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International Humanitarian Law and the Arms Trade Treaty: Strengthening IHL Provisions in the Draft Treaty Text
MADELEINE SUMMERS[∗]
Abstract
The Arms Trade Treaty (‘ATT’) process initiated by the 2006 United Nations (UN) General Assembly resolution 61/89 is a significant advancement in the area of arms control. This process has the potential to succeed where other attempts have failed, given advancements over the past three decades in improving transparency in the arms trade and the increasing willingness of states to restrict arms transfers to certain states through UN Security Council, regional and unilateral arms embargoes.
While the ATT negotiations in July 2012 in New York failed to obtain comprehensive state support for a treaty text, a draft text was proposed by the conference chairman. This article identifies and analyses several key problems with the IHL provisions in this draft text. Specific problems arise with regard to the potential for conflict between the ATT and the inherent right of states to self-defence under Article 51 of the UN Charter; a too high standard imposed on states in assessing whether a transfer of arms shall be authorized to a state at risk of IHL violations; and the lack of specific provisions with regard to conflicts that are non-international in character.
The international community has long recognised that arms control is essential for the maintenance of international peace and security.[1] With the adoption in 2006 of a United Nations General Assembly (UNGA) resolution on arms control, states began working towards a ‘comprehensive, legally binding instrument establishing common international standards for the import, export and transfer of conventional arms’.[2] The resolution received significant support with 153 states voting in favour, 1 against and 24 abstaining.[3] Over the following two years 98 states submitted their views on the feasibility of a possible arms trade treaty (‘ATT’) and a group of governmental experts was established to discuss key points.[4 ] An overwhelming majority of the state submissions, 89, have either explicitly supported an ATT or provided submissions on how the ATT initiative could move forward.[5]
The process initiated by the 2006 UNGA resolution is a significant advancement in the area of arms control, however it is by no means the first attempt to establish such a treaty. Early attempts made in the forum of the League of Nations, failed for lack of state support.[6] However this particular attempt has the potential to succeed given advancements over the past three decades in improving transparency in the arms trade[7] and the increasing willingness of states to restrict arms transfers to certain states through UN Security Council, regional and unilateral arms embargoes.[8] To this disappointment of many states, organizations and NGO’s, the first round of treaty negotiations held from the 2 – 27 July 2012 in New York, saw states failing to agree on the adoption of a final treaty text. A draft treaty text was proposed by the conference Chairman on the 26 July,[9] and that text is now under consideration by states with more talks expected at the end of 2012.
The ATT proposed at this negotiating conference will deal with the legal arms trade, as distinct from the illegal or illicit arms trade which is already provided for in a United Nations Protocol and a Programme of Action.[10] The legal arms trade includes all aspects of the government sanctioned trade in arms, including state to state transfers, commercial sales and exports to both other states and armed groups and importers within states, leases, loans, gifts, or any other form of transfer of arms that is state approved.[11] This paper refers to ‘transfer criteria’ as ‘common parameters to evaluate the appropriateness of a transfer’,[12] and the criteria’s role is ‘to provide guidance for licensing decision makers’.[13] Transfer criteria in the ATT will ‘determine if a transaction relating to conventional arms or related equipment should be allowed or not’.[14]
This paper will show that there is a connection between the transfer of arms and the perpetration of serious violations of international humanitarian law (‘IHL’). Many states engaging in arms transfers do not adequately give effect to the obligation on all states to ‘ensure respect’ for IHL in Article 1 of the Geneva Conventions. The patchwork of regional, multilateral and domestic mechanisms currently containing arms transfer criteria has proven incapable of ensuring respect for IHL and preventing the transfer of arms to states engaging in IHL violations. This paper argues that it is vital an ATT include the strictest possible obligations aimed at increasing respect for IHL, by ensuring that states which will likely engage in IHL violations are not transferred arms by other states. Such an obligation will provide further incentive and encouragement for states to work towards full respect for IHL, by limiting their ability to import arms from ATT signatory states which (depending on the states that become party to the treaty) could be of important strategic value.
This paper further argues that the draft ATT text proposed at the negotiating conference has several problems that must be corrected before the ATT will adequately include IHL provisions. First, the potential for contradiction between a state’s ability to carry out its right to self-defence under Article 51 of the UN Charter and the practical impact of the ATT in potentially denying that state arms, is not adequately clarified in the draft text. Second, the Article 4 ‘likely use’ test contained in the draft ATT requires a standard that is set too high and will not adequately ensure respect for IHL and achieve the goals of the ATT in reducing the human suffering caused by the arms trade. Finally, that the draft ATT text does not contain sufficient provisions aimed at stopping the flow of arms to IHL violators in situations of non-international armed conflict. The focus of this paper is on ensuring that the strongest possible wording is used in the ATT, and as such, specific implementation or enforcement mechanisms are not discussed. However underpinning this paper is the idea that strong treaty language is just the first step in creating an effective ATT. It is nevertheless an important step that lays a robust foundation upon which implementation and enforcement mechanisms can build.
Compliance with international humanitarian law is threatened by the failure of states to adequately regulate the arms trade.[15] Several states, in their submissions to the Secretary General on the feasibility of an ATT, made an observation about the strong link between the irresponsible and unregulated arms trade and the occurrence of IHL violations.[16] As Fiji stated, the:
irresponsible and poorly regulated trade in arms destabilises countries and regions, fuels conflict, causes gross human rights abuses, leads to serious violation of international humanitarian laws and in developing economies like ours, undermines all genuine efforts towards sustainable development.[17]
Many other countries also highlighted the connection between the general suffering of the civilian populations and the irresponsible availability and unregulated trade of arms.[18] Liberia is one state which drew on its own experience with civil war to highlight the damaging effect on civilians and society. Liberia stated:
The arms used in this violent crisis, which eventually engulfed the Mano River basin countries of Liberia, Sierra Leone and Guinea and later Côte d’Ivoire, were not produced in our country. Yet, they were easily available even to children as young as 8 years old.[19]
An International Committee of the Red Cross (‘ICRC’) study confirms the links between the availability of arms and the occurrence of IHL violations. The 1999 study ‘Arms Availability and the Situation of Civilians in Armed Conflict’[20] sought to examine ‘the extent to which the availability of weapons is contributing to the proliferation and aggravation of violations of IHL in armed conflicts and the deterioration of the situation of civilians.’[21] A study of 101 conflicts that occurred between 1989 and 1996 showed that small arms were usually either the preferred type of weapon or the only type of weapon used.[22]
The ICRC study found that widespread arms availability, inadequate transfer controls and the frequent use of small arms in armed conflict situations undermines compliance with IHL, which threatens the level of protection afforded to civilians in armed conflict.[23] The ICRC stated in conclusion that
[w]hile the availability of weapons alone is not the cause of violations of humanitarian law or deterioration in the situation of civilians, the experience presented here indicates that the proliferation of arms can be a major factor in facilitating such violations and aggravating the plight of civilians during and after armed conflict.[24]
A similar link has been drawn by Amnesty International, which has stated that thousands of human rights abuses are facilitated each year by the widespread proliferation of arms.[25]
With no common international framework for arms transfers in existence, a patchwork of mechanisms has developed at the domestic, regional and multilateral level. These initiatives have consistently failed to ensure respect for IHL in arms transfers. This failure is due both to the lack of strong wording in the provisions and implementation problems. Under all initiatives some signatory states have transferred arms that have led to serious violations of IHL.
Many regional and multilateral organisations, including the European Union (‘EU’), Organisation of American States (‘OAS’), Organisation for Security and Cooperation in Europe (‘OSCE’), Economic Community of West African States (‘ECOWAS’) and the Wassenaar Arrangement, have produced documents, both binding and non-binding, which provide guidelines on the transfer of arms and mention IHL as a criteria to be considered in making arms transfer decisions. However the language of some of these mechanisms is weak and ineffective in giving primacy and strength to enforcing principles of IHL in arms transfer decisions. For example under the EU Code of Conduct on Arms Exports 1998,[26] EU states must merely 'take into account' the recipient states record of compliance with IHL.[27] The language means that compliance with IHL is just one factor to be considered, and one that could potentially be overridden by other considerations.[28] Therefore it is possible that an arms transfer to a recipient state that will likely engage in IHL violations will be allowed under the Code, as long as compliance with IHL has merely been ‘taken into account’ in analysing the transfer. The OSCE and the Wassenaar Arrangement[29] contain similar weak provisions. The OSCE has released several documents on the issue of small arms and light weapons (‘SALW’). The OSCE Criteria on Conventional Arms Transfers proposes that each state take into account respect for human rights and fundamental freedoms, but does not mention IHL at all.[30] However the OSCE released a later document on SALW adopted at the OSCE Forum for Security Co-operation in 2000 that contains two provisions on IHL. The first, Article (A) 2(a)(iii) is weak as it requires only that states ‘take into account’ the states record of respect for IHL. The second is slightly stronger as it says in Article (A) 2(b) that:
Each participating State will avoid issuing licences for exports where it deems that there is a clear risk that the small arms in question might: (v) ... threaten compliance with international law governing the conduct of armed conflict.[31]
However by requiring the high burden of a ‘clear risk’ before states merely ‘avoid’ the transfer of arms the provision is still weaker than what should be accepted in the ATT. The Wassenaar Principles are nearly identical to those of the OSCE and therefore suffer the same weaknesses.[32]
Following the weak ‘take into account’ wording that is used by the EU, OSCE and Wassenaar Arrangement, there are some examples of stronger language found in documents from the Organisation of American States (‘OAS’) and Economic Community of West African States (‘ECOWAS’). The OAS Model Regulation includes a test that states a ‘National authority shall prohibit brokering activities and refuse to grant licenses if it has reason to believe that the brokering activities will, or seriously threaten to: (c) lead to the perpetration of war crimes contrary to international law’.[33] This test, based on the 'likely use' of the arms, was also advocated for by several states in their submissions to the Secretary General on an ATT.
The ECOWAS has incorporated stronger IHL principles into the 2006 ECOWAS Convention on Small Arms and Light Weapons, Their Ammunition and Other Related Materials.[34] The ECOWAS Convention states that a transfer ‘shall not be authorised’ if it violates ‘universally accepted principles of IHL’ or if the arms to be transferred are ‘to be used for the violation of IHL’.[35] However it must be questioned whether ‘universally accepted principles’ is adequate in strongly incorporating IHL principles, given that many principles relating primarily to internal armed conflict (found in Additional Protocol II) have debatable status in customary international law and that ratification of APII is significantly behind the universal ratification of the four Geneva Conventions.
However, despite the strong or weak IHL language featured in these treaties and agreements, all have been undermined by serious implementation and enforcement problems. Thus illustrating that strong treaty language is just the first step towards creating a foundation upon which compliance and enforcement mechanisms must build for the ATT to be considered effective.
All regional and multilateral mechanisms suffer from implementation problems which have affected their success in ensuring respect for IHL. One common and serious problem is that of ‘undercutting’, where the decision not to transfer by one state is ‘undercut’ by another state.[36] Undercutting is facilitated by different interpretations of the criteria, which is encouraged by both vague wording of obligations and strong economic, business and financial interests in favour of conducting the transfer.[37] During the Cold War the Wassenaar Arrangement's predecessor, the Coordinating Committee on Export Controls (COCOM), was successful in achieving uniform export standards, however that was largely due to the narrow focus of COCOM which was aimed at preventing exports to the Soviet Bloc. Such uniformity has not been possible since the establishment of the Wassenaar Arrangement, with its expansion of membership and the end of the focus provided by the Cold War.[38] Several states, including the US, have advocated for stronger transparency in the arrangement, which would include requiring states that go forward with an export, despite a denial by another member state, to provide the other state with reasons for allowing the granting of the export licence.[39] However, similar to the EU, problems of undercutting will likely persist given the strong economic reasons for states to adopt lower standards than other states, also engaging in arms transfers.[40]
In general, the actual effect that these regional and multilateral mechanisms have had on the flow of arms to IHL violators is difficult to measure. Various reports have shown that the effect of the EU Code of Conduct on the flow of arms to armed conflict situations is mixed, with some reporting a decrease in transfers to countries where human rights abuses take place and other finding no discernible decrease.[41] In a 2003 United Nations Institute for Disarmament Research (‘UNIDIR’) study focusing on EU arms transfers to four countries that had recently or were still experiencing internal conflict (Colombia, Nepal, Sri Lanka, and Guatemala), it was concluded that
it is difficult to identify any dramatic and permanent decrease in transfers of arms and ammunition from EU member States immediately after the adoption of the EU Code of Conduct in 1998.[42] Indeed, transfers to Sri Lanka and Guatemala actually increased in 1999 compared to the previous year.[43]
Similarly, breaches of the ECOWAS moratorium are common, with several countries taking deliveries of arms without seeking the proper approval.[44] Detailed breaches of the moratorium (and a UNSC embargo) were documented by Human Rights Watch and the UN Panel of Experts on Liberia during the internal conflict experienced by Liberia in the early 2000s.[45] Breaches by multiple OAS member states have also been documented as occurring during the internal conflict in Haiti.[46]
An examination of the domestic legislation of three large arms exporters, the United States (US), Russia and China, shows that domestic legislation governing arms transfer approvals only indirectly includes IHL, with none explicitly mentioning IHL as a criteria that should be analysed.
The US utilises several criteria in analysing proposed arms exports as outlined in Presidential Decision Direct 34 of 1995, which includes human rights and terrorism, but does not include consideration of IHL compliance. [47] Arms Exports from the US are also governed by the Arms Export Control Act of 1976. Section 2778(a)(1) states that:
In furtherance of world peace and the security and foreign policy of the United States, the President is authorized to control the import and the export of defense articles and defense services...[48]
China also does not make provision for IHL concerns in its domestic legislation, stating only that ‘military exports should be consistent’ with principles such as: ‘[t]hey should not jeopardize the peace, security and stability in the relevant regions and around the world’.[49] Russian law also makes no mention of specific criteria other than broadly referring to ‘international commitments of the Russian Federation, state interests and environmental safety requirements’, which must be analysed in the official expert assessment report on the proposed arms transfer.[50]
It is possible to argue that IHL can be read into these three pieces of legislation. Rachel Stohl has argued that acts of genocide, violations of IHL and other serious violent crimes would be taken into account under US domestic policy as they would not be seen to be in the furtherance of world peace and security.[51] However, this argument is not persuasive with particular regard to IHL, as IHL is concerned with rules that apply to the conduct of hostilities and it is not aimed at achieving peace. Similarly IHL cannot be read into China’s law, as maintaining regional stability (from a political viewpoint) does not always necessarily mean that supplying arms to IHL violators is prohibited. In the Russian legislation, international commitments could be interpreted to include IHL treaties to which Russia is party (which includes the Geneva Conventions and the Wassenaar Arrangement), however there is no guidance as to how these commitments should be reconciled with the second criteria provided by the legislation, that of ‘state interests’,[52] which would presumably include economic, trade and political considerations. There is also little evidence that ensuring respect for IHL features prominently in the transfer decisions of these three countries, with multiple documented cases of transfers to states engaged in IHL violations.[53]
The transfer of arms to situations where IHL violations are occurring has a significant effect on the protection of the civilian population during that conflict. It contributes to the unnecessary loss of life by facilitating the targeting of civilians, hospitals and ambulances, aid workers, the torture of detainees or numerous other types of IHL violations that are committed on a daily basis. The patchwork of regional, multilateral and domestic mechanisms that currently exist have failed to stop the transfer of arms to states or groups engaging in IHL violations. Given the global nature of the arms trade, it is vital that states incorporate IHL principles into an ATT and adopt common transfer criteria that prohibits the transfer of arms to states engaged, or at risk of engaging, in IHL violations.
The latest ATT draft text, submitted by the President of the Conference on the 26 July 2012, contains several mentions of IHL criteria:[54]
Principles
‘Guided by the Purposes and Principles of the Charter of the United Nations, States Parties, in promoting the object and purpose of this Treaty and implementing its provisions, shall act in accordance with the following principles:
5. The duty to respect and ensure respect for international humanitarian law and to respect and ensure human rights;’
Article 3 Prohibited Transfers
‘3. A State Party shall not authorize a transfer of conventional arms within the scope of this Treaty for the purpose of facilitating the commission of genocide, crimes against humanity, war crimes constituting grave breaches of the Geneva Conventions of 1949, or serious violations of Common Article 3 of the Geneva Conventions of 1949.’
Article 4 National Assessment
‘2. Prior to authorization and pursuant to its national control system, the State Party shall assess whether the proposed export of conventional arms could:
a. be used to commit or facilitate a serious violation of international humanitarian law;
...
4. In assessing the criteria set out in paragraph 2 of this article, the exporting State Party may also take into consideration the establishment of risk mitigation measures, including confidence-building measures and jointly developed programmes by the exporting and importing States.
5. If, after conducting the assessment called for in paragraph 1 and 2 of this article, and after considering the mitigation measures provided for in paragraph 4 of this article, the State Party finds that there is an overriding risk of any of the consequences under paragraph 2 of this article, the State Party shall not authorize the export.’
The draft ATT text does little to address the potential contradiction between the aims and practical outcome of the ATT (in restricting the supply of arms to states engaged in, or likely to engage in IHL violations) and that state’s inherent right to legitimate self-defence under the UN Charter, should a situation requiring self-defence arise.[55] It is certain that many states do not intend for the transfer criteria in the ATT to interfere with the right of states to legitimately produce and acquire weapons as part of a state’s inherent right to self-defence as provided for in Article 51 of the UN Charter. Almost half the state submissions made in the ATT process, have reiterated the importance of Article 51 and the inherent right to acquire arms for self-defence and state security needs.[56] The importance was stressed with words such as 'inalienable right'[57] or 'inherent right'.[58] The importance of a state’s right to self-defence is referenced twice in the principles section of the draft ATT text:
‘1. The inherent right of all States to individual or collective self-defence;
...
7. States Parties should respect the legitimate interests of States to acquire conventional weapons for legitimate self-defence and peacekeeping operations and to produce, export, import and transfer conventional arms;’
Thus the draft text does little to address the potential confusion in interpretation of the ATT and whether or not Article 51 provides a ‘loophole’ for states. In the context of IHL, there is of course the long held distinction between jus ad bellum and jus in bello and it is well-established that IHL continues to apply in situations of self-defence.[59] But on a practical level, the ATT may result in a state being denied arms due to an assessment of their likelihood of committing IHL breaches in the future, and this may render the state unable to fully avail itself of the right to self-defence under Article 51, should a situation requiring legitimate self-defence arise. This problem is not limited specifically to IHL criteria, but could occur in relation to any of the other principles (eg crimes against humanity, genocide, international human rights law).
The state submissions largely avoid elaborating as to precedence if a conflict between the right to self-defence under Article 51 and a practical inability to carry out that self-defence due to the ATT was to emerge. New Zealand's submission did recognise the potential for conflict, but did not suggest how it could be resolved, other than stating that the need for the highest possible standards will have to be balanced against Article 51.[60] Paraguay suggested that while important, Article 51 could be overridden where there is clear evidence of the arms being used for IHL violations.[61]
Importantly, the strong wording of Article 3(3) in providing an express prohibition on transfer (‘A State Party shall not authorize’) when the arms will facilitate war crimes or serious breaches of Common Article 3, on its face does seem to rule out the situation where the recipient state is engaged in self-defence under Article 51 and the exporting state can use this as a reason to export arms even if there is a strong likelihood the arms will be used to facilitate serious breaches of IHL. However Article 3(3) also includes the phrase ‘within the scope of this Treaty’ and therefore, this author would submit, the article may be interpreted as still being limited by Article 51 of the UN Charter which is clearly identified as a guiding principle under the principles section of the draft ATT text.
From the state submissions and draft ATT text it is unclear what balance is to be struck between a state’s inherent right to self-defence and the purpose and practical effect of the ATT in limiting arms transfers to states that will likely use them to commit breaches of IHL, should serious breaches of IHL occur when a state is engaging in self-defence. This author would submit that one potential solution to this problem is the removal of ‘within the scope of this Treaty’ from Article 3(3), thus ensuring that the express prohibition is not limited by any other factors such as Article 51. A second solution would be that the draft ATT text contain a clear statement that the fact that a recipient state wishes to engage in self-defence under Article 51 will not be used as a mitigating factor in favour of allowing a transfer of arms if there is evidence the transfer would ordinarily be prohibited under Article 3(3) of the draft ATT. These changes would assist in bringing clarity to the ATT text and enhance the uniformity of its implementation by states.
Thirty one states submitted that the ATT should include a criteria which prohibits the transfer of arms based on the likely conduct of the recipient state. The likely use test was stated by Canada in the form of a question: ‘Will the arms be used for serious violations of international humanitarian ... law?’ If the answer to this question is ‘yes’, then states should be required to refuse permission for the transfer.[62] This ‘likely use’ test was incorporated into the draft ATT text in Article 4 and requires two steps. First, under Article 4(2), states must assess whether the arms could be used to commit or facilitate serious violations of IHL. Second, under Article 4(5), states must assess whether there is an ‘overriding risk’ of the above occurring, and if the answer is ‘yes’, then the export of arms shall not be authorised. This curious construction, which differs from the suggested wording put forward by many states in the state submissions, creates both a very low and very high threshold.
The use of the word ‘could’ is exceedingly broad and should be avoided, as it suggests a low threshold that is leading towards including mere theory or suspicion. The threshold cannot be set so low, otherwise nearly every potential transfer of arms would meet it, as there is inevitably always some degree of risk that IHL violations will occur in armed conflict, no matter the record of compliance and level of respect a state may have for IHL. To set the threshold too low would lead to confusion and inconsistent application and therefore threaten the objectivity which is vital to the implementation of the ATT.
The second part of the test, requiring an ‘overriding risk’, then creates a very high standard that must be met, a standard that is too onerous and would require a high degree of certainty. If the test is set so high as to require an ‘overriding risk’ that the transfer would lead to an IHL violation, then the ATT will not fulfil its objective in pro-actively attempting to prevent IHL violations from occurring.[63]
The test in Article 4 must be read in conjunction with Article 3. Article 3 contains an express prohibition on arms transfers in situations where states have a high degree of certainty that IHL violations will be facilitated by the arms. Article 4 should be used to further enhance the ability of the ATT to achieve its goals of adopting the ‘highest possible common standards’ and preventing ‘the international trade in conventional arms from contributing to human suffering’.[64] Adopting a test in Article 4 which requires such a high degree of certainty (‘overriding risk’) adds little to the express prohibition contained in Article 3, and is therefore largely useless in promoting the goals of the ATT.
The state submissions provided a variety of different formulations to give effect to the ‘likely use’ test, including where weapons will ‘be used or re likely to be used’,[65] ‘or are liable to be used’,[66] or where there is a ‘clear and recognizable risk’,[67] that the weapons will be used to commit serious violations of IHL. It is suggested that the current construction of Article 4 featuring both ‘could’ and ‘overriding risk’, be replaced by a simpler one-step likely use test as formulated in many of the state submissions mentioned above. The formulation of the likely use test as a single test is preferred as it strikes the appropriate balance between the unpractical and confusing Article 4 construction of requiring both too much certainty (as ‘overriding risk’ does) and nothing more than mere suspicion (as ‘could’ does).[68]
The majority of armed conflicts around the world are now non-international in character and thus different provisions of IHL apply due to the long held distinction between international and non-international armed conflict in the Geneva Conventions and the Additional Protocols.[69]
Article 3(3) of the draft ATT text specifically prohibits arms transfers where the arms would facilitate ‘war crimes constituting grave breaches of the Geneva Conventions of 1949, or serious violations of Common Article 3 of the Geneva Conventions of 1949’. It is important and correct that an express prohibition such as this one specifically outline the conduct that gives rise to the prohibition with enough specificity to allow non-discriminatory application by multiple different arms exporting states. With reference to IHL it is correct that definition be provided beyond a generic mention of ‘serious breaches of IHL’ which would have provided insufficient guidance to states. However the two categories mentioned (grave breaches of the Geneva Conventions and serious violations of Common Article 3) do little to include IHL violations in non-international armed conflicts. While Common Article 3 forms the basis of conduct required in situations of non-international armed conflict, the provision is brief and Additional Protocol II was adopted by states in 1977 to further ‘develop and supplement’ Common Article 3.[70]
Ideally Article 3(3) would read ‘war crimes constituting grave breaches of the Geneva Conventions of 1949 and the Additional Protocols, or serious violations of Common Article 3 of the Geneva Conventions of 1949’. However while the Geneva Conventions have been ratified universally and largely constitute customary international law, only 166 states are party to Additional Protocol II (and 172 to Additional Protocol I).[71] Therefore there are approximately 28 states yet to become a party to Additional Protocol II and this will likely impede the incorporation of ‘Additional Protocols’ into Article 3(3) of the ATT.
Both Additional Protocols are important treaties in maintaining the relevance of IHL to modern warfare. However it seems unlikely given the current number of state parties that the ATT text will include reference to the Additional Protocols. This leaves a large gap in the application of the ATT to situations of non-international armed conflict, a gap that states negotiating the ATT should be acutely aware of given the current prevalence of non-international armed conflict. If it is not possible to include reference to the Additional Protocols at this time, then I would submit that states should come to an arrangement to revisit this issue in the near future when the number of state parties to the Additional Protocols has increased.
The ATT is an opportunity for states to introduce common transfer criteria into the global arms market and increase respect for IHL by prohibiting the transfer of arms to those states likely to engage in breaches of IHL. Strong evidence suggests that the transfer of arms to situations where IHL violations are occurring has a significant effect on the suffering of the civilian population during armed conflict. The existing patchwork of regional, multilateral and domestic mechanisms has failed to deal with this reality. It is vital that states give full effect to their obligations under Article 1 of the Geneva Conventions and ensure respect for IHL in arms transfers. Including a ‘likely use’ test in the ATT is an important part of this obligation, but the test must not require such an onerous requirement as an ‘overriding risk’ of serious IHL violations occurring to stem the flow of arms. As this paper has shown, the treaty text must carefully elaborate and explicitly state specific IHL obligations and where possible include reference to the Additional Protocols to the Geneva Conventions. It is only if these problems are comprehensively dealt with in the treaty text can the ATT make a significant contribution to increasing respect for IHL. Ensuring that the treaty text contains clear and precise transfer criteria is an important factor, alongside implementation, compliance and enforcement mechanisms, that will help ensure that the ATT is effective in reducing the flow of arms to situations of armed conflict where serious breaches of IHL are occurring and will likely occur in the future.
[∗] LLM Candidate (London School of Economics). BA-LLB (Hons) (University of Tasmania). This article is based on a paper written during undergraduate studies at the University of Tasmania. The author would like to thank Anja Hilkemeijer for her invaluable assistance, support, comments and guidance. Thanks also to the two anonymous reviewers for their helpful feedback and suggestions.
[1] International Arms Transfers, GA Res 43/75, 43rd sess, 73rd plen mtg UN Doc A/Res/43/75 I (1988).
[2] Towards an arms trade treaty: establishing common international standards for the import, export and transfer of conventional arms, GA Res 61/89, 61st sess, 67th plen mtg, UN Doc A/Res/61/89 (2006).
[3] United Nations (UN) Bibliographic Information System, <http://unbisnet.un.org> .
[4 ] Prepartory Committee meetings have also been held throughout 2010 and 2011, with the aim of providing recommendations to the United Nations conference on the Arms Trade Treaty to be held in 2012; The Arms Trade Treaty, GA Res 64/68, 64th sess, 55th plen mtg, UN Doc A/Res/64/68 (2009).
[5] 89 out of 95 state submissions reviewed believed that an ATT is feasible and possible; Sarah Parker, Analysis of States Views on an Arms Trade Treaty, United Nations Institute for Disarmament Research (October 2007) 14. The report prepared by the Secretary-General, based upon State’s views and prepared with the assistance of the group of governmental experts, was endorsed by the UNGA in 2009. See Towards an Arms Trade Treaty: Establishing Common International Standards for the Import, Export and Transfer of Conventional Arms, GA Res 63/240,63rd sess, 74th plen mtg, UN Doc A/Res/63/240 (2008).
[6] Two attempts were made under the guidance of the League of Nations, in 1920 and 925, to regulate the trade in arms and ammunition. Both these attempts failed, garnering little state support. Sarah Parker, Implications of State's Views on an Arms Trade Treaty, UN Institute for Disarmament Research (January 2008) 2 - 3; Following World War 2 and during the Cold War, controls on arms transfers were largely governed by political considerations. For example the Coordinating Committee for Multilateral Export Control (‘COCOM’) was a non-treaty organisation established in 1949. Membership of COCOM included United States, United Kingdom, France, Benelux nations, Italy, West Germany, Canada, Portugal, Japan, Greece, Turkey, Spain and Australia. COCOM controlled the flow of certain goods from the West to the Soviet Bloc, until it was disbanded in 1994, and replaced by the Wassenaar Arrangement: Douglas E. Daniel, United States Technology Export Control: An Assessment (1993) 2; James K Libbey, ‘Coordinating Committee for Multilateral Export Control’ in ed. Cynthia Clark Northrup, The American Economy, A Historical Encyclopaedia (2003).
[7] In 1988 a UNGA resolution requested that states consider taking several different measures to control the trade in arms, including adopting national systems of control and increasing openness and transparency in the global arms trade market. See International Arms Transfers, GA Res 43/75, 43rd sess, 73rd plen mtg, UN Doc A/Res/43/75 I (1988). The early 1990s saw the establishment of the United Nations Register of Conventional Arms, where member states were encouraged to voluntarily supply data to the register concerning arms imported or exported from their territory. See General and Complete Disarmament: Transparency in Armaments, GA Res 46/36, 65th plen mtg, UN Doc A/Res/46/36 L (1991). Each year the UN receives reports from approximately half of the States in the UN system, for example in 2010 the Register received 69 national reports. The highest number of reports submitted in one year is 126 reports in 2001. Over 164 governments have submitted a report at least once. Edward J Laurance, Hendrik Wagenmakers, and Herbert Wulf, ‘Managing the Global Problems Created by the Conventional Arms Trade: An assessment of the United Nations Register of Conventional Arms’ (2005) 11 Global Governance 225, 231.
[8] Between 1945 and 1989 only two mandatory UN arms embargoes were imposed (Rhodesia 1966-1979 and South Africa 1977-1994). This number has increased to two voluntary and 27 mandatory arms embargoes imposed between 1990 and 2006. As a recent UNIDIR report suggests the increase in arms embargoes indicates that States recognise that restricting arms can change State behaviour and that States are able to reach agreement on restricting arms to certain States; Sarah Parker, above n 6, 5.
[9] President of the United Nations Conference on the Arms Trade Treaty, The Draft of the Arms Trade Treaty, UNGA A/CONF.217/CRP.1, 26 July 2012.
[10] In 2001 the General Assembly adopted the United Nations Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and components and Ammunition. 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, GA Res 55/255, 55th sess, 101st plen mtg, UN Doc A/RES/55/255 (2001).
[11] Parker, above n 6, 16 – 20.
[12] State submission of Argentina. All State submissions referenced can be found in: Towards an Arms Trade Treaty: Establishing Common International Standards for the Import, Export and Transfer of Conventional Arms: Report of the Secretary-General, GA Res 62/278, 62nd sess, UN Doc A/62/278 (Part I and II) (add. 1 – 4.) (2007).
[13] State submission of Germany on behalf of the European Union.
[14] State submission of Cyprus.
[15] Towards an Arms Trade Treaty, above n 5.
[16] State submission of Djibouti, Burkina Faso, Colombia, Fiji, Italy, Malawi, Montenegro and Norway.
[17] State submission of Fiji.
[18] State submission of Costa Rica, Ecuador, Jamaica, Liberia, Malawi, Mali, Thailand, Trinidad and Tobago.
[19] State submission of Liberia.
[20] International Committee of the Red Cross (ICRC), Arms Availability and the Situation of Civilians in Armed Conflict: A Study Presented by the ICRC, (ICRC publication 1999, ref. 0734). The ICRC study was based on a report of 26 Experts who met under the auspices of the ICRC and Norwegian Red Cross in 1998. The meeting of experts also concluded that the widespread availability of small arms has facilitated massive violations of IHL, as well as hindering post-conflict reconstruction.
[21]As asked by the Intergovernmental Group of Experts for the Protection of War Victims (January 1995) and the 26th International Conference of the Red Cross and Red Crescent (December 1995), including 135 States party to the Geneva Conventions of 1949; Ibid 2.
[22]This is largely because small arms and light weapons (‘SALW’) are particularly suited to internal armed conflict due to their durability, portability, low cost, wide availability, and lethality. Another important finding in analysing the use of these weapons in internal conflicts is the fact that these weapons often cross international boundaries, and are re-used in multiple different conflict zones: P Wallensteen and M Sollenberg, ‘Armed Conflicts, Conflict Termination and Peace Agreements, 1989- 1996’, (1997) 34(3) Journal of Peace Research 339; C Smith, 'Light Weapons and Ethnic Conflict in South Asia,' in J Boutwell, M Klare and L Reed (eds) Lethal Commerce: The Global Trade in Small Arms and Light Weapons (1995), discussed in ICRC, above n 21, 5-6.
[23] ICRC, above n 21, 23.
[24] Ibid.
[25]‘Detailed research on a structured sample of 10 countries found that about 60% of all individual cases of human rights violations and abuses both within and outside of armed conflict documented by Amnesty International between 1991 and 2002, directly involved the use of small arms and light weapons.’ Amnesty International, Killer Facts: the Impact of the Irresponsible Arms Trade on Lives, Rights and Livelihoods (May 2010), 5.
[26] European Union Code of Conduct on Arms Exports, adopted by the Council of the European Union, 2097th mtg, PRES/98/162, (25 May 1998) 16. The EU Code of Conduct is a political commitment made within the framework of the Common Foreign and Security Policy and is not a legally binding measure, despite urging from the European Parliament that it should become so. European Union, European Parliament Resolution of 13 March 2008 on the EU Code of Conduct on Arms Exports, [2009] Official Journal of the European Union 66/08.
[27] European Union Code Of Conduct On Arms Exports, above n 26, Criteria 6: ‘Member States will take into account inter alia the record of the buyer country with regard to:
(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’.
[28] The EU Code of Conduct was heavily criticised by NGOs when it was adopted, one aspect of the criticism was that it does little to ensure respect for IHL. The EU Code of Conduct on the Arms Trade Joint Statement on behalf of Oxfam, Amnesty International, Christian Aid, Safer World, BASIC and the World Development Movement, (June 1998) <www.globalissues.org/article/80/a-code-of-conduct-for-arms-sales>.
[29] The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies is a multilateral framework (and not a treaty), established in 1996 by 40 States to replace the export controls used during the Cold War, namely the Coordinating Committee for Multilateral Export Control. Wassenaar Arrangement Member States are: Argentina, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Japan, Latvia, Lithuania, Luxembourg, Malta, Netherlands, New Zealand, Norway, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom, United States; The Wassenaar Arrangement's objective is to promote transparency in the arms transfer market, and avoid accumulations of arms which would undermine regional or international stability: <www.wassenaar.org/publicdocuments/whatis.html>.
[30] Organization for Security and Co-operation in Europe, OSCE Criteria on Conventional Arms Transfers (November 1993) OSCE Forum, FSC Journal 49, art 2(a)(I).
[31] Organisation for Security and Co-operation in Europe, OSCE Document on Small Arms and Light Weapons (24 November 2000) OSCE Forum, 308th plen mtg, FSCDoc1/00. The 2003 OSCE Handbook of Best Practices on Small Arms and Light Weapons contains two provisions on IHL almost identical to that in (A) 2(a)(iii) and (b)(v) above.
[32] Wassenaar Arrangement, Best Practice Guidelines for Exports of Small Arms and Light Weapons (2007) adopted at the 2002 and 2007 plenary, art 1(c) and 2(e).
[33] Inter-American Drug Abuse Control Commission (CICAD), Model Regulation for the Control of the International Movement of Firearms, their Parts and Components and Ammunition – Broker Regulations, (November 2003) adopted at the 24th regular session, CICAD/doc/1271/03, art 5(1)(c).
[34] ECOWAS Convention on Small Arms and Light Weapons, Their Ammunition and Other Related Materials, opened for signature 14th June 2006, Article 2 (1) (entered into force 29 September, 2009), <www.ecosap.ecowas.int>; Unlike other regional mechanisms, the ECOWAS Convention introduces a moratorium on all arms transfers. To import arms, member States must apply for an exemption from the ECOWAS Executive Secretary, which will be granted in limited circumstances to meet legitimate national security or peacekeeping needs. See ECOWAS Convention, art 3 and 4.
[35] Ibid.
[36] In the EU Code of Conduct States are supposed to consult one another and respect previous denials of transfer issue, however, ultimately the transfer decision rests with each State. As a 2004 Policy Paper from the Stockholm International Peace Research Institute found that out of the twenty times the UK has consulted with other member States who had all previously issued a denial of transfer notice to the country in question, the UK has ‘undercut’ that decision five times, essentially allowing the transfer of arms to the country, disregarding the previous denial by other member States. Sibylle Bauer and Mark Bromley, The European Union Code of Conduct on Arms Exports: Improving the Annual Report, (2004) Stockholm International Peace Research Institute Policy Paper No.8, 16.
[37] For example, when in 2001 the UK ceased ammunition exports to Ghana, exports from Spain increased, suggesting that Spain was profiting from the UK's compliance with the various regional codes. Thomas Jackson, Nicholas Marsh and Anne Thurin, ‘The Efficacy of EU Export Control Measures Concerning Small Arms and Light Weapons’, (2003) United Nations Institute for Disarmament Research, Background Paper Prepared for the Project European Action on Small Arms and Light Weapons and Explosive Remnants of War, 23. Another example is the Belgian export of machine guns to Nepal, where the German government had earlier decided not to export rifles because of their reported use against civilians in the country’s civil turmoil. Kyrre Holm, ‘Europeanising Export Controls: The Impact of the European Union Code of Conduct on Arms Exports in Belgium, Germany and Italy’ (2006) 15(2) European Security 213, 219; Bauer and Bromley, above n 37, 16.
[38] Jamil Jaffer, ‘Strengthening the Wassenaar Export Control Regime’ (2002) 3 Chicago Journal of International Law 519, 523.
[39] Ibid.
[40] The situation also encourages arms manufacturing companies to place pressure and lobby their domestic government, when that state’s interpretation of a treaty clause is stricter than another competitor States: Mark Bromley, ‘10 Years Down the Track – The EU Code of Conduct on Arms Exports’, (2008) 39 European Security Review 3.
[41] Ibid.
[42] Jackson, Marsh and Thurin, above n 37, 22.
[43] Ibid.
[44] Alex Vines, ‘Combating Light Weapons Proliferation in West Africa’, (2005) 81 (2) International Affairs 341, 345; Joakim Bakke, Implementing the ECOWAS Small Arms Moratorium: A New Regionalism Approach? (Master's in Political Science, Faculty of Social Sciences University of Oslo, 2005) 42-43.
[45]One example includes the importation of mortar rounds by the Government of Guinea in 2003, from Iran. The rounds were subsequently exported to the Liberians United for Reconciliation and Democracy rebel group. The mortar rounds were then reportedly used in civilian areas by rebel soldiers, including child soldiers. Other ECOWAS states that violated the moratorium to provide arms to groups in the Liberian civil war include Sierra Leone, Burkina Faso and Cote d'Ivoire; Denise Garcia, 'Arms Restrain and Regional International Law Making: the Case of the Economic Community of West African States', 18(2) African Security Review 78, 80; The Panel of Experts reported that despite the restrictions ‘a steady flow of weapons continues to enter the country’ in violation of both the UN arms embargo and the ECOWAS Moratorium. Report of the Panel of Experts Pursuant to Security Council Resolution 1343 (2001) Paragraph 19, concerning Liberia, UN Doc s/2001/1015 (2001).
[46] In the early 2000s Haiti received imported arms from Dominican Republic, Jamaica, Brazil and the US, all of whom are member States in the OAS. In 2001 and 2003 Brazil exported sporting and hunting rifles to Haiti, worth more than US $390,000. In January 2002 the US transferred 20,000 M16s to the Dominican Republic, despite strong evidence of a risk of diversion and evidence that weapons were flowing from the Dominican Republic to Haitian rebel gangs. Both these transactions were made while Haiti was experiencing internal conflict, and there was evidence of violations such as civilian killings and the use of child soldiers, by both the rebel gangs and the security forces, and a diversion of arms from the government forces to rebel gangs. As author Robert Muggah observed ‘Where the large legal and illegal shipments are reported into Haiti, they are soon accompanied by the outbreak of armed violence’. Control Arms Campaign, The Call for Tough Arms Controls: Voices from Haiti (January 2006) 3-15; Robert Muggah, ‘Securing Haiti’s Transition: Reviewing Human Insecurity and the Prospects for Disarmament, Demobilization, and Reintegration’ (March 2005) Small Arms Survey Occasional Paper no 14, 34; Rachel Stohl, Haiti's Big Threat: Small Arms (23 March 2004) <www.cdi.org/profram/document.cfm?DocumentID=2141>.
[47] Presidential Decision Directive 34 (PDD-34, February 17 1995) <www.state.gov/t/pm/rsat/c14023.htm>.
[48] Arms Export Control Act of 1976. 22, 39 USC § 2778 (2010).
[49]People's Republic of China Regulations on Export Control of Military Items, October 22 1997, Art 5, in Evan S. Medeiros and Bates Gill, Chinese Arms Exports: Policy, Players and Process (2000) 86, (Translated from Chinese by The East Asia Non-proliferation Project, Center for non-proliferation Studies).
[50] Russian Federation Federal Law on Export Control passed by the State Duma on 22 June 1999 and approved by the Federation Council on 2 July 1999. Translated by the Foreign Broadcast Information Service (FBIS),
<http://www.nti.org/db/nisprofs/russia/fulltext/excon/exconlaw.htm> art 21.
[51] Rachel Stohl, U.S. Policy and the Arms Trade Treaty (Chatham House, April 2010) Ploughshares Working Paper 10-1, 34.
[52] Russian Federation Federal Law on Export Control passed by the State Duma on 22 June 1999 and approved by the Federation Council on 2 July 1999. Translated by the Foreign Broadcast Information Service (FBIS),
<http://www.nti.org/db/nisprofs/russia/fulltext/excon/exconlaw.htm> , art 21.
[53] China has exported to Zimbabwe and Sudan. See Amnesty International, Zimbabwe: No Supply of Arms until State Sponsored Violence Ceases (24 April 2008) <http://www.amnesty.org.au/news/comments/12388/> Mike Lewis, Skirting the Law: Sudan’s Post-CPA Arms Flows (2009) Small Arms Survey HSBA Working Paper 18, 17 and 23; The US transfers arms to Israel, despite a recent United Nations Fact Finding mission on the Gaza conflict, which concluded that both sides to the conflict committed serious violations of IHL, and statements by the ICRC that the Gaza blockade is depriving Palestinians of food, medical and other humanitarian goods which they are entitled to under the fourth Geneva Convention. Human Rights in Palestine And Other Occupied Arab Territories, Report of the United Nations Fact Finding Mission on the Gaza Conflict, Executive summary, Human Rights Council, 12th sess, UN Doc A/HRC/12/48 (2009); The US has also exported arms to Yemen, despite evidence that commercial imports from Yemen is an important and consistent supplier of arms to the Somali opposition and criminal groups, that have been contributing to the civil war in the country. Pieter D Wezeman, Arms Flow and the Conflict in Somalia (October 2010) Stockholm International Peace Research Institute Background Paper, 3. Despite an UN imposed arms embargo on Sudan since 2004, arms have been exported to Sudan, primarily by China and Russia, who in 2005 together exported over $100 million worth of arms, ammunition, aircraft and equipment. An Amnesty International report provides evidence that specific aircraft, such as the Russian Mi-24 attack helicopters, were directly used by the Sudan Air Force to indiscriminately attack villages, causing loss of civilian life, destruction of civilian objects and forced displacement. Amnesty International, Sudan: Arms Continuing to Fuel Serious Human Rights Violations in Darfur (8 May 2007),
<http://www.amnesty.org/en/library/info/AFR54/019/2007 >; Also an appeal was made by the Secretary General of the UN in February 2007 specifically calling for an end to aerial bombardment of civilian targets in Sudan. Monthly report of the Secretary-General on Darfur, UN Doc S/2007/104 (23 February 2007); Human Rights Watch, Southern Sudan: Abuse on Both Sides in Upper Nile Clashes, April 19 2011, <http://www.hrw.org> UN SC Res 1556 , 5015th mtg, UN Doc S/RES/1556 (2004); The ban was originally limited to non-state actors and did not include the Sudanese Government forces. The ban was extended to government forces in March 2005 (see UN SC Res 1591, 5153rd mtg, UN Doc S/RES/1591 (2005).
[54] A fully copy of the ATT draft text is available at
[55] Charter of the United Nations art 51, which states ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.’
[56] Towards an Arms Trade Treaty, above n 12.
[57] Hungary: ‘[1.] While not questioning States’ unalienable right under Article 51 the Charter of the United Nations to individual or collective self-defence and thus inter alia to maintain legitimate defence manufacturing capabilities, Hungary attaches great importance to addressing the irresponsible and illegal forms of arms trade.’
[58]Indonesia: ‘[1.] States have the right to acquire arms to defend themselves. Indonesia wishes to reaffirm the ‘inherent right of All States to individual or collective self-defence in accordance with Article 51.’
[59] Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 96-97 and 105.
[60] New Zealand: ‘[3.] It is crucial for an arms trade treaty to set the highest standards that represent a strengthening, as opposed to a watering down, of existing arms transfers commitments. This must, however, be balanced against the need for a treaty not to impinge on the inherent right of all States to self-defence in accordance with Article 51 of the Charter of the United Nations, or curtail the right of all States to manufacture, transfer, import and export, and retain conventional arms for legitimate security and self-defence. The objectives of such a treaty must therefore be clear and unambiguous.’
[61] Paraguay ‘[10.] The treaty should acknowledge the legitimate right of all States to manufacture, import, export, transfer and possess conventional arms for legitimate self-defence, in accordance with Article 51 of the Charter of the United Nations. However, the arms trade treaty should prohibit conventional arms transfers in cases where there is clear evidence that they could be used and/or diverted for purposes that entail violations of international humanitarian law, the commission of crimes against humanity and violations of international human rights law, or arms embargoes imposed by the United Nations Security Council.’
[62] State Submission of Canada, 17.
[63] For example see the objective of the Convention Against Torture: The Convention Against Torture has been interpreted in line with the objective of preventing torture, rather than providing redress after the torture has occurred. See Committee Against Torture, Alan v Switzerland Communication No. 21/1995, U.N. Doc CAT/C/16/D/21/1995 (8 May 1996) [11.5]. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 4 February 1985, 1465 UNTS 85 (entered into force 26 June 1987). A similar objective can be found in the wish of states to include a test in the ATT that involves assessing the likelihood of future violations of IHL occurring and denying arms when there is a sufficient likelihood.
[64] Draft Arms Trade Treaty text, 26 July 2012, Art 1 (a) and (d).
[65] Japan [16] (c) ‘States shall not authorize international transfers of arms where they will be used or are likely to be used for violations of international law, including breaches of the Charter of the United Nations and customary law rules relating to the use of force, gross violations of international human rights law, serious violations of international humanitarian law, acts of genocide, or crimes against humanity.’
[66] Cote d'Ivoire [6] Limitations based on use or likely use. States shall not authorize international transfers of arms or ammunition when they will be used or are likely to be used or liable to be used to commit violations of international law (including breaches of the Charter of the United Nations and customary law rules relating to the use of force; gross violations of international human rights law; serious violations of international humanitarian law; and acts of genocide or crimes against humanity).
[67] Brazil [18] 'the instrument should include a provision requiring States to avoid authorizing transfers of conventional arms, small arms and light weapons and ammunition for small arms and light weapons in cases where there is a clear and recognizable risk that the transfer in question will: • Be used for serious and persistent violations of human rights and international humanitarian law,...'.
[68] A similar interpretation is found in the Convention Against Torture and the application of article 3(1) of that convention which states 'No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.' Decisions from the Committee Against Torture, the Conventions Dispute resolution mechanism established under art 17, have highlighted that the risk of torture does not have to meet the test of being highly probable, but rather the risk of torture must be foreseeable, real and personal to the individual in question. The risk must go beyond ‘mere theory’ or ‘suspicion’. Committee Against Torture General Comment no. 1, 'Implementation of article 3 of the convention in the context of art 22', 19th sess, 317th mtg, adopted on 21 November 1997; Committee Against Torture, Enrique Falcon Rios v Canada, Communication No. 133/1999, 33rd sess, U.N. Doc CAT/C/33/D/133/1999 (23 November 2004) [8.2] ('Rios v Canada'). Committee Against Torture, X. v. Australia, Communication No 324/2007, 42nd sess, U.N. Doc CAT/C/42/D324/2007 (30 April 2009) [7.3]. Ralf Alleweldt, 'Protection Against Expulsion Under Article 3 of the European Convention on Human Rights', (1993) 4 Journal of International Law 360, 365. This broad interpretation has been echoed in cases before the European Court of Human Rights, which contains a similar provision. See Chahal v. United Kingdom. No. 70/1995/576/662, European Court of Human Rights, (15 November 1996) in case note by Beate Rudolf (1998) 92 American Journal of International Law 70, 70.
[69] Commentary to the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), adopted 8 June 1977, 1125 UNTS 609 (entered into force 07 December1978), ‘General introduction to the Commentary on Protocol II’, para. 4360.
[70] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), adopted 8 June 1977, 1125 UNTS 609 (entered into force 07 December1978), Article 1.
[71] International Committee of the Red Cross, Treaties and Documents, <http://www.icrc.org/ihl.nsf/CONVPRES ?OpenView> .
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