International Law and Arms Prohibitions restrictions and export

International Law and Arms Prohibitions, restrictions and export control ILPI Senior Partner – dr. juris Gro Nystuen Ui. O 2014

The big picture How is international law created? – Public international law = law between states – All states are sovereign, therefore, they are all formally equal – In order to create common rules, states must therefore make and enter AGREEMENTS (called treaties, conventions, pacts, etc. – the title does not matter) – Two-step processs: 1) States join together to negotiate an international agremment, 2) Once the agreement is negotiated, each state decides whether it will become a party to (and thus bound by) the agreement Title - Name [Insert -> Header & Footer > Footer] Place, 18. 11. 2013 [Insert -> Header & Footer > Dated and time > Fixed

Sources of international law Since states must agree and consent, the sources of law are agreements The Statute of the International Court of Justice, Art. 38: Primary sources: • Treaties/conventions • Customary law • (General principles) Secondary sources: • Judicial practice • Legal academic literature Title - Name [Insert -> Header & Footer > Footer] Place, 18. 11. 2013 [Insert -> Header & Footer > Dated and time > Fixed

International Law and Arms • The law regulating which weapons it is allowed to use: – Prohibitions – Restrictions • The law regulating transfer (export) of arms Title - Name [Insert -> Header & Footer > Footer] Place, 18. 11. 2013 [Insert -> Header & Footer > Dated and time > Fixed

Law regulating the conduct of warfare • Point of these agreements: one expects the opposing party to adhere to them • International law (incl. IHL) builds upon the principle of reciprocity • Throughout history, there have been many agreements on the conduct of warfare • 1700’s-1800’s: rules on military necessity and limited warfare (as oposed to total warfare) Title - Name [Insert -> Header & Footer > Footer] Place, 18. 11. 2013 [Insert -> Header & Footer > Dated and time > Fixed

Prohibited means of warfare • Point of departure: – The rule on distinction (between combatants and civilians) • The prohibition against indiscriminate attacks – The principle of proportionality (excessive injury etc. to civilians) – The principle of superfluous injury and unnecessary suffering (protection of combatants) – Long-term and comprehensive damage to the environment • These rules are codified in AP I to the Geneva Conventions and are also part of customary international law

Distinction AP I, art. 48 – …the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives Title - Name [Insert -> Header & Footer > Footer] Place, 18. 11. 2013 [Insert -> Header & Footer > Dated and time > Fixed

Indiscriminate attacks Art. 51 (4) – Indiscriminate attacks are prohibited. Indiscriminate attacks are: …. (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or…. and consequently……, are of a nature to strike military objectives and civilians or civilian objects without distinction. Title - Name [Insert -> Header & Footer > Footer] Place, 18. 11. 2013 [Insert -> Header & Footer > Dated and time > Fixed

Proportionality Art. 51 (5) • (b): an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. Title - Name [Insert -> Header & Footer > Footer] Place, 18. 11. 2013 [Insert -> Header & Footer > Dated and time > Fixed

Unnecessary suffering/superfluous injury Art. 35 (2) • It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. Title - Name [Insert -> Header & Footer > Footer] Place, 18. 11. 2013 [Insert -> Header & Footer > Dated and time > Fixed

ICJ Advisory Opinion (1996) On the Legality of the Threat of Use of Nuclear Weapons • “In conformity with the aforementioned principles, humanitarian law, at a very early stage, prohibited certain types of weapons, either because of their indiscriminate effects on combatants and civilians or because of the unnecessary suffering caused to combatants, that is to say, a harm greater than that unavoidable to achieve legitimate military objectives. ” Title - Name [Insert -> Header & Footer > Footer] Place, 18. 11. 2013 [Insert -> Header & Footer > Dated and time > Fixed

Overview: • Exploding ammunition (1868) • Expanding bullets (1899) • Poisonous gas (1899) • Gas etc. (1925) • Non-proliferation Treaty (1968) • Biological Weapons (1972) • ENMOD (1977) • CCW (Inhuman Weapons) (1980 – 2003) • Chemical Weapons (1993) • Antipersonnel landmines (1997) • Cluster munitions (2008)

The Petersburg Declaration, renouncing the use of Explosive Projectiles Under 400 Grammes Weight (1868) • Unnecessary suffering of combatants • Aimed at drawing a line between explosive artillery shells and rifle ammunition • Not prohibited to use against “hard targets” (customary law)

The Hague Declaration Concerning Expanding Bullets (1899) • Unnecessary suffering of combatants – “The Contracting Parties agree to abstain from the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions. ” • Not prohibited to use in law enforcement

The Geneva Gas Protocol (1925) • Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare – Assumed to only ban first use – “Consumed” by the Conventions on biological and chemical weapons

The NPT - Nuclear Non-Proliferation Treaty (1968) (The Grand Bargain) • Article I – Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons …. • Article II – Each non-nuclear-weapon State Party to the Treaty undertakes not to receive the transfer from any transferor whatsoever of nuclear weapons…. • Article VI – The nuclear weapons states commit to disarm with the final goal of elimination of all nuclear weapons

ICJ on the legality of nuclear weapons • “the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict. . ” • “However, in view of the current state of international law…the Court cannot conclude definitely whether the threat or use of nuclear weapons would be lawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake. ”

Biological Weapons Convention (1972) • Article 1: Each State Party to this Convention undertakes never in any circumstances to develop, produce, stockpile or otherwise acquire or retain: – 1. microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes; – 2. weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.

ENMOD (Environmental Modification) (1977) • “The Convention on the Prohibiting of Military or other Hostile Use of Environmental Modification Techniques” • Came after the Vietnam war – made it prohibited to use environmental modification as means of warfare • AP I art. 35 (3)

Convention on Certain Conventional Weapons (1980) • Convention on Certain Conventional Weapons (CCW) - also called the UN Convention on inhumane weapons. • Full title: “Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects”

CCW Protocols • I: Non-Detectable Fragments (1980) • II: Mines, Booby-traps etc. (1980 and 1996) • III: Incendiary Weapons (1980) • IV: Blinding Laser Weapons (1995) • V: Explosive Remnants of War (2003)

Chemical Weapons Convention (1993) • Art. I (1). Each State Party to this Convention undertakes never under any circumstances: • (a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone; • (b) To use chemical weapons;

Definition of a Chemical Weapon • Art. II (2) "Toxic Chemical" means: – Any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. • ….

Exceptions - Purposes Not Prohibited Under the Convention • Art. II (9) (a) Industrial, agricultural, research, medical, pharmaceutical or other peaceful purposes; • Art. II (9) (b) Protective purposes, namely those purposes directly related to protection against toxic chemicals and to protection against chemical weapons; • Art. II (9) (c) Military purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of chemicals as a method of warfare; • Art. II (9) (d) Law enforcement including domestic riot control purposes.

Mine Ban Convention (1997) • Article 1 (1) Each State Party undertakes never under any circumstances: – a) To use anti-personnel mines; – b) To develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, anti-personnel mines; – c) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention.

Convention on Cluster Munitions • Art. 1 – 1. Each State Party undertakes never under any circumstances to: • (a) Use cluster munitions; • (b) Develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions; • (c) Assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention.

Cluster weapons • A weapon (air or surface delivered) which consists of a parent munition which contains several sub-munitions – Area weapons (covers ”footprints”) often with large numbers of sub-munitions – Failure rates from 1 - up to 70%, depending on whether or not they have self destruct/self neutralisation mechanisms, and how they work

The relationship between the general rules and the specific rules • The fact that a weapon is not subject to a specific prohibition does not necessarily mean that the weapon is allowed: One must always assess weapons with regard to the basic principles of distinction and unnecessary suffering.

“Non-lethal” / ”less lethal” weapons • Difficult to distinguish between “lethal” and “nonlethal” weapons (AP mines are designed to be nonlethal) • If a weapon is categorised as “non-lethal” this does not have any impact on whether the weapon is prohibited under IHL – For example, tear gas is prohibited as a means of warfare (chemical weapon) but not means of law enforcement

Drones (UAV) • Can be problematic like all other remotely delivered weapons, but can also contribute to better implementation of the rule on distinction through surveilance • (Use of drones can be very pproblematic with regard to human rights (extrajudicial executions)) • Not problematic with regard to IHL per se

Autonomous weapons systems (AWS) (Not yet developed) • High tech, but can hardly separate between civilians and combattants or undertake proportionality assessments • Clearly problematic with regard to distinction and proportionality

The Arms Trade Treaty (ATT) • Not disarmament or arms control or trade • “Export” of EU/Norway’s arms export regimes • Negotiations since 2010, based on a rule of consensus • Predictable failures at the July 2012 and 2013 Diplomatic conferences in NY • Adopted by the GA in April 2013

The dynamics of the negotiations • Four ”groups”: • - ”Progressive” states (focus on humanitarian goals) • - States in favour of an ATT, but keen to keep the P 5 on board • - Sceptical States • - Opposing States

How the consenus rule worked • History of the ”consensus” rule and its relationship to treaty law • No one expected consensus: the issue was to get the ”right” states to block • The text was: Chair’s best guess at what could be acheived with only the ”usual suspects” bloking • The text therefore is somewhat weak

Scope • All conventional arms listed in the UN register (tanks, artillery systems, missiles and missile launcers etc. ) • Small arms and light weapons • Ammunition • Parts and components

National implementatiomn • Article 5 • State Parties must maintain or adopt national export control systems that gives the state an obligation to control/authorise all arms exports covered under the treaty

Article 6 (2) • A State Party shall not authorize any transfer of conventional arms covered under Article 2 (1) or of items covered under Article 3 or Article 4, if the transfer would violate its relevant international obligations under international agreements to which it is a Party, in particular those relating to the transfer of, or illicit trafficking in, conventional arms.

• Pertains to both: • - How the arms would be used • AND • - Whether the exported arms themselves are consistent with IHL requirements

Article 6 (3) • A State Party shall not authorize any transfer of conventional arms covered under Article 2 (1) or of items covered under Article 3 or Article 4, if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.

Article 7 (1) • 1. If the export is not prohibited under Article 6, each exporting State Party, …, shall, …, assess the potential that the conventional arms or items: • (a) would contribute to or undermine peace and security; • (b) could be used to: • (i) commit or facilitate a serious violation of international humanitarian law; • (ii) commit or facilitate a serious violation of international human rights law; • (iii) commit or facilitate an act constituting an offence under international conventions or protocols relating to terrorism to which the exporting State is a Party; or • (iv) commit or facilitate an act constituting an offence under international conventions or protocols relating to transnational organized crime to which the exporting State is a Party.

Article 7 (3) • . If, after conducting this assessment and considering available mitigating measures, the exporting State Party determines that there is an overriding risk of any of the negative consequences in paragraph 1, the exporting State Party shall not authorize the export.

• The exporting State Party, in making this assessment, shall take into account the risk of the conventional arms covered under Article 2 (1) or of the items covered under Article 3 or Article 4 being used to commit or facilitate serious acts of gender-based violence or serious acts of violence against women and children.

ATT – process ahead • EIF: 25 December • First Conference of States Parties (CSP) August 2015 • Issues: – Rules of Procedure for CSP – Secretariat

ATT and peace • A strickt interpretation of articles 6 and 7 would contribute greatly to enhanced observance of IHL and IHRL, and would thus, implicitly, contribute to peace • US (and others’) arms sales to groups in Syria and Iraq? ?