Essay: Prohibition against Arms Transfers for Committing Grave International Crimes

One of the most significant provisions in the ATT is Article 6(3), which prohibits a State from authorizing a transfer of arms “if it fully aware of the time of authorization that the arms or items would be utilized to perpetrate genocide, CAH, grave breaches of the GC, attacks directed against COs or civilians protected as such, or other WCS as defined by international agreements to which it is a Party”. This prohibition has been called one of the cornerstones of the Treaty, which is not altogether surprising. Compared to the first two prohibitions, it introduces novel elements to public international law.
There are 3 categories of WCS named in paragraph 3. The unique wording seems to be the phrase ‘attacks directed against COs or civilians protected as such’ that has no equivalent in international humanitarian law. The wording ‘protected as such’ may imply an emphasis to distinguish COs and civilians. Civilians participating in direct hostilities are excluded from the protection of this provision. The last category of WCS the provision is referring to can be found in international agreements like the AP I and the Rome Statute of the ICC.
This time, the standard is that a State Party must know at the time of authorization that the arms that are to be transferred would be used to commit one or several of the crimes listed in the provision in order for the transfer to be prohibited. In other words, a State must know of the existence of a causal link between an arms transfer and a forthcoming crime. While the ATT does not provide a definition of ‘knowledge’ itself, one can possibly draw on the one contained in Article 30 (3) Rome Statute of the ICC, which defines the term as the “awareness that a circumstance exists or a consequence will occur in the ordinary course of events”.
The wording ‘time of authorization’ is somewhat problematic. It was pointed out by South Africa during the negotiations of the Treaty that ‘time of transfer’ would be more fitting, ‘as the situation can change in the meantime. this criticism is valid, especially if there is a lot of time between the authorization and the transfer. Gaps can be caused in different States for different reasons; in some States, they can be caused by overly careful consideration, whereas in others by arbitrary bureaucracy. Although the choice of wording is possibly a poor one, it leaves the reader no doubt: it can only refer to the moment when the decision to grant or deny authorization to the arms transfer is made
The list of grave crimes in ATT Article 6.3 are the core crimes of the Rome Statute and prosecutable in the ICC. These are crimes that exceed all others in the severity of consequences, heinousness, and scope, and these are crimes that virtually always entail substantial quantities of CAAPC. Despite the nature and extent of these crimes, suppliers of arms and the perpetrators of inhumane crimes have not been liable to culpability charges. Arms suppliers of perpetrators of heinous crimes have not been held liable for those crimes absent more extensive evidence of having been engaged in the crimes as a joint criminal enterprise. Indeed, the extent to which conventional weapons sellers were prosecuted for their buyers’ international crimes has been less than rare since the prosecution of Nazi industrialists at Nuremberg.
Unlike the July 2012 draft treaty, a specific reference to serious breaches of Common Article 3 to the four GC is missing despite huge efforts of Switzerland to include this wording into paragraph 3. On 2 April 2013, the day when ATT was adopted, Switzerland made an interpretative declaration stating that ‘other WCS as specified by international agreements to which it is a party’ converse also serious violations of Common Article 3 to the GC. Ireland expressed its consent with this statement. Although it is expected that other countries will express a similar position with regards to this wording, the provision would have gained more authority by explicit reference to Common Article 3. The limitation of WCS categories perhaps originated in the intention of certain states to refer predominantly to universally ratified GC. On the other hand, more appropriate wording referring to things that would be used in the perpetration of listed atrocities is now included in paragraph 3 as opposed to 26 July 2012 draft text that contained the reference to the transfer of CAAPC for the purpose of facilitating the commission of genocide, CAH or WCS. There was a fear that the previous wording was referring to the intention of a state party to assist in the commission of those crimes. As Mexico correctly stated, no state would frame a transfer in those terms.
The ATT Article 6.3 prohibition is significant, therefore, in that it now holds to the supplying State accountable for grave international crimes. This is a significant reinforcement of the law of State responsibility for it entails that the authorization of illicit is now regarded as breaching international law, and suppliers of every arm now stand liable of violating the ATT if evidence of grave international crimes is leveled against.
However, accountability for these misdeeds requires that there be knowledge at the time of authorization. Knowledge is a legal standard that is higher than strict liability which is not demonstrated in international arms control treaties. In the domain of public international law, the knowledge standard is invoked most in connection with the imputability of actions by subordinate officials to the State: When is the State responsible for an official’s knowledge? This can be a difficult question, especially in situations where the State has dismally attempted to curb wrongful acts because it allegedly was not aware of the wrongful behavior; had it known, it would be at least arguable that it was responsible for undertaking appropriate action.
The knowledge standard in ATT Article 6.3, in light of the treaty’s avowed purpose to stanch the illicit international arms trade, means that if an authorized official should have known about the risks that transferred arms will be used to commit grave international crimes, it is an international wrong to authorize those transfers and responsibility must follow. More specifically, knowledge may refer to the following markers: (1) information is publicly available, including reports by the United Nations, the media, relevant publicists and other governments and; (2) information is brought to the official by an outside source such as an NGO; and (3) circumstances are sufficiently unusual to put reasonable officials on notice, in light of their entire legal responsibilities, of a suspicious purpose for a particular transfer.
All this would suggest that the knowledge standard is satisfied if the wrongful activity is brought to official attention and if relevant officials do not undertake reasonable measures to investigate and stop the authorization of that transfer if the circumstances warrant.
Article 6.3 is concerned only with the gravest international crimes which, precisely because of their unusual resonate throughout humanity’s conscience and degree of heinousness. Yet, there are many violations of human rights and IHL that do not satisfy the rigorous criteria of grave international crimes.
3.2.1 Genocide
The first crime which is prohibited under Article 6(3) refers to is genocide and is known as the “crime of crimes” which is the gravest violation of human rights possible to commit. Genocide was initially considered as an international crime following the aftermath of the Nazi Holocaust and was aimed at prosecuting those who sought to destroy entire human groups. The word “genocide” was coined by a Polish lawyer, Raphael Lemkin, in his book Axis Rule in Occupied Europe (1944) to provide a legal concept for this unimaginable atrocity.
The CPPCG in article 2 defines genocide as:
Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
a) Killing members of the group;
b) Causing serious bodily or mental harm to members of the group;
c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
d) Imposing measures intended to prevent births within the group;
e) Forcibly transferring children of the group to another group.
The Convention definition was adopted without any amendments in the Rome Statute of the ICC, which was adopted on 17 July 1998 and entered into force on 1 July 2002 .
Although genocide is addressed with the same breath as WCS and CAH, it is distinctly different. WCS refer to violations of the law of armed conflict, while CAH, of which Genocide is often seen as a more serious subset which requires a systematic or widespread attack against a civilian population. Unlike WCS, the crime of genocide does not have to take place during an armed conflict (although it often does), and unlike CAH, it may also be perpetrated against soldiers or POW from the targeted group. The concept of genocide was coined after World War II and it is, unfortunate that the actual mass killing of human groups is much older than the legal expression; indeed, with the German genocide of the Herero and Nama in German South-West Africa (modern-day Namibia) between 1904 and 1907 being cited as the first genocides of the 20th century. The CPPCG declared that “genocide, whether committed in time of peace or in a time of war, is a crime under international law which they, the contracting parties, undertake to prevent and to punish.”
The real development of systematic international trials and punishment for the crime of genocide commenced after the 20th century: the ad hoc tribunals for the former Rwanda and Yugoslavia and the inclusion of the crime of genocide in the Rome Statute of the ICC. And also, there have been frequent references to genocide within the declarations, statements and resolutions of UN organs, notably the work of expert bodies and special rapporteurs. In 2004, the Secretary-General of the UN established a Special Adviser on the Prevention of Genocide, a senior position within the Secretariat with responsibility for warning the institution of threatened catastrophes
3.2.2 Crimes against humanity (CAH)
CAH is the second crime next to genocide in terms of weight and is included under the prohibition of Article 6(3). Although CAH are as old as humanity , in its strict sense, only first entered positive international law in 1945 when the four Allied powers, France, the Soviet Union, UK and the US established the International Military Tribunal at Nuremberg, and granted it jurisdiction to try the captured Nazi leaders with three categories of crimes: ‘crimes against peace’ (Article 6(a)), WCS (Article 6(b)) and CAH (Article 6(c)), which defined CAH as violation of prohibited acts committed against a civilian population . The notion of CAH has proven to be the real legacy of Nuremberg, albeit with chronic definitional confusion.
CAH were later incorporated in the Statutes of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) during the 1990s, and subsequently the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the ICC.
Genocide and WCS have been codified in conventions with widely accepted definitions, CAH has appeared in a series of instruments with somewhat inconsistent definitions. The law of CAH was initially created to fill certain gaps in the law of WCS, but many parameters were left undefined. The recent increase in the application of the international criminal law has produced a fruitful interplay between international instruments, jurisprudence, and commentaries, leading to a more coherent picture of the scope and definition of CAH today.
CAH include any of the following acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
• murder;
• extermination;
• enslavement;
• deportation or forcible transfer of population;
• imprisonment;
• torture;
• rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
• persecution against an identifiable group on political, racial, national, ethnic, cultural, religious or gender grounds;
• enforced disappearance of persons;
• the crime of apartheid;
• Other inhumane acts of a similar character intentionally causing great suffering or serious bodily or mental injury.
Thus, for a charge of CAH to succeed, the following five general elements are required to be proved: (i) there must have been an attack; (ii) the attack must have been directed against a civilian population; (iii) the acts of the perpetrator must have been part of the attack that was directed against a civilian population; (iv) the attack of which the perpetrator’s act formed a part must, in turn, been part of a systematic or widespread pattern of attacks; (v) the perpetrator must have been aware that her or his acts constituted part of the widespread or systematic attack.
3.2.3 War Crimes (WCS)
WCS are serious violations of IHL that occur either during international armed conflicts or non-international character. Unlike CAH, WCS have no requirement of systematic or widespread commission. A single isolated act can constitute a WCS.
It can be noted that a significant number of WCS are not embodied under Article 6(3), which is only limited to three types of WCS and these are; ‘attacks directed against COs or civilians protected as such’; grave breaches of the GC, and other WCS that are defined by international agreements to which a state is a party.
3.2.3.1 Grave breaches of the Geneva Conventions of 1949
In the ATT, a prohibition arises only if an act is a grave breach in the sense of the GC. The GC, which codified IHL after World War II , marked the first inclusion in a humanitarian law treaty of a set of WCS, the grave breaches of the conventions. Each of the four GC (on the sick or wounded on land, sick or wounded at sea, civilians and POW) contains its own list of grave breaches.
The first two GC, as titled, aim to protect the shipwrecked, sick and wounded members of the armed forces. A grave breach means committing certain acts against these protected persons and the property which can be used to protect them:
Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
The Third Geneva Convention, on the other hand, concerns the treatment of POWs. A grave breach is defined quite similarly to the first two Conventions, with the exception that the prohibition does not concern property:
Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or willfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention. Finally, the Fourth Geneva Convention relates to the protection of civilians during wartime. This provision is somewhat broader than the aforementioned:
Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected per-son, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
Also, we can see the reflection of the list of grave breaches of the GC in the Article 2 of the Statute of the ICTY (which literally contains the same acts), and Article 8 (2) (a) of the ICC Statute (again under the same heading as in the ICTY Statute).
AP I expanded the list of grave breaches of the GC to include:
• Certain medical experimentation;
• Making the civilian population or individual civilians the object of attack;
• indiscriminating attacks affecting the civilian population or COs in the knowledge that such attack will cause injury to civilians, damage to Cos or excessive loss of life;
• launching an attack against installations or works containing dangerous forces being fully aware that such attack will cause excessive loss of life, injury to civilians or damage COs;
• Making the non-defended and other civilian localities the object or inevitable victims of attack;
• Making a person the object of an attack in the knowledge that he is hors de combat,
• The perfidious use of the Red Crescent, Red Cross emblem or other protective signs;
• Transfer of an occupying power of parts of its population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;
• Unjustifiable delays in repatriation of POWs or civilians;
• Practices of apartheid and other inhuman and degrading practices;
• Attacking clearly-recognized historic monuments, places of worship which constitute the cultural, spiritual heritage of people, and works of art to which special protection has been given;
• And depriving protected persons of a fair trial.
All GC oblige the High Contracting Parties to the relevant Convention ‘to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the Convention defined in the following Article ‘. Each goes on identically to provide as follows:
Each High Contracting Party shall be under the obligation to … bring such persons, regardless of their nationality, before its own courts….
The express language of the above common provision makes plain that the obligation applies to each High Contracting Party to extradite or prosecute (aut dedere aut judicare) persons responsible for the grave breaches of the Conventions, and not just to those High Contracting Parties which are or were parties to the armed conflict in which the offences are alleged to have occurred. Regardless of the suspect nationality, in other words, the concept of universal jurisdiction is accepted for the grave breaches system.
3.2.3.2 Attacks directed against civilian objects or civilians
The second war crime mentioned in Article 6(3) is Attacks directed against CO sor civilians.
“Attacks” means acts of violence against the adversary, whether in offense or in defense, whatever territory they are conducted in, including any land, air or sea warfare which may affect the civilian or COs.
According to the Article 50(1) of AP I, Civilian is any person who does not belong to one of the categories of persons referred to in Article 4 A (1), (2), (3) and (6) of the Third Geneva Convention and in Article 43 of AP I. The civilian population comprises all persons who are civilians. In case of doubt, whether a person is a civilian, that person shall be considered to be a civilian. And the civilian population comprises all persons who are civilians; the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character. COs, which are ones that are not MOs, which ‘by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.
The duty to distinguish between combatants and civilians and between COs and MOs is the most fundamental principle of the IHL, the conduct of hostilities is governed by the cardinal principle that the parties to a conflict do not have an unlimited choice of means and methods of warfare. Article 48 of Protocol I lay down the basic rule of the law of armed conflict, according to which:
In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and MOs and accordingly shall direct their operations only against military objectives.
Also known as the principle of distinction, this customary rule of IHL is applicable in international and non-international armed conflicts. It is supplemented by two fundamental principles of international humanitarian law: the prohibition on direct attacks on civilian and COs and the prohibition of indiscriminate attacks. In addition, in accordance with the principle of proportionality, even MOs may not be attacked if the attack is expected to cause civilian casualties or damage which would be excessive in relation to the concrete and direct military advantage anticipated. In its 1996 advisory opinion on the Legality of the Threat or Use of Nuclear Weapon, the ICJ qualifies the above-mentioned principle as ‘ the cardinal principles… constituting the fabric of humanitarian law. In further added that these fundamental rules are to be observed by all states whether or not they have ratified the conventions that contain them because they constitute intransgressible principles of CIL.
The ICC codifies as a war crime intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in the hostilities and intentionally directing attacks against COs that is objects which are not MOs.
3.2.3.3 Other War Crimes
Finally, the ATT prohibits a State from authorizing the transfers of arms that would be used in ‘other war crimes as defined by international agreements to which it is a Party, This provision covers all possible WCS besides grave breaches and directly attacking civilian and COs crimes. The only two conditions are that they must be serious violations of the laws and customs applicable in armed conflicts, and they must be defined in the international agreements to which the State is a Party. Unlike the crime of directly attacking civilian and COs, CIL cannot serve as a source for WCS because the wording clearly dictates that “defined by international agreements”. For instance, Rome Statute of the ICC.
The ICC Statute contains the longest and most comprehensive list of WCS . The enumerated WCS in Article 8(2)(b) of the ICC Statute concern international conflicts only containing a list of 26 WCS (without excluding the crimes of directly attacking civilian and COs), while enumerated WCS in Article 8(2)(c)–(f), are applicable to non-international conflicts.
Many of the listed crimes present, in a more elaborate way, the forbidden nature of targeting civilians. For instance, attacks against peacekeeping missions or humanitarian assistance; attacks in the knowledge that they will cause incidental loss of life or injury to civilians or damage to COs or widespread, long-term and severe damage to the natural environment; attacking or bombarding towns or buildings which are undefended and not MOs; attacks against buildings dedicated to religion, education, art, science or historic monuments, hospitals. WCS under the Statute concern the treatment of the enemy such as, killing or wounding a surrendering combatant, declarations of “No quarter” (refusal to accept surrender), committing outrages upon personal dignity, rape. Other war crimes also include more tactical and technical infractions such as abuse of flags, signals and uniforms, population transfers, the use of various different weapons (including chemical weapons) and pillaging.
Naturally, the Rome Statute only applies to its States Parties. For other States, and for other possible WCS that are not included in the Statute, other instruments have to be considered outside the Statute, such as the general Hague law; the acceptable means and methods of warfare in international conflicts. This law stems mainly from the 1899 Hague Convention II and the 1907 Hague Convention IV. Another instrument has to be considered is ‘Geneva law’, under which the concept of grave breaches is supplemented by other prohibitions. Already in the universally ratified four GC, it is hinted that other infractions can also be deemed as WCS.
In this brief analysis, we can draw that, in all evaluations to be made based on the risk of ‘other WCS, the starting point will be the international agreements of the States Parties involved in a transfer.
3.4 Prohibition of Arms Transfers That Contribute to Human Rights and Humanitarian Law Violations or to Violations of Terrorism or Crime Conventions
Article 7 Along with Article 6, forms the centerpiece of the treaty. prohibitions under article 6 do not require any particular action except to not transfer banned arms, while Article 7 operates differently, If an export is not prohibited under Article 6, an exporting state party must, before deciding whether or not to authorize a proposed export of CAAPC, in an objective and non-discriminatory manner, assess the risk that the export arms would undermine peace and security or be used to commit or facilitate a serious violation of international humanitarian or human rights law, or acts constituting terrorism or a transnational organized crime. The provision states that an exporting state shall refuse authorization if its assessment concluded that the risk of negative consequences (as listed in the ATT) is overriding. Similar to Article 6(3), the wording calls for a causal link between the arms that are about to be transferred and a particular result.
As noted above, it was left open whether gifts or free loans can be subsumed under the meaning of ‘export’. Nevertheless, with the duty to apply and implement a treaty in good faith (pacta sunt servanda) no state party can avoid its obligations by listing all its transfers of CAAPC as gifts.
Article 7 of the ATT outlines several steps that must be followed by the exporting State prior to authorizing the export of a controlled material. The article also describes measures that must be taken if a State becomes aware of new information after authorization was granted on the basis of which the authorization would have been declined. It encourages States to then re-evaluate and re-consider the authorization.
For the conduct of assessment, which must be carried out before the authorization , under the jurisdiction of the exporting State and pursuant to, in accordance with its national control system, the ATT requiring that it be done in an objective and non-discriminatory manner, every time a state authorizes an arms transfer, taking into account relevant factors, including information provided by the importing State. Accordingly, it is difficult to specify the conditions for establishing that a State has or has not complied with Article 7. But there can be no un-assessed legal arms transfers. prohibitions of Article 7 means that an exporting State may not claim legal innocence for its arms transfers on the grounds that, under its regulatory system, it made no inquiry about the risk that the purchaser of the exported arms will use them to violate international law. As with regard to Article 6.3’s requirement of knowledge, the defense of willful blindness is now unavailable.
Article 7 (3) ATT prohibits the authorization of an export should the States Party conclude that there is an “overriding risk” of any of the negative consequences listed in Article 7 (1) ATT. The term ‘overriding risk’ is ambiguous. The term has been subject to criticism and intense discussions at the Final Conference with a majority of States urging to replace it with ‘substantial’ or ‘clear’ risk. Having failed to achieve such a change of the wording, some States already declared their intention to interpret ‘overriding’ as ‘substantial’, for instance New Zealand stated after the treaty´s adoption that it would interpret the ‘overriding’ risk as a ‘substantial’ risk. In any case, the exporting States Party is required to conduct the whole export assessment in good faith. Thus it could not simply assert that the risk of negative consequences is outweighed by other considerations but would have to substantiate this allegation in order to authorize the export.
3.4.1 Contributing to or Undermining Peace and Security
The first criterion for non-authorization of export is to assess whether the arms or items to be transferred could contribute to or undermine peace and security. As states in several commentaries, this provision remained a huge loophole during the whole drafting process and remains contentious. The provision does not refer to threats to international peace and security thus allowing a state party to interpret the wording as a threat to its own peace and security. The state party in question could thus legalize an export if it considers contribution to ‘peace and security.
3.4.2 Serious Violation of International Humanitarian Law
Article 7(1) (b) ATT obliges States Parties to consider potential negative uses of exported arms, but does not further define them. Article 7(1) (b) (i) ATT refers to serious violations of international humanitarian law. Article 7(3) prohibits arms export if there was an overriding risk that those arms would be used to or Facilitate serious violations of IHL
Serious violations of IHL correspond to WCS. They consist of a serious infringement of an international rule under CIL or treaty law entailing the individual criminal responsibility of the person breaching the rule. They can take place in international or non-international armed conflicts. Violations are serious, and are WCS, if they endangered protected persons (e.g. civilians, POW, the wounded and sick) or objects (e.g. COs or infrastructure) or if they breach important values. The majority of WCS involve death, injury, destruction or unlawful taking of property.
Serious violations of IHL are: Grave breaches as specified under the four GC (Articles 50, 51, 130, 147 of Conventions I, II, III and IV respectively), Grave breaches as specified under AP I (Articles 11 and 85), WCS as specified under Article 8 of the Rome Statute of the ICC and other WCS in international and non-international armed conflicts in customary IHL.
This reference to ‘serious violations of international humanitarian law’ seems more appropriate as it is broader than the phrase within Article 6.3 that includes reference to WCS as defined by international agreements’ to which the exporting state is a party .It implies that the threshold for a banned export is perhaps higher than the one for the prohibited transfer itself.
Respect for IHL is one of the most important obligations of the parties to an armed conflict. IHL applies at all times during armed conflict. Without respect, rules become meaningless. The notion of respect for international obligations finds expression in the VCLT. Under Common Article one of the GC, which codifies the notion of respect, parties to a conflict must respect all applicable rules of IHL in all circumstances. These rules include those found in the GC, their Additional Protocols, The Hague Regulations as well as rules of Customary IHL.
3.4.3 Serious Violation of International Human Rights Law
IHRL is the body of international law began as a response to the horrors of war, in particular World War II, although the GC had begun earlier. The formation of the UN gave human rights international legitimacy, particularly because many nations signed the UN Charter, which specifically mentions human rights. Since the formation of the United Nations, it has passed many agreements and resolutions binding the signatories to respect human rights. Additionally, it has set up tribunals to charge those suspected of egregious violations of human rights. Especially since the end of the World War II and the adoption by the UN General Assembly of the Universal Declaration of Human Rights in 1948, many human rights treaties have been adopted. Some offer generalized protection (e.g., the 1966 International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights), while others deal with protection against certain abuses (e.g., torture, forced disappearances), or address the rights of certain groups (e.g. women, children, migrants, persons with disabilities).
To say that that arms transfer have an impact on the enjoyment of human rights is almost trite. Human rights treaties do not specifically address weapons transfer, similarly even though weapons are used in many countries to commit the most serious violations of human rights
Article 7(1) (b) (ii) of the ATT provides that each state party before it decides whether to authorize an export of CAAPC have to assess the level of risk of the items in question being used to commit or facilitate a ‘serious violation of IHRL, in another words the ATT explicitly demands that states parties put upholding human rights law and IHL at the core of their arms export decisions. The desire to promote respect for human rights law is also a principle that guides the actions of states parties.
There is a wide range of human rights protected under international human rights treaties and CIL that are potentially affected by the international trade in CAAPC and are therefore to be considered in the assessment. They include
• The right to life (covering, for example, assassinations or other forms of murder, enforced disappearance, as well as genocide),
• The right to freedom from torture and other forms of cruel, inhuman, or degrading treatment, and
• The rights to liberty and security of person,
• the right to freedom from slavery,
• The right to freedom of thought, conscience, and religion,
• The right to recognition as a person before the law.
However, it is unclear what amounts to a ‘serious’ violation of IHRL as required by the provision because until now no universally accepted definition of the term has come into existence.
In any event, violations of those human rights that have attained the status of jus cogens, i.e. peremptory norms of CIL from which no derogation by treaty is possible, must be considered ‘serious’. Although it is disputed which specific human rights belong to the body of jus cogens, it is commonly acknowledged that the “core rights which are directly related to human existence” qualify as such. Among those relevant with a view to the trade in arms are the rights to freedom from torture, slavery, and arguably the freedom from arbitrary deprivations of life. The violations of these rights would therefore always amount to serious human rights violations under Article 7 (1) (b) (ii) ATT.
Nevertheless, there is no indication that serious human rights violations are limited to breaches of peremptory norms of human rights law. With regard to those human rights not forming part of jus cogens, violations can still be serious due to the manner in which they have been committed. In this respect, ‘serious human rights violations’ might be tantamount to ‘gross’ or ‘systematic’ violations of human rights, both of which are terms used in various resolutions of UN organs. ‘Gross violations of human rights’ have been described to be distinct from ‘simple’ human rights violations due to their nature and scope.
As with international humanitarian law, a potential causal link must be shown between the arms in question and the incidence of rights violation(s), and the exporting state will have to assess case by case and decide whether there is an overriding risk that the arms will be used to commit or facilitate serious violations of IHRL, if there was such risk it has to prohibit the arms in question to be transferred.
3.4.4 An act constituting an offence under international conventions relating to terrorism or transnational organized crime
Another likely misuse of arms export which the ATT takes into account in Article 7 (1) (b) (iii) and (iv) are, offences under international conventions or protocols relating to terrorism or transnational organized crime to which the exporting State is a Party’. Similar to the concepts of ‘violating relevant international obligations under international agreements to which it is a Party’ and ‘other war crimes as defined by international agreements to which it is a Party’ utilized in Article 6, only the international commitments of a State dictate which obligations it must consider. But, to determine which conventions or protocols may possibly come into question, one must determine which of them relate to, have some connection with terrorism.
Relating to terrorism, apart from regional treaties , there are numerous multilateral international treaties dealing with this matter, the most importance in this regard would be the 1997 Terrorist Bombings Convention, other relevant treaties would include the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation; the 1979 International Convention against the Taking of Hostages; and the 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation. And relating to transnational organized crimes, as has been noted, appears to be a reference to the 2000 UN Convention against Transnational Organized Crime (UNTOC).