms in the black market, thus undermining the social fabric of entire communities.[18]

In this regard, Africa, Latin America and the Caribbean are the three most affected regions in the world by both arms trafficking and small arms misuse, and share similar challenges fighting against the illicit arms circulation. Interestingly, “the studies on seized arms reveal the use of a variety of arms in street and organized crime. For example, handguns are the preferred weapon used in the commission of most street crime, while military-style arms are used by organized criminals, such as by the drug cartels in Mexico and in the favelas in Brazil.”[19]

The problem of a poorly regulated arms trade was well noted by the UN, which stated that: “the absence of a global framework regulating the international trade in all conventional arms has obscured transparency, comparability and accountability.”[20] However, it took almost a decade to agree on principles to control the flow of such arms.

The Birth of the Treaty

Unlike trade in chemical, biological and nuclear weapons, trade in conventional weapons was not regulated in a comprehensive treaty at the international level.[21] The initiative on the current principles of the ATT have been started by Dr. Oscar Arias who in 1995, led a group of fellow Nobel Peace Prize Laureates in announcing their support for the international regulation of the trade in conventional arms. Of the many advocacy initiatives undertaken in support of the ATT, the “Million Faces Petition” of the Control Arms campaign gained the greatest international attention. The Petition, which comprised individual portraits as expressions of support, was formally submitted to UN Secretary General Kofi Annan in June 2006.[22]

After some months, the process within the UN system began with General Assembly Resolution 61/89 of December 2006 entitled “Towards an arms trade treaty: establishing common international standards for the import, export and transfer of conventional arms”.[23] In this resolution, the General Assembly requested countries to submit their views on the feasibility, scope and draft parameters for a comprehensive, legally binding instrument on the import, export and transfer of conventional arms. Following those views, the General Assembly adopted a second resolution on an ATT (Resolution 63/240) in 2008. In this resolution the UN General Assembly decided to establish an open ended working group, which would be open to all states, to further consider the possible elements of the future agreement on the arms trade.[24]

A year after, in 2009, the UN General Assembly adopted Resolution 64/48 in which UN member states decided to convene a UN conference on an Arms Trade Treaty in 2012 with the scope “to elaborate a legally binding instrument on the highest possible common international standards for the transfer of conventional arms”[25]. Importantly, under the US administration of President Barack Obama, the US changed its position and after voting against the ATT in 2006 and 2008, it finally supported this process. Undoubtedly, this support was conditional on success of the future negotiations as well as for the agreement being reached in consensus.[26]

After years of advocacy for a worldwide ATT and four intensive weeks of diplomatic bargaining, in July 2012 the UN convened a conference to negotiate a legally binding arms trade treaty. Unfortunately, the final negotiation round did not result in an agreement to which all 193 countries of the UN could commit. At the end of the negotiations, the US blocked an agreement by declaring that it needed more time to reach a consensus. Russia, North Korea, Cuba and Venezuela supported this position. It was mutually agreed, however, that: “Arms export controls can only be effective if implemented at the global level, in a coherent and consistent manner”[27] as the “poorly regulated trade in conventional arms and ammunition fuels conflict, poverty and human rights abuses all over the world”[28]. Therefore, it was decided to continue negotiations at the next years (2013) conference with a view to concluding the ATT. Finally, the treaty was adopted in April, 2013.

A Glance Inside the Treaty

The preamble of the treaty recognizes “that civilians, particularly women and children, account for the vast majority of those affected by armed conflict and armed violence”[29] and “the challenges faced by victims of armed conflict and their need for an adequate care, rehabilitation and social and economic inclusion.”[30] The treaty also recalls that States Parties to the treaty are determined to act in accordance with the duty to ensure respect to IHL.”[31] One of the purposes of the treaty is to reduce human suffering by establishing the highest possible common international standards for regulating or improving the regulation of the international trade in conventional arms.[32] To reach these goals, the treaty sets forth the principles of sovereignty and non-intervention, transparency and universality.

As mentioned before, the Article 2 of the treaty sets out the scope of conventional arms to which the treaty shall apply. It explicitly refers to the seven major categories of conventional arms already included in the UN Register of Conventional Arms, plus small arms[33] and light weapons[34]. Ammunition, munitions, and parts and components for these conventional arms are also covered in Articles 3 and 4.

Article 2 also includes activities to which the treaty shall apply: These are “activities of the international trade” that comprise export, import, transit, trans-shipment, and brokering. Particularly, it aims to prevent and suppress illicit production, trafficking and illicit brokering of conventional arms.

However, the ATT “does not aim to impede or interfere with the lawful ownership and use of weapons.”[35] According to the ATT, Governments remain primarily responsible for keeping to the rule of law. However, before approving the transfers of weapons or ammunition, States Parties to the ATT are required to assess the risk that transferred arms would be used by national armed and security forces, private security companies or other armed State or non-State actors to foment regional instability, to commit grave violations of international humanitarian law and human rights law (e.g. genocide, crimes against humanity, war crimes) or to engage in other forms of politically or criminally motivated armed violence (e.g. terrorism; transnational organised crime, corruption). The common standards should also help States to assess the risk that transferred arms will end up in areas proscribed by UNSC embargoes.[36]

Moreover, States Parties must establish and maintain a national control system, including a national control list of weapons and items covered. They must also maintain national records of export authorizations or actual exports, and report on their implementation of the treaty as well as authorized or actual exports and imports of conventional arms (but not ammunition or parts and components).[37]

The treaty will open for signature on June 3, 2013 at UN headquarters in New York. It will enter into force 90 days following the 50th ratification, acceptance, or approval with the Depositary.[38] Despite the poor monitoring mechanism (the Conference of States parties has a function to review implementation, and consider amendments and issues relating to the treaty interpretation) “the text now has to be implemented in good faith so as to positively affect the lives, health and well-being of millions of people around the world. If properly implemented, it will prevent arms transfers when there is a manifest risk that war crimes or serious violations of human rights will be committed.”[39]

Prospects of the Treaty

Without adequate regulation of international arms transfers based on high common standards to guide national decisions on these transfers, it is easier for arms to be diverted to the illicit market for use in armed conflict, criminal activities and violence, including organized crime groups.[40] With every transfer it authorizes, a government deciding on exporting weapons must realize the profound international responsibility of that decision. And conversely, an importing government must ensure that it will use these weapons only to provide the safety and security for its people and that it has the capacity to safeguard all weapons within its possession throughout their life cycle.[41]

Undoubtedly, the ATT is a significant milestone on the way towards the goal to reduce the flows of the illicit arms and to reduce human suffering. However, this treaty lacks specific indicators as well as specific provisions about arms transfer towards non-State Actors. Furthermore, the obligation of reporting and the monitoring system suggested by the ATT is hardly sufficient for its successful implementation. The treaty also does not pay enough attention to the criminalization of illicit conducts.

Unfortunately, each weakness in the treaty as well as resistance of states on reaching the substantial agreements on the arms trade has a huge cost of human life and dignity. Those suffering the most from the adverse effects of the arms trade are men, women, girls and boys trapped in situations of armed violence and conflict, often in conditions of poverty, deprivation and extreme inequality, where they are all too frequently on the receiving end of the misuse of arms by State armed and security forces, non-State armed groups and criminal gangs.[42] As President Dwight D. Eisenhower well mentioned: “Every gun that is made, every warship launched, every rocket fired signifies in the final sense, a theft from those who hunger and are not fed, those who are cold and are not clothed. This world in arms is not spending money alone. It is spending the sweat of its laborers, the genius of its scientists, the hopes of its children. […] Under the clouds of war, it is humanity hanging on a cross of iron.”[43]


[1] Doctor Who, “Tooth and Claw”, Russell T. Davies.

[2] UNODA Occasional Papers, The Impact of the Poorly Regulated Arms Transfers on the Work of the United Nations, United Nations Coordinating Action on Small Arms (CASA), 2013, p. 3.

[3] A conventional weapon can be defined as a weapon that is neither a nuclear, biological nor a chemical weapon (i.e. not a weapon of mass destruction).

[4] UNODA, About the Arms Trade, available at: <http://www.un.org/disarmament/convarms/ArmsTrade/>, (Last visited on 27 May, 2013).

[5] ICRC, Arms Trade Treaty: A historic step towards reducing human suffering, available at: <http://www.icrc.org/eng/resources/documents/news-release/2013/02-04-weapons-arms-trade-treaty.htm>, (Last visited on 27 May, 2013).

[6] See supra note 4.

[7] The biggest arm suppliers: US, Russia, China, Ukraine, Germany, France, UK, Italy, Netherlands, Spain. See also: BBC, UN passes historic arms trade treaty by huge majority, available at: <http://www.bbc.co.uk/news/world-us-canada-21998394>, (Last visited on 27 May, 2013).

[8] The Globalization of Crime: A Transnational Organized Crime Threat Assessment, United Nations publication, Sales No. E.10.IV.6, 2010.

[9] See supra note 2, p. 1.

[10] See supra note 4.

[11] See supra note 2, p.6.

[12] Ibid., p. 24.

[13] Save the Children, Devastating Impact: Explosive weapons and children, 2011, p. 5.

[14] See supra note 2, p.19.

[15] Ibid., p. 12.

[16] UNHCR News, 14 May 2010.

[17] See supra note 2, p. 23.

[18] Ibid., p. 20.

[19] Ibid., p. 16.

[20] Ibid., p. 2.

[21] Holtom, P. and Wezeman, S. T., Towards an arms trade treaty?, SIPRI Yearbook 2007: Armaments, Disarmament and International Security, Oxford, 2007.

[22] Control Arms Campaign, Million Faces Petition, available at: <http://www.controlarms.org/million_faces/index.php>, (Last visited on 28 May, 2013).

[23] Bailey L., The Foreign Policy Centre Briefing Towards an Arms Trade Treaty, available at: <http://fpc.org.uk/fsblob/1232.pdf>, (Last visited on 28 May, 2013).

[24] The EU Non-Proliferation Consortium, The European Union’s Involvement in Negotiating an Arms Trade Treaty, No. 23 December 2012, p. 3.

[25] UN General Assembly Resolution 64/48, 12 January 2010.

[26] See supra note 24, p. 3.

[27] Ibid. p. 2.

[28] Ibid.

[29] UN General Assembly, The Arms Trade Treaty, A/CONF.217/2013/L.3, Preamble.

[30] Ibid.

[31] Ibid.

[32] See supra note 5.

[33] Revolvers and self-loading pistols, rifles and carbines, assault rifles, sub-machine guns and light machine guns. See also: UN, General and Complete Disarmament: Small Arms, Report of the Panel of Governmental Experts on Small Arms, available at: <http://www.un.org/Depts/ddar/Firstcom/SGreport52/a52298.html>, (Last visited on 27 May, 2013).

[34] Heavy machine guns, hand-held under-barrel and mounted grenade launchers, portable anti-aircraft guns, portable anti-tank guns, recoilless rifles, portable launchers of anti-tank missile and rocket systems; portable launchers of anti-aircraft missile systems (MANPADS); and mortars of calibres of less than 100 mm. See also: UN, General and Complete Disarmament: Small Arms, Report of the Panel of Governmental Experts on Small Arms, available at: <http://www.un.org/Depts/ddar/Firstcom/SGreport52/a52298.html>, (Last visited on 27 May, 2013).

[35] See supra note 4.

[36] See supra note 2, p. 3.

[37] See supra note 24, p.13.

[38] See supra note 29, Article 22.

[39] See supra note 5.

[40] See supra note 2, p. 21.

[41] See supra note 5.

[42] See supra note 2, p. 2.

[43] The Chance for Peace speech given by U.S. President Dwight D. Eisenhower on April 16, 1953.

* Picture source: Reuters.