III. Developing a humanitarian law approach to the problem of arms availability

By Peter Herby, Coordinator, Mines-Arms Unit, Legal Division, ICRC, Geneva

The International Committee of the Red Cross (ICRC) has witnessed in its work for war victims throughout the world the increasingly devastating effects for civilian populations of the proliferation of weapons, particularly small arms. The difficulties of providing humanitarian assistance in an environment where arms have become readily available to a variety of actors and many segments of society are well known to most humanitarian relief agencies today. However, until recently, the relationships between arms availability, the worsening situation of civilians during and after conflict and the challenges of providing humanitarian assistance have not been addressed directly.

The exceedingly high levels of civilian death and injury in recent conflicts from Bosnia to El Salvador to Liberia to Afghanistan are no longer being seen simply as an inevitable by-product of these conflicts. Rather these results are viewed, increasingly, as a result of inadequate or non-existent control of the flow of weapons - both internationally and domestically. Although few would claim that the weapons themselves are the primary source of recent conflicts it can be argued convincingly that the easy availability of arms and ammunition increases tensions, heightens civilian casualties, prolongs the duration of conflicts and renders post-war reconciliation and rebuilding far more difficult.

The widespread availability of arms, particularly small arms, combined with their frequent use in violation of the most basic humanitarian norms, poses a direct challenge to the dual mandates entrusted to the International Committee of the Red Cross under international agreements - to assist the victims of conflict and to promote respect for international humanitarian law (IHL).

It is clear that the high levels of civilian casualties, which have steadily increased in this century in parallel with the development and proliferation of sophisticated military technology, are facilitated (i.e. not necessarily caused) by the availability of arms and ammunition. Weapons previously available primarily to organized armed forces are now in the hands of a wide variety of actors in conflict and post-conflict situations. These include highly destructive instruments such as automatic rifles capable of firing hundreds of rounds per minute, rocket propelled grenades, mortars and landmines. Whereas previously a single shot fired into a crowded market would have constituted an isolated criminal incident, the firing of several hundred bullets from the automatic weapons now readily available can unleash an orgy of ethnic killings and civil unrest.

The resulting suffering of civilians is further increased when the ICRC and other agencies are denied access to war victims through direct attacks, mined transport lines or the threat of armed violence. In a large number of recent conflicts specific regions or even entire countries have become "no go" areas due to armed attacks on humanitarian workers or the credible threat of such attacks. The ICRC alone saw nine of its staff killed in Burundi and Chechnya in 1996 as a result of direct, pre-meditated attacks. The ICRC was forced to withdraw from both. Such attacks are part of a trend in which ICRC staff experienced a steady increase in security incidents, most involving arms, since 1990. The number of reported incidents grew steadily from 21 in 1990 to 153 in 1996. Of these, the percentage involving intentional targeting of the ICRC as an institution rose steadily to 17% in 1997. In addition to the impact on security of personnel, arms availability increases the cost of humanitarian operations. The proliferation of landmines and their use to block roadways has led to cost increases by up to 25 times when supplies have had to be transported by air.

Beyond the immediate problems described above, the widespread availability of arms threatens to undermine the fabric of IHL - one of the principal means of protecting civilians in times of armed conflict. In addition to its assistance mandate the ICRC is charged with helping States in promoting knowledge of and respect for IHL. However, this body of law assumes that military style arms are in the hands of armed forces subject to a certain level of training, discipline and control. When military type weapons become available to broad segments of the population, including undisciplined groups, bandits, insecure individuals and even children, the task of ensuring a basic knowledge of humanitarian law among those in possession of such arms becomes difficult if not impossible.

Compared to the distribution of arms, creating an understanding and acceptance of IHL is a much more difficult and long-term task. It should come as no surprise that as highly lethal arms become diffused throughout a population the conditions for massive violations of humanitarian law increase.

Even after armed conflict has ended the suffering of civilians continues, often for years, as the availability of arms can foster a "culture of violence", undermine the rule of law and threaten efforts at reconciliation among former warring parties. A recent study of the ICRC's medical database on weapons-related casualties (excluding landmines) showed a decrease in such casualties, after adjustment for population growth of only 33 % (depending on weapon type) during the eighteen months following the end of armed conflict in a particular region. Under such "post-conflict" conditions one might have assumed a far more dramatic drop in arms-related death and injury.

Given the trends described above, the International Movement of the Red Cross and Red Crescent has become increasingly concerned with the problem of arms transfers and availability. In 1995 the 26th International Conference of the Red Cross and Red Crescent, including 135 States party to the Geneva Conventions of 1949, mandated the ICRC to conduct a study, on the basis of its first hand experience, of 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. This work was carried out on the basis of interviews with a wide variety of current and former ICRC field delegates, the ICRC's medical database and its humanitarian law analysis. The findings are contained in the draft report submitted to this meeting which will be further refined on the basis of the work of the experts gathered here in Oslo. The report will be the basis of further discussions with National Red Cross and Red Crescent Societies in September and at the 27th International Conference in November 1999.

In a preliminary assessmentof the humanitarian problems caused by arms transfers the ICRC recently made a number of observations and suggestions which provide a preliminary basis for an approach to arms availability based on humanitarian law and the ICRC's dual mandates. These are summarized below:

 

•The unregulated transfer of weapons and ammunition can increase tensions, heighten civilian casualties and prolong the duration of conflicts.

•The current pattern of small arms transfers, because it is largely outside of international control, is a matter of urgent concern.

•While the primary responsibility for compliance with international humanitarian law falls upon users of arms, States and enterprises engaged in production and export bear some responsibility to the international community for the use made of their weapons and ammunition.

•Although States have an undisputed right under international law to retain armaments required for their security, they also have an equally solemn moral and legal responsibility, under Article 1 common to the Geneva Conventions of 1949, to respect and ensure respect for international humanitarian law. The transfer of arms and ammunition should be examined in this light. States should, in particular, consider whether arms and ammunition can be viewed as simply another form of commercial goods.

•Given the serious threat to international humanitarian law, to international peace and security and to the social fabric of societies which the unregulated spread and undisciplined use of weapons presents, the ICRC will encourage States to consider the elaboration of rules, based on humanitarian law and other criteria, governing the transfer of arms and ammunition.

The international community has in recent decades enacted important prohibitions and limitations on the transfer of chemical, biological and nuclear weapons, missile systems and components of these technologies. Certain geographical regions have established controls on the transfer of major conventional weapon systems. However, until recently, little attention has been given to the transfer of small arms which have inflicted most of the death and injury in recent conflicts. Governments, regional organizations and NGOs now involved in the development of new arms transfer limitations and "codes of conduct" should consider integrating criteria based on IHL considerations into these measures. It is important to recognize that international humanitarian law is often the body of law most relevant to the stated purpose for which military arms and ammunition are transferred - to fight an armed conflict.

While it is clear that unregulated arms availability and the abuse of arms to commit violations of human rights and humanitarian law produce human costs which are clearly unacceptable, the prescription for addressing the issue is far from simple. The supply of small arms currently available in known and hidden stockpiles around the world is enormous. Most of the weapons concerned would not in themselves be considered illegal in humanitarian law terms. Some are held by government armed forces for legitimate purposes; others by groups seeking justice through resort to arms and yet others by criminal elements or civilians seeking a measure of personal security in absence of any other form of protection in situations of great violence.

Even in situations where governments wish to limit the flow of armaments into their territory considerable resource and regional cooperation will be required. The success of the national moratoria on arms production, import and export now being considered in West Africa may require significant investments in police and customs forces which are beyond the capacity of national governments to provide without outside assistance.

In the short term the challenge is to raise awareness of the human costs of arms availability and to put the issue squarely on the international agenda. The fatalistic acceptance of daily news reports of armed attacks on civilians for which no one is held responsible will need to be challenged. The principle needs to be established that those who supply arms to situations where violations of international law can be expected share, with the users, a certain responsibility for the use of their weapons.

"Codes of conduct" for arms transfers are one promising approach to developing agreement on what constitutes responsible practice. It is heartening to note that the code currently being considered by the European Union has recently been amended to include humanitarian law criteria among those proposed for screening of arms transfers by EU governments. We hope that measures being considered in other contexts will integrate such criteria.

Success in addressing the humanitarian costs of unregulated arms proliferation will depend on creating a sense of responsibility and accountability both among those who produce and those who use arms. Weapons, as tools for implementing life and death decisions and for both enforcing and undermining the rule of law, cannot be considered as simply another form of commercial goods to be governed by the law of supply and demand.

Rather, let us hope that arms availability can - over time - be governed by the rule of law in the interests of humanity. As indicated earlier, it is the purpose of this meeting to seek the views of a wide variety of academic, governmental and non-governmental experts on how this complex challenge can be addressed and specifically how it might be addressed by the ICRC. We thank you for your presence and look forward to a rich harvest of practical advice in the course of today's discussions.

Discussion of presentation by P. Herby

The role of international humanitarian law and the ICRC figured prominently in the discussion, which focused on the adequacy of existing law, the different possibilities for action available to different organizations (depending on their mandates) and the manner in which any campaign on small arms proliferation should be approached.

One participant insisted that there was no need to preach to the converted about ICRC concern over the problem of arms proliferation. The question was who was opposed to greater ICRC involvement in the issue and what should be done? And how could the ICRC broaden its scope for action? The participant urged the ICRC not to feel too stifled by a mandate devised for it way back in 1949.

Another expert stated that international humanitarian law in its current form did not address situations in which weapons were in the hands of non-State entities. A two-track approach was therefore needed to dealing with the proliferation of small arms and light weapons: continuing along the current track but also further developing humanitarian law to deal specifically with the factors causing the problems (third parties, weapons transfers, etc.).

Peter Herby of the ICRC felt that a start could be made by looking at the obligations in existing law. Article 1 common to the four Geneva Conventions, requiring States to "respect and ensure respect" for international humanitarian law already implied stricter government control over arms availability. In the endeavour to confront the problem of overabundant small arms and light weapons, different entities could play different roles at different levels. A variety of approaches was, after all, not only possible but desirable. One was a global approach, i.e. issuing guidelines, creating norms, etc. A second was local, regional and national implemention of those rules and guidelines. And there were others as well. The ICRC contribution could be in the development of norms such as, possibly, a "code of conduct". One should have no illusions about the job of ensuring compliance with such a code but it was needed all the same. If you developed broad global norms, a wealth of local initiatives were out there that could align themselves with these, initiatives that involved very specific action. Thus, the 'micro' approach, at the local level, would nicely complement the 'macro', global approach.

The participants were reminded that international humanitarian law required a degree of conflict intensity in order to become applicable. A human rights approach and appropriate national legislation was therefore also needed.

The need for "supply-side rules" was stressed. There were simply millions and millions of small arms and light weapons being shipped from industrial countries to conflict zones. There thus existed an obvious requirement for an international code of conduct, for rules applicable to everyone. The problem would not be solved by the rich preaching to the poor.

Yves Sandoz of the ICRC drew the participants' attention once again to Article 1 common both to the Geneva Conventions and to Protocol I, stressing the need to promote that provision in discussions with the States. The difficulty for the ICRC and the National Red Cross and Red Crescent Societies was, he said, to gauge just how far they could go without crossing that all-important line between the humanitarian and the political, i.e. without contravening their fundamental principle of neutrality. At best, humanitarian law would only ever be one factor in a government's decision on whether to transfer arms to party A or party B. Concerns about stability, etc. would inevitably also play a role.

Peter Herby said how struck he was by the general absence of humanitarian law from discussions on the subject among the NGOs and governments. That, he said, was why the ICRC continued to preach. The roles played by the ICRC and the NGOs would have to be complementary. Only after exploring all other avenues, including consultations with the National Red Cross and Red Crescent Societies concerned, could the ICRC consider issuing public statements regarding a specific case. The organization walked a very fine line in this respect.

The view was expressed that "illicit" was a term that needed to be defined within the framework of humanitarian and human rights law, and not merely in terms of trade regulations, which remained the language of the governments and was used by them as a means to prevent politicization of the discussion. The discussion needed to be politicized.

A participant stated that controlling arms availability brought you into the difficult debate on how to strike a balance between a country's legitimate need for stability and the degree of violence that it should allow in order to maintain that stability. This was the quandary faced by governments involved in non-international armed conflicts and for those who supply arms to such governments.
              

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