MISSING PIECES - Inter-Parliamentary Union

MISSING PIECES
In December 2003, the Wassenaar Arrangement also agreed to Elements
for Export Controls of MANPADS, which calls on members to restrict
exports of man-portable air defence systems (MANPADS) only to governments
or their authorised agents and to take into account other factors,
including the potential for misuse in the recipient country. 12 (See Annex 5
for more instruments of relevance to small arms transfers)
BOX 6 LEGAL CHALLENGES FOR RESTRICTING ARMS TRANSFERS
The Draft Framework Convention on International Arms Transfers (also known
as the Arms Trade Treaty or ATT) has gathered growing international attention
since 2003. 13 Since then, over one million people have signed up in support
of its principles, and in December 2006 some 153 governments aligned themselves
to moving forward on such an initiative through the adoption of a
General Assembly resolution calling for an examination of the feasibility of
an arms trade treaty. 14 However, some important issues will need to be
clarified in the coming months:
1. Clarifying the international legal basis for rules prohibiting transfers
As it currently stands, the ATT proposal attempts to codify existing international
law with reference to the obligation of states under the law of state
responsibility. This law prohibits states from aiding and assisting other states
in the commission of an internationally wrongful act, which can include
serious breaches of IHL or human rights law. What happens, however, when
weapons are transferred to non-state armed groups that are not directly
covered under the concept of state responsibility?
The emerging international criminal law notion of ‘complicity’ might
assist, as it encompasses the positive obligation of state officials to investigate
the end-use of the weapons they transfer, as they may incur responsibility
for making violations possible by providing material assistance to the perpetrators.
Rules against complicity are intended to ensure states do not
become accomplices in the violent behaviour of others, whether other states,
armed groups, corporations, or individuals.
In addition, there are clear positive obligations on states to ensure
respect for IHL, and this is widely accepted as including obligations towards
preventing or punishing breaches of IHL abroad. There is also a developing
notion that states must co-operate in the protection and fulfilment of human
rights beyond their borders. In both cases, these rules provide support for
strict criteria to prohibit transfer where the guns are likely to be used to
commit human rights or humanitarian law abuses.
2. Clarifying the precise criteria of prohibition
Existing proposals list very general criteria, such as ‘violations of human
rights’. It is likely that when states sit down to negotiate criteria for arms
transfers, there will need to be a good deal of discussion to give more precision
to these general phrases. For both human rights and humanitarian
law criteria, there is a firm basis in existing international standards to list
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