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Complicity and beyond: International law and the transfer of small arms and light weapons

Published online by Cambridge University Press:  27 April 2010

Abstract

Momentum is growing around a proposed treaty governing the international transfer of small arms and light weapons. Those promoting the new instrument emphasize the existing obligations of States, under the law of State responsibility, not to aid or assist another State in violating international law. This article explores the extent to which the prohibition of “complicity” is a sufficient basis for requiring States to consider the end-use of the weapons they transfer. It offers suggestions for strengthening the effectiveness of the current draft treaty in a way that places respect for international humanitarian law and human rights at its core.

Type
Means of Warfare
Copyright
Copyright © International Committee of the Red Cross 2005

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References

1 “Small arms are weapons designed for personal use, while light weapons are designed for use by several persons serving as a crew. Examples of small arms include revolvers and self-loading pistols, rifles, sub-machine guns, assault rifles and light machine-guns. Light weapons include heavy machine-guns, some types of grenade launchers, portable anti-aircraft and anti-tank guns, and portable launchers of anti-aircraft missile systems. Most small arms and light weapons would not be lethal without their ammunition. Ammunition and explosives thus form an integral part of small arms and light weapons used in conflicts. They include cartridges (rounds) for small arms, shells and missiles for light weapons, anti-personnel and anti-tank hand grenades, landmines, explosives, and mobile containers with missiles or shells for single-action anti-aircraft and anti-tank systems” (description taken from the Report of the United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All its Aspects, New York, 9–11 July 2001, <http://disarmament.un.org:8080/cab/smallarms/> (last visited 25 July 2005). In this article, the expression “small arms” is used as shorthand to refer to small arms and light weapons.

2 United Nations Department for Disarmament Affairs, Conventional Arms Branch, “Small Arms and Light Weapons”, available online: <http://disarmament.un.org:8080/cab/salw.html> (last visited 25 July 2005).

3 See calls for the adoption of an Arms Trade Treaty, Control Arms Campaign, <http://www.controlarms.org> (last visited 2 September 2005).

4 These principles prohibit the use of weapons that are incapable of distinguishing between combatants and civilians or those that are of a nature to cause superfluous injury or unnecessary suffering.

5 The Draft Articles were commended by the General Assembly and annexed to Resolution 56/83, “Responsibility of States for internationally wrongful acts”, UN Doc. A/RES/56/83, 12 December 2001 (hereinafter Draft Articles).

6 For a thorough analysis of the State practice that led to the codification of complicity, see Quigley, John, “Complicity in international law: A new direction in the law of State responsibility”, British Yearbook of International Law, Vol. 57, 1986, p. 77.CrossRefGoogle Scholar

7 Crawford, James, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries, Cambridge University Press, Cambridge, 2002, p. 149, paras. 3–6 (hereinafter Commentary).Google Scholar

8 Ibid., para. 4.

9 Ibid., p. 149, para. 5.

10 Ibid. (emphasis added).

11 See Ibid., p. 81, para. 3, and p. 84, para. 10.

12 “Further credence is given to questioning whether there really is an intent requirement by reviewing a recent report of the ILC. In the report, the ILC takes note of government suggestions to get rid of the intent requirement entirely. (…) In response to these suggestions, the Special Rapporteur insinuates that requiring intent within the Article is not obligatory and may be misplaced: ‘It is very doubtful whether under existing international law a State takes the risk that aid or assistance will be used for purposes which happen to be unlawful; hence some requirement of knowledge, or at least notice, seems inevitable. It is for consideration whether Article 16 currently strikes the right balance…’” (Kate Nahapetian, “Confronting State complicity in international law”, UCLA Journal of International Law and Foreign Affairs, Vol. 7, 2002, p. 108Google Scholar, citing «Fourth report on State responsibility», Report by Special Rapporteur James Crawford, Fifty-Third Session, UN Doc. A/CN.4/517/Add. 1, 3 April 2000, p. 3).

13 “A State, which enjoys substantial military sales to an abusive regime and continues those sales, is motivated significantly by economic interests. Regardless of the motivation, however, the effect on the people at the receiving end of the human rights abuses is the same. Article 16 should be designed to prevent human rights and international law abuses, regardless of the assisting State's intentions” (Nahapetian, Ibid., p. 127).

14 Graefrath, Bernhard, “Complicity in the law of international responsibility”, Revue belge tie droit international, Vol. 2, 1996, p. 377.Google Scholar

16 Sassòli, Marco, “State responsibility for violations of international humanitarian law”, International Review of the Red Cross, Vol. 84, No. 846, 2002, p. 413.Google Scholar

17 Draft Articles, op. cit. (note 5), Article 40 (2).

18 See Commentary, op. cit. (note 7), p. 188, para. 5, and pp. 246–247, paras. 4–5, citing ICJ, East Timor (Portugal v. Australia), Judgment, ICJ Reports 1995, para. 29.

19 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, para. 79.

20 Commentary, op. cit. (note 7), p. 246, para. 5.

21 Advisory Opinion of 9 July 2004, reprinted in International Law Materials, Vol. 43, 2004, p. 1009.Google Scholar Interestingly, in the context of this opinion the Court appears to suggest that grave breaches of international humanitarian law yield consequences for third States regardless of any analysis of intensity. The Court merely refers to “the character and the importance of the rights and obligations involved” rather than to the extent to which the violations involve gross or systematic failures to respect these rights or fulfil these obligations (ibid., para. 159). For a discussion of this apparent widening of the scope of Draft Article 41, see Andrea Bianchi, “Dismantling the wall: the ICJ's Advisory Opinion and its likely impact on international law”, German Yearbook of International Law, Vol. 47, 2004, pp. 39–40.

22 See Commentary, op. cit. (note 7), p. 250, para. 5.

23 Ibid., p. 252, para. 12. The examples given by the Commentary are those of the illegal situations created by the apartheid regime in South Africa and by Portuguese colonial rule, both of which led the Security Council to prohibit any aid or assistance to these States (S/RES/418, 4 November 1977 and S/RES/569, 26 July 1985; S/RES/218, 23 November 1965).

24 Commentary, ibid., p. 252, para. 11.

25 In a case opposing Nicaragua to the United States, the International Court of Justice had this to say about United States' arms transfers to the contras: “the support given by the United States (…) to the military and paramilitary activities of the contras in Nicaragua, by financial support, training, supply of weapons, intelligence and logistic support, constitutes a clear breach of the principle of non-intervention.” (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, ICJ Reports 1986, para. 242).

26 Under Article 3(b) of the legally binding Joint Action on Small Arms and Light Weapons agreement, “[t]he sale of military-style small arms to sub-State or non-State groups is not permitted and the European Union Member States have renounced this form of military assistance as an instrument in their foreign and security policy”, Joint Action of 17 December 1998 adopted by the Council on the basis of Article J.3 of the Treaty on European Union on the European Union's contribution to combating the destabilising accumulation and spread of small arms and light weapons, 1999/34/CFS, available online: <http://projects.sipri.se/expcon/eusmja.htm> (last visited on 25 July 2005). The Joint Action provisions do not cover pistols, shotguns and other types of rifles used in internal conflicts.

27 David Capie, “Armed groups, weapons availability and misuse: An overview of the issues and options for action”, background paper for a meeting organized by the Centre for Humanitarian Dialogue in advance of the Sixth Meeting of the Human Security Network, Bamako, Mali, 25 May 2004, p.11, available online: <http://www.hdcentre.org/index.php?aid=64> (last visited on 25 July 2005).

28 Ibid. The Canadian proposal was circulated in 1998 in the form of a discussion paper entitled “A proposed global convention prohibiting the international transfer of military small arms and light weapons to non-State actors”, available online: <http://www.nisat.org/export_laws regs%201inked/canada/discusion_papera_proposed.htm> (last visited on 25 July 2005).

29 “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances” (Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949 (hereinafter GC I); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949 (hereinafter GC II); Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949 (hereinafter GC III); Geneva Convention relative to the Protection of Civilian Persons in Time of War (hereinafter GC IV)). This provision is reiterated in Article 1(4) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (hereinafter AP I). The obligation to respect and ensure respect applies to international conflicts and to non-international conflicts to the extent that the latter are covered by common Article 3. While conflicts of a non-international character as defined by the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977 (hereinafter AP II) are not explicitly covered by the obligation to respect and to ensure respect, they can nonetheless be considered as indirectly falling within the purview of the provision, insofar as the Second Additional Protocol is merely an elaboration of common Article 3, a fact stated in its Article 1(1). See de Chazournes, Laurence Boisson & Condorelli, Luigi, “Common Article 1 of the Geneva Conventions revisited: Protecting collective interests”, International Review of the Red Cross, Vol. 82, No. 837, 2000, p. 69.Google Scholar

30 ICTY, Prosecutor v. Zoran Kupreskic and others, Case No. IT-95–16-T, Judgement (Trial Chamber), 14 January 2000, para. 519.

31 “In situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter.”

32 Boisson de Chazournes & Condorelli, op. cit. (note 29), pp. 78–79.

33 Ibid., p. 79.

34 Embargoes are also imposed by regional organizations, most notably by the European Union (EU) and the Organization for Security and Co-operation in Europe (OSCE). In October 2004, there were EU arms embargoes against ten States: Afghanistan, Bosnia-Herzegovina, Burma (Myanmar), China, Democratic Republic of Congo, Liberia, Sierra Leone, Somalia, Sudan and Zimbabwe (<http://www.sipri. org/contents/armstrad/embargoes.html#tab> (last visited 28 July 2005)). In 1993, the OSCE imposed a politically binding embargo on Armenia and Azerbaijan, aimed at “all deliveries of weapons and munitions to forces engaged in combat in the Nagorno-Karabakh area”. Decisions based on the Interim Report on Nagorno-Karabakh, available online: <http://projects.sipri.se/expcon/csceazbarm.htm> (last visited 25 July 2005). An important expression of political will, such embargoes do not carry the weight of their UN counterpart if only because “they are, by their very nature, regional in scope and can be thus undermined by countries outside the arrangement who may not subscribe to the same political view” (Basic, International Alert, and Saferworld, Combating the Illicit Trade in Small Arms and Light Weapons: Enhancing Controls on Legal Transfers, Briefing 6, p. 11, available online: <http://www.saferworld.org. uk/iac/btb_brf6.pdf> (last visited 28 July 2005)).

35 In a recent resolution on the situation in Burundi, the Security Council expressed “its deep concern over the illicit flow of arms provided to armed groups and movements, in particular those which are not parties to the peace process under the Arusha Agreement” and called upon “all States to halt such flow” (S/RES/1545, 21 May 2004, at para. 18).

36 S/RES/1572, 15 November 2004 (for a period of 12 months); S/RES/1584, 1 February 2005 (reaffirming the embargo).

37 S/RES/1521, 22 December 2003 (for a period of 12 months); S/RES/1579, 21 December 2004 (renewed for a period of 12 months).

38 S/RES/733, 23 January 1992; most recently reaffirmed in S/RES/1519, 15 December 2003; S/RES/1558, 17 August 2004; and S/RES/1587,15 March 2005.

39 S/RES/1493, 28 July 2003, targeting “all foreign and Congolese armed groups and militias operating in the territory of North and South Kivu and of Ituri, and to groups not party to the Global and All-inclusive agreement, in the Democratic Republic of Congo” (for a period of 12 months); S/RES/1552, 27 July 2004 (renewed for a period of 12 months, expiring on 31 July 2005). In its latest resolution, the Security Council decided that the embargo now applies “to any recipient in the territory”, S/RES/1597, 3 May 2005.

40 S/RES/1521,22 December 2003, targeting the LURD (Liberians United for Reconciliation and Democracy) and the Movement for Democracy in Liberia (MODEL), as well as “all former and current militias and armed groups” (for a period of 12 months); S/RES/1579, 21 December 2004 (renewed for a period of 12 months).

41 S/RES/1011, 16 August 1995, targeting “non-governmental forces” inside Rwanda and persons in neighbouring States that intend to use arms and related matériel in Rwanda.

42 S/RES/1171, 5 June 1998, targeting “non-governmental forces in Sierra Leone”.

43 S/RES/1556, 30 July 2004, targeting “all non-governmental entities and individuals, including the Janjaweed, operating in the States of North Darfur, South Darfur and West Darfur”; S/RES/1591, 29 March 2005, extending the measures “to all parties to the N'djamena Ceasefire Agreement and any other belligerents in the States of North Darfur, South Darfur and West Darfur”.

44 S/RES/1390, 28 January 2002 (for a period of 12 months); S/RES/1455, 17 January 2003 (decision to improve the implementation of the measures over a further period of 12 months); S/RES/1526,30 January 2004 (decision to improve the implementation of the measures over a further period of 18 months).

45 Article 41 of the United Nations Charter confers upon the Security Council the power to call for a “complete or partial interruption of economic relations (…) and the severance of diplomatic relations” in response to a threat to or breach of the peace or an act of aggression. It is within the discretion of each State to decide the type of responsibility (administrative offence v. criminal offence) that attaches to a violation of the embargo by a private party. In a resolution on the situation in Africa adopted in 1998, the Security Council encouraged Member States to adopt measures making the violation of mandatory arms embargoes a criminal offence (see S/RES/1196,16 September 1998, para. 2).

46 See S/RES/1379, 20 November 2001; S/RES/1460, 30 January 2003; S/RES/1539, 22 April 2004; S/RES/1612, 26 July 2005. See also “Children and armed conflict”, Report of the Secretary-General, UN Doc. A/59/695 — S/2005/72, 9 February 2005, para. 57.

47 Arms Availability and the Situation of Civilians in Armed Conflict, International Committee of the Red Cross, Geneva, 1999, p. 65.

48 The obligation to disseminate IHL is set out in GC I, Article 47; GC II, Article 48; GC III, Article 127; GC IV, Article 144; AP I, Articles 83 and 87(2); and AP II, Article 19.

49 The obligation to prosecute grave breaches is set out in GC I, Article 49; GC II, Article 50; GC III, Article 129; GC IV, Article 146; and AP I, Articles 11(4), 85 and 86.

50 For a discussion of transnational human rights focusing primarily on economic, social and cultural rights, see Duties Sans Frontières, International Council on Human Rights Policy, Versoix, Switzerland, 2003.

51 Gibney, Mark, Tomasevski, Katarina & Vedsted-Hansen, Jens, “Transnational State responsibility for violations of human rights”, Harvard Human Rights Journal, Vol. 12,1999, p. 267.Google Scholar

52 “If a government may not return or expel a person to a State in which his or her life or freedom will be at risk on grounds of race, religion, nationality, membership of a social group or political opinion, nor may it sanction the transfer of arms to a country in which the risk arises of serious violations of human rights or humanitarian law.” (Marks, Susan & Clapham, Andrew, International Human Rights, Oxford University Press, Oxford, 2005, p. 13).Google Scholar

53 Geneva Convention relating to the Status of Refugees, 28 July 1951, Article 33 (1): “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

54 EComHR, Tugar v. Italy, Application No. 2869/93,18 October 1995.

55 ECHR, Soering v. United Kingdom, Judgment, 7 July 1989, Series A, Vol. 161.

56 EComHR, Tugar v. Italy, op. cit. (note 54), p. 3.

57 See “Prevention of human rights violations committed with small arms and light weapons”, Preliminary Report submitted by Barbara Frey, Special Rapporteur, in accordance with Sub-Commission decision 2002/25, Economic and Social Council, UN Doc. E/CN.4/Sub.2/2003/29, 25 June 2003, pp. 12–13. The Special Rapporteur discusses the case law of the Inter-American Court of Human Rights and the European Court of Human Rights, concluding that: “under the due diligence standard for determining State liability, therefore, a State may have an affirmative duty under the human rights instruments to ensure that small arms are not used by armed individuals and groups to commit human rights violations.” For the latest version of the Special Rapporteur's “Draft principles on the prevention of human rights violations committed with small arms”, see UN Doc. E/CN.4/Sub.2/2005/35, 16 June 2005.

58 In a 1998 judgment, the Trial Chamber of the ICTY wrote: “States are obliged not only to prohibit and punish torture, but also to forestall its occurrence: it is insufficient merely to intervene after the infliction of torture, when the physical or moral integrity of human beings has already been irremediably harmed. Consequently, States are bound to put in place all those measures that may pre-empt the perpetration of torture. (…) international rules prohibit not only torture but also (i) the failure to adopt the national measures necessary for implementing the prohibition and (ii) the maintenance in force or passage of laws which are contrary to the prohibition.” (ICTY, Prosecutor v. Anto Furundzija, Case No. IT-95–17/1-T, Judgment (Trial Chamber), 10 December 1998, para. 148).

59 Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August – 7 September 1990, available online: <http://www.smallarmsnet. org/docs/saun17.pdf> (last visited 28 July 2005).

60 ICTY, Prosecutor v. Dusko Tadic, Case No. IT-94–1, Judgement (Trial Chamber), 7 May 1997, para. 674 (emphasis added).

61 Furundzija, op. cit. (note 58), para. 249 (emphasis added).

62 Rome Statute of the International Criminal Court, 17 July 1998, Article 25(3)(c) (emphasis added).

63 Clapham, Andrew, “On complicity”, in Henzelin, M. & Roth, R. (eds), Le Droit pénal à l'épreuve de l'internationalisation, Bruylant, Brussels, 2002, p. 254.Google Scholar

64 Ambos, Kai, “Article 25”, in Triffterer, Otto (ed.), Commentary on the Rome Statute of the International Criminal Court, Nomos, Baden-Baden, 1999, p. 483.Google Scholar

65 ICTR, Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96–4-T, Judgement (Trial Chamber), 2 September 1998, para. 537 (emphasis added).

66 SCSL, Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-I, Indictment, 7 March 2003, para. 26 (emphasis added).

67 Schabas, William, “Enforcing international humanitarian law: Catching the accomplices”, International Review of the Red Cross, Vol. 83, No. 842, 2001, p. 451Google Scholar, quoted in Clapham, “On complicity”, op. cit. (note 63), p. 256.

68 Quoted in Lisa Misol, “Weapons and war crimes: The complicity of arms suppliers”, Human Rights Watch World Report 2004: Human Rights and Armed Conflict, available online: <http://hrw.org/wr2k4/13.htm#_Toc58744962> (last visited 28 July 2005).

69 Potentially paving the way for reversing this trend, a court in the Netherlands is currently holding hearings in a trial involving a Dutch national, Frans van Anraat, who is accused of helping former Iraqi leader Saddam Hussein to commit war crimes and genocide by providing him with materials for chemical weapons. See BBC News, 18 March 2005, available online: <http://news.bbc.co.uk/2/hi/middle_east/4360137.stm> (last visited 28 July 2005).

70 In national and regional regulatory instruments, “brokers” and “brokering activities” are defined in a variety of different ways. In its Model Convention on the Registration of Arms Brokers and Suppression of Unlicensed Arms Brokering, the Fund for Peace defines “brokering activities” at Article 1(2) as: “…acting as a broker, including the importing, exporting, purchasing, selling, transferring, supplying or delivering of arms or arms services, or any action taken to facilitate any of those activities, including transporting, freight forwarding, mediating, insuring or financing” (available online: <http://www.fundforpeace.org/publications/reports/model_convention.pdf> (last visited 25 July 2005).

71 The Small Arms Survey 2004 enumerates the following loopholes in existing controls: unregulated activities (aside from importing and exporting, much of what arms brokers do is intangible and therefore difficult to regulate); lax control on weapons stock; third-party brokering (deals are arranged without the weapons entering the territory in which the intermediary activity occurs); offshore financing; easily circumvented documentation requirements; ease of transport (transport agents exploit the difficulties in enforcing customs controls, particularly in countries with long borders and limited resources, Small Arms Survey 2004: Rights at Risk, Oxford University Press, Oxford, 2004, pp. 143146Google Scholar (hereinafter Small Arms Survey 2004)). For an analysis of loopholes in the arms export controls of the United Kingdom, see “Out of control: The loopholes in UK controls on the arms trade”, Oxfam GB, 1998, pp. 3–12, available online: <http://www.oxfam.org.uk/what_we_do/issues/conflict_disasters/downloads/control.rtf> (last visited 28 July 2005).

72 In January 2004, the UN General Assembly adopted Resolution 58/241 on the illicit trade in small arms and light weapons in all its aspects, by which, inter alia, it requested the Secretary-General “to hold broad-based consultations (…) with all Member States, interested regional and subregional organizations, international agencies and experts in the field, on further steps to enhance international cooperation in preventing, combating and eradicating illicit brokering in small arms and light weapons (…) and requested him to report to the General Assembly at its fifty-ninth session on the outcome of his consultations” (UN Doc. A/58/241, 9 January 2004). See the background paper prepared by the Department for Disarmament Affairs, “Broad-based consultations on further steps to enhance international cooperation in preventing, combating and eradicating illicit brokering in small arms and light weapons” (GA Resolution 58/241)”, available online: <http://disarmament.un.org:8080/cab/brokering/Consultations-paper.pdf> (last visited 29 July 2005) (hereinafter Background Paper of the Department of Disarmament Affairs). In his report entitled “In larger freedom: Towards development, security and human rights for all”, the Secretary-General urged the international community to expedite negotiations on a legally binding instrument to combat illicit brokering in small arms and light weapons (UN Doc. A/59/2005, 21 March 2005, para. 120).

73 See “Programme of action to prevent, combat and eradicate the illicit trade in small arms and light weapons in all of its aspects”, Part II, Article 11 (in Report of the United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, New York, 9–20 July 2001, UN Doc. A/CONE.192/15) (hereinafter UN Programme of Action).

74 UN Programme of Action, ibid., Part II, Articles 14 and 39.

75 For a review of these initiatives, see Background Paper of the Department for Disarmament Affairs, op. cit. (note 72), pp. 2–6.

76 Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organized Crime, UN Doc. A/RES/55/255, 8 June 2001. At 15 July 2005, there were forty-two (42) States Parties.

77 Article 3(a) defines “firearms” as “any portable barrelled weapon that expels, is designed to expel or may be readily converted to expel a shot, bullet or projectile by the action of an explosive, excluding antique firearms or their replicas”.

78 Adopted by the General Assembly on 15 November 2000; see UN Doc. A/RES/55/25, 8 January 2001.

79 The most recent initiatives include: the Model Brokering Regulations for the Control of Brokers of Firearms, their Parts and Components and Ammunition, adopted by the Organization of American States in the context of the Inter-American Drug Abuse Control Commission, Thirty-Fourth Regular Session, 17–20 November 2003, Montreal, Canada, OEA/Ser.L/XIV.2.34 (CICAD/doc1271/03), 13 November 2003; the Great Lakes and Horn of Africa Best Practice Guidelines for the Import, Export and Transit of Small Arms and Light Weapons, adopted at the 3rd Ministerial Review Conference of the Nairobi Declaration, 20–21 June 2005; the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies: Guidelines & Procedures, including the Initial Elements (as amended and updated in December 2003 and July 2004), see also note 99 below; and the 2003 OSCE Handbook of Best Practice Guides, a comprehensive manual providing a set of best practice guides relating to all stages of a gun's life and aiming at enhancing the implementation of the 2000 OSCE Document on Small Arms and Light Weapons.

80 European Union Code of Conduct for Arms Exports, adopted by the Council of the European Union on 8 June 1998, available online: <http://europa.eu.int/comm/external_relations/cfsp/sanctions/codeofconduct.pdf> (last visited 25 July 2005) (hereinafter EU Code). “Support for the principles of the EU Code has been declared by third countries — notably the EU Associated States of Eastern and Central Europe, Cyprus, the European Free Trade Area (EFTA), members of the European Economic Area and Canada. It is also referred to in the EU-US and EU-Canada Small Arms Declarations of December 1999. In November 2000, the second Consolidated Report of the EU Code recorded that Malta and Turkey had also pledged to subscribe to the principles of the EU Code, which would guide them in their national export policies.” (Undermining Global Security: the European Union's Arms Exports, Amnesty International, 1 February 2004, pp. 2–3, available online: <http://web.amnesty.org/library/index/ENGACT300032004> (last visited 25 July 2005).

81 For a recent account of the history of the EU Code of Conduct, see Bauer, Sibylle & Bromley, Mark, The European Union Code of Conduct on Arms Exports: Improving the Annual Report, SIPRI Policy Paper No. 8, November 2004, pp. 24 available online: <http://editors.sipri.se/pubs/policypaper8.pdf> (last visited 25 July 2005).+(last+visited+25+July+2005).>Google Scholar

82 In its latest report, COARM (Working Party on Conventional Arms Exports, whose mandate is to make recommendations to the Council in the field of conventional arms exports in the framework of the Common Foreign and Security Policy) announced that it had “conducted in depth discussions in order to bring forward the review of the Code which it decided to undertake in December 2003.” It further stated that it expected the Code to be “significantly reinforced by including several new elements in the text, most notably: brokering, transit/transhipment, licensed production overseas, intangible transfer of software and technology, end-user certification and national reporting.” However, no agreement has yet to be reached to transform the Code into a legally binding instrument. (COARM, Sixth Annual Report according to Operative Provision 8 of the European Union Code of Conduct on Arms Exports, of which the General Affairs and External Relations Council took note on 22 November 2004, Official Journal C 316, 21/12/2004, p. 1, available online: <http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:52004XG1221(01):EN:html> (last visited 31 July 2005).

83 Respect for the international commitments of Member States, such as obligations arising under UN embargoes and treaties (Criterion 1); respect for human rights in the country of destination (Criterion 2); not contributing to a situation of armed conflict or aggravating existing tensions or conflicts in the country of destination (Criterion 3); respect for the prohibition on aggression: transfers are prohibited where there exists a clear risk that the export would be used aggressively against another country or to assert by force a territorial claim (Criterion 4).

84 The national security of Member States as well as that of friendly and allied countries (Criterion 5); the behaviour of the recipient country toward the international community, with particular consideration being given to its support or encouragement of terrorism and international organized crime; its compliance with its international commitments, in particular on the non-use of force, including under international humanitarian law applicable to international and non-international conflicts; its commitment to nonproliferation and other areas of arms control and disarmament, in particular the signature, ratification and implementation of relevant arms control and disarmament conventions (Criterion 6); the risk that the equipment be diverted within the buyer country or re-exported under undesirable conditions (Criterion 7); the compatibility of arms exports with the technical and economic capacity of the recipient country: reports from the UNDP, World Bank, IMF and OECD are to be taken into account in assessing the likelihood that the proposed export would seriously hamper the sustainable development of the recipient country (Criterion 8).

85 The operative provisions outline reporting procedures as well as intergovernmental denial notification and consultation mechanisms where governments hold different views regarding the application of the EU Code criteria to licence requests. With the adoption of a User's Guide in January 2004, which has been recently revised and is soon to be published, it is expected that procedures will be improved and clarified.

86 See, inter alia, Amnesty International's report documenting specific cases of questionable arms transfers since the adoption of the Code, Undermining Global Security: the European Union's Arms Exports, op. cit. (note 80); Taking Control: The Case for a More Effective European Union Code of Conduct on Arms Exports, report by European Union non-governmental organizations, Saferworld, September 2004, available online: <http://www.saferworld.co.uk/publications/Taking%20control.pdf> (last visited 25 July 2005); “Comments of the International Committee of the Red Cross (ICRC) on Criterion Six of the EU Code of Conduct on Arms Exports”, ICRC, September 2004 (unpublished: copy on file with the author).

87 See, inter alia, yearly European Parliament Reports on the Code of Conduct, available online: <http://www.sipri.org/contents/expcon/euparl.html> (last visited 25 July 2005).

88 See section above on “Complicity under the law of State responsibility”.

89 Criterion Six reads: “Member States will take into account inter alia the record of the buyer country with regard to:

  1. a)

    a) its support or encouragement of terrorism and international organised crime;

  2. b)

    b) its compliance with its international commitments, in particular on the non-use of force, including under international humanitarian law applicable to international and non-international conflicts;

  3. c)

    c) its commitment to non-proliferation and other areas of arms control and disarmament, in particular the signature, ratification and implementation of relevant arms control and disarmament conventions referred to in sub-para b) of Criterion One.”

90 ICRC, Report to the Second Biennial Meeting of States to Consider the Implementation of the United Nations Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, New York, 11–15 July 2005, pp. 3–5, available online: <http://www.icrc.org/ Web/eng/siteeng0.nsf/htmlall/arms-weapons-united-nations-120705/$File/ICRC_002_arms_120705.pdf> (last visited 29 July 2005).

91 The ICRC has meanwhile announced that its advocacy efforts were successful: “The new EU Code is expected to contain an express requirement not to authorize exports when there is a clear risk that the military equipment to be exported might be used in the commission of serious violations of humanitarian law.” Ibid., p. 3.

92 See above, text accompanying note 47.

93 The indicators proposed by the ICRC include: 1. whether the recipient has ratified humanitarian law instruments or made other formal engagements to apply the rules of international humanitarian law; 2. whether the recipient has trained its armed forces in the application of international humanitarian law; 3. whether the recipient has taken the measures necessary for the repression of serious violations of international humanitarian law; 4. whether a recipient (which is, or has been, engaged in an armed conflict) has taken measures to cause breaches of international humanitarian law to cease and to punish those responsible for serious violations; 5. whether stable authority structures capable of ensuring respect for international humanitarian law exist in the area under control of the recipient (“Comments of the ICRC on Criterion Six”, op. cit. (note 86); reiterated more recently in “Report to the Second Biennial Meeting of States”, op. cit. (note 90), Annex 2).

94 EU Council Common Position 2003/468/CESP of 23 June 2003 on the control of arms brokering, available online: <http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:32003E0468: EN:NOT> (last visited 31 July 2005) (hereinafter EU Common Position).

95 EU Common Position, Ibid., Article 2(1). For an overview of the EU Common Position, see Anders, Holger, Controlling Arms Brokering: Next Steps for EU Member States, Groupe de recherche et d'information sur la paix et la securité, in cooperation with IANSA (International Action Network on Small Arms), Pax Christi Vlaanderen, Pax Christi Netherlands, Brussels, January 2004.Google Scholar

96 Anders, ibid., p. 6.

97 ECOWAS currently comprises 15 West African States: Benin, Burkina Faso, Cape Verde, Côte d'Ivoire, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo.

98 Declaration of a Moratorium on Importation, Exportation and Manufacture of Light Weapons in West Africa, 21st Ordinary Summit of the Authority of Heads of State and Government, Abuja, 30–31 October 1998, available online: <http://www.grip.org/bdg/g1649.html>. Initially adopted for a period of three years, the Moratorium was extended for a further three years in 2001. ECOWAS is planning to strengthen the Moratorium and to replace it with a mandatory convention. In December 2004, the Council of the European Union adopted a Decision offering “a financial contribution and technical assistance to set up the Light Weapons Unit within the ECOWAS Technical Secretariat and convert the Moratorium into a Convention on small arms and light weapons between the ECOWAS Member States.” (Council Decision 2004/833/CFSP of 2 December 2004 implementing Joint Action 2002/589/CFSP with a view to a European Union contribution to ECOWAS in the framework of the Moratorium on Small Arms and Light Weapons, Article 1(2), Official Journal L 359, 04/12/2004, pp. 65–67, available online: <http:// europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexdoc!prod!CELEXnumdoc=EN=32004D0833=lex> (last visited 25 July 2005)).

99 The Wassenaar Arrangement promotes transparency and greater responsibility in transfers of conventional arms and dual-use goods and technologies. Participating States are: Argentina, Australia, Austria, Belgium, Bulgaria, Canada, the Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Japan, Luxembourg, the Netherlands, New Zealand, Norway, Poland, Portugal, the Republic of Korea, Romania, the Russian Federation, Slovakia, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom and the United States.

100 The OSCE is the largest regional security organization in the world with 55 participating States from Europe, Central Asia and North America.

101 According to the Small Arms Survey 2004, a number of EU governments (including France and the UK), as well as Canada, have been among the financial supporters of the Moratorium; op. cit. (note 71), p. 112. On 2 December 2004, the EU Council adopted a Decision pledging financial support and technical assistance to the implementation of the Moratorium, see op. cit. (note 98).

102 Biting the Bullet Project, International Action on Small Arms 2005, Examining Implementation of the UN Programme of Action, p. 47, available online: <http://www.iansa.org/documents/2005/red-book/red-book-2005.pdf> (last visited on 11 September 2005).

103 See “Report of the Secretary-General on ways to combat subregional and cross-border problems in West Africa”, UN Doc. S/2004/200, 12 March 2004, para. 11.

104 In early 2005, UN Secretary-General Kofi Annan recommended that the Security Council take action to support the Moratorium by naming violators and by prosecuting those responsible for trafficking in human beings and natural resources. He also urged ECOWAS members to convert the agreement into a legally-binding instrument “at the earliest opportunity” (UN News Centre, “Annan urges West Africa to make regional arms moratorium permanent”, 15 February 2005, available online: <http://www.un.org/apps/news/story.asp?NewsID=13351=west=africa> (last visited 25 July 2005)).

105 Article 9 of the Code of Conduct for the Implementation of the Moratorium, 22nd Ordinary Summit of the Authority of Heads of State and Government, Lomé (Togo), 10 December 1999. Requests are circulated to Member States, who may object to the decision to grant an exemption. If an objection is circulated, then requests are submitted to the ECOWAS Mediation and Security Council. For the text of the Code of Conduct, see The Making of a Moratorium on Small Arms, UN Regional Centre for Peace and Disarmament in Africa, April 2000, pp. 49 ff., available online: <http://www.nisat.org/publications/moratorium/the_making_of_a_moratorium.pdf> (last visited 31 July 2005).

106 For facts and figures, see Small Arms Survey 2004, op. cit. (note 71), pp. 112–114.

107 See Berman, Eric, “The provision of lethal military equipment: French, UK, and US peacekeeping policies towards Africa”, Security Dialogue, Vol. 34, No. 2, 2003, p. 195.CrossRefGoogle Scholar

108 For the latest working draft of the Framework Convention, see Draft Framework Convention on International Arms Transfers, Control Arms Campaign, 25 May 2004, available online: <http://www.controlarms.org/the_issues/ATT_0504.pdf> (last visited 25 July 2005) (hereinafter Draft Framework Convention).

109 The Foreign Secretary, Jack Straw, publicly confirmed the UK government's commitment to work for an international Arms Trade Treaty and to “use its unique position, as the president of the G8 this July, to do everything in its power to get an international treaty on political agenda…”. See Amnesty International press release, “Campaigners welcome Straw commitment on Arms Trade Treaty and urge swift action”, 15 March 2005, available online: <http://www.controlarms.org/latest_news/straw.htm> (last visited 25 July 2005)

110 “Thirteen more governments announce support for Arms Trade Treaty”, Control Arms Campaign, 15 July 2005, available online: <http://www.controlarms.org/latest_news/thirteen-governments.htm> (last visited 25 July 2005).

111 Draft Framework Convention, op. cit. (note 107), p. 5, para. 9.

112 Ibid., p. 4, para. 1.

113 EU Common Position, op. cit. (note 94), Article 3(1).

114 Dutch-Norwegian Initiative on Further Steps to Enhance International Co-operation in Preventing, Combating and Eradicating Illicit Brokering in Small Arms and Light Weapons, Oslo, 23–24 April 2003, Conference Report, p. 11, available online: <http://www.nisat.org/Brokering/Conference%20Report%20fulltext.pdf> (last visited 28 July 2005).

115 Small Arms Survey 2004, op. cit. (note 71), p. 157.

116 Ibid.

117 See note 104 above, and accompanying text.

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