13 July 2012, Vol. 5, No. 8

Editorial: Accountability, liability, and enforcement
Ray Acheson | Reaching Critical Will of WILPF

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In a video message on Thursday afternoon, President Sirleaf of Liberia highlighted her country’s suffering from “the terrible effects of more than 14 years of a devastating war with itself.” The experience of Liberia and countless other countries and their citizens demonstrates the absolute necessity for the arms trade treaty (ATT) to prohibit exporters from authorizing arms transfers where they are likely to be diverted or to be used to facilitate armed conflict, violate human rights, international humanitarian law, or commit gender-based violence. If the treaty merely requires states to “consider” such criteria in a risk assessment process that is not backed up by a rigorous accountability mechanism, the ATT will not be a treaty but a mere list of suggestions.

Many delegations have stressed the importance of ensuring strong language throughout the treaty that obligates rather than recommends. On Wednesday, for example, Colombia’s delegation argued that because the ATT is a treaty, it must be action-oriented. Instead of “seeking to regulate,” the treaty must “regulate”. The treaty should not “inhibit illicit diversion,” but “prevent, combat, and eradicate” it. Several delegations have proposed—and many others have supported—that the treaty stipulate that a state party shall not authorize a proposed export if the criteria included in the treaty is not met. This is substantially more effective than the language in the Chair’s 2012 paper, which merely says that states parties shall undertake assessments based on the treaty’s criteria and, “where substantial risks exist, there shall be an overriding presumption against authorization.”

Of course, even with strong language prohibiting an arms transfer when the criteria for that transfer has not been met, an equally strong monitoring and accountability mechanism will be necessary to ensure compliance. There has been a great deal of discussion at this conference regarding dispute mechanisms in response to transfer denials. But what happens if a transfer is granted that violates the provisions of the treaty?

In a side event on Thursday co-organized by the Permanent Mission of Finland to the UN, the Women’s International League for Peace and Freedom (WILPF), IANSA Women’s Network, and Amnesty International (see page 6 of the PDF for details), WILPF Secretary General Madeleine Rees used case studies to highlight situations in which arms have been transferred to a country despite there being widespread knowledge of the violation of human rights, specifically gender-based violence. In the Democratic Republic of the Congo (DRC), for example, the atrocities of mass rape and other forms of sexual violence are well known. The easy access to small arms and light weapons has directly contributed to the extreme volume of rape in the country. Ms. Rees quoted Annie Mbami Matundu, president of WILPF’s Section in the DRC, who has repeatedly said that while one man with a machete can rape one woman in a village, two men with a machine gun can rape the whole village. Yet arms exporting states still authorize arms transfers to the country, usually due to competing political or economic interests.

Under a robust ATT, that should not be possible. But the treaty would need effective monitoring, accountability, and liability mechanisms in order to address such a violation of its provisions. Unfortunately, little to no discussion has taken place on the treaty’s potential enforcement mechanisms, nor in the areas of international monitoring or liability in cases of non-compliance.

In fact, the possible development of such mechanisms is further undermined by the recent P5 proposal that the criteria and enforcement sections of the treaty should be moved into the national implementation section. They want this adjustment in order to make it clear that “a decision-making process as well as specific parameters of controls over arms transfers must remain a national prerogative of states parties.” However, if the treaty is to be truly effective at achieving the goals of combating illicit trade, preventing human suffering and violations of human rights and IHL, and more, criteria and enforcement must be an international prerogative. If criteria, enforcement, or other provisions are left up to individual governments to determine, there is little chance of the ATT being strong enough to make a difference in the lives of millions suffering from the consequences of irresponsible arms transfers.

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