Authors’ note: This article presents an excerpt of a chapter of the ICRC’s report ‘International Humanitarian Law and the Challenges of Contemporary Armed Conflict’.
Vast amounts of conventional arms and ammunition – from pistols, machine guns, bombs, and artillery shells and other explosive weapons to fighter jets and tanks – continue to flow, overtly and covertly, into some of the most brutal armed conflicts today. In many places – such as Israel and the occupied territories, Mali, Sudan, Syria, Ukraine and Yemen, to mention but a few – this influx of weapons fuels war; violence, including sexual and gender-based violence; and humanitarian crises.
The booming arms trade, especially with parties to armed conflicts, has a bloody price. The widespread availability of arms exacts an unacceptable human toll: lives are lost or permanently altered by injury or trauma, and livelihoods destroyed. Poorly regulated and irresponsible transfers increase the risk that weapons are used to commit or facilitate violations of international humanitarian law (IHL) or other crimes. In turn, this hinders post-conflict reconstruction, recovery, and reconciliation, as well as human and socio-economic development in the long term.
Arms sales are on the rise throughout the world, driven by growing international tensions, resurgent arms race dynamics, and commercial incentives. Against this backdrop, the promotion of responsible action and restraint in the international arms trade, as well as ensuring respect for IHL and other applicable legal frameworks in the context of arms transfers, remain pressing humanitarian imperatives.
States have an obligation to not only respect IHL, but also ensure its respect by others, including by States and non-State armed groups that are party to armed conflicts. This obligation also applies to the export and other transfers of arms. At the 31st International Conference of the Red Cross and Red Crescent in 2011, States committed themselves to making respect for IHL one of the most important criteria in decisions about arms transfers, so that arms and ammunition do not end up in the hands of those who may be expected to use them in violation of IHL. (For more details on this topic see Arms transfers to parties to armed conflict: what the law says.)
Applying the obligation to respect and ensure respect for IHL to arms transfers means that States transferring arms must assess whether the weapons to be transferred are likely to be used in violation of IHL. To prevent the possibility of contributing to such violations, States must refrain from transferring weapons if there is a substantial or clear risk of this happening. In addition, States must condition or limit the transfer and use of arms, or take other timely, robust and practical measures that can realistically offset the risk of violations, both before and after delivery.
States that supply arms to a party to an ongoing armed conflict have a special responsibility to use their influence to prevent violations of IHL and limit harm to civilians and others affected by war.
Respect for IHL is one of the core criteria against which any proposed transfer of arms must be assessed under the 2013 Arms Trade Treaty (ATT), the international legally-binding instrument regulating the trade in conventional arms. The ATT prohibits the transfer of weapons (including their parts or components) and ammunition, if there is an overriding risk that they would be used to commit or facilitate the commission of a serious violation of IHL.
The ATT and regional instruments governing arms transfers hold out the promise of saved lives and greater respect for IHL and human rights. But if these hard-won standards are to make a tangible difference in the lives of people affected by war and violence, governments must give far greater weight in their arms-transfer decisions to preventing harm, and reducing related risks, effectively.
Indeed, there is today a deeply concerning gap between the commitments expressed by States to respect and ensure respect for IHL, and the faithful implementation of instruments such as the ATT, on the one hand, and the arms transfer practices of too many States, on the other hand. Three trends are of particular concern in this regard:
First, the practice of a number of States to exempt certain transfers – for example those carried out in the context of military assistance agreements, those involving certain categories of weapons, such as weapons considered by the exporting State as “non-lethal” or “for defensive purposes only,” or certain recipients, such as privileged trade partners – from IHL risk assessments. Such exemptions appear to apply to a large part of the international arms trade, clearly undermining existing legal obligations.
Second, the practice of issuing export licenses valid for many years without a requirement for periodic review. Such “standing authorizations” make it more difficult to prevent or effectively mitigate the risk of diversion or misuse of the transferred weapons, and consequently the risk of IHL violations. The regular review of granted licenses is necessary to enable the transferring State to review, and if needed revoke, the license whenever relevant circumstances change, including the situation in the recipient State, or new relevant information is obtained.
And third, certain measures aimed at facilitating export of arms produced jointly by several States which contribute parts and components of varying types, value, and volume. These include notably clauses that limit the right of contributing States to challenge the transfer of the final product (i.e., the assembled weapon) on humanitarian grounds, or the designation of the State where the assembly of the weapon takes place as the “final destination,” even though it is known or reasonably foreseeable that the assembled weapon will be transferred to another State. Depending on their scope, such measures make risk assessments either impossible or irrelevant.
Governments are not the only relevant actors in the arms trade. The private industry has an important role to play, and a corresponding responsibility to carefully assess and effectively mitigate the risk of their activities causing or contributing to violations of IHL or human rights, despite not being directly bound by the ATT. Individuals who act on behalf of a private business can be directly bound by IHL where their activities are sufficiently connected with an armed conflict. Providing weapons to a party to an armed conflict can result in criminal liability under international law for the individuals involved if that party uses the weapons to commit war crimes or other international crimes, regardless of whether the business entity acted in accordance with domestic laws. Greater awareness is needed among business entities of the requirements under IHL and the ATT, and of businesses’ roles and responsibilities in upholding IHL rules.
Building a culture of compliance with IHL regarding arms transfers requires States to fully incorporate IHL requirements in domestic arms-transfer laws and regulations, distinct from considerations of human rights. These requirements must be applied systematically, on a case-by-case basis, to all recipients, including military allies and trusted trade partners. They must be applied to all international transfers, including government-to-government transfers and provision of military assistance, and to all relevant items, including ammunition and parts and components of weapons.
To effectively prevent serious violations of IHL and avoid complicity in their commission, governments must keep issued licenses under review, including in light of new information obtained through regular monitoring of how the arms supplied are being used. Post-shipment measures can be an important safeguard, not only against diversion of arms to unauthorized end-users, but also to prevent and address misuse. Even after an authorization has been granted, therefore, a State must deny a transfer if new information indicates a clear or substantial risk.
Possible measures that can support States’ compliance with their obligations regarding the transfer of weapons include conditioning, restricting, or halting transfers, as well as confidence-building measures, capacity building programs, and trainings (e.g., in stockpile management or in IHL); post-delivery verification; end-use certificates; and assurances.
However, mitigation measures can only reduce the risk of IHL violations if they are timely, robust, and reliable, and if the supplier and recipient have the capacity to effectively implement them in practice and actually do so in good faith. Where a clear risk of IHL violations persists despite the mitigation measures, States must refrain from transferring the weapons. Making the supply of weapons contingent on the recipient providing formal assurances, for example, to use supplied arms or items in compliance with IHL or to avoid using heavy explosive weapons in populated areas, can contribute to enhancing the protection of civilians and others not fighting. Such assurances can also serve as an indicator of the recipient’s intent to uphold respect for IHL, but they must be assessed cautiously against its policies and actual practices. They do not replace the supplier State’s obligation to carry out a thorough assessment of any proposed transfer. Where a clear risk of IHL violations persists despite assurances to comply with IHL, States must refrain from transferring the weapons.
Against the backdrop of deteriorating international security, it cannot be stressed enough that security, foreign policy, economic, and similar considerations may never override the legal obligation to ensure respect for IHL, including at the highest political level. Indeed, it is difficult to see how exported weapons could ever contribute to peace and security where there is a clear risk that they could be used to commit or facilitate serious IHL violations. As the international arms trade volume increases, States must act more responsibly to abide by their obligations and the humanitarian imperative of preventing violence and suffering. Ultimately, a world where arms flows are reduced, strictly regulated, and controlled will be a more peaceful one.