By Katherine Young, Control Arms
At the core of the Arms Trade Treaty (ATT) is its aim to reduce human suffering caused by illegal and irresponsible arms transfers. To achieve this goal, Articles 6 and 7 oblige states parties to include the protection of human rights in their decision-making when selling or transferring weapons to other countries. States parties may not grant licenses for arms transfers if a risk assessment determines there is an “overriding risk” that those arms would be used to commit or facilitate a serious violation of international humanitarian law (IHL) or international humanitarian law (IHRL), including gender-based violence (GBV). When properly implemented, these obligations can save lives and reduce human suffering, sometimes on a large scale.
Ensuring full implementation of these risk assessment requirements, however, remains an aspiration. At the Fifth Conference of States Parties (CSP5) to the ATT, held in Geneva from August 26-30, 2019, states talked at length about concerns regarding compliance with other treaty provisions. Many commented that rates of reporting on arms transfers are worryingly low and states parties are falling behind on their financial contributions. What states did not talk about, however, were the documented, often ongoing arms transfers by some ATT states parties that fuel violations of IHL and IHRL, and the questions these transfers raise around implementation of Article 6 and 7 obligations.
As effective implementation increases, it would be expected that such transfers would decline, yet reports by a range of international and civil society organizations show that these transfers—and their devastating effects—are not slowing. Despite states’ rhetoric of a collective desire to work towards effective implementation of the treaty in order to reduce human suffering, very few states parties are willing to talk about Article 6 and 7 compliance. Even fewer have cited the ATT as a reason for taking action and making changes to their risk assessment decision-making to stop problematic transfers.
In a side event, Cesar Jaramillo of Project Ploughshares characterized this lack of action by states parties as emblematic of a growing “rhetoric-compliance gap.” The gap is exacerbated by the fact that there is no international mechanism through which to hold states parties accountable for treaty violations. To help close the gap, panelists presented domestic legal challenges as a promising avenue for pushing for effective implementation of Articles 6 and 7 and holding states accountable for the harm caused when they authorize illegal and problematic transfers.
In the United Kingdom, for example, ongoing litigation by the Campaign Against Arms Trade (CAAT) against the UK government challenges the UK’s risk assessment process, which allowed the government to continue granting licenses for arms sales to Saudi Arabia despite documentation of the connections between arms transfers and IHL and IHRL violations in Yemen. As a result of a recent verdict in favor of CAAT, the UK government currently cannot grant new licenses for arms transfers to Saudi Arabia. Another side event panelist, Kristine Beckerle of Mwatana for Human Rights in Yemen, made clear that such persistent legal challenges do affect the reality on the ground in Yemen. During these challenges, fewer bombs are dropped. Beckerle, along with other panelists, encouraged civil society to continue pursuing domestic litigation as a means for pushing for discussion of these transfers in ATT fora as well as full implementation of risk assessment obligations.
In this year’s CSP cycle, there have been positive developments at the international level that could help states implement the ATT in accordance with its purpose of reducing human suffering. These developments will be meaningless, however, if they are not followed by action. In terms of implementing Article 7(4) and addressing GBV, states parties took one step in the right direction, thanks in large part to the decision made by Ambassador Jānis Kārkliņš of Latvia, president to CSP5, to choose gender and GBV as the thematic focus for CSP5. Ambassador Kārkliņš put forward a series of recommendations for ways that states can increase gender diversity, better understand and address the gendered impact of the arms trade, and improve implementation of the GBV risk assessment criteria in Article 7(4). Most of these recommendations, originally included in the president’s working paper on gender and GBV, were adopted as part of the final report of CSP5. Their adoption marks a positive outcome of the conference, as these recommendations enumerate concrete actions that states parties are encouraged to take. In order for them to be effective, however, they must be implemented by states parties, and it is yet to be determined if and when they will do so.
It was also a positive year for treaty universalization. Treaty membership this year reached—then surpassed—the 100-states-parties landmark to total 104, accounting for more than half of all UN member states. Eight countries became states parties since CSP4, more than a 50 percent rise in new membership when compared to the previous year, according to this year’s ATT Monitor Annual Report. The more states parties to the ATT, the greater the possibility of meeting the treaty’s aim of reducing human suffering. Equally important, however, is effective implementation of the treaty’s provisions. In terms of risk assessment—but also across all provisions of the ATT—ensuring effective implementation poses the greatest challenge.
To address this challenge, civil society must sustain their efforts to push for effective implementation of the treaty. They should press for states to fulfil Article 6 and 7 risk assessment obligations, have concrete discussions about risk assessment decision-making and illegal and problematic transfers that contribute to violations of IHL and IHRL, and take concrete actions to tackle GBV through implementation of Article 7(4). At CSP5, Belgium made clear that “words still need to be transformed into action.” For the treaty to realize its full potential in reducing human suffering, states parties must close the “rhetoric-compliance gap” and play their part in implementing the life-saving provisions of this treaty. For complete analysis and summaries of CSP5, see Reaching Critical Will’s ATT Monitor and Control Arms’ summary reports.