The arms trade treaty: Panacea or paradigm-shift in addressing mass atrocities?

By Clare da Silva and Sara Kendall

The arms trade treaty, which was adopted during the United Nations General Assembly’s session in early April, opened for signature on June 3 at the organisation’s headquarters in New York. Already 73 states have signed the treaty. After years of negotiation and drafting, the treaty represents the first successful attempt to set global standards for regulating the international trade in conventional arms and munitions. If properly implemented, the treaty will stop a wide range of arms flows when the sending state knows those weapons would be used for atrocities and abuse.

For decades, assault rifles, attack helicopters, combat aircraft and similarly powerful instruments of violence have moved fluidly across borders all over the world, enriching arms traffickers, exacerbating violent conflicts and increasing human-rights abuses. To date the consequences flowing from the absence of international norms in this trade have been dealt with selectively and indirectly – for example, through prosecuting individuals accused of committing grave crimes under international law. By contrast, the arms trade treaty seeks to address one of the structural conditions that make mass atrocity possible – the supply of arms.

The nexus between the poorly regulated trade in conventional weapons and mass violence can be seen in the testimony of witnesses who have appeared before international tribunals prosecuting individuals accused of war crimes. In the trial of former Liberian president Charles Taylor, for example, numerous witnesses recounted seeing shipments of AK-47 assault rifles, rocket-propelled grenades, and munitions that were transported by aircraft and trucks across porous borders. These same weapons were taken up by combatants and used during atrocities and other acts that constitute war crimes and crimes against humanity in Sierra Leone. Yet simply holding Charles Taylor and a handful of other individuals accountable for these crimes fails to address the conditions that make committing crimes on this scale possible in the first place. One of these conditions is the ease with which these individuals obtained vast amounts of conventional arms.

Similarly, criminalising the use of child soldiers might deter commanders from press-ganging kids into their ranks. But this, too, does not address the structural and economic factors that get the AK-47 assault rifles into the hands of kids who find their way into military units.

Rather than focusing on retrospective mechanisms such as criminal tribunals and other costly ex post facto mechanisms, the arms trade treaty offers an alternative framework for advancing humanitarian and human-rights objectives. There is an emerging discussion of the need to re-think accountability through litigation when it comes to armed conflict. For example, the anthropologist Kamari Clarke and the historian Sam Moyn have suggested that the focus on individualised criminality at the International Criminal Court and individualised recourse to redress through the United States Alien Tort Statute has drawn considerable attention from human-rights advocates, arguably to the detriment of advocacy for changing the structural conditions that lead to and escalate armed conflicts.

The arms trade treaty can offer a regulatory mechanism that places various duties upon states to assess whether their arms exports might be used to carry out international crimes or human-rights violations. Unlike the retrospective framework of litigation and the focusing on individuals as perpetrators, the treaty approaches armed conflict preventatively by seeking to regulate the conditions that allow such crimes to occur. The overwhelming support for the arms trade treaty in the UN General Assembly – with 156 states, including the United States and Pakistan, in favour – may indicate a broader shift toward preventative approaches to armed conflict and human-rights violations.

This would be a worthy achievement. The challenge is to amass the requisite amount of political will for states to sign and ratify the treaty. Obtaining signatures and ratification of new treaties almost always requires time and great patience. Many states that voted in favour of the General Assembly resolution on the arms trade treaty may need years before they muster sufficient domestic political support to sign and ratify it. In the United States, the largest arms producer, the powerful gun lobby and populist members of Congress have persistently opposed the treaty and lied outright about the treaty’s provisions. John Bolton, former United States ambassador to the United Nations, and John Yoo, a former Bush administration legal adviser, have politicised the issue, using it to bash the Obama administration

Once the treaty enters into force, its success will depend on states to police their own compliance with the treaty’s terms and to meet their reporting obligations, which is yet another major challenge at the international level.

The arms trade treaty is no panacea. But it does mark a shift in orientation away from retrospective, prosecution of individuals and toward a prospective, state-focused prevention and greater attention to the structural factors that contribute to armed conflict and human-rights abuses. This shift can only contribute to making life more secure for hundreds of millions of people. As Sam Moyn argues: “Nothing is wrong with opposing atrocity, of course, but a wider focus on prevention and more systematic redress would be a better way of honouring victims.” The arms trade treaty is a step in this direction.

Sara Kendall is a researcher at the Grotius Centre for International Legal Studies at Leiden University. Clare da Silva is a legal and policy adviser on the arms trade treaty for Amnesty International.