Addressing shared responsibility through the regulation of arms trade

 Posted by: Nedeski Nataša

On Monday 18 March, over 150 states reconvened in New York for the United Nations Final Conference on the Arms Trade Treaty (ATT), which will last until 28 March. The ATT aims to regulate the international trade of conventional weapons, and would require states to establish and maintain a national control system to regulate the export of conventional weapons. A final ATT will not obstruct the legitimate trade in conventional weapons, but would address illicit and irresponsible international arms trade. The draft ATT that forms the basis for current negotiations was not accepted during the previous UN Conference in July 2012, when negotiating states failed to reach agreement on the treaty text.

In a statement released before the Final Conference, UN Secretary General Ban Ki-moon declared that ‘It is our collective responsibility to put an end to the inadequate regulation of the global trade in conventional weapons’. During the opening session, he urged states to agree upon a strong international treaty regulating global arms trade, pointing out the absurdity of the fact that common standards for the global trade in armchairs have been established, while to this day international arms trade has remained unregulated at the global level.

Each day, millions of people suffer from the direct and indirect consequences of the irresponsible and unregulated arms trade. At the same time the global arms trade industry is worth tens of billions of dollars each year, and conventional weapons are not only sold but also regularly transferred by means of gifts, leases, loans and military aid. According to Amnesty International a small number of states, including the five permanent members of the Security Council (UNSC), are responsible for most of the world’s transfer of conventional arms. In a briefing published by Amnesty International only a few days before the start of the March 2013 negotiations, it is set out how the permanent UNSC members through the transfer of weapons have fuelled human rights atrocities in for example Libya, Sudan and Syria. Such transfers have occurred through state-owned companies, but are also taking place through companies that are simply registered in the country in question with their operations taking place elsewhere.

This illustrates how the transfer of conventional weapons can lead to classic shared responsibility scenarios where multiple actors contribute to one and the same harmful outcome. The actors involved are, evidently, those that are directly committing human rights atrocities using conventional arms (such as state or non-state armed forces), but also include the companies that are producing and selling these weapons, arms brokers acting as intermediaries, exporting states that are allowing the transfer of weapons to areas where they may be used to breach international law, and transit states that are allowing shipments of arms to pass through their territory.

Dealing with the problem of irresponsible arms trade is clearly complicated by the plurality of actors involved. Adding to this is the lack of clarity when it comes to the obligations of states under international law. Even though some instances of weapon transfer could be covered by the prohibition of aid or assistance in article 16 Articles on State Responsibility, situations that do not concern exclusive state-to-state aid or assistance will fall outside the scope of this provision. Moreover, states are bound by various obligations to prevent violations of international humanitarian law and international human rights law, but the exact content of these obligations remains unclear. It would seem that present international law does not include a general obligation prohibiting the granting of export licenses for weapons where there is a risk that they may be used in violation of international law.[1] Thus, while under current international law states are already to a certain extent required to consider the end-use of weapons they transfer or allow to be transferred (see on this point, A. Boivin, Complicity and Beyond: International Law and the Transfer of Small Arms and Light Weapons), the international legal framework as it stands does not seem to be capable of fully capturing the responsibility of the states involved.

The current draft ATT attempts to address the role that different actors play in fuelling human rights atrocities by irresponsible weapon transfers. Article 4 of the draft obliges exporting states to conduct national assessments evaluating whether to authorize an export of conventional arms. Prior to authorization, a state must assess whether the proposed export could be used to commit or facilitate a serious violation of international humanitarian law or international human rights law. If after this assessment the state ‘finds that there is an overriding risk of any of [these] consequences’, it is not allowed to authorize the export. Companies wishing to export weapons are thus restricted in their (irresponsible) activities by these state-imposed assessments, and arms brokers will be subjected to regulations imposed by states in accordance with article 8. The role of transit or transshipment states is addressed in article 9 of the draft, which requires states to adopt ‘appropriate legislative, administrative or other measure to regulate, where necessary and feasible, conventional arms covered by this Treaty that transit or trans-ship through its territory.’ The text of this provision seems rather weak, and concerns have been expressed about transit and transshipment states not being subjected to the obligations in article 4.[2]

Despite some of its weaknesses,[3] the attempt of the draft ATT to address the role of multiple actors involved in the transfer of conventional weapons should be commended. By obliging states to consider the end-use of weapons that are transferred by actors within their territory, it has the potential of strengthening the duty of states to prevent human rights abuses outside their territory. The adoption of a final ATT would be a welcome step towards establishing and addressing shared responsibility for human rights violations facilitated by the irresponsible export of conventional weapons.

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[1] See Helmut Aust, Complicity and the Law of State Responsibility (Cambridge, CUP, 2012) at 142.

[2] Geneva Academy of International Humanitarian Law and Human Rights, ‘The Draft Arms Trade Treaty’, Academic Briefing No 2, October 2012 at 30.

[3] For a review of the text of the draft ATT, see Geneva Academy of International Humanitarian Law and Human Rights, ‘The Draft Arms Trade Treaty’, Academic Briefing No 2, October 2012.

Prisoner transfer agreements – reverse refoulement?

 Posted by: Heijer Maarten den

Refoulement describes the act of removing a person to a country where he or she is in danger of being subjected to serious human rights violations. It is a well-established legal concept in refugee law as well as extradition law and codified in a range of treaties. As transpires from the recent case of Willcox and Hurford v the United Kingdom before the European Court of Human Rights, the reverse scenario may also be possible: the removal of a person from one country to another one, where the receiving country’s responsibility may be engaged on account of previous wrongful conduct in the transferring State.

The Court’s inadmissibility decision sets a human rights standard for the implementation of prisoner transfer agreements. On a more fundamental note, it raises the question whether and in what way the absolute character of Article 3 of the European Convention on Human Rights should allow for taking into account the generally beneficial purpose of Prisoner Transfer Agreements (or PTAs).

The case concerned two British citizens who had been convicted in Thailand to thirty-three years and twenty-six years’ imprisonment respectively for illegal drug possession. After having served part of their sentences in Thailand, they were transferred to the United Kingdom pursuant to a bilateral prisoner transfer agreement between Thailand and the United Kingdom. Having arrived in the UK, they challenged the further execution of their sentences, arguing that their continued detention was grossly disproportionate on account of its length (Article 3 ECHR) and arbitrary because they had agreed to a plea bargain to admit guilt that resulted in a higher term of sentence to be served in the UK; and because the trial in Thailand of one of the applicants would have been manifestly unfair (Article 5 § 1 ECHR).

Although prisoner transfer agreements have earlier been scrutinized by the ECtHR, pervious cases concerned either complaints against the transferring as opposed to the receiving State or complaints against the receiving State for imposing – due to divergent rules on the qualification and enforcement of sentences – a harsher penalty than the sentencing country (see Ciok v Poland and Giza v Poland). It therefore seems that the case of Willcox and Hurford is the first one in which the ECtHR is confronted with the scenario that the receiving State is bound, by virtue of a prisoner transfer agreement, to execute a sentence that may violate the European Convention on Human Rights.

The political issue underlying the case is of course that in concluding Prisoner Transfer Agreements, many countries – Thailand included – do so under the express conditions that the legal nature and duration of the sentence are respected by the receiving State. Any ruling of the ECtHR that would compel European States to commute the sentence could therefore jeopardize the whole system of PTAs – which themeselves are clearly directed at promoting and respecting fundamental rights of prisoners.

The Court frames its examination of the Article 3 complaint very much as a choice between two evils. The greater evil would have been not to execute the transfer, resulting in the applicants being left in detention in a remote country in far inferior and possibly degrading conditions. The lesser evil was to allow the prisoners to serve their sentence in the UK in more humane conditions, albeit for a duration that might be four or five times as long as the sentence they would likely have received for the same offences in the UK.

The Court considers therefore, that a different standard applies than in ordinary refoulement-cases:

The Court emphasises that different considerations arise in cases in which a Contracting State is asked to refuse extradition to a jurisdiction where a grossly disproportionate sentence might be imposed; and in cases where that same State is confronted with a request by a prisoner for transfer to serve a sentence imposed by a foreign court that might have been considered grossly disproportionate had it been assessed in the context of a prior extradition request. In the former case, it is within the State’s power to prevent the offending sentence being imposed. In the latter, the sentence has been imposed and might have to be served in harsh and degrading conditions, subject to limited early release provisions. When considering the degree of humiliation or suffering inherent in the impugned acts, it is necessary to have regard to the degree of humiliation or suffering inherent in the alternative option. It would in the Court’s view be paradoxical, and anathema to its obligation to interpret and apply the Convention rights in a manner that renders the guarantees practical and effective and not theoretical and if the protection afforded by Article 3 operated to prevent prisoners being transferred to serve their sentences in more humane conditions (para. 75).

The Court does not exclude that Article 3 may raise an issue in this type of cases but sets the threshold high: “the focus must be on whether any suffering and humiliation involved go beyond that inevitable element of suffering or humiliation connected with the enforcement of the sentence of imprisonment imposed by the foreign court” (para. 76).

The Court thus regards the sentence imposed by Thailand as ‘inevitable’ and appears to suggests that the Article 3 examination should be restricted to verifying whether the enforcement by the UK goes, in terms of inhuman or degrading treatment, beyond that in Thailand. In applying this test however, the Court also notes that the sentences are not disproportionate in view of sentences for similar offences imposed in Thailand, that they fall within the maximum permitted sentences for equivalent offences in the UK, that Thailand has good reasons for severely punishing drug offences, that both applicants had themselves requested to be transferred and that they are eligible for more early conditional release in the UK than in Thailand. Although this leaves the exact test to be applied to this type of cases somewhat obscure, it is clear from the Court’s appreciation that its ordinary case law on the length of detention under Article 3 (as applied in a purely domestic context or that of extradition) does not apply and that considerable attention must also be paid to the very rationale of these kind of transfers.

This, of course, questions the absolute character of Article 3. The Court could also have reasoned that the implementation of the bilateral agreement by and in the UK is fully attributable to the UK and therefore subject to the Court’s ordinary standard of review (cf. Al-Saadoon and Mufdhi v the United Kingdom, para. 128). Moreover, since the two applicants had already been transferred to the UK, their individual interests as protected under the PTA would not have been put in jeopardy by a full Article 3 review. In this respect, the Court’s justification for its approach in the final sentence of para. 75 (“it would be paradoxical if the protection afforded by Article 3 operated to prevent prisoners being transferred”) is somewhat misplaced, as the UK judicial review proceedings were conducted after the transfers had been executed. What the Court appears to suggest, rather, is that it must balance the applicants’ rights under Article 3 with the more general interest of all prisoners who might benefit from PTAs.   

A similar balancing act is conducted by the Court in its examination under Article 5 ECHR. In respect of Mr. Willcox’s argument that his trial in Thailand was flagrantly unfair because of the “irrebutable presumption” in Thai law that anyone who posesses 20 grams of heroin or more must be regarded as a drug dealer and is therefore susceptible to a considerably longer sentence, the Court holds that the receiving country is not obliged to comprehensively scrutinize the trial in the transferring State. Here, the Court could rely on its earlier judgment in Drozd and Janousek v Spain, concerning the execution by Spain and France of sentences that had been delivered by an Andorran Court. In that case, as well as in ordinary refoulement/extradition cases (e.g. Othman), the Court applied the “flagrant denial of justice test”, holding that cooperation must only be refused if the trial in the other country was (or will be) manifestly unfair. The Court considers that this threshold is not met, because even though Mr. Willcox’s defence rights were compromised, his trial was overall conducted under fair circumstances.

Presumably, the Court considers the “flagrant denial of justice”-test sufficiently stringent to balance out the more general interest of prisoners under PTAs. The test at the least imposes some duty on the receiving State to not blindly accept prisoners from another country. It is however a marginal duty, which the Court justifies by considering that “international cooperation in the administration of justice … is in principle in the interests of the persons concerned” – the formula earlier used in Drozd and Janousek. Thus, as under Article 3, the general interest of justice may outweigh those of individuals. That this is the correct approach is not at all self-explanatory, as the Drozd and Janousek judgment was at the time adopted by the smallest majority possible (twelve votes to eleven). It has now been unanimously endorsed.

The decision gives further food for thought for ongoing discussions on how absolute Article 3 of the ECHR actually is (see e.g. here). It may also be received as a further chapter in the Court’s ‘doctrine of deference’ to forms of international cooperation that may serve ostensibly higher aims, such as in the sphere of the EU or the effectuation of Security Council resolutions (see here, here and the replies here). Although the Court did not refer to the judgment, an analogy in this respect can further be made with its earlier judgment in Sari v Turkey and Denmark, concerning the length of criminal proceedings which were consecutively instituted in Denmark and Turkey against a Turkish national for crimes committed in Denmark. Mr. Sari complained that the criminal proceedings were not settled within reasonable time: eight years, seven months and twenty-two days had lasted between the indictment by a Danish Court and the sentence delivered by the Turkish Court. Although the Court held the length of the proceedings to fall under the ‘joint responsibility’ (‘la responsabilité conjointe’) of Denmark and Turkey, the Court did not find a violation of Article 6 on the part of either State. The Court reasoned that the delays could not be attributed to either State, because they resulted, rather, from “a system of mutual assistance under which the requesting State is dependent on the co-operation of the other State” (para. 92, French only).

Deprivation of nationality – a rare form of complicity?

 Posted by: Nollkaemper André

There is a wide diversity of actions by which states can aid or assist other states in the commission of an internationally wrongful act. Well known examples, listed in the Commentary to the ILC Articles on Responsibility of States for Internationally Wrongful Acts, include providing arms, funding or training, or other material support to foreign states that use such recourses in the commission of a wrong. The Independent reports a policy that hitherto has not been widely documented; stripping people of their nationality. Also Lawfare has blogged on the policy.

The reported facts suggest that since 2010, the United Kingdom (UK) Home Secretary has revoked the passports of 16 individuals, many of whom were alleged of having links to terrorist or militant groups. The legal basis for this was a 2002 law, enabling the Home Secretary to remove the citizenship of any dual nationals, if doing so would be in the public interest. The Bureau of Investigative Journalism has been able to establish that some of these people were subsequently killed by American drone attacks.

The facts of this case suggest that retaining a western nationality may offer a shield of protection. They also suggest that the likelihood that a person is protected by nationality depends on strange coincidences. Since the UK can deprive only dual nationals of their nationality, nationals of states that do allow for double nationality (such as Pakistan), and who retain their nationality upon acquiring British nationality, are worse off than nationals of states (e.g. India) that do not allow double nationality. The latter will have to give up their nationality upon acquiring British nationality, and will then be protected against deprivation of nationality.

Although the facts are sparse and do not allow firm conclusions, they raise an interesting question: would stripping a person from her or his nationality make the UK complicit for a subsequent wrongful act of extra-judicial killing of that person? Assuming drone attacks are illegal, that in at least certain circumstances now can be accepted as a given, the answer to that question depends on two further questions. One is whether the UK would have had knowledge of the drone attacks that were to come. The very unlikelihood that this question ever will be answered, casts great doubt over the practical utility of the principle of complicity in such security cases. This is a matter of executive policy, shrouded in secrecy. The Independent cites a spokesperson of the UK government who, asked whether intelligence was provided to foreign governments, said: “We don’t comment on intelligence issues. Drone strikes are a matter for the states concerned.”

I add that if the UK would have had knowledge of the events that might follow, the deprivation of nationality also would bring the state in breach of its human rights obligations, notably the right to life, quite apart from any question of complicity under general international law.

The second question is whether stripping a person of its nationality would have made it materially easier for the United States (US) to subject a person to a lethal drone attack. That is: was it, in the ILC’s terms ‘clearly linked to the subsequent wrongful conduct’ (par. 5 of the Commentary to Art. 16). Though we mostly think of this condition in material terms (weapons, funding etc.), in the events described by The Independent, this condition may well be satisfied without material support. A drone attack that would kill a UK national would likely lead to political complications that would scare the US away from the attack. The UK government then would have a right to ask for explanations, and perhaps even would bring a claim. It may not have much political interest in doing so, but it would be under considerable (domestic and international) pressure to make use of that right. This would risk the implementation of the US drones policy. That very prospect might make the US reluctant to strike with drones as long as a person would have the UK nationality.

The upshot of this scenario is that stripping persons of their nationality before they are killed by another state may limit political risks and costs for the wrongdoing state, and that such immaterial support may be as helpful for that state as the classic complicity arsenal of weapons, funding or information.

The Illegal Ivory Trade Chain

 Posted by: Nollkaemper André

In 1990 Michael Glennon wrote a groundbreaking piece in the American Journal of International Law with the title ‘Has International Law Failed the Elephant?’ The question mark hinted at the possibility that international law had not failed the elephant. And perhaps in 1990 there was reason for hope. African elephants[1] had just been included in Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), meaning the sale of their tusks was outlawed. There was reason for hope that this would limit or even reverse the downward spiral in populations.

In 2013 we can remove Glennon’s question mark. The effect of the ban is undone by unprecedented levels of poaching. Despite massive efforts of some African States to dedicate scarce resources to control and enforcement, population levels are moving downward in a shocking speed. A report published on 6 March estimates that in 2011, approximately 7.4 per cent of the total elephant populations in elephant sites across Africa were killed illegally. Illicit ivory trade activity and the weight of ivory behind this trade has more than doubled since 2007.

However, to say that ‘international law failed the elephant’ is an abstraction. Not international law itself is to blame. In fact, international law provides for high levels of protection. The ban on international trade of elephant parts was complemented by an Action plan for the control of trade in elephant ivory that contains key elements for an effective protection of elephants, including an obligation to prohibit unregulated domestic sale of ivory (this is important, since as long as there is an unregulated domestic market, illegal ivory will find its way). There is much that can be improved in the law – though the direction of development of the law is a complex scientific and political issue. The jury is out on the question whether a full ban offers better chances of survival than a system that protects a legal market for trade, so as to offer financial additional incentives for protection.

But as it is, the problem is not so much with the law as with its enforcement. The cause for the demise of the elephant is a perplexingly large number of actors who together fail to apply and enforce international and domestic law. A recent Elephant Trade Information System (ETIS) report details that the number of actors involved in the killing of elephants is large, and shows that the failure to protect the elephant is a textbook example of a shared responsibility.

The prime responsibility rests with crime syndicates which order to kill and/or kill themselves, and which sell the tusks for large sums of money. There is also an increasing role of rebel movements and militias, for which ivory is the means to pay for their wars and their underlying economic or political agenda. In early 2012, armed groups from the Sudan and Chad killed 450 elephants in the Bouba N’Djida National Park in Cameroon. Also the Lord’s Resistance Army (LRA) has entered the business of poaching.

Behind the criminals and the rebels lies a network of States that fail to enforce the ban. This network includes States that do not do enough to protect elephants within their borders. It also includes States that allow their ports to be used for trade of ivory to Asia, or serve as transit States, notably Tanzania, Kenya, Uganda, Malaysia, Philippines and Vietnam. There is also a group of States that have important domestic ivory markets in their major cities that remain unregulated, including Egypt, the Democratic Republic of Congo, Mozambique and Nigeria. If we were to rank degrees of responsibility, at the top we would locate the two Asian States that allow huge quantities in ivory from illegal trade to be imported: Thailand and in particular China.

In most of these cases there is evidence of inadequate legislation (e.g. in Thailand, which now has made a pledge to improve its policy), corruption and lax enforcement. As to the latter, it is estimated that 90% of all ivory sales in China is illegal. In some cases there are even reports of active involvement in killings. One reported example is a case where a military helicopter of Uganda killed with military precision and in a single raid 22 elephants in the Garamba National Park in the Democratic Republic of the Congo in April 2012.

While mostly only on a low level a poacher will pull the trigger, all of these actors contribute to the killing. For without the offer to buy ivory, without effective legislations including high penalties, and without the lax enforcement in transit States and States of destination, the incentive of the poachers quickly would be removed. In this sense all of these actors contribute to, and cause killings of individual elephants and the demise of overall populations. All of these actors share the responsibility for the killing of animals.

The Conference of the Parties (COP) to CITES that now is meeting in Bangkok, Thailand has the fate of the elephant high on its agenda. While one may doubt whether the COP will muster political support now that so many actors, including States Parties, are involved in the killing and the trade, the COP cannot duck its own responsibility. It has the mandate to make recommendations to improve the effectiveness of the Convention, and the data available require it to take that responsibility. Indeed, the shared responsibility of the multitude of actors who kill and trade, is matched by a shared responsibility of the 178 States Parties to CITES to act to protect the elephant.

CITES may not have much powers, but it can take action that may make a difference. Perhaps first and foremost, the data that it gathers and publishes exposes in an unprecedented way who is involved in what way in the illegal ivory trade chain. Such exposure of involvement is the starting point for a change in patterns of demand, and for public and political pressure on co-responsible States. The COP also can make findings of non-compliance so as to increase pressure on individual States. It furthermore can recommend suspension of trade in CITES-listed species with delinquent States. There are indications that the Contracting Parties takes this responsibility seriously. Eight States (Uganda, Kenya, Tanzania, Vietnam, Malaysia, Philippines, Thailand and China) indeed were threatened with trade sanctions if they do not address failures in protection against poaching, and failures in seizing illegal ivory trade.

The COP furthermore is given the exclusive authority to regulate ivory trade. It is required not to allow without the most stringent of conditions an operation of a legal market for confiscated ivory, or for ivory from elephants that have been, or will be transferred back to Appendix II. With a seemingly infinite Chinese demand, fuelled by economic empowerment of the masses, that would be a very risky strategy. The unlimited slaughter that preceded the 1990 ban (in the 1970s and 1980s, when African elephant numbers fell from 1.3 million to 625.000 in a decade) should give us more than a little doubt to go back to this situation, given the increased demand. A plan for the current COP to create a ‘Central Ivory Selling Organisation’ that would, outside the authority of the COP, operate a legal market was rightly greeted very critically by many Contracting States and would be incompatible with the powers of the COP under the Convention.

Moreover, CITES can and does seek cooperation with other institutions to combat illegal ivory trade. It chairs the International Consortium on Combating Wildlife Crime (ICCWC) – a collaborative effort that also includes INTERPOL, the United Nations Office on Drugs and Crime (UNODC), the World Bank and the World Customs Organization (WCO), which brings together and coordinates critical expertise. Significantly, even the United Nations Security Council has committed itself to action. In what the CITES Secretary-General called a ‘historic call’, on 19 December 2012, the Council called for an investigation into the alleged involvement of the LRA in the poaching of African elephants, and smuggling of their ivory.

All of this sets the stage for a contest between a network of international institutions, States supporting the plight of the elephant and NGOs on the one hand, and the extensive network of State and non-State actors that constitute the illegal ivory trade chain, on the other. Many will hope for the former coalition to come out on top, but in the given situation, that may take a small miracle.

Update 20 March 2013 

In my above blog, I noted that eight States (Uganda, Kenya, Tanzania, Vietnam, Malaysia, Philippines, Thailand and China) were threatened with trade sanctions if they do not address failures in protection against poaching, and failures in seizing illegal ivory trade.

In the end, the Conference of the Parties decided not to impose such sanctions. Instead they directed those countries to identify actions and deadlines to ensure progress in controlling illegal ivory trade before summer 2014, with the potential threat that they could face trade sanctions then, if there was no significant improvement in the situation. By that time we may determine whether the parties take their commitment seriously to protect the African elephant. If the eight delinquent States would fail to improve their act and no sanctions would follow, it may well be said that the killings of the elephants is not only a shared responsibility of these eight States, but of the totality of the States party to CITES.

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[1] The African elephant populations of Botswana, Namibia, South Africa and Zimbabwe subsequently returned to Appendix II, allowing them to trade certain elephant specimens under strict conditions.