arms transfer decisions: applying international humanitarian law criteria

8/14/2019 Arms transfer decisions: Applying international humanitarian law criteria

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A R M S T R A N S F E R D E C I S I O N SA p p l y i n g i n t e r n a t i o n a l

h u m a n i t a r i a n l a w c r i t e r i a


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International Committe of the Red Cross19 Avenue de la Paix

1202 Geneva, Switzerland

T + 41 22 734 60 01 F+ 41 22 733 20 57E-mail: [email protected]

www.icrc.org

ICRC, May 2007


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Arms trAnser decisionsAy aa haaa aw a

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5/26Arms transer decisions: Applying international humanitarian law criteria A practical guide

1. i

When a State transers military weapons or equipment, it is providingthe recipient with the means to engage in armed conict the conducto which is regulated by international humanitarian law (IHL).Under Article 1 common to the Geneva Conventions o 1949, Stateshave an obligation to respect and ensure respect or internationalhumanitarian law. o ensure that violations o humanitarian law arenot acilitated by unregulated access to arms and ammunition, armstranser decisions should include a consideration o whether therecipient is likely to respect this law.

On the basis o the conclusions o its study entitledArms Availability

and the Situation o Civilians in Armed Confict(1999)2

, the ICRC hasproposed that all national and international standards or armstransers should include a requirement to assess the recipients likelyrespect or international humanitarian law and to not authorizetransers i there is a clear risk that the arms will be used to commitserious violations o this law.

Since 1999, the ICRC has urged that criteria based on internationalhumanitarian law be included in regional arms transer documentsand in national laws and policies. It is pleased to note the considerableprogress made in this area. An increasing number o regional arms

transer instruments, as well as national laws and regulations, requirethat States assess whether there is a risk that the proposed transer oarms or military equipment will be used to violate humanitarian law.Most instruments urther stipulate that i the risk is considered tobe substantial, States are required to deny such transers. Te specicwording o these international humanitarian law criteria varies(see Box 1).

States should make respect for international humanitarian law one of the fundamentalcriteria on which arms transfer decisions are assessed. Tey are encouraged to incorporatesuch criteria into national laws or policies and into regional and global norms on arms

transfers.28th International Conerence o the Red Cross and Red Crescent, Agenda or Humanitarian Action, Final Goal 2. (adopted byconsensus on 6 December 200)1

1 The International Conerence o the Red Cross andRed Crescent is the supreme deliberative body o theInternational Red Cross and Red Crescent Movement. Itcomprises representatives o the ICR C, the InternationalFederation o Red Cross and Red Crescent Societies, allNational Red Cross and Red Crescent Societies as well as the194 States party to the Geneva Conventions.

2Arms Availability and the Situation o Civilians in ArmedConfict, ICRC, Geneva, June 1999.


6/264 International Committee o the Red Cross (ICRC)

Now that a large number o States have committed themselvesto taking respect or humanitarian law into account in their armstranser decisions, steps must be taken to ensure that these criteriaare applied in practice. Te present document aims to assist States or

regional organizations in this endeavour. It proposes that regulationsor guidelines be developed or assessing the risk o arms transersbeing used to violate international humanitarian law. It also outlinesa set o indicators that can be used as a basis or such exercises.

Examples of international humanitarian law criteria in existing arms transfer instruments

Each participating State will, in considering proposed exports o small arms, take into account (...) the record o respect or

international law governing the conduct o armed confict.Each participating State will avoid issuing licences or exports where it deems that there is a clear risk that the small arms in question

might (...) threaten compliance with international law governing the conduct o armed confict.

(Document o the Organization or Security and Co-operation in Europe on Small Arms and Light Weapons, 2000; and the Wassenaar Arrangement Best

Practice Guidelines or Exports o Small Arms and Light Weapons, 2002)

Member States will take into account (...) the record o the buyer country with regard to (...) its compliance with its international

commitments (...) including under international humanitarian law applicable to international and non-international conficts.

(European Union Code o Conduct on Arms Exports, 1998)

The National Authority shall prohibit brokering activities and reuse to grant licenses i it has reason to believe that the brokeringactivities will, or seriously threaten to (...) lead to the perpetration o war crimes contrary to international law.

(Organization o American States Model Regulations or the Control o Brokers o Firearms, their Parts and Components and Ammunition, 2003)

States Parties shall not authorize transers which are likely to be used (...) or the commission o serious violations o international

humanitarian law.

(Best Practice Guidelines or the Implementation o the Nairobi Declaration and the Nairobi Protocol on Small Arms and Light Weapons, 2005)

Transer o conventional and non-conventional weapons, small arms and light weapons, munitions, explosives and related materiel

will not take place rom or to States that commit and/or sponsor crimes against humanity or breaches o human rights, or which

commit grave breaches o the laws and customs o war contained in the 1949 Geneva Conventions or their Additional Protocols o

1977 or o other rules and principles o international humanitarian law applicable during armed confict between or within States.(Code o conduct o the States o Central America on the transer o arms, munitions, explosives and related materiel, 2005)

A transer shall not be authorised i the arms are destined to be used (...) or the commission o serious violations o international

humanitarian law (...).

(Economic Community o West Arican States Convention on Small Arms and Light Weapons, their Ammunition and Other Related Materials, 2006)

A Contracting party shall not authorise international transers o arms (...) in circumstances in which it has knowledge or ought

reasonably to have knowledge that transers o arms o the kind under consideration are likely to be (...) used in the commission o

serious violations o international humanitarian law applicable in international or non-international armed confict.

(Drat Arms Trade Treaty, proposed by the Control Arms Campaign)

Box 1



2. th aa aa aa

haaa aw a

A strict international humanitarian law criterion, on paper, will noteectively prevent weapons rom alling into the hands o those likelyto use them to commit violations unless it is applied in a rigorous andconsistent manner. o assist export licensing authorities and othergovernment ocials involved in arms transer decision-making, itwould be useul to develop regulations or guidelines outlining thevarious actors that should be taken into account when assessing therisk o weapons transers being used to violate humanitarian law. Tiswould also contribute to the development o more systematic andobjective approaches to such assessments.

he ICRC has been encouraged by several States and regionalorganizations to provide suggestions in this regard. Section belowhighlights some key questions to be considered in the application ointernational humanitarian law criteria.

Box 2 presents a set o indicators that States should take into accountwhen assessing the risk that a proposed transer o arms or militaryequipment will be used in the commission o serious violations ointernational humanitarian law. Tese are urther elaborated on inSection 4 with short explanatory comments. Section provides a listo sources o inormation that could acilitate such assessments.

Proposed indicators to assess the risk that transferred arms or military equipment will be used

in the commission of serious violations of international humanitarian law

n Whether a recipient which is, or has been, engaged in an armed conict, has committed serious violations o IHL;n Whether a recipient which is, or has been, engaged in an armed conict has taken all easible measures to prevent violations

o IHL or cause them to cease, including by punishing those responsible;n Whether the recipient has made a ormal commitment to apply the rules o IHL and taken appropriate measures or their

implementation;n Whether the recipient country has in place the legal, judicial and administrative measures necessary or the repression o

serious violations o IHL;n Whether the recipient disseminates IHL, in particular to the armed orces and other arms bearers, and has integrated IHL into

its military doctrine, manuals and instructions;n Whether the recipient has taken steps to prevent the recruitment o children into the armed orces or armed groups and their

participation in hostilities;n Whether accountable authority structures exist with the capacity and will to ensure respect or IHL;n Whether the arms or military equipment requested are commensurate with the operational requirements and capacities o

the stated end-user;n Whether the recipient maintains strict and eective control over its arms and military equipment and their urther transer.

Box 2



3. Ay aa haaa aw a:

Ky q

3.1 Wha aa haaa aw?

International humanitarian law (also known as the law o armedconict or law o war) is a set o rules intended, in times o armedconict, to protect people who are not or are no longer taking partin the hostilities (e.g. civilians and wounded, sick and capturedcombatants), and to regulate the conduct o hostilities (i.e. the meansand methods o warare). It regulates how to use armed orce, but notthe legality o the recourse to armed orce, which is regulated by theUN Charter.

he most important instruments o international humanitarianlaw are the our Geneva Conventions o 1949 and their AdditionalProtocols. Tey are supplemented by treaties on particular mattersincluding prohibitions o certain weapons and the protection o certaincategories o people and objects, such as children and cultural property(see Annex 1 or a list o the main treaties).

International humanitarian law imposes obligations on all parties toan armed conict, including armed groups. Te rules that apply ininternal armed conicts are laid down in Article common to theour Geneva Conventions, Additional Protocol II, and other treaties

specically applicable to non-international armed conicts (e.g. the1980 Convention on Certain Conventional Weapons). In addition,there are rules in customary international humanitarian law that applyto all parties in non-international armed conicts.

3.2 sva a b a

a a aa ha h aw

a aa haaa aw. Wha h ah

bw h w?

International humanitarian law is applicable in armed conict

international or non-international and in connection with someconsequences o armed conict, such as the release o prisoners o war,landmine clearance, missing persons, and prosecution o war crimes.Certain obligations set out in international humanitarian law alsoapply in peacetime, or example to include the study o humanitarianlaw in programmes o military instruction4 and to search or andprosecute or extradite persons suspected o war crimes.

Te rules o international humanitarian law or example on thetreatment o persons in the power o the adversary, limitations on themeans and methods o warare, the status o combatants and prisoners

o war, and the protection o the red cross, red crescent and red crystal

3 The threshold or application o Protocol II is higherthan or Common Article 3 and it only applies to non-international conicts when certain criteria are met asoutlined in its Article 1.

4 Art. 47 o Geneva Convention I, Art. 48 o GenevaConvention II, Art. 127 o Geneva Convention III, Art. 144o Geneva Convention IV and Arts 83 and 87 o AdditionalProtocol I.

5

Art. 49 o Geneva Convention I, Art. 50 o GenevaConvention II, Art. 129 o Geneva Convention III, Art. 146 oGeneva Convention IV and Art. 85 o Additional Protocol I.



emblems are specically designed or the particularities o armedconicts. Tereore, in decisions concerning the transer o military-style arms and ammunition, the recipients respect or internationalhumanitarian law is a particularly relevant consideration and must

be accorded the same importance as the recipients compliance withhuman rights law.

International human rights law protects the individual at all times (inpeacetime and during armed conict) against the arbitrary action othe State. Tough undamental human rights such as the right to bespared torture are guaranteed by both international humanitarian lawand human rights law, the latter also extends to domains outside thescope o international humanitarian law.

Some human rights treaties permit governments to derogate romcertain rights in situations o public emergency threatening the lieo the nation. No derogations are permitted under humanitarianlaw because it was designed to apply precisely to the exceptionalcircumstances constituted by armed conict. From the outset, ittakes into account not only the dictates o humanity but also militaryimperatives.

raditionally, international human rights law is seen as imposingobligations on States only, while international humanitarian law isquite unique in international law in that it is binding not only on

States, but also on non-State armed groups.

3.3 Whh a a va aa

haaa aw?

Serious violations o international humanitarian law include gravebreaches o the our Geneva Conventions o 1949. Each Conventioncontains denitions o what constitutes a grave breach (Articles 0,1, 10, 14 respectively). Articles 11 and 8 o Additional ProtocolI o 19 also include a broader range o acts to be regarded asgrave breaches o that Protocol. For the list o these denitions, see

Annex 2.

In addition to grave breaches o the Geneva Conventions, the RomeStatute o the International Criminal Court includes other seriousviolations o the laws and customs applicable in international and non-international armed conict, which it denes as war crimes (Article 8,sub-sections b, c and e).6 See Annex or the ull text o Article 8.

6 The enumeration o war crimes in Article 8 is notexhaustive.

7 For the ull text o the Rome Statute, see:http://www.un.org/law/icc/statute/romera.htm



3.4 sh h b a v va b

a a? sh y vy b

ak a va a

b va?

Tere should be no set time rame. Rather, the ocus should beon whether past trends are continuing or not. Evidence o recent violations would normally indicate a clear risk, except where thesituation has evolved signicantly, or example owing to a change ogovernment or political system. In an armed group, a new leadershipor a split into dierent actions might constitute similarly importantdevelopments.

I, on the other hand, there has been no meaningul change incircumstances, then even violations committed long ago could still

be relevant. Evidence o past violations or o past compliance is notin itsel a suciently reliable guide to present or uture conduct, butmust be assessed in the light o other relevant acts.

3.5 Wh w ak a aa

haaa aw, a w sa y a h

?

Some o the existing arms transer instruments specically requirean assessment o the recipient countrys likely compliance withinternational humanitarian law, while others reer to recipients more

broadly. An assessment o the risk that transerred weapons will beused to commit violations o humanitarian law should be conductedregardless o whether the recipient is a State or a non-State entity (e.g.a non-State entity authorized to import weapons on a States behal, aprivate military company, or an armed group).8 Te risk o diversionto recipients other than the stated end-user is an additional reasonwhy a broad risk assessment is required.

Several o the indicators proposed (e.g., whether strict control ismaintained over stocks o arms and ammunition) are relevant orany entity requesting arms or military equipment. Other indicators(e.g., ormal commitment to respect international humanitarian law,prevention o recruitment o children) apply mainly to States or non-State armed groups. Finally, one indicator (penal repression o seriousviolations) is applicable only to a recipient State.

3.6 A whh h k va b ky

a?

Isolated incidents o violations o international humanitarian law are notnecessarily indicative o a recipients attitude towards that body o lawand may not by themselves be considered a sucient basis or denying

an arms transer. However, any discernible pattern o violations, or any

8 Some States have committed themselves to supplyingsmall arms only to governments (either directly or through

duly licensed entities authorized to procure weaponson their behal), but most States have not made suchcommitments.



ailure by the recipient to take appropriate steps to put an end to violationsand to prevent their recurrence, should cause serious concern.

In cases where there is uncertainty about the risk, States should

seek urther clarication rom the recipient or rom other sources.I concerns persist ater urther examination, there should be apresumption against authorizing transers in light o the obligation oStates under Article 1 common to the Geneva Conventions to respectand ensure respect or international humanitarian law.

4. sf a b h

a

A thorough assessment o the risk that the arms or military equipmenttranserred will be used in the commission o serious violations ointernational humanitarian law should include an inquiry into:

n the recipients past and present record o respect or international

humanitarian law;

n the recipients intentions as expressed through ormalcommitments; and

n the recipients capacity to ensure that the arms or equipmenttranserred are used in a manner consistent with internationalhumanitarian law and are not diverted or transerred to otherdestinations where they might be used or serious violations othis law.9 International Humanitarian Law and the Challenges o

Contemporary Armed Conicts, report prepared by theICRC or the 28th International Conerence o the Red Cross

and Red Crescent, 2-6 December 2003, pp. 23, 47-51.Available at: http://www.icrc.org/Web/Eng/siteeng0.ns/htmlall/con28

The responsibility to ensure respect for international humanitarian law

Common Article 1 is generally interpreted as conerring on third-party States not involved in an armed conict a responsibility to

ensure respect or international humanitarian law by the parties to an armed conict. This includes both a negative obligation

to rerain rom encouraging a party to violate international humanitarian law and to not take action that would assist in such

violations, as well as a positive obligation to take appropriate steps to cause such violations to cease.9

Such third-party States have a particular responsibility to intervene with States or armed groups over which they might have

some inuence. States that transer weapons can be considered particularly inuential in ensuring respect or international

humanitarian law owing to their ability to provide or withhold the means by which violations may be committed. They should

thereore exercise particular caution to ensure that the weapons transerred are not used to commit serious violations o this law.

Box 3



Factors outside the strict purview o humanitarian law, such as thesecurity situation in the recipient country, the treatment o citizensin situations other than armed conict and the control that therecipient exercises over its weapons stocks, can be relevant to such

assessments.

Te nal decision should be based on an overall assessment o thesituation afer considering each indicator separately. Assessmentsshould be based on all available inormation and speciy why there isbelieved to be or not to be a risk o serious violations o internationalhumanitarian law.

4.1 r aa haaa aw10

n Whether a recipient which is, or has been, engaged in an armed

conict has committed serious violations o IHL;

n Whether a recipient which is, or has been, engaged in an armedconict has taken all easible measures to prevent violationso IHL or cause them to cease, including by punishing thoseresponsible.

Explanatory comments:

I. RelevantquestionsregardingviolationsofIHLinclude:

Have grave breaches or other serious violations been committed?(See Annexes 2 and .)

Have violations been committed by any actor or which the recipientis responsible? (E.g., or a State, this would include State organs,including the armed orces; persons or entities empowered toexercise elements o government authority; persons or groupsacting de acto on its instructions or under its direction or control;and private persons or groups having committed violations whichit acknowledges and adopts as its own conduct.11)

II. RelevantquestionsregardingthemeasurestakentopreventorpunishIHLviolationsinclude:

Where these are known to have occurred, has the recipient takenmeasures to prevent and suppress violations o IHL committed byits nationals, on its territory or by persons under its command?(Tese might include changing military orders and instructions,disciplinary or penal sanctions against oenders, actions to protectthe civilian population, public expression o regret or violations,assurances o non-repetition, reparation or victims, etc.)

10 These criteria are not relevant to States that havenot previously been engaged in an armed conict. Itwill nevertheless be necessary to conduct a thoroughrisk assessment on the basis o the countrys ormalcommitments, capacities and other relevant actors.

11 State practice establishes as a norm o customaryinternational law that violations by these actors canbe attributed to the State. See Jean-Marie Henckaerts

and Louise Doswald-Beck, Customary InternationalHumanitarian Law, 2 volumes, Vol. 1, Cambridge Univ.Press, 2005, pp. 530-536.



Has the recipient country ailed to investigate grave breaches andother serious violations o IHL allegedly committed by its nationalsor on its territory?

Has the recipient country ailed to search or and prosecute (orextradite) its nationals or those on its territory responsible orgrave breaches and other serious violations o IHL, or has it ailedto cooperate with other States or international courts in connectionwith criminal proceedings relating to grave breaches and otherserious violations o IHL?

4.2 a

n Whether the recipient has made a ormal commitment to applythe rules o IHL and taken appropriate measures or their

implementation;

n Whether the recipient country has in place the legal, judicial andadministrative measures necessary or the repression o seriousviolations o IHL;

n Whether the recipient disseminates IHL, in particular to thearmed orces and other arms bearers, and has integrated IHLinto its military doctrine, manuals and instructions;

n Whether the recipient has taken steps to prevent the recruitmento children into the armed orces or armed groups and their

participation in hostilities.12


I. RelevantquestionsregardingformalcommitmentstoIHLinclude:

Has the recipient country ratied any IHL instruments (i.e. the ourGeneva Conventions o 1949 and their Additional Protocols o 19,

treaties that contain express prohibitions or limitations on transerso specic weapons,1 or other key treaties o IHL)?14

Has the recipient country taken the implementation measuresrequired by the IHL instruments to which it is party, including theadoption o national legislation and regulations?1

I the recipient is an armed group, has it committed itsel torespect IHL, or example through a unilateral declaration or anagreement?

12 Additional Protocols I (Art. 77) and II (Art. 4) putthe minimum age or the recruitment o children andtheir participation in hostilities at 15 years, as does theConvention on the Rights o the Child (Art. 38). AdditionalProtocol I and the Convention on the Rights o the Childalso encourage parties, in recruiting among those agedrom 15 to 18, to give priority to the oldest. States partyto the Optional Protocol to the Convention on the Rights othe Child on the Involvement o Children in Armed Conictmust ensure that persons under the age o 18 are notcompulsorily recruited into their armed orces (Art. 2) andtake all easible measures to ensure that members o theirarmed orces who have not attained the age o 18 yearsdo not take a direct part in hostilities (Art. 1). Under theOptional Protocol, armed groups distinct rom the armedorces should not, under any circumstances, recruit or usein hostilities persons under the age o 18 (Art. 4). The RomeStatute establishes as a war crime both in international

(Art. 8, 2, b, xxvi) and non-international (Art. 8, 2, e, vii)armed conicts conscripting or enlisting children under theage o 15 into the armed orces or armed groups or usingthem to participate actively in hostilities. A list o Statesparty to these treaties is available at: http://www.icrc.org/IHL.ns/(SPF)/party_main_treaties/$File/IHL_and_other_related_Treaties.pd

13 This includes Protocols II as amended (Art. 8) and IV (Art.1) to the Convention on Certain Conventional Weapons andthe Convention on the Prohibition o the Use, Stockpiling,Production and Transer o Anti-Personnel Mines and ontheir Destruction (Art. 1).

14 See Annex 2 or a list o the main internationalhumanitarian law treaties.

15 Ratication o treaties is not in itsel sufcient toensure that the rules o international humanitarian law

are respected. It is necessary to also examine whetherthe recipient country has taken active steps to ull therequirements o the treaties to which it is par ty.



II.Relevantquestionsregardingtherepressionofseriousviolations 16ofIHLinclude:

Is there national legislation in place prohibiting and punishing grave

breaches and other serious violations o IHL and legislation allowingcooperation with international tribunals?1

Does the recipient country cooperate with other States, ad hoctribunals or the International Criminal Court in connection withcriminal proceedings relating to grave breaches and other seriousviolations?

III. Relevant questions regarding the dissemination of IHLinclude:

Does the recipient country educate and train its military ocers aswell as the rank and le in the application o the rules o IHL (e.g.during military exercises)?

Has IHL been incorporated into military doctrine and militarymanuals, rules o engagement, instructions and orders?

Are there legal advisers trained in IHL who advise the armedorces?

Have the same measures been taken to ensure respect or IHLby other arms bearers (i.e. police) that may operate in situationscovered by IHL?

Have requirements been put in place or military commanders toprevent and suppress grave breaches and other serious violations oIHL, and to take action against those under their control who havecommitted such violations?

Have mechanisms, including disciplinary and penal sanctions,been put in place to ensure accountability or violations o IHLcommitted by the armed orces and other arms bearers?

In the case o recipients other than State entities that operate insituations o armed conict (e.g. armed groups, private militarycompanies), have measures been taken by the recipient to ensurethat the arms will be used in accordance with IHL (e.g., the adoptionand distribution o codes o conduct consistent with IHL, standardoperating procedures and rules o engagement that comply withthese rules, the provision o training in IHL, and the establishmento internal disciplinary procedures)?

16 The ocus here is on grave breaches and other seriousviolations o international humanitarian law, though Statesmust ensure compliance with all provisions o internationalhumanitarian law and take measures to prevent andsuppress violations o these.

17 For grave breaches, such legislation must cover all

persons, regardless o nationality and where the act wascommitted i.e., it must incorporate the principle ouniversal jurisdiction.



IV. Relevantquestionsregardingtherecruitmentofchildrenintothearmedforcesorintoarmedgroupsandtheirparticipationinhostilitiesinclude:

Is the recipient known to have recruited children and to have usedthem to participate actively in hostilities?

Has the recipient country ratied legal instruments establishing aminimum age or the recruitment o children and their participationin hostilities (Additional Protocols I and II, the Convention on theRights o the Child and its Optional Protocol on the Involvemento Children in Armed Conict)?

Is there an established minimum age or the recruitment (compulsory

or voluntary) o persons into the armed orces (or the armedgroup)?

Have legal or other measures been adopted prohibiting andpunishing the recruitment or use in hostilities o children?

4.3 caay ha wa w b aa

wh aa haaa aw

n Whether accountable authority structures exist with the capacityand will to ensure respect or IHL;

n Whether the arms or military equipment requested arecommensurate with the operational requirements and capacitieso the stated end-user;

n Whether the recipient maintains strict and efective control overits arms and military equipment and their urther transer.


I. Relevantquestionsregardingtheauthoritystructuresinclude:

Does the end user (e.g. armed orces or armed group) operate underclear and accountable lines o command and control?

Is there an independent and unctioning judicial system in therecipient country, capable in particular o prosecuting seriousviolations o IHL?



Is there a risk o a sudden or unexpected change o governmentor authority structures (e.g., overthrow o the government,disintegration o State structures) that could adversely aect therecipients willingness or ability to respect IHL?

What is the general degree o concern and respect shown or thesituation o the civilian population?

II. Relevantquestionsregardingthearmsormilitaryequipmentrequestedandtheoperationalrequirementsandcapacitiesofthestatedend-userinclude:18

Does the end user have the knowledge and capacity to use the armsor equipment in accordance with IHL? (E.g., i military weapons

are transerred to arms bearers other than the armed orces suchas the police or a private military company who will be operatingin situations covered by IHL, have they been adequately trained inthat body o law?)

Does the end user have the capacity to maintain and deploy thesearms or equipment?19

Are the type, quality and quantity o arms or equipmentcommensurate with the stated end-users military requirements(e.g. its existing inventory and orce structure)?20

III.Relevantquestionsregardingtherecipientscontroloveritsarmsandmilitaryequipmentinclude:

Are previous transers o arms or military equipment to this recipientknown or suspected to have been re-transerred or diverted to athird party when there was a clear risk that they would be used toviolate IHL?

Does the stated end-user have adequate procedures in place orstockpile management and security, including or surplus arms andammunition?

Are thef and leakages rom stockpiles or corruption known to bea problem in the recipient country?

Is illicit tracking o weapons a problem in the recipient country? Dogroups involved in illegal arms tracking operate in the country?

Are border controls adequate in the recipient country or are theborders known to be porous?

18 Military advisers should be consulted as part o theassessment process.

19 I not, there may be reasonable concern as to how theywill be used and as to whether they may be diverted toothers.

20

This is another highly relevant consideration whenattempting to uncover attempts at diversion to otherend-users.



Does the recipient country have an eective arms transer controlsystem in place (import, export, transit and trans-shipment)? Doessuch a system include criteria or decision-making based on IHL?

Is the recipient the actual end user o the arms or militaryequipment? Is the recipient willing to accept verication o this andto undertake not to transer the arms or military equipment to thirdparties without the authorization o the supplier State?

5. s a21

Te ICRC recommends that a list o inormation sources relevant toassessments be included in any regulations or guidelines developed

so as to assist those involved in the decision-making process. Te listbelow is only intended to be illustrative.

n National diplomatic missions in the recipient State;

n Media reports;

n Open- and closed-source inormation rom international agenciesoperating in the recipient State;

n Human rights reports by States;

n Reports by NGOs on country situations, which may include relevantinormation regarding compliance with international humanitarianlaw;

n International Committee o the Red Cross website (ratication otreaties22 and database on national implementation o treaties2);

n Judgments and reports by the International Criminal Court and adhoc tribunals;

n Military doctrine, manual and instructions;

n Reports by research institutes on weapons/arms transer issues(i.e. regarding illicit tracking, national controls on arms andammunition, etc.).

21 The ICRC takes no responsibility or the content o thesesources.

22 http://www.icrc.org/Web/eng/siteeng0.ns/htmlall/

section_ihl_nat_treaties_and_states_parties23 http://www.icrc.org/ihl-nat



Ax 1

ma a aa haaa aw

n Convention (I) or the Amelioration o the Condition o the Wounded and Sick in Armed Forces in the Field. Geneva,12 August 1949.

n Convention (II) or the Amelioration o the Condition o Wounded, Sick and Shipwrecked Members o Armed Forces at Sea.Geneva, 12 August 1949.

n Convention (III) relative to the Treatment o Prisoners o War. Geneva, 12 August 1949.

n Convention (IV) relative to the Protection o Civilian Persons in Time o War, Geneva, 12 August 1949.

n Protocol Additional to the Geneva Conventions o 12 August 1949, and relating to the Protection o Victims o InternationalArmed Conicts. Geneva, 8 June 1977.

Declaration provided or under article 90 o Additional Protocol I: Acceptance o the Competence o the InternationalFact-Finding Commission.

n Protocol Additional to the Geneva Conventions o 12 August 1949, and relating to the Protection o Victims o Non-InternationalArmed Conicts. Geneva, 8 June 1977.

n Convention on the Rights o the Child, New York, 20 November 1989.

n Optional Protocol to the Convention on the Rights o the Child on the Involvement o Children in Armed Conict, New York,

25 May 2000.

n Rome Statute o the International Criminal Court, 17 July 1998.

n Convention or the Protection o Cultural Property in the Event o Armed Conict, The Hague, 14 May 1954.

n Protocol to the Convention or the Protection o Cultural Property in the Event o Armed conict, The Hague, 14 May 1954.

n Second Protocol to the Hague Convention o 1954 or the Protection o Cultural Property in the Event o Armed Conict,The Hague, 26 March 1999.

n Convention on the Prohibition o Military or any other Hostile Use o Environmental Modication Techniques, New York,10 December 1976.

n Protocol or the Prohibition o the Use o Asphyxiating, Poisonous or Other Gases, and o Bacteriological Methods o Warare,Geneva, 17 June 1925.

n Convention on the Prohibition o the Development, Production and Stockpiling o Bacteriological (Biological) and Toxin Weaponsand on their Destruction, opened or signature in London, Moscow and Washington, 10 April 1972.



n Convention on Prohibitions or Restrictions on the Use o Certain Conventional Weapons Which May be Deemed to be ExcessivelyInjurious or to Have Indiscriminate Eects. Geneva, 10 October 1980.

Protocol on Non-Detectable Fragments, 10 October 1980 (Protocol I to the 1980 Convention). Protocol on Prohibitions or Restrictions on the Use o Mines, Booby-traps and Other Devices, 10 October 1980 (Protocol II

to the 1980 Convention). Protocol on Prohibitions or Restrictions on the Use o Incendiary Weapons, 10 October 1980 (Protocol III to the 1980

Convention). Protocol on Blinding Laser Weapons, 13 October 1995. (Protocol IV to the 1980 Convention). Protocol on Prohibitions or Restrictions on the Use o Mines, Booby-Traps and Other Devices as amended on 3 May 1996

(Protocol II as amended to the 1980 Convention). Amendment to the Convention on Prohibitions or Restrictions on the Use o Certain Conventional Weapons Which May

be Deemed to be Excessively Injurious or to Have Indiscriminate Eects, 21 December 2001. Protocol on Explosive Remnants o War, 28 November 2003 (Protocol V to the 1980 Convention).

n Convention on the Prohibition o the Development, Production, Stockpiling and Use o Chemical Weapons and on their

Destruction, Paris, 13 January 1993.

n Convention on the Prohibition o the Use, Stockpiling, Production and Transer o Anti-Personnel Mines and on their Destruction,Oslo, 18 September 1997.



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p i 1977

Grave breaches specifed in the our1949 Geneva Conventions(Art. 50, 51, 130, 147 respectively)

Grave breaches specifed in the third1949 Geneva Convention(Art. 130)

Grave breaches specifed in the ourth1949 Geneva Convention(Art. 147)

n wilul killing;

n torture or inhuman treatment,including biological experiments;

n wilully causing great suering orserious injury to body or health;

n extensive destruction andappropriation o property, not justiedby military necessity and carriedout unlawully and wantonly (thisprovision is not included in Art. 130third 1949 Geneva Convention).

n compelling a prisoner o war to serve inthe orces o the hostile Power;

n wilully depriving a prisoner o war o the

rights o air and regular trial prescribed inthe Convention.

n compelling a protected person to serve inthe orces o the hostile Power;

n wilully depriving a protected person

o the rights o air and regular trialprescribed in the Convention;

n unlawul deportation or transer orunlawul connement o a protectedperson;

n taking o hostages.



Grave breaches specifed in Additional Protocol l o 1977(Art. 11 and Art. 85)

Article 11 (4):Any wilul act or omission which seriously endangers the physical or mental health or integrity o any person who is in the power o aParty other than the one on which he depends and which either violates any o the prohibitions in paragraphs 1 and 2 or ails to complywith the requirements o paragraph 3 shall be a grave breach o this Protocol.

Article 85 (2):Acts described as grave breaches in the Conventions are grave breaches o this Protocol i committed against persons in the power o anadverse Party protected by Articles 44, 45 and 73 o this Protocol, or against the wounded, sick and shipwrecked o the adverse Party whoare protected by this Protocol, or against those medical or religious personnel, medical units or medical transports which are under thecontrol o the adverse Party and are protected by this Protocol.

Article 85 (3):

In addition to the grave breaches dened in Article 11, theollowing acts shall be regarded as grave breaches o this Protocolwhen committed wilully, in violation o the relevant provisionso this Protocol, and causing death or serious injury to body orhealth:

n making the civilian population or individual civilians theobject o attack;

n launching an indiscriminate attack aecting the civilianpopulation or civilian objects in the knowledge that suchattack will cause excessive loss o lie, injury to civilians ordamage to civilian objects;

n launching an attack against works or installations containingdangerous orces in the knowledge that such attack will causeexcessive loss o lie, injury to civilians or damage to civilianobjects;

n making non-deended localities and demilitarized zones theobject o attack;

n making a person the object o an attack in the knowledge thathe is hors de combat,

n the perdious use o the distinctive emblem o the red cross,

red crescent or other protective signs.

Article 85 (4):

In addition to the grave breaches dened in the precedingparagraphs and the Conventions, the ollowing shall be regardedas grave breaches when committed wilully and in violation o theConventions or the Protocol:

n the transer by the Occupying Power o parts o its own civilianpopulation into the territory it occupies, or the deportation ortranser o all or parts o the population o the occupied territorywithin or outside this territory;

n unjustiable delay in the repatriation o prisoners o war orcivilians;

n practices o apartheid and other inhuman and degrading practicesinvolving outrages upon personal dignity, based on racialdiscrimination;

n making the clearly recognized historic monuments, works o artor places o worship which constitute the cultural or spiritualheritage o peoples and to which special protection has beengiven by special arrangement, or example, within the rameworko a competent international organization, the object o attack,causing as a result extensive destruction thereo, and when suchhistoric monuments, works o art and places o worship are notlocated in the immediate proximity o military objectives or usedby the adverse party in support o its military eort;

n depriving a person protected by the Conventions or reerred to inparagraph 2 o this Article o the rights o air and regular trial.



Ax 3

r sa h iaa ca c

pa 2. J, aby a aab aw

A 8: Wa 1. TheCourtshallhavejurisdictioninrespectowarcrimesinparticularwhencommittedaspartoaplanorpolicy

oraspartoalarge-scalecommissionosuchcrimes.2. ForthepurposeothisStatute,warcrimesmeans:

(a) Grave breaches o the Geneva Conventions o 12 August 1949, namely, any o the ollowing acts against persons or propertyprotected under the provisions o the relevant Geneva Convention:

(i) Wilul killing;(ii) Torture or inhuman treatment, including biological experiments;(iii) Wilully causing great suering, or serious injury to body or health;(iv) Extensive destruction and appropriation o property, not justied by military necessity and carried out unlawully

and wantonly;(v) Compelling a prisoner o war or other protected person to serve in the orces o a hostile Power;(vi) Wilully depriving a prisoner o war or other protected person o the rights o air and regular trial;(vii) Unlawul deportation or transer or unlawul connement;(viii) Taking o hostages.

(b) Other serious violations o the laws and customs applicable in international armed conict, within the establishedramework o international law, namely, any o the ollowing acts:(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct

part in hostilities;(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian

assistance or peacekeeping mission in accordance with the Charter o the United Nations, as long as they are entitledto the protection given to civilians or civilian objects under the international law o armed conict;

(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss o lie or injury tocivilians or damage to civilian objects or widespread, long-term and severe damage to the natural environmentwhich would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undeended andwhich are not military objectives;

(vi) Killing or wounding a combatant who, having laid down his arms or having no longer means o deence, hassurrendered at discretion;

(vii) Making improper use o a ag o truce, o the ag or o the military insignia and uniorm o the enemy or o theUnited Nations, as well as o the distinctive emblems o the Geneva Conventions, resulting in death or seriouspersonal injury;

(viii) The transer, directly or indirectly, by the Occupying Power o parts o its own civilian population into the territory itoccupies, or the deportation or transer o all or parts o the population o the occupied territory within or outsidethis territory;

(ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes,historic monuments, hospitals and places where the sick and wounded are collected, provided they are not militaryobjectives;

(x) Subjecting persons who are in the power o an adverse party to physical mutilation or to medical or scienticexperiments o any kind which are neither justied by the medical, dental or hospital treatment o the personconcerned nor carried out in his or her interest, and which cause death to or seriously endanger the health o suchperson or persons;



(xi) Killing or wounding treacherously individuals belonging to the hostile nation or army;(xii) Declaring that no quarter will be given;(xiii) Destroying or seizing the enemys property unless such destruction or seizure be imperatively demanded by the

necessities o war;

(xiv) Declaring abolished, suspended or inadmissible in a court o law the rights and actions o the nationals o the hostileparty;

(xv) Compelling the nationals o the hostile party to take part in the operations o war directed against their own country,even i they were in the belligerents service beore the commencement o the war;

(xvi) Pillaging a town or place, even when taken by assault;(xvii) Employing poison or poisoned weapons;(xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;(xix) Employing bullets which expand or atten easily in the human body, such as bullets with a hard envelope which does

not entirely cover the core or is pierced with incisions;(xx) Employing weapons, projectiles and material and methods o warare which are o a nature to cause superuous

injury or unnecessary suering or which are inherently indiscriminate in violation o the international law oarmed conict, provided that such weapons, projectiles and material and methods o warare are the subject o a

comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with therelevant provisions set orth in articles 121 and 123;

(xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;(xxii) Committing rape, sexual slavery, enorced prostitution, orced pregnancy, as dened in article 7, paragraph 2

(), enorced sterilization, or any other orm o sexual violence also constituting a grave breach o the GenevaConventions;

(xxiii) Utilizing the presence o a civilian or other protected person to render certain points, areas or military orces immunerom military operations;

(xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using thedistinctive emblems o the Geneva Conventions in conormity with international law;

(xxv) Intentionally using starvation o civilians as a method o warare by depriving them o objects indispensable to theirsurvival, including wilully impeding relie supplies as provided or under the Geneva Conventions;

(xxvi) Conscripting or enlisting children under the age o teen years into the national armed orces or using them toparticipate actively in hostilities.

(c) In the case o an armed conict not o an international character, serious violations o article 3 common to the our GenevaConventions o 12 August 1949, namely, any o the ollowing acts committed against persons taking no active part in thehostilities, including members o armed orces who have laid down their arms and those placed hors de combatby sickness,wounds, detention or any other cause:(i) Violence to lie and person, in particular murder o all kinds, mutilation, cruel treatment and torture;(ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;(iii) Taking o hostages;(iv) The passing o sentences and the carrying out o executions without previous judgement pronounced by a regularly

constituted court, aording all judicial guarantees which are generally recognized as indispensable.

(d) Paragraph 2 (c) applies to armed conicts not o an international character and thus does not apply to situations o internaldisturbances and tensions, such as riots, isolated and sporadic acts o violence or other acts o a similar nature.(e) Other serious violations o the laws and customs applicable in armed conicts not o an international character, within the

established ramework o international law, namely, any o the ollowing acts:(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct

part in hostilities;(ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the

distinctive emblems o the Geneva Conventions in conormity with international law;(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian

assistance or peacekeeping mission in accordance with the Charter o the United Nations, as long as they are entitledto the protection given to civilians or civilian objects under the international law o armed conict;

(iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes,

historic monuments, hospitals and places where the sick and wounded are collected, provided they are not militaryobjectives;



(v) Pillaging a town or place, even when taken by assault;(vi) Committing rape, sexual slavery, enorced prostitution, orced pregnancy, as dened in article 7, paragraph 2 (),

enorced sterilization, and any other orm o sexual violence also constituting a serious violation o article 3 commonto the our Geneva Conventions;

(vii) Conscripting or enlisting children under the age o teen years into armed orces or groups or using them toparticipate actively in hostilities;

(viii) Ordering the displacement o the civilian population or reasons related to the conict, unless the security o thecivilians involved or imperative military reasons so demand;

(ix) Killing or wounding treacherously a combatant adversary;(x) Declaring that no quarter will be given;(xi) Subjecting persons who are in the power o another party to the conict to physical mutilation or to medical or

scientic experiments o any kind which are neither justied by the medical, dental or hospital treatment o theperson concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health osuch person or persons;

(xii) Destroying or seizing the property o an adversary unless such destruction or seizure be imperatively demanded bythe necessities o the conict;

( ) Paragraph 2 (e) applies to armed conicts not o an international character and thus does not apply to situations o internaldisturbances and tensions, such as riots, isolated and sporadic acts o violence or other acts o a similar nature. It applies toarmed conicts that take place in the territory o a State when there is protracted armed conict between governmentalauthorities and organized armed groups or between such groups.

3. Nothinginparagraph2(c)and(e)shallafecttheresponsibilityoaGovernmenttomaintainorre-establishlawandorderintheStateortodeendtheunityandterritorialintegrityotheState,byalllegitimatemeans.


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MISSION

The International Committee of the Red Cross (ICRC) is an impartial, neutral andindependent organization whose exclusively humanitarian mission is to protect thelives and dignity of victims of war and internal violence and to provide them with

assistance. It directs and coordinates the international relief activities conductedby the Movement in situations ofconflict. It also endeavours to prevent sufferingby promoting and strengthening humanitarian law and universal humanitarianprinciples. Established in 1863, the ICRC is at the origin of the International RedCross and Red Crescent Movement.


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arms transfer decisions: applying international humanitarian law criteria

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