About the author(s):
Rogier is a researcher at the Netherlands Defence Academy (NLDA) and works at the Dutch National Prosecutor’s Office. He holds LL.M-degrees from Utrecht University and the University of Nottingham. Before taking up his current positions, he was an associate legal officer in Chambers at the International Criminal Tribunal for the Former Yugoslavia, and a legal adviser at the International Humanitarian Law Division of the Netherlands Red Cross.
Rogier is an adjunct-lecturer at the Hague University of Applied Sciences, where he teaches international humanitarian law, and he co-convenes the Hague Initiative for Law and Armed Conflict.
Today, 24 December 2014, the Arms Trade Treaty (ATT), regulating the international trade in conventional arms, including the types of small arms that are generally used by armed groups, enters into force (see here for the text of the treaty, here for further information provided by the UN Office for Disarmament Affairs, and here for the UN’s press release on the entry into force).
The ATT was set to enter into force 90 days after 50 States have deposited their instrument of ratification, which is today. To date the 61 States have ratified the treaty.
The ATT prohibits a State from transferring conventional arms, as well as parts, components and ammunition for them, if it knows that they would be used to commit genocide, crimes against humanity, or certain war crimes. Of course, under regular rules of State responsibility, as well as the international criminal law framework (unless the faulty ICTY approach in Perisic with regards to the requirement of a specific direction for aiding and abetting is followed), the transfer of arms would already be prohibited in such circumstances. However, the ATT goes further as even where a State does not have the aforementioned knowledge, the ATT requires it to i) assess the potential that a serious violation of international humanitarian law or international human rights law could be facilitated or committed with the arms or items to be exported, and ii) not authorise the export of the items in question when there is an overriding risk of these violations happening. If the ATT will be properly enforced, it should therefore assist in reducing flow of arms to armed groups. Of course, we all know that armed groups often receive their arms in a covert manner from governments that would continue to do despite the existence of the treaty, but a reduction and better oversight of the trade of (small) arms is nonetheless welcome. Once the support for the ATT increases even further, a customary rule could crystalise that all States, whether they are a party to the ATT or not, are to make the aforementioned assessment before exporting arms.
For more information, see this a document published last year by the ICRC entitled “Protecting civilians and humanitarian action through the Arms trade Treaty”, and this briefing by the Geneva Academy.