Addressing some misconceptions about the Arms Trade Treaty

Deception in High Places by Nicholas Gilby

In this blog anti arms trade writer and campaigner Nicholas Gilby, author of Deception in High Places – A History of Bribery In Britain’s Arms Trade, analyses misconceptions about the arms trade treaty.

The Arms Trade Treaty came into force on 24 December 2014.  At the time of writing the Treaty has been signed by 131 states and ratified by 61.  I want to try and clear up some misconceptions about the Treaty that have been aired in the commentaries surrounding its the entry into force.

Will the Arms Trade Treaty prohibit the sale of arms which might be used to violate human rights?

The short answer is no.

The Arms Trade Treaty sets out criteria for when arms exports should be prohibited (Article 6) and the criteria which should be used when deciding whether other arms exports should be permitted (Article 7).

Some commentaries have claimed the Treaty

“establishes criteria for countries to apply in decisions authorizing the cross-border transfers of arms, including risks that weapons would be used to commit acts of terrorism, violations of human rights and international humanitarian law, and other offences.”

Or that proposed arms sales

“must be assessed against strict criteria, including whether the arms might be used for human rights violations or war crimes. If there is a substantial risk the transfer will breach this criteria, then it cannot be authorized.”

This, unfortunately, is misleading.

The Arms Trade Treaty does prohibit (Article 6) arms sales if at the time of authorization it is known the arms would be used for genocide, crimes against humanity, grave breaches of the Geneva Convention, attacks directed against civilian objects or civilians or other war crimes.  Note the words in italics are quite important because of course any recipient state intending to commit the above would in all likelihood not make its intentions clear before requesting the necessary equipment.  The word “would” implies certainty, and in most cases a supplier state would not be certain about the use of any equipment before transfer.

In Article 7, the Arms Trade Treaty requires that exporting states should assess whether proposed arms exports could be used to commit or facilitate serious violations of international humanitarian or human rights law.  Having done so, exports should not be authorised if there is an overriding risk of such an outcome.  Again the words in italics are quite important.  What is a serious violation of human rights law (as opposed to a less serious or trivial one)?  And what is an overriding risk (is that more than the “substantial risk” mentioned in the commentary)?  These are concepts naturally open to wide interpretation.  But, if there is a chance a proposed arms export might be used to commit some human rights violations, then that does not seem in itself to meet the criteria for prohibition set out in the Treaty.

Articles 6 and 7 are quite narrowly drawn but also open (in particular Article 7) to a range of interpretations.  But what this does mean is that any suggestion the Arms Trade Treaty will prohibit arms exports that might be used for human rights violations is misconceived.  Now, it might be that the drafting of the commentaries is not intended to suggest this.  But, because the wording here is so critical in correctly interpreting the Treaty, it is important discussions of the human rights provisions in the Treaty are not ambiguous or misleading.

Will the Arms Trade Treaty mean serious questions will be asked about arms exports?

The short answer is no.

According to one commentary

“serious questions will be asked every time anyone – whether a government or arms dealer – plans to transfer any weapons on a long list that includes small arms, light weapons, battle tanks, attack helicopters and ammunition.”

Even if one assumes that all ratifying states will actually do as they should this statement is not actually correct, and has no chance of being correct for years.  The serious questions will (currently) be asked in 61 states which currently account for 24.9% of global arms exports (SIPRI’s Arms Transfer Database for 2013 (latest data)).  That percentage could go up to 89% (and thus make the statement in the commentary near true) if only three states – the US, Russia and China – ratify the Treaty.  So far Russia and China have not signed it.  One commentary suggests they might, so that they have a voice at the Conference of the State Parties (I am in no position to say whether this speculation is well founded).  However,another commentary suggests that the US is highly unlikely to ratify the Treaty in the near future.  Whomever you believe, for a good while yet, the Arms Trade Treaty will only apply to about a quarter of the global arms trade.  So, it doesn’t seem to have much chance of making an impact soon.  Which leads me to my last question…

Will the Arms Trade Treaty make a difference on the ground?

The short answer is there is no way of knowing.

According to one commentary we need

“time and commitment for the treaty to be implemented and for us to start to see a difference on the ground.”

I have explained before that one of the big problems with the Arms Trade Treaty is that we will not know whether or not it has actually been a success. Unfortunately, still no one has (to my knowledge – and if you do know differently please make a comment below!) articulated exactly how we will be able to assess robustly whether or not the Treaty has had an impact.

So, plainly it would be wrong to attribute any future decline of the arms trade to the Treaty, as there may well be other factors that are the reason for any decline.  But it is incumbent on those who have campaigned for the Treaty, or those implementing it, to develop a robust evaluation methodology for the Treaty.  Otherwise, why should anyone believe their claims about impact?

This article originally appeared on the Deception in High Places blog.

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