The Devil is in the Detail: The importance of comprehensive and legally binding criteria for arms transfers

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According to new figures, more than $2.2bn worth of arms and ammunition have been imported since 2000 to countries operating under arms embargoes. This figure shows the extent to which states have been flagrantly flouting the 26 UN, regional or multilateral arms embargoes in force during this period. Oxfam is calling on the international community to put an end to decades of irresponsible arms deals which devastate people’s lives by agreeing a set of legally binding laws when diplomats meet to draw up a new Arms Trade Treaty in July 2012. Oxfam wants to see the new treaty place strict, unambiguous and legal obligations on states to control the global trade in arms. To be effective, the new Arms Trade Treaty must include legally binding criteria that prevent arms transfers where there is a substantial risk that they will be used to violate international human rights or humanitarian law or undermine development. The new Arms Trade Treaty must be robust enough to have a genuine impact on the lives of tens of thousands of innocent civilians suffering from armed violence every single day. This is the chance of a generation to truly make a difference.
  OXFAM BRIEFING THE FINAL COUNTDOWN   THE DEVIL IS IN THE DETAIL The importance of comprehensive and legally binding criteria for arms transfers MAY 2012 Oxfam is a member of  2 Summary ã  The absence of comprehensive, international legal obligations to prevent irresponsible transfers of arms has resulted in at least $2.2bn worth of arms and ammunition being imported by countries under arms embargoes between 2000 and 2010; ã  To have real impact, a prospective Arms Trade Treaty (ATT) must include legally binding criteria that prevent arms transfers to abusers of human rights or into situations where there is a substantial risk that they will undermine development or exacerbate armed violence; ã  The ATT can build on existing regional and sub-regional initiatives: as of 2012, 100 countries are already party to various regional agreements that include legally binding obligations to control the trade of arms and ammunition. THE CASE FOR REGULATION OF THE ARMS TRADE The global trade in most consumer goods is internationally regulated and carefully controlled. In contrast, the global trade in arms and ammunition is not. Currently, there are no legally binding, robust, and universally applicable criteria governing the transfer of weapons across borders. This is despite the fact that more than 2,000 people are killed every day due to armed violence. 1  This lack of regulation has profound implications for the lives and livelihoods of millions of women, men, and children throughout the world. Between 2000 and 2010, and despite the 26 UN, regional, and multilateral arms embargoes in force during this period, 2  Oxfam estimates that at least $2.2bn worth of arms and ammunition was imported by countries under arms embargoes. 3   The arms trade urgently needs a set of legally binding international rules to control the transfer of weapons. These rules, or criteria, must be based on thresholds defined by legally binding obligations in international human rights law, international humanitarian law, the UN Charter, and relevant UN conventions, covenants, and treaties. Without this, some states have little incentive to prevent the irresponsible trade in arms. In order to have meaningful impact, arms embargoes and other prohibitions require a global regime with clear, unambiguous legal obligations on states to refrain from certain types of activities, such as „states shall not transfer arms…‟  The UN Diplomatic Conference on the Arms Trade Treaty (ATT DipCon) will take place in July 2012. This offers member states of the UN a historic opportunity to create a global, comprehensive, rules-based mechanism to control the global trade in arms. For these negotiations to be successful and achieve real humanitarian impact, states must agree a set of rules that prevent the transfer of arms where there is a substantial risk that those arms would: ã  Be used to perpetrate gross violations of international human rights law, or serious violations of international humanitarian law; ã  Undermine socio-economic development, or involve corrupt practices; or ã  Provoke or exacerbate armed conflict or armed violence, including gender-based armed violence.   3 The humanitarian impact of the arms transfers to Cote d‟Ivoire while it was under an arms embargo is stark. In 2006, approximately 26,000 Ivoirians sought refuge in other countries, and 709,000 remained internally displaced. Source: UNHCR 2006 Statistical Yearbook ; UNHCR Global Report 2006   WHY IS THIS IMPORTANT? 1. Stopping human rights abuses The lack of robust and legally binding obligations governing the sale and transfers of arms allows those perpetrating human rights abuses to continue to stock their arsenals. In 2010, for example, Syria imported more than $1m 4  worth of small arms and light weapons, ammunition, and other munitions, as well as air defence systems and missiles worth an additional $167m. 5  Some of these arms have played a central role in the Syrian g overnment‟s crackdown on protesters, 6  in which the UN estimates that as many as 7,500 civilians were killed in 2011. 7  A report from the UN Office of the High Commissioner for Human Rights outlined a litany of government abuses, including apparent „shoot -to- kill‟ policies  against protesters by snipers. 8   The report further stated that, „ Information provided to the commission illustrates the extensive resources that the government and armed forces have devoted to efforts to control protests. In addition to regular military units armed with automatic weapons, the military deployed snipers, Special Forces units, tanks, armoured personnel carriers and intelligence units during operations to end demonstrations .‟ 9   2. The failure of embargoes and other instruments to prevent arms transfers Oxfam‟s estimate, that $2.2bn worth of arms was imported by states in contravention of embargoes, is conservative; the actual amount is likely to be much higher. There is a lack of data on arms transfers for many of the relevant countries. In addition, Oxfam‟s estimates do not capture the substantial volumes of arms transfers into fragile situations just before  arms embargoes were imposed, as took place in Côte d‟Iv oire, Iran, and Syria. 10  They also do not include cases where arms embargoes could not be agreed multilaterally, despite the existence of a strong moral and humanitarian case for doing so. The failure by the UN Security Council in 2011-2012 to impose an arms embargo on Syria  –  while the Syrian government continues to import arms and ammunition freely  –  is  just the most recent illustration of this. Furthermore, states must learn the lessons of previous efforts at arms control  –  particularly the UN Programme of Action on Small Arms and Light Weapons (UNPoA). The UNPoA is not a legally binding mechanism, and so has not been able to develop a globally applicable rules-based system. As a result, the UNPoA has generated little or no meaningful humanitarian impact since its establishment in 2001. 3. Ensuring clear guidance on legal obligations The ATT must include unambiguous legal obligations and clear guidance to member states. This will minimise the scope that states have for interpretation of their responsibilities. Space for interpretation can result in dangerous oversight or inaction. For example, the EU has imposed an arms embargo on Syria, which all member states have been obliged to enforce since May 2011. However, lack of specific guidance on how to enforce this resulted in Cypriot authorities failing to stop a cargo vessel containing arms and ammunition from Russia bound for Syria when it transited through the port of Limassol in January 2012. 11    4 4. Minimising opportunities for the misuse of arms Unambiguous guidelines for governments making risk assessments when considering the transfer of arms and ammunition are critical to the success of the ATT. Recent transfers of arms to the Middle East and North Africa suggest that European arms exporters did not believe that there was a significant likelihood of these heavy weapons being used against domestic civilian populations. 12  This assumption was used to justify arms sales to the governments of Libya as recently as 2010, despite credible evidence to the contrary. 13  Subsequently, some of these weapons were used to deliberately target civilian protesters and were also used in indiscriminate attacks in civilian areas. HOW COULD THE ATT HELP? The ATT must create a legally binding instrument that includes a comprehensive set of risk-assessment criteria for all future arms transfers. The criteria must be robust, covering the potential consequences of arms transfers for human rights law, humanitarian law, socio-economic development, corruption, and armed violence. But most importantly, these criteria must be unambiguous and legally binding. Without this, the status quo will not change. If a robust and comprehensive mechanism controlling arms transfers had been in place, it would have been very difficult for non-state armed actors like the Liberation Tigers of Tamil Eelam (LTTE) to acquire sophisticated Chinese weapons and ammunition during the 20-year conflict in Sri Lanka. There is evidence that the LTTE purchased both small arms and ammunition for heavier weapons (such as mortars and artillery) from China. One report stated that, „ Recent photographs of rebel troops available on pro-LTTE websites show a range of evidently new Chinese weaponry including the modern 5.56 mm QBZ-95 bullpup-design assault rifle, which cannot have been captured from government forces .‟ 14  This contributed to the escalation of the conflict between the LTTE and government forces with devastating consequences for civilians in Sri Lanka. The UN estimates that between 80,000 and 100,000 people have been killed and more than 200,000 people displaced since the war in Sri Lanka began in the 1980s. 15  The ATT represents a historic opportunity to bring together complementary, thematic, regional, and parallel initiatives on arms transfer controls under one comprehensive framework. Legally binding criteria enacting high standards are not an anomaly:  100 countries that are party to various regional mechanisms have already agreed to robust, legally binding obligations to control the trade of arms and ammunition . 16  A further 35 countries are party to arms control instruments that seek to create a common operational standard: the Wassenaar  Arrangement and the OSCE instrument on small arms and light weapons. Each of these mechanisms articulate the key elements necessary to make the ATT effective  –  namely, prohibitive decision-making processes if there is a risk that the arms would negatively impact on human rights and development or contribute to corruption or armed violence. The ATT would harmonise these initiatives into one comprehensive, legally binding, and universal instrument.
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