Roadmap to an Arms Trade Treaty

(The Origin of Principles, 25 Mar 2013)

Christopher Edelman ·

Monie, age eight, lay shaking among a pile of dead corpses, waiting for the safety of nightfall to come so that she could make her way to Kigali. Only weeks earlier, she had witnessed Tutsis beating and shooting her father and raping and killing both her mother and sisters. Monie was now alone in the world, but somehow she managed to make her way to an orphanage where she found shelter, after being taken for dead like the many bodies strewn around her.

Unfortunately, somewhere between half a million and a million Tutsis and Tutsi sympathizers were not as “lucky” as Monie. They were systematically exterminated by the ruling Hutus during a period of just 100 days in Rwanda in 1994. Guns played an instrumental role in rounding people up, intimidating them into cooperation, and shooting those who fled. And a substantial portion of these guns came from France, though individuals from at least twelve additional countries including China, Russia, the United Kingdom, and Italy also arranged for arms transfers.

If ever there was a situation in which states should have acted on principle to prevent genocide, this was it. And yet there were plenty of practical reasons why it would have been smarter for countries to enforce stricter arms control regulations apart from ethical concern, including the threat of regional instability, reputation consequences, and a skewed arms production incentive structure.

Nevertheless, this same pattern of weapons-producing nations sending arms to groups that later use them to inflict human suffering can be seen throughout history. Indeed, it was the United States that armed the Taliban and Saddam Hussein´s despotic regime in Iraq in the 1980s while the Soviet Union and China armed Ethiopians from the 1970s to 1990s. This latter conflict with Eritrea from 1998 and 2000 cost the lives of 70,000 to 120,000 soldiers and civilians. And it was Russia who provided arms to the Syrian regime, which continues to use them to murder innocent civilians throughout the country to this day.

The problem is that once an arms shipment is made, a country cannot control the end use of those weapons and cannot recall them when the fighting is done. Overall, there are 875 million small arms in the world today, and 74% lie in civilian hands. Their annual trade is valued at over $50 billion, and there are substantial financial incentives for governments to turn a blind eye to their end uses—perhaps one reason why there is still no comprehensive international framework regulating how arms are bought and sold.

The end result is that the trade in conventional arms, instruments whose one and only purpose can be to kill other human beings, is less regulated than the trade in bananas or children’s toys.

Fortunately, a group of Nobel Peace Prize Laureates led by former Costa Rican President Óscar Arias Sánchez recognized this shortcoming and presented an International Code of Conduct on the Transfer of Arms to the United Nations in 1997. After a number of years and much lobbying, 153 UN Member States passed Resolution 61/89 in 2006, agreeing on the necessity to create an Arms Trade Treaty (ATT). After several more years of working groups, preparatory committees, and informal discussions, the UN finally convened a diplomatic conference in July 2012 to negotiate and adopt the treaty.

Unfortunately, that conference failed to come to an agreement when the US made a last-minute request for more time. Russia, Cuba, the Democratic People’s Republic of Korea (DPRK), and Venezuela followed suit.

They have now had their time to reflect, and the second diplomatic conference that convenes at the UN from March 18th to the 28th must finish the job now.

The strong interest that numerous countries have shown in recent years and optimism in anticipation of this conference provides a reason to hope. The treaty enjoys support from seven co-author countries (Argentina, Australia, Costa Rica, Finland, Japan, Kenya, and the United Kingdom) as well as 100 co-sponsors. Yet, the draft text from the July conference that will be used as the basis for negotiations is inadequate as it stands today. Although every country is entitled to input under the consensus-based operating procedure of the conference, it will truly be up to the big weapons producing nations such as the US, Russia, France, China, and Germany to agree to the terms of a strong ATT in order to ensure its passage.

The most glaring problem is that the scope of the draft treaty is far too narrow. Despite the fact that the world produces nearly enough bullets annually to kill all of its inhabitants twice, ammunitions are not included in the scope of the current ATT text (though they are briefly referenced in Article Six). In other words, prolific guns in regions of the world like Africa and Central America that have recently experienced conflict will continue to be used to kill as long as there are bullets to load their barrels.

Another major problem with the current text is that it would only forbid a state from authorizing an arms transfer that would be used “for the purpose of” committing genocide, crimes against humanity, or war crimes. Yet history suggests that it is near impossible to prove that a state’s initial transfer of weapons is ever made “for the purpose of” committing serious crimes. International law established in the Articles on the Responsibility for Internationally Wrongful Acts (2001), the International Court of Justice’s judgment in the Bosnia Genocide Case (2007), and other examples, makes it clear that inaction in the face of knowledge of a risk of genocide is enough to make a state responsible. That pre-established standard must not be undermined by a weak ATT.

Additionally, the wording excludes more relevant war crimes in today’s world such as intentionally attacking civilians, private property, or humanitarian aid providers. A better text would require transfer refusal based on a “knowledge or reasonable expectation” test rather than the current lax standard that would still likely permit all of the aforementioned transfers that were used to commit war crimes.

Countless stories like Monie’s should be enough to convince governments of the absolute need to fix these loopholes and pass a bulletproof treaty this March. The principle that we should seek to avoid arms from being diverted to inflict mass human suffering should be a collective and universal obligation. Yet the practical reality is that money talks, and several of the top arms manufacturers such as the US and Russia have shown resistance to the ATT out of fear of financial losses for their domestic industries.

But even if strategic gain is the only concern, and countries do not support the ATT on principle, there are still three fundamental practical arguments to be made for why weapons producing countries should support a stronger ATT.

First, the unregulated trade of arms poses a significant threat to the national security of producer nations. The world is more interconnected now than ever, and violence anywhere threatens people everywhere. Drug violence in Mexico and Central America increases immigration to the US. Instability in the Middle East poses a threat to the entire world, with the possibility that weapons could fall into terrorist hands. And, unregulated arms risk “the hindering of peace-keepers, peace-building, and economic and social development that undermines U.S. and international efforts to improve stability and governance”.

As President Arias said in a speech prior to the last ATT diplomatic conference in 2012, “If it is legitimate for us to worry about the possibility that terrorist networks gain access to a nuclear weapon, it is also legitimate for us to worry about the rifles, grenades, and machine guns that are given into their hands, not to mention the hands of young people, gangs, and drug cartels.”

The second reason why arms producing countries should support a strong ATT is that the development of conflicts abroad threatens to embroil rich nations in conflicts they would prefer to avoid or else they risk severely damaging their reputations. All too often, arms shipments are diverted and used to perpetrate genocide and crimes against humanity. Then, the same nations that exported those arms are left to intervene to end an atrocity to which they themselves contributed.

Returning to the Rwandan genocide example, if governments such as those of the US, UK, and France had enforced stricter controls on the licensing of arms shipments, those arms would not have fallen into the hands of Hutus. In turn, Western nations would not have found themselves in the difficult position of having to decide whether to declare the situation in Rwanda “genocide” and to intervene. As a result, the US government in particular, along with others, suffered severe reputation consequences that could have been averted if it had done the principled thing in the first place.

The final reason why arms producers should support a strong ATT is that doing so would prevent these countries and their weapons manufacturers, which generally already have stronger export controls than most states, from being put at a competitive disadvantage.

Though some ATT opponents argue that the arms export market is too competitive for companies to turn down any buyers, no matter how corrupt, Western suppliers are currently being undercut by the poor practices of other suppliers. The ATT would hold all states to the same set of standards of arms transfer authorization. When producers worldwide are held to the same standards, when one producer rejects a sale that is unauthorized, another one cannot make that same sale. Thus, with a strong ATT, arms exporters will not risk losing business by being ethical.

Governments with strong export controls would also benefit because current regulation inconsistencies permit actors involved in the illicit arms trade to transplant their operations to countries with more favourable conditions for illegal activities. By establishing universal standards, the ATT would discourage the proliferation of the illegal arms trade and ensure that the controls established by one government are not undermined by the lack of controls elsewhere.

It is also worth noting that the ATT would not pose any threat to private gun ownership, which many of the top arms producing nations hold dear. The purpose of the ATT is very specifically to regulate trafficking of all conventional weapons between countries and in no ways calls upon countries to agree to anything not in accordance with their own national laws.

Arms producers and business leaders seem to agree with the competitive advantages of a strong ATT. The UK’s defence industry (Aerospace Defense Security) has supported the UK’s push for an ATT since 2003 and Europe’s defence industry (the Aerospace and Defense Industries Association of Europe) announced its support for a tough and enforceable ATT in February 2010. A group of 21 global investors controlling over $1.2 trillion in assets issued a statement in 2011 calling for a robust, comprehensive, and legally binding ATT.

So as delegations from nearly 200 countries worldwide descend upon New York in the coming days to hammer out a treaty, even if they are not moved by stories like that of Monie in Rwanda, they ought to fight for a bullet proof treaty for their own practical reasons. Even if they are not concerned with the principle that states should do all they can do alleviate human suffering, they still ought to be concerned with protecting their own stakes and realize the tangible benefits that the ATT will provide for them.

In other words, this is one situation in which principle pays.