Justice for the Rohingya and Minority Groups in Myanmar

Since August 2017, the plight of the Rohingya people has re-captured the attention of the international community. The United Nations and other parties have been slow to label the ongoing situation in the Rakhine region genocide.  However, recent statements by UN Special Advisor on the Prevention of Genocide indicate a significant change in international rhetoric. The current crisis was a result of the alleged attacks by a rag tag group known as the ARSA which occurred in August 2017. The military responded to these attacks which resulted in thousands fleeing. The disproportionate response by the military and various mobs have continued to perpetuate genocide and crimes against humanity resulting in a humanitarian emergency. Continue reading

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Corporate Liability under the Convention Against Transnational Organized Crime

Author: Regina Paulose

From October 6-7, 2014, the Working Group of Government Experts on Technical Assistance will meet in Vienna, Austria for its 7th session of the Conference of Parties for the United Nations Convention against Transnational Organized Crime (CATOC).  The provisional agenda includes a discussion of the “liability of legal persons” which is commonly referred to as corporations. Continue reading

Cultural Property Protections in International Criminal Law

Written by: Regina Paulose

“Wars, confrontations and conflicts in general, between two or more opposing factions, have always represented a serious threat to the integrity of the cultural heritage located in their territories. Unfortunately, this threat most often materializes in the form of the destruction of significant amounts of cultural property (movable and immovable): monuments, religious sites, museums, libraries, archives, etc. Humanity is thus deprived of a shared and irreplaceable cultural heritage.”[1]  Continue reading

Russian Organized Crime and its Trajectories

This month,  Dr. Serguei Chloukhine sits down with A CONTRARIO to discuss Russian organized crime and its impact on society. Professor Serguei Cheloukhine, is a Professor in the Department of Law, Police Science and Criminal Justice at John Jay College in New York, USA. He is the author of many articles and books on Russian organized crime, including:  Russian Organized Corruption Networks and their International Trajectories (2011). Continue reading

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.

Organized Crime & Terrorism: Making Room for New Friends

Written by: Regina Paulose

The bond between organized criminals and terrorists appear to be growing in the status quo. This connection should be worrisome as these networks have found common interests. Considering the different objectives of each group, some may question whether they truly have anything in common. Terrorists are generally motivated by politics, whereas organized enterprises are motivated by money. Despite this philosophical difference in the bottom line, some examples prove that this connection is strong. “In some cases terrorists and criminals appear to be deeply intertwined in ways that go well beyond fleeting alliances of convenience. The Dubai-based Indian criminal Aftab Ansari is believed to have used ransom money he earned from kidnappings to help fund the Sept. 11, 2001, terrorist attacks. And some people, like the Pakistan-based Indian crime boss Dawood Ibrahim, even go on to pursue dual careers as both criminal and terrorist leaders.”[1]

Despite the different goals of the two illicit groups, differentiating between the two – sometimes – can be challenging. Terrorists are involved in the black market in order to generate needed revenue.[2]  This revenue is what allows them to pursue their political or religious agendas.[3] Organized criminals have resorted to modeling violent techniques which are used by terrorists to advance their monetary agendas.[4] “Criminal organizations can become ideological over time, following the path of terrorist groups.”[5]  Many famous mafia stories highlight how monetary gain is closely tied with political power. The more power the illicit group yields, the easier it becomes to allow the black market to flourish. Who these groups are and who they can turn into poses a challenge for the rule of law everywhere.

So how do the international conventions address this particular bond?[6] The United Nations Convention on Transnational Organized Crime (UNTOC), which entered into force in 2003, is the main international legal instrument which deals with organized crime.[7]  The Convention is accompanied by three Protocols which deal with human trafficking, smuggling, and arms trafficking. The Convention aims to criminalize participation in organized crime, increase cooperation among state parties, and protect human rights. Given its mandate, naturally, UNTOC does not address the issue of the organized crime – terrorism nexus. With a very broad reading, one could infer that the UNTOC may address this issue. For instance, Article 5 of the Convention calls for criminalization of participation in an organized criminal group. The language of Article 5(ii) states:

Conduct by a person who, with knowledge of either the aim and general criminal activity of an organized criminal group or its intention to commit the crimes in question, takes an active part in:

a. Criminal activities of the organized criminal group;

b. Other activities of the organized criminal group in the knowledge that his or her participation will contribute to the achievement of the above-described criminal aim.

An argument could be made that a terrorist who purchases a weapon from or supplies weapons to an organized group is taking “active part” in the “criminal activities” of the group. Or even the language of section (b) makes it clear that if the terrorist has “knowledge” that his participation will “contribute” to the criminal aim, he could be penalized for his association.

This example should serve as a cautionary tale. We must avoid conflating the two groups because it could pose its own set of legal challenges, especially considering that terrorism is mainly viewed via the law of war. If terrorists are engaging in the same activity as organized criminals, it is probably safe to assume that these operations are a means to an end.

Another international instrument to consider is the International Convention for the Suppression of Financing Terrorism. This particular Convention expressly deals with punishing perpetrators who finance terrorism. Under Article 2, any person could be held culpable for directly or indirectly facilitating, participating in, or aiding or abetting in the commission of various offenses as listed in the annex of the Convention.[8] Some of the offenses listed are: unlawful seizure of an aircraft, taking of hostages, terrorist bombings, endangering the safety of civilian aircrafts, and endangering maritime vessels. This particular Convention could provide relief against this particular nexus, depending on how it is enacted domestically.

The international community has recognized that terrorists do use different resources to accomplish their aims. In 2006 the UN General Assembly adopted the United Nations Global Counter-Terrorism Strategy. Specifically one of the aims of the “holistic” strategy is:

“to strengthen coordination and cooperation among States in combating crimes that might be connected with terrorism, including drug trafficking in all its aspects, illicit arms trade, in particular of small arms and light weapons, including man-portable air defence systems, money laundering and smuggling of nuclear, chemical, biological, radiological and other potentially deadly materials.”[9]

While many scholars still argue that the link between these villains is “nebulous”[10] and that the empirical data to support that the groups are working together is little, there still appears to be a small link, at the very least, that should be acknowledged by the rule of law. It is probably time to address the importance of these issues and make the necessary changes required to have states implement more robust language in their national laws. The state parties to these conventions may not have envisioned a world where the underbelly of society forms alliances (however brief) to achieve their various goals. Unfortunately that is the current reality and it seems as though it is far more than a passing trend.


[1] Rolle Lal, “Terrorists and Organized Crime Join Forces” NYT Opinion, May 24, 2005, available at: http://www.nytimes.com/2005/05/23/opinion/23iht-edlal.html?_r=0

[2] See David Kaplan, “Paying for Terror” US News and World Report, November 27, 2005, available at: http://www.usnews.com/usnews/news/articles/051205/5terror.htm

[4] Karen Parrish, “Link Grows Between Terrorism, Organized Crime, Officials Say” American Forces Press Service, March 28, 2012, available at: http://www.defense.gov/news/newsarticle.aspx?id=67721

[5] Lal , as cited above

[6] My analysis for the purposes of this post is limited to two Conventions and is not meant to be an exhaustive or comprehensive look at every single treaty that exists and could potentially address this problem. For anyone wanting more information on finding treaties or researching this issue in depth, I suggest referring to the UN Treaty Collection: http://treaties.un.org/Home.aspx?lang=en

[7] The “guardian” of the instrument is the UNODC. For more information on the UNTOC visit: http://www.unodc.org/unodc/en/treaties/CTOC/index.html

[8] International Convention for the Suppression of the Financing of Terrorism, available at: http://treaties.un.org/doc/db/Terrorism/english-18-11.pdf

[9] UN Action to Counter Terrorism, A/RES/60/288,  September 20, 2006,  p.5 available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N05/504/88/PDF/N0550488.pdf?OpenElement

[10] Annette Hübschle, From Theory to Practice: Exploring the Organized Crime-Terror Nexus in Sub-Saharan Africa, Perspectives on Terrorism (Journal), Vol.5 No 3-4 (2011), available at: http://www.terrorismanalysts.com/pt/index.php/pot/article/view/157/html