Author: Dr. Garima Tiwari
Artificial intelligence has led to an emerging need for regulation of weaponry that is now being developed for deployment in conflict zones. This post will raise and re-iterate the issues relating to the International Humanitarian Law and Artificial Intelligence. Continue reading
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
The early hours of August 21, 2013 saw a drastic turn in the Syrian conflict as a chemical weapons attack on civilians living in the agricultural belt around Damascus took place. Three days after the attack, medical charity Medecins Sans Frontieres confirmed that three hospitals it supports in Damascus had treated about 3,600 patients with “neurotoxic symptoms” on the day of the attack; 355 of these had died.[1] Ever since there’ve been mutual accusations of the use of chemical weapons by the countering parties, namely Assad’s regime and the rebels,[2] which also caused a split of views and stances on the international plane. Yet, despite the absence of the forthcoming United Nations [hereinafter UN] report on the attack,[3] the parties to the conflict and the international community are all of no doubt that the attack has taken place. 10 days after the beginning of the political turmoil within the ‘concerned’ international community President Obama issued a statement on Syria accusing the Assad’s regime of the attack on its own people and calling for a targeted military strike to deter the regime from using the chemical weapons ever again.[4]
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.
Until the dramatic events of September 2001 terrorism was perceived as an exceptional and a rare phenomenon, which didn’t quite bother specialists of any field. Today there is hardly a person who has never though about the roots and the nature of this evil. The growing threat takes multiple forms, including transnational groups targeting means of transport, planning attacks with weapons of mass destruction or through the Internet, or resorting to new channels to finance their acts.[1] And even though we may disapprove of it, terrorists can indeed assemble plausible if not logical arguments in defense of their actions.
However, whatever the ideological motives of terrorist groups are one should, consider the reasons for a choice of this means of warfare in the first place as to develop an effective doctrine to combat it. As Major Robert W. Cerney states, “terrorists exercise their right to fight for what they believe in the only way they can with any hope of survival till the eventual achievement of their goal.”[2] Terrorism as a means of warfare indeed proves to be successful, but the key point in Maj. Cerney’s assertion is that it’s the only feasible option for those waging an asymmetric war.
It is worth mentioning, that none of the conflicts is perfectly symmetrical, but the wider the gap, the dirtier it gets. Today with only one remaining superpower and more generally the considerable and predictably widening technological divide, a huge imbalance in the capacity of warring parties has become a characteristic feature of any contemporary armed conflict.[3] The wide disparity between the parties, primarily in military and economic power, potential and resources, provides for a need for a form of violence that serves as a force multiplier that maximizes the outwardly limited resources in confrontation with an incomparably stronger opponent that a party cannot effectively challenge by conventional means. Given the inability to fight on the enemy’s own ground and to challenge a stronger opponent on equal terms, the weaker, lower status side has to find some other ground and to rely on other resources to establish a two-way asymmetry.[4] This, in turn, conditions the terrorists’ modus operandi: attacking the enemy’s weakest points, namely, its civilians and non-combatants, thus, not conforming to international legal standards. Yet, why would one play by the system rules when those rules are established to support a system fought…
Western societies are becoming more vulnerable due to many factors, including global communications, travel, and the proliferation of weapons technology, as well as the fact that the number of relatively deprived people in failing societies is growing.[5] The threat of terrorism forces them to respond by increasing homeland security measures. The latter have reduced the number of attacks by 34 percent, limiting the number of terrorism victims to an average of 67 a year and having cost the developed countries roughly US$70 billion since 2001.[6] The material cost of a suicide bombing, in turn, is as low as $150(US), and results in an average of 12 deaths, spreading enormous fear throughout the targeted population.[7] Thus, it amounts to an estimated $5.8(US) billion a year protecting 34 innocent lives which might be deprived at a price of $425(US). Apart from this financial asymmetry, one should also bear in mind that terrorism is responding to new security challenges with new approaches having the same bloodshed effect.
To this end, terrorism seems to be the last if not the only resort of the weaker parties trying to shift the balance and restore the warfare symmetry with any means possible. Given that the means are dirty and that terrorism will not conform to international standards, we must adapt to it and consider a more effective, yet legal, strategy of combating it with a view of its asymmetric character.
Written by Jan Guardian
[1] United Nations Office on Drugs and Crime, The Universal Legal Framework Against Terrorism. New York (2010), p. iii.
[2] Major Robert W. Cerney, International Terrorism: The Poor Man’s Warfare. Executive Summary. USMC CSC 1991 [online][accessed 28 March 2013].
[3] Robin Geiss, Asymmetric Conflict Structures. International Review of the Red Cross, Vol. 88, 864, December 2006, 757-758.
[4] Ekaterina Stepanova, Terrorism in Asymmetrical Conflicts: Ideological and Structural Aspects. SIPRI Research Report No. 23. OxfordUniversity Press (2008), p. 20.
[5] Shahram Chubin, Jerrold D. Green, Terrorism and Asymmetric Conflict in Southwest Asia. RAND (2002), p. 7.
[6] Bjorn Lomborg, Is counterterrorism good value for money? NATO review 4 (2008) [online][accessed 29 March 2013].
[7] Ibid.
A Contrario ICL 