Campaign Against ISIS Exposes Major Gap in Arms Trade Treaty

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Oct. 2, 2014 – The Arms Trade Treaty will go into force on Dec. 24th following its fiftieth ratification last week but the recent campaign launched against the Islamic State, also known as ISIS and ISIL, by Western and Gulf countries exposes a major loophole in the Treaty.

The pact prohibits supplying arms to countries that would use the eight types of conventional weapons covered under the Treaty to violate international human rights law but there are no prohibitions on the transfer of these arms to non-state actors.

The US, UK, France, Germany, the Netherlands as well as Saudi Arabia and Qatar have all either supplied or said they will supply weapons to groups fighting the Islamic State in Syria and Iraq and to other groups fighting the Assad regime in Syria.

In the negotiations leading up to the agreement on the text of the Arms Trade Treaty, a number of countries – including Brazil, India, Nigeria and Turkey – called for a clear prohibition on transferring arms to non-state actors and that the entry of arms to any state must be based on the permit given by the government of such state.

But the lack of a clear and agreed definition of a non-state actor and because of a desire to avoid a subject that would stalemate the negotiations the subject was avoided.

While no country outright said it opposed a provision on arms transfers to non-state actors, the United States included the following in its red lines: “provisions inconsistent with existing US law or that would unduly interfere with our ability to import, export or transfer arms in support of our national security and foreign policy interests.”

The US is one of the 121 signatories to the Treaty but is unlikely to get the support of two-thirds of the Senate to support its ratification.

Other arms producers such as China, Canada, Israel and Russia have not signed the Treaty while major arms importers India, Egypt and Saudi Arabia have also not signed.

France, Germany, Netherlands and the UK have all ratified the Treaty.

- Denis Fitzgerald
On Twitter @denisfitz

US Invokes Article 51: Does the UN Charter Cover Attacks by Non-State Actors?

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Sept. 23, 2014 – US envoy Samantha Power has cited Article 51 of the UN Charter as cover for the airstrikes the United States carried out inside Syria overnight Monday against ISIS and the Khorasan unit of the Nusra Front.

Power wrote to Ban Ki-moon Tuesday saying, “States must be able to defend themselves … when, as is the case here, the government of the state where the threat is located is unwilling or unable to prevent the use of its territory for such attacks.”

Power’s letter also cites Iraq’s letter to the Security Council of Sept. 20 warning that the country “is facing a serious threat of continuous attacks coming out of ISIL safe havens in Syria.” It adds that the Iraqi government has requested the US lead “international efforts to strike ISIL sites and military strongholds in Syria.”

The UN Charter prohibits the use of force by a state against another state unless authorized by a Security Council resolution. But Article 51 provides an exception: “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.”

The UN Charter is concerned with inter-state conflict as only states can become members of the UN so the applicability of Article 51 for use of force inside a sovereign country against a non-state actor is a question that international law scholars have grappled with.

Marko Milanovic argues that Article 51 does not require the attribution of the armed attack by a non-state actor to a state. “Rather, for the attacked state to respond against the non-state actor which is operating in another state, the conduct of this latter state must be such to justify the ensuing violation of its sovereignty.”

He proposes three scenarios that would justify an attack inside a sovereign state against a non-state actor:

“(a) the territorial state was complicit or was actively supporting the non-state actor in its armed attack; (b) the territorial state failed to exercise due diligence, i.e. it did not do all that it could reasonably have done to prevent the non-state actor from using its territory to mount an armed attack against another state, or is not doing all it can to prevent further attacks; (c) the territorial state may have exercised due diligence, but it was nonetheless unable to prevent the attack, or to prevent further attacks.”

And the due diligence case would appear to be the US argument when Power writes that “the government of the state where the threat is located is unwilling or unable to prevent the use of its territory for such attacks.”

Ban Ki-moon earlier on Tuesday spoke of the US airstrikes, saying that “today’s strikes were not carried out at the direct request of the Syrian Government, but I note that the Government was informed beforehand.”

“I also note that the strikes took place in areas no longer under the effective control of that Government.   I think it is undeniable – and the subject of broad international consensus – that these extremist groups pose an immediate threat to international peace and security,” Ban said.

For more discussion on Article 51 and non-state actors see here and here.

- Denis Fitzgerald
On Twitter @denisfitz

Image: Wikimedia