Dr Stacey Henderson of The University of Adelaide writes on arms transfers, the Arms Trade Treaty, and their relationship with atrocity prevention.
The conventional arms trade is a lucrative industry, worth at least US$95billion annually. The international trade in conventional arms is, by its very nature, closely connected with both the commission and prevention of atrocity crimes. Conventional arms have the capacity to be wielded as a means of defence to protect a population under threat or as a means of attack to commit atrocities against civilians. The relationship between the supply of arms and atrocity prevention is a complicated one.
The supply of arms to opposition groups
During the Libyan civil war, Security Council Resolutions 1970 and 1973 were interpreted by some States as allowing the arming of anti-Gaddafi opposition groups to further the aim of the protection of civilians and civilian protected areas. In June 2011, France confirmed that it had dropped weapons, including assault rifles, machine guns, and rocket-propelled grenades, to ‘help rebel forces who were “in a very deteriorating situation” under threat from the Libyan military’. A French diplomatic source stated to the media that the weapons drop:
‘was an operational decision taken at the time to help civilians who were in imminent danger. A group of civilians were about to be massacred so we took the decision to provide self-defensive weapons to protect those civilian populations under threat. It was entirely justifiable legally, resolution 1970 and 1973 were followed to the letter.’
The UK agreed with France, with the Foreign Secretary stating that ‘in certain circumstances it is possible, consistent with those resolutions, to provide people with the means to defend the civilian population’. Italy’s Foreign Minister stated that ‘[e]ither we make it possible for these people to defend themselves or we withdraw our claims of support’, and further that the provision of weapons to the rebels could be ‘morally justified’. Qatar also supported this interpretation of the Security Council resolutions, indicating that Qatar would ‘make things available for the Libyan people to defend themselves’.
Weapons have also been provided to opposition groups by various States during the Syrian civil war, a conflict where both government forces and opposition groups are reported to have committed atrocity crimes against the civilian population.
Under the traditional approach to the international legal principle of non-intervention, arming opposition groups would be prohibited. Yet in recent conflicts, States have done just that; arming opposition groups on the basis that those groups were using those weapons to help protect populations under imminent threat.
Restricting the flow of arms
Conversely, arms can be used to perpetrate atrocities against civilian populations. There is broad international agreement that ‘the irresponsible and unregulated trade in conventional arms has devastating consequences for ordinary people across the globe’. Given that the increased presence of arms in conflict zones provides a significant means of carrying out atrocities, States must consider the consequences of providing arms to opposition groups as part of satisfying their responsibility to protect populations from atrocity crimes.
Entering into force in December 2014, the Arms Trade Treaty obliges States Parties to explicitly consider the consequences of their arms transfers, and to refrain from transferring arms in circumstances where those weapons might exacerbate or prolong armed conflict, or facilitate the commission of atrocity crimes. By signing on to arms control treaties like the Arms Trade Treaty, States are helping to fulfil their responsibility to protect populations from genocide, war crimes, crimes against humanity and ethnic cleansing.
The inclusion of small arms and light weapons within the scope of the Arms Trade Treaty is of particular significance for the responsibility to protect populations from atrocity crimes. While the Arms Trade Treaty does not cover all weapons, it will make it more difficult for States Parties to transfer conventional arms, including small arms and light weapons, to recipients that violate international humanitarian law and international human rights law, and those that commit atrocity crimes.
Perhaps the most vital part of the Arms Trade Treaty for the protection of populations from atrocity crimes are the prohibitions and risk assessment provisions. Article 6 sets out explicit prohibitions on transfers of conventional arms, which require States Parties to consider the consequences of their transfers of conventional arms before authorising any transfers. While some States may already do this as best practice in trade in conventional arms, the explicit requirement to consider the situation into which those conventional arms and items are being transferred, and the likely consequences flowing from their transfer, demonstrates the procedural manifestation of the responsibility to protect in the Arms Trade Treaty; an express procedure that must be followed by States Parties in their decision-making to help to protect populations from atrocity crimes.
Assuming that a transfer is not prohibited, Article 7 of the Arms Trade Treaty then requires States Parties to carry out risk assessments, in an objective and non-discriminatory manner, before authorising the export of conventional arms. This again requires States Parties to expressly consider the likely consequences of their proposed arms exports before authorising them. Supplying arms to an opposition group for the purposes of protecting the civilian population would not necessarily be prohibited under the Arms Trade Treaty; what is significant for the responsibility to protect is that States must undertake a risk assessment procedure prior to the transfer of any arms and satisfy themselves that weapons would be used for humanitarian or protective purposes.
Getting the balance right between reducing the available means by which atrocity crimes can be carried out and ensuring that there are adequate means to protect populations from atrocity crimes is complicated. The responsibility to protect can assist States to find this balance in their transfers of conventional arms. The overarching consideration in any transfer of arms must be the protection of populations from atrocity crimes.
Dr Stacey Henderson is a lecturer in law at the University of Adelaide, Australia.
This blog is based upon two longer articles: Stacey Henderson, ‘The Evolution of the Principle of Non-Intervention? R2P and Overt Assistance to Opposition Group’ (2019) 11(4) Global Responsibility to Protect 365; and Stacey Henderson ‘The Arms Trade Treaty: Responsibility to Protect in Action?’ (2017) 9(2) Global Responsibility to Protect 147.
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