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Taking Comments - A principled and inclusive response to COVID-19, focused on the most at risk

7/1/2020

Responding to COVID-19 in a principled and inclusive way requires consideration of the different risks the pandemic poses to vulnerable, marginalized and at-risk individuals and communities, and planning to mitigate those risks. A recent paper, collaboratively developed amongst experts who share humanitarian disarmament as a guiding approach, outlines specific risks and offers suggestions for ensuring we build a better future.A Humanity & Inclusion briefing paper identifies the difficulties COVID-19 poses to at-risk groups, particularly in conflict- and humanitarian-crisis affected areas. It also shows how the tenets of humanitarian disarmament can inform a “principled and inclusive response.”

We invite comments and discussion about this paper, which may be submitted below.

Taking Comments - Humanitarian Disarmament Digital Diplomacy Dos and Don'ts

5/26/2020

This post is adapted from one first published in the Disarmament Dialogue blog as "Digital Diplomacy Dos and Don'ts: A New Guide" on May 26, 2020.

Erin Hunt

COVID-19 has forced the international community to embrace digital diplomacy, including for humanitarian disarmament. This shift to digital platforms has opened up new possibilities while highlighting distinct challenges. Digital diplomacy could end up creating a more inclusive and effective method of informing diplomatic decision making, or not. Respecting social distancing impedes development of the good working relationships necessary for success. At the same time, the spread of digital diplomacy is an opportunity to strengthen informal connections while maintaining our formal responsibilities.

With the right approach, it is possible to mitigate the challenges and take advantage of the potential for increased transparency and inclusivity. We cannot let COVID-19 stop progress towards humanitarian disarmament so the international disarmament community needs to find ways to work effectively in our temporary isolation.
Civil society, especially within global humanitarian disarmament coalitions, has worked for decades making decisions across continents without the benefit of frequent shuttle diplomacy. Drawing on the community’s breadth of knowledge, a group of civil society experts has prepared a guide to “Digital Diplomacy Dos and Don’ts.” The two-page document offers advice for how to make the best use of the current situation and to think about ways to build towards the future.

The Dos and Don’ts paper was drafted by Susi Snyder of PAX and Erin Hunt of Mines Action Canada based on conversations with Bonnie Docherty of Harvard Law School’s Armed Conflict and Civilian Protection Initiative, Camilo Serna and Natalia Morales of the Colombian Campaign to Ban Landmines, Jeff Abramson of the Forum on Arms Trade, Chris Loughran of The HALO Trust, and Alma Al-Osta of Humanity and Inclusion.

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We invite comments and discussion about these "Dos and Don'ts" which may be submitted below.

Taking Stock and Looking Ahead for Responsible Policies on U.S. Arms Sales

1/13/2020

This is the eighth blog post in a series looking at an array of issues in 2020 related to weapons use, the arms trade and security assistance, at times offering recommendations.

Shannon Dick

During the last three years, the United States’ approach to conventional arms sales has been characterized by its transactional nature and focus on short-term objectives. In this environment, the Trump administration has repeatedly challenged key tenets of U.S. arms transfer laws and policies, resulting in increased arms sales to countries of concern. At the same time, Congress has increasingly spoken out about U.S. arms sales decisions, leading to greater examination of and public discourse on the opportunities and, importantly, the risks presented by certain arms transfer decisions. Given these dynamics, the upcoming year presents an opportunity to reevaluate how the United States engages in the global arms trade and identify ways to ensure greater responsibility and accountability in U.S. arms transfer decisions in the years to come.

During the Trump administration, expediency, special interests, and perceived economic incentives have often come at the expense of long-standing approaches to U.S. arms transfer decisions. In the last year alone, the administration:

Released a fact sheet detailing its implementation plan for the revised Conventional Arms Transfer policy, which places a primacy on economic considerations and assisting U.S. defense industry, and seeks to incentivize arms sales as one response to concerns about great power competition. In so doing, however, the policy and its corresponding implementation plan gloss over considerations of human rights and international law – issues that serve to mitigate the inherent risks of arms sales.
Withdrew America’s signature from the Arms Trade Treaty – the only legal, international agreement that seeks to promote international security and reduce human suffering by regulating the global trade in conventional weapons – in a move that was influenced by and predominately supports special interest groups in the United States, such as the National Rifle Association.
Declared a national emergency to bypass Congress and push through more than $8 billion in arms sales to Saudi Arabia, the United Arab Emirates (UAE), and other countries – thereby continuing a pattern of approving arms sales to countries with known human rights concerns. Members of Congress had previously opposed the sales due to continued human rights abuses and the growing humanitarian catastrophe resulting from U.S.-backed, Saudi-led coalition bombings in Yemen.
Took additional steps to transfer oversight of firearms exports from the U.S. Department of State to the Department of Commerce, which would make it easier for U.S. arms manufacturers to sell their products abroad and increase the risk that U.S. weapons fall into the wrong hands or are used irresponsibly. The move would likely also result in less transparency around arms sales as well as challenge U.S. investigations of illegal arms transfers – among other concerns.

With these activities, the Trump administration has underscored its commitment to boost U.S. arms sales and to do so more quickly. But such an approach risks overlooking important considerations – such as ensuring appropriate end use, protecting against deleterious proliferation, and protecting human rights – and could lead to longer-term consequences for U.S. national security and foreign policy. These trends have already animated some congressional action and may continue to serve as fuel in underscoring the importance of Congress to hold the administration accountable and reassert its role in overseeing U.S. arms sales.

The political environment going into 2020 could present an opportunity to build on the attention and momentum of the past few years and embolden the American public and Congress to take more proactive steps to ensure proper oversight of and responsibility in U.S. arms sales. There are several avenues for improvement within the U.S. arms transfer policy framework, and actions taken this year could help lay the groundwork for establishing more robust, responsible, and accountable policies in 2021 and beyond.

In general, 2020 provides an opportunity to ensure that U.S. arms sales to foreign governments better align with those governments’ legitimate needs and capacities, as well as U.S. national security and foreign policy interests. For example, a recipient’s past behaviors could be taken into consideration when reviewing potential arms transfers in order to better safeguard human rights and mitigate potential harm. Additionally, Congress could pass legislation to restrict or prohibit future sales to countries such as Saudi Arabia and the UAE in light of the ongoing war in Yemen, as well as revise the procedures for considering and reviewing arms sales for all countries engaged in conflict. In addition, greater articulation and explanation of the Trump administration’s Conventional Arms Transfer Policy and implementation plan could help identify gaps in current policy and practice in order to better safeguard U.S. arms transfers. And finally, members of Congress could strengthen existing legislation by requiring the administration to report on potential violations of U.S. arms export laws. Such steps could ultimately serve to better inform the American public of the processes and risks involved in U.S. arms sales around the world.

Shannon Dick is a research analyst at the Stimson Center

Looking Ahead - Child Soldiers

1/9/2020

This is the seventh blog post in a series looking at an array of issues in 2020 related to weapons use, the arms trade and security assistance, at times offering recommendations.

Rachel Stohl

Ryan Fletcher

Children represent some of the most vulnerable populations in armed conflicts around the world. Too often, children shoulder the burden of conflict and are exploited by armed groups to serve on the frontlines and/or support armed operations – with national militaries, government-supported paramilitaries, and non-state armed groups recruiting and using child soldiers as tools of warfare. According to recent estimates by Child Soldiers International, 240 million children around the world live in countries affected by ongoing armed conflict and children have been exploited by armed forces and groups in at least 18 countries since 2016 – including in Afghanistan, Colombia, the Democratic Republic of Congo, Iraq, Libya, Mali, Myanmar, Nigeria, the Philippines, Sudan and South Sudan, Somalia, Syria, and Yemen, among others.

An often-overlooked component of this tragic reality is the impact of global arms transfers on the use of children in armed conflict. The dynamics of the international arms trade have made weapons more accessible to more actors – including those that forcibly recruit child soldiers. Many countries with known records of child soldier abuse rely on weapons and military assistance from some of the world’s leading arms exporters, including the United States. Yet few major arms exporters have incorporated the nexus between arms transfers and the recruitment and use of child soldiers into their national export policies or legislation. To underscore this connection and identify means to encourage national governments around the world to stop the recruitment and use of child soldiers, U.S. lawmakers adopted the Child Soldiers Prevention Act (CSPA) of 2008. The CSPA requires the U.S. Secretary of State to publish an annual list of countries whose armed forces or government-backed armed groups recruit or use child soldiers. This list is commonly referred to as the CSPA list and is published in the State Department’s annual Trafficking in Persons report. Countries included on the list are prohibited from receiving certain types of U.S. military assistance, training, and defense equipment.

This new year marks ten years of CSPA implementation and offers an important opportunity to review the CSPA’s efforts and examine its impact. Although the United States is one of few countries in the world to leverage U.S. military assistance to end the use of child soldiers, thus far, implementation of the law has been lacking.

One reason for poor implementation is the frequent use of what is known as a “national interest waiver” as detailed in the law itself. The CSPA allows the president to waive the law’s prohibitions, in whole or in part, “if the President determines that such a waiver is in the national interest of the United States.” The Obama and Trump administrations have both used these national interest waivers regularly. As a result, more than $4.3 billion in otherwise prohibited U.S. military assistance has been provided to countries known to recruit and use child soldiers over the last nine years, thereby limiting the consequences (or perceived consequences) for not aligning with the law’s requirements.

Another notable challenge to comprehensive CSPA implementation has been the omission of key countries from the CSPA list itself. For years, countries known to support the recruitment and use of child soldiers – such as Afghanistan, Iraq, and Saudi Arabia – have been deliberately kept off the CSPA list for political reasons. In a positive move, the State Department included Afghanistan, Iraq, and Burma on the 2019 CSPA list – countries it neglected to include in 2017, with notable controversy. However, absent from the 2019 list is the Kingdom of Saudi Arabia, which has been widely reported to be using children as young as 14 to fight its war in Yemen.

With his 2019 determination, President Trump waived all of the CSPA’s prohibited assistance, allowing all relevant military assistance to go to the seven countries currently budgeted to receive such assistance. The four countries absent from the waiver announcement – Iran, Burma/Myanmar, Sudan, and Syria – do not receive any U.S. military assistance.

The application of the CSPA over the last nine years has not lived up to the hope of the law’s potential. Children in conflict continue to be put at risk with no accountability by the governments that continue to violate the rights of their most vulnerable populations. In 2020 we must reflect on the trends of the CSPA’s implementation over the last 10 years and identify potential fixes to the law’s loopholes and weaknesses.

Rachel Stohl is vice president of the Stimson Center, where Ryan Fletcher is a research associate.

Looking Ahead to the Second Review Conference of the Convention on Cluster Munitions: 10 years of Article 7 Transparency Reporting

1/8/2020

This is the sixth blog post in a series looking at an array of issues in 2020 related to weapons use, the arms trade and security assistance, at times offering recommendations.

Lode Dewaegheneire

Transparency has always been an integral and important part of disarmament treaties. The Convention on Cluster Munitions contains comprehensive obligations on reporting in its Article 7. Inspired by its sister convention, the anti-personnel Mine Ban Treaty, the Convention extended the scope of reporting by including, amongst others, reporting requirements on newly discovered stockpiles, victim assistance, national resources and international cooperation and assistance. Article 7 was intended to promote compliance with the Convention and as a confidence building measure. It can also serve as a platform for exchange of information.

With the second Review Conference ahead this year, it is good to assess what has been done to promote reporting, where we stand now, and what could be recommended looking ahead.

Where do we stand?

Since reporting is a legal obligation, initial efforts were aimed at encouraging States Parties to timely submit their initial report and at improving the submission rate of annual reports. Different subsequent coordinators for Article 7 reporting, civil society and the Implementation Support Unit, planned several actions and offered assistance to States Parties.

A reporting format was recommended for use at the First Meeting of States Parties (MSP) in 2010and a reporting guide was issued to help States Parties in fulfilling their Article 7 obligations. A special focus was put on those States Parties that still had to submit their initial report and States Parties with treaty obligations.

Initial reports are crucial for the Convention since they set the benchmark against which progress in implementation will be measured and for assessing the challenges some States Parties are facing. Although Article 7 reporting is a legal obligation for all States Parties, it is of particular interest for those who still are implementing other obligations. Without annual updates, no assessment of progress is possible.

Through the years, it became clear that, to encourage States Parties to submit their reports, incentives where needed. Hence there was a shift in the efforts to better promote the opportunities reporting can offer for affected States Parties. In particular, by reporting on their challenges and on the needs, States Parties could give a clearer picture to potential sponsor states for assisting them in implementing the Convention. That can work provided that the reports are detailed and of high quality. When looking at some initial reports, one could see that this was not always the case and that assistance through coaching could be beneficial to some States Parties.

As far as the figures are concerned, nine States Parties have an outstanding initial report due, some of them are overdue for several years, as of writing of this article. One of those States Parties has cluster munitions victims. Progress has been made in this field and we observe an increased degree of initial reports submitted over time.

The annual report rate for 2019 was 73 %, as of the Ninth MSP in September 2019,. And although we should aim at the full 100%, this is an improvement compared to previous years. We could consider that the different initiatives to increase the reporting rate, one of the objectives of the 2015 Dubrovnik Action Plan (DAP) adopted at the First Review Conference, have been successful.

The use of the reporting guide, also encouraged by the DAP, lead in some cases to higher quality information reported. This is encouraging, although there is still room for improvement. The role the Cluster Munition Monitor is playing in clarifying some reports and in encouraging States Parties to be as comprehensive as possible should be highlighted.

For the Second Review Conference

The Second Review Conference being held this November in Switzerland will be an opportunity to assess progress made in the field of reporting and to define the priorities for the actions for the coming five years. It is important that the next Action Plan provides clear guidance. As former coordinator for Article 7 reporting, my leitmotiv was: “Reporting is not only a legal obligation, but also an opportunity and a tool.” I would like to use this phrase to make some recommendations for the Review Conference.

Reporting is a legal obligation and all States Parties are bound to Article 7 of the Convention. There should be no need for discussion about that. However, if priorities have to be set, efforts should be made to have all Stats Parties submitting their initial reports, on time, and to ensure that affected countries report annually on progress.

Some States Parties without implementation obligations believe that they should not submit an annual report. Promoting the use of the existing simplified "cover sheet" report could encourage them to fulfill their legal obligation and would improve the reporting rate.

By reporting on the challenges they meet and the assistance needed for the implementation of the Convention, States Parties can use the Article 7 report as an opportunity. As mentioned earlier, high quality reports are needed for this to work. Further efforts should be made to assist those States Parties in drafting their report. This “coaching” can be done by potential donor states and could lead to a better understanding of the needs on one side and the available offer for assistance on the other side.

Finally, after a decade of Article 7 reporting, the Review Conference could take it to the next level: starting to use it as a tool. And once again, the Convention could be inspired by the Mine Ban Treaty. That treaty's Oslo Action Plan, the result of the Fourth Review Conference held last year, innovated by defining indicators to assess the progress made in the implementation of the Mine Ban Treaty. Timely and comprehensive reporting is a key element in this approach and makes it a tool for defining the strategy of the Convention. This approach should also be considered when preparing the works of the Second Review Conference.

To conclude, reporting and its use have evolved and matured through the years in parallel with the Convention’s evolution. And although continuing efforts should be made to increase the reporting rate and to promote the opportunity of quality reporting, the Second Review Conference might be the right moment to start using the Article 7 reporting as a real management tool to reach the full implementation of the Convention.

Lode Dewaegheneire is a PhD researcher at the University of Liège (Belgium) and an independent expert. Previously as a diplomat from Belgium, he served terms as coordinator of the Article 7 committees for both the Convention on Cluster Munitions and the Mine Ban Treaty.

Drones and the Development of International Standards

1/7/2020

This is the fifth blog post in a series looking at an array of issues in 2020 related to weapons use, the arms trade and security assistance, at times offering recommendations.

Rachel Stohl

In the first half of the Trump administration, the United States demonstrated its continued reliance on lethal drones to respond to perceived terrorist threats, yet with no overarching strategy to guide such use. The Trump administration has placed a primacy on immediate military action, resulting in a U.S. drone policy that appears less restrained, less transparent, and less accountable.

As the number one user of lethal drone technology in the world, the United States has an opportunity to be a leader on developing appropriate policy frameworks to guide the transfer and use of armed drones and setting a responsible international precedent. Such an approach is particularly important as lethal drone technology continues to proliferate, and U.S. policy and practice impacts not only what happens within and to the United States, but how our allies, partners, and even our adversaries utilize drones for their own purposes.

Although the high profile drone-strike killing of Iranian general Soleimani is now front-page news, U.S. use of armed drones also remains controversial in large part because of ongoing secrecy surrounding their lethal use -- especially outside of traditional battlefields -- and the resulting lack of accountability that often goes hand in hand with limited transparency. These trends have only been amplified during the Trump administration, where U.S. drone policy has been defined by uncertainty coupled with less oversight and less transparency, and Trump has reversed course on certain measures designed to make drone use more responsible and bring the drone program out of the shadows. Additionally, the tempo and geographic scope of lethal drone strikes has increased and the threshold for strike-decisions has reportedly been lowered, while the CIA’s role in conducting lethal strikes has reportedly broadened.

The Trump administration also seems recommitted to pursuing a flawed multilateral process for developing international standards to guide drone transfers and use, which, in its current form, could weaken existing standards and result in other countries adopting policies and practices similar to those of the United States. In October 2016, the United States initiated a multilateral effort to examine the implications of drone proliferation and use by drafting and circulating a “joint declaration for the export and subsequent use of armed or strike-enabled unmanned aerial vehicles (UAVs).” Fifty-three UN member states signed on to the declaration and agreed to begin a process to develop global standards on export and subsequent use of armed drones. Now, a core-group of states, including the United States, United Kingdom, Netherlands, Germany, Italy, Japan, and observer states Turkey, Israel and France, are working to develop this initiative into so-called International Standards on the Export and Subsequent Use of Armed Drones, as communicated by the U.S. State Department in October 2017. While the results of this process and the standards themselves are unclear, it is moving forward.

The current U.S.-led process to develop global drone standards raises a number of concerns. For one, it risks giving the veneer of promoting responsible decision-making while proving meaningless in establishing appropriate controls, as higher standards already exist in several legal frameworks. The process also continues to be directed by a small group of states and remains closed to outside input from subject matter experts, relevant practitioners, and communities affected by drone transfers and use. Therefore, it is important that civil society representatives continue to remain engaged with states and inform them of policies and practices that support the development of responsible national policies on drones, as well as international standards to guide drone transfer and use.

In 2020, it is likely that we will continue to see increased proliferation and use of drones, but also a proliferation of new multilateral regimes and agreements. Differing standards or rules guiding drone transfers and use – that is, those enumerated in the international standards, the global counterterrorism forum, in the ATT, and in other export control regimes – could lead to confusion for states, both exporters and importers, over which rules and standards to follow or to apply. This risk could compound those already modeled by the U.S. drone program, such as the risks to civilians and challenges to the rule of law, both domestically and internationally.

As drones continue to proliferate and more countries look to acquire and use lethal drone capabilities, questions of efficacy, legality, transparency, and accountability will continue to raise concerns about the precedent being set by the current U.S. drone program. The United States has an opportunity to be a leader on this issue and ensure that U.S. policy on drones is responsible and transparent and sets an appropriate benchmark for drone transfers and use around the world. As we move into the next election cycle, it will be important for civil society to remain engaged and pursue forward progress on the issue of drones.

Rachel Stohl is vice president of the Stimson Center.

Looking ahead – the arms trade on trial in the UK and The Hague

1/6/2020

This is the fourth blog post in a series looking at an array of issues in 2020 related to weapons use, the arms trade and security assistance, at times offering recommendations.

The views expressed are those of the author and not necessarily those of Campaign Against Arms Trade.

Samuel Perlo-Freeman

Last year, Campaign Against Arms Trade (CAAT) won a legal victory against the UK Government in the Court of Appeal, which overruled a previous High Court judgment, and declared the government’s approach to evaluating export licenses for arms sales to Saudi Arabia to be “irrational and therefore unlawful.”

Criterion 2(c) of the EU Common Position on arms exports, which is also written into UK law (and therefore will likely remain after Brexit), states that an export license for military equipment shall not be issued if there is a “clear risk” that the equipment might be used to commit serious violations of International Humanitarian Law (IHL). CAAT had challenged the government’s continuing approval of export licenses for combat aircraft, bombs, missiles, and other equipment used in the Saudi-led war in Yemen, on the basis of the multiple, repeated attacks by the Saudi-led Coalition on civilians and civilian objects, documented by the UN and numerous NGOs with on-the-ground information, which CAAT’s lawyers argued surely meant a clear risk existed of further violations using UK weapons. The Government had argued that their close relationship with the Saudis, their knowledge of Saudi targeting procedures, and the training they provided, ensured that no clear risk existed; indeed, they had not made any assessment of the many hundreds of incidents of attacks on civilian targets of which they had been made aware, to decide if any of these were likely to be violations of IHL.

The judges ruled that any rational assessment of future risk must include as a crucial piece of evidence an assessment of past record. They ruled that the government must retake all extant export licensing decisions for equipment to the Saudi coalition, based on a lawful procedure. Until this review is complete, the government has agreed not to issue any new licenses for equipment that could be used in Yemen. The government has been granted leave to appeal to the UK Supreme Court, but has not been granted a stay of the judgment pending this.

There are therefore two major developments in this case to be anticipated in 2020: the Supreme Court hearing and judgment, and the results of the government’s retaking of export licensing decisions.

How the Supreme Court will view this case it would be pointless to speculate. As for the review of licensing, there are many possible outcomes, each of which might lead to different courses of action for those seeking to stop arms sales from fueling the Yemen war, and other conflicts worldwide. Some that come to mind include:

The review could find that there has indeed been a pattern of violations of IHL by the Saudi-led coalition that means that there is a clear risk of future violations, resulting in the revoking of licenses for most or all equipment supporting the Coalition’s air war, and a future presumption of denial. This would be both fantastic and unexpected, and seems highly unlikely – much of the UK arms industry, BAE Systems in particular, is heavily dependent on exports to Saudi, and the government is unlikely to be willing to see this business terminated, including the huge servicing contracts BAE has with Saudi Arabia, supported by 6,300 employees in the Kingdom. BAE has received £29 billion in revenue from the Saudi Ministry of Defence (MOD) between 2009 and 2018 from sales and services, and the loss of this would be devastating to the UK’s “national champion,” whose interests carry huge weight in government policy-making.
The review could conclude that there is no clear evidence of serious violations of IHL by the Coalition, and hence no clear risk of future violations, and thus continue to approve all licenses. This is certainly a possible outcome that would allow the government to achieve its objectives, but might be seen as too lacking in credibility to sustain, in particular in the face of potential future challenges.
The review could find evidence of some violations of IHL, but conclude that this does not amount to a recurring pattern, so that there is still no clear risk, allowing most or all licenses to continue as before.
The review could conclude that there has indeed been a pattern of serious violations of IHL, and that some previous licenses should not have been issued, leading to some being revoked; but that subsequent changes in Saudi policy, working with the UK government, combined with the lowering in the tempo of the air war that has been observed over 2019, means that there is no clear future risk, so that new licenses can be issued, subject to continual careful monitoring of Coalition actions.

In the event of any outcome other than a complete halt to arms sales for use in the Yemen war, CAAT and other interested parties will need to look carefully at the basis on which the conclusions were reached – in so far as it is possible to know them – and consider whether there might be grounds for further challenge. On the other hand, any outcome that concludes that previous licenses should not have been granted, on the basis of the record of IHL violations (such as 4), could open the way to looking more closely at other cases where the UK has issued licenses for arms sales to conflict parties; for example, to Turkey during their conflicts with Kurdish forces in Turkey and Syria (though the issuing of new licenses to Turkey are currently suspended), or even to the US for components and subsystems used in their many ongoing wars around the world, including drone wars, where their observance of IHL is open to severe doubt.

Meanwhile, another legal effort to hold both governments and arms companies to account is under way in the Hague: on December 11, the European Center for Constitutional and Human Rights (ECCHR), in collaboration with Mwatana for Human Rights in Yemen, CAAT, Amnesty International, Centre Delás in Spain, and Rete Disarmo in Italy, submitted a 350-page Communication to the Office of the Prosecutor (OTP) at the International Criminal Court, asking the OTP to investigate both senior government officials in the UK, France, Germany, Italy, and Spain, and senior corporate officers of nine companies headquartered in these countries, for their potential criminal responsibility for aiding and abetting war crimes in Yemen through the supply of arms. This is a unique effort up to now, in seeking to establish the liability of corporate actors for their role in supporting war crimes through the supply of arms. The Communication challenges companies’ defense that they only supply arms where they have an export license on numerous grounds: for one thing, international principles on business and human rights expect companies to go beyond the minimum requirements of national legislation in seeking to prevent their business activities from having negative impacts on human rights, and this should be even more so in the case of the arms industry, whose products are designed to kill. Secondly, the granting of an export license does not entail an obligation to export, so that the company cannot evade responsibility to conduct their own due diligence; moreover, an export license may be valid for years, so that the situation at the point of delivery may not be the same as at the time the license was issued.

The file is now with the OTP. ECCHR and their partners hope that they will at the very least give the case serious consideration, and that this may even lead to the opening of a Preliminary Examination in 2020.

The road to any prosecutions would be a long one; however, so long as this file remains open, it may be hoped that the potential for personal criminal liability may have a cautionary effect on decision-makers in evaluating export decisions, whether from the government or corporate side, encouraging more rigorous scrutiny of whether there is indeed a “clear risk” of equipment being used for war crimes or other serious violations of IHL.

However, returning to the UK, there is one dark cloud on the horizon regarding CAAT’s efforts to hold the government’s export licensing policy to account through the courts. The Conservative Party manifesto for the election that returned the party and Prime Minister Boris Johnson to power for the next five years included a paragraph that has alarmed civil society and others concerned with the rule of law, promising to review the whole nature of the relationship between government and the judiciary, including restricting the possibility of seeking judicial review; this will still be possible for individuals whose rights are trampled by an “overbearing state,” but not as a way of “conducting politics by other means.” This is probably primarily aimed at the sort of case that saw Boris Johnson’s prorogation of Parliament struck down in a scathing ruling by the Supreme Court in September, but may well also target cases such as CAAT’s.

On the other side of the Atlantic, in the Canadian province of Ontario, right-wing Conservative Premier Doug Ford passed a similar law in 2019, the Crown Liability and Proceedings Act, severely restricting the ability of Ontarians to sue the Provincial Government. Moreover, the law applies retroactively, and on the basis of this, the Ontario government is seeking to have eight previous class action suits against it – which the government had already lost, through all stages of appeal – thrown out. Given the Johnson government’s track record in terms of its respect for the rule of law (or lack thereof), it is not hard to imagine them pursuing a similar course in the UK, in spite of its flagrant violation of constitutional norms.

Could the UK government, if it loses in the Supreme Court, still try to have the case canceled by such means, and allow arms sales to Saudi Arabia to continue even after they have been shown to violate the UK’s arms export laws? We can only hope not, but it is not something that can be ruled out.

Sam Perlo-Freeman is research coordinator for the Campaign Against Arms Trade.

Syria in 2020: the deadly legacy of explosive violence and its impact on infrastructure and health

12/17/2019

This is the third blog post in a series looking at an array of issues in 2020 related to weapons use, the arms trade and security assistance, at times offering recommendations.

Iain Overton

Jennifer Dathan

According to Action on Armed Violence’s data, throughout the course of the conflict in Syria, about three-quarters of injurious attacks there occurred in populated areas. This devastating use of explosive weapons has led to the destruction of towns and cities across Syria. In Aleppo alone, at least 15 million tons of rubble were created by this violence by 2017. These mountains of rubble, as well as the consequential redevelopment process, pose many environmental concerns for 2020 that could have a continuing and significant impact on the health of Syria’s beleaguered population.

Scale of the damage

By 2017, 50% of basic social infrastructure in Syria was non-operational, mostly due to the destruction incurred during hostilities. This damage continued through 2018, including over 34,000 buildings damaged or destroyed just in Eastern Ghouta. Such harm continued across the country this year, and will do so until the conflict is brought to an end.

Estimates on the levels of rubble generated have only been carried out for Aleppo and Homs, with war damage creating 15 million and 5.3 million tons respectively. A 2019 study by REACH, a humanitarian initiative providing data from contexts of crisis, further revealed that Aleppo had almost 36,000 buildings damaged or destroyed, similar to Ghouta. Raqqa, with almost 13,000 buildings damaged or destroyed has witnessed a similar level of harm as Homs.

Figure 1 REACH, 'Syrian Cities Damage Atlas', 2019.

Overall, about a third of homes in Syria were thought to have been damaged or destroyed by 2017. In 2018, the UN estimated the cost of material destruction in Syria at $120 billion. By 2019, 12 million people – half Syria’s pre-war population – were displaced. To clear the debris in Aleppo alone would take six years of continuous work and 26 million ‘truck-kilometers’ – but these are academic calculations. There is not yet the equipment, funds, or capacity to carry out this work.

Combined the devastation of Syria raises serious environmental issues and health concerns, especially for those who remain or return, and those involved in clearing the destruction.

Concerns with debris

The debris poses serious health risks, exposing those in the impacted areas to hazardous material in both the air and the ground, such as toxic smokes and heavy metal. An indication of the consequences this may have on local populations might be seen from the significantly increased cancer risk for those exposed to the release of toxic dusts in the destruction of the World Trade Center in 2001; some 43,000 people have been certified with a 9/11 related health condition, including almost 10,000 with a related cancer. More recently, in Paris, there has been concern over potential lead poisoning of the residents living nearby Notre-Dame Cathedral, after the fire and destruction in April 2019.

Further environmental concerns for 2020 will be likely faced in things such as informal waste dumping and an increase in burning of waste as land is attempted to be cleared. In Lebanon, for instance, the debris left from the destruction of downtown Beirut in the civil war, which ended in 1990, contributed to the country’s lasting garbage problem, which – in turn - has led to pollution in the Mediterranean and caused significant air pollution for Beirut’s inhabitants.

A similar situation occurred in post-WWII Germany. Much of the 10 million tons of rubble taken from Nuremburg’s Old Town was deposited in an excavation pit. In the post-war years, waste continued to be dumped there. As few safety measures were carried out, leaching of this waste saw the connected Silver Lake become severely polluted, with lethal concentrations of hydrogen sulphide entering the lake. While the landfill has since been landscaped, forested and incorporated into the Volkspark Dutzendteich, the Silver Lake, or Silbersee, continues to be heavily polluted and at least fifty people have lost their lives after bathing in that lake.

Explosives among the debris

The failure rate of modern weapons is estimated to be about 10%. To give a scale of the numbers of weapons that may be lying in Syria unexploded, in just five months, the US-led coalition fired 30,000 artillery shells on Raqqa. With a 10% failure rate, this leaves about 3,000 items of unexploded ordnance (UXO) from just one party to the conflict in just one city. By 2018, at least 25,000 munitions had been dropped by the US-led coalition, while Russia declared more than 39,000 airstrikes in the first three years of fighting, and improvised explosive devices are littered across Syria’s scarred landscape. The appetite for these state actors to identify the harm their bombing campaigns have caused, let alone address this harm, is minimal.

This mountain of lethal legacy makes clearance a far deadlier task. While IEDs are likely to cause injuries, the UXO from manufactured weapons generally contains significantly higher levels of explosives and tend to result in fatalities. Those carrying out the clearance are often unprepared for the task.

When AOAV interviewed members of the Rojova Mine Control Organisation (RMCO) in 2018, they reported significant challenges to clearance efforts in Raqqa, including a lack of large and armored vehicles to clear the rubble, something necessary due to the ammunition and booby traps among the debris.

As such, as organizations and experts do not have the capacity or equipment to clear the debris, many civilians will carry on in 2020 conducting this dangerous work. An Amnesty investigation found at least 1,000 people killed by explosives between October 2017 and April 2018 in contaminated areas – with many more dying before reaching medical care, and so going unrecorded.

Looking Ahead in Syria - and Beyond

Overall in 2020, Syria will face a mountain of conflict debris contaminating its land, air, and water, a large proportion of this caused by the use of explosive weapons in populated areas. And it is not just Syria. Iraq, Yemen, and the Philippines are among those who have also experienced such destruction in recent years. And so, as Syrians begin to clear rubble and slowly rebuild, the safety of civilians in such clearance should be a pressing priority for humanitarian agencies. This means minimizing civilians’ exposure to toxic dust, ensuring materials are disposed of in a way that minimizes contamination of soil and water supplies, and clearing UXO. Without such measures – and fast – the Syrian conflict will continue to claim more lives.

Iain Overton is Executive Director of Action on Armed Violence (AOAV) and Forum-listed expert. Jennifer Dathan is a Researcher at AOAV.

Explosive weapons in populated areas: looking ahead to 2020

12/16/2019

This is the second blog post in a series looking at an array of issues in 2020 related to weapons use, the arms trade and security assistance, at times offering recommendations.

Laura Boillot

After a decade of work building concern over the use of explosive weapons in towns, cities and other populated areas, an ambitious timeframe has now been set out for developing an international political declaration in the first half of 2020. The aim of the initiative is to develop a tool to tackle the high levels of civilian harm from the use of explosive weapons in populated areas by driving change in government and military policy and practice.

It is urgently needed. Over the past decade, data shows that when explosive weapons are used in populated areas, 90% of the casualties are civilians. Explosive weapon systems - including aircraft bombs, artillery, mortars and rocket systems - function by projecting blast and fragmentation across an area, and around the point of detonation, often causing multiple casualties in a single incident. This is a pattern of harm documented in Afghanistan, Gaza, Iraq, Libya, Somalia, Syria, Ukraine, and Yemen, among other places.

Even looking beyond the tens of thousands of civilians that are killed and injured each year, and the many more that are traumatised, the effects of explosive weapon systems have a devastating impact on the fabric of a city and the built environment. Buildings are reduced to rubble, hospitals and medical facilities are destroyed, and schools are forced to close. The provision of essential services is hampered. The scale of impact goes far beyond those immediately hurt, or those in the vicinity of the attack, and the impact can be felt long after the bombing ends.

Ill-suited for use in urban centres and other populated areas, heavy explosive weapon systems are particularly problematic owing to their large destructive capacity and high explosive content, inaccuracy, and ability to fire multiple warheads across an area – or a combination of these factors. Particular emphasis has rightly been put on addressing use of explosive weapons with wide area effects – and excessively wide in relation to the military objective being targeted.

Key milestones in 2019
The situation is not entirely without hope. Important progress has been made in 2019 to address this issue at the political level.

This issue featured prominently once again in the UN Secretary-General’s report on the protection of civilians in armed conflict issued in May 2019. Citing examples from a range of countries devastated by conflict, he concluded that the protection of civilians in armed conflict is both “tragic and appalling.” A case in point is the city of Raqqa, Syria, which experienced regular airstrikes and shelling, where nearly 80 percent of buildings in the city were destroyed or damaged and essential services, such as water, electricity and health care were absent or severely limited, rendering it inhabitable.

A central recommendation in this report is to avoid use of explosive weapons with wide area effects in populated areas, owing to the cumulative, complex and long-term harm resulting from such use. The Secretary-General also reiterated his call on states to develop a political declaration on explosive weapons that would see states commit to avoiding the use of explosive weapons with wide area effects in populated areas and develop operational policies based on a presumption against such use.

A joint warning by the UN Secretary-General and ICRC President was issued in September 2019 and reiterated the same message warning against use of explosive weapons with a wide impact area in populated areas, cautioning that “civilian devastation and suffering must stop.” It proposes militaries reassess and adapt their choice of weapons and tactics to avoid civilian harm, including taking combat outside of populated areas to try to reduce urban fighting altogether.

States are starting to respond to the repeated calls of the UN Secretary-General. Following regional conferences in Africa in 2017, and Latin America in 2018, over 130 states met in Vienna in October 2019 for the first global conference on the protection of civilians in urban warfare, with a specific focus on the use of explosive weapons in populated areas.

The Vienna conference represented a turning point. The outcome of the meeting was broad support among participating states to start negotiations on developing an international political declaration on explosive weapons.

Later the same month, a joint statement at the UN General Assembly’s First Committee, led by Ireland and joined by a group of 71 states from all regions, expressed collective concern over the humanitarian impacts on civilians from the bombing and shelling in towns and cities and laid out the aim of negotiating an international political declaration in 2020.

Towards a political declaration in 2020
A widely-attended initial consultation with states on a declaration was convened by Ireland at the United Nations in Geneva in November 2019, gathering views from states and organizations on the type of actions endorsing states can be committed to undertaking. Some key themes from that discussion include:

Establishing a presumption of non-use of explosive weapons with wide area effects in populated areas

Many states and organisations highlighted that central to the issue, is recognising and addressing the link between the area effect of explosive weapons, and the risk of harm that using such systems in populated areas presents to civilians.

To address this, a presumption of non-use of explosive weapons with wide area effects should be established along with a requirement on states to actively implement this through the development and review of national operational policies and procedures.

How to articulate the necessary restrictions over the use of explosive weapons in populated areas in a declaration text will be a contentious issue, however. States engaged in military operations have expressed concerns over such restrictions.

“Existing law is adequate”

Some states argue that existing law is adequate. However, it is not an initiative aimed at changing the legal framework. There has been widespread support from states to develop a political declaration in order to drive operational change, and set clearer standards and expectations of behaviour around the use of explosive weapons.

“National military policies and procedures are adequate”

Certain states maintain that they have sufficiently robust military policies and procedures to adequately deal with the humanitarian harm from explosive weapon use in towns and cities, such as collateral damage estimation methodologies (CDEs) and complex targeting procedures.

However, the high levels of civilian harm point to the need for clearer guidelines that relate specifically to the use of explosive weapons with wide area effect in populated areas.

There are limitations to the extent that existing tools and procedures are sufficient in the absence of international standards that ensure the risk of harm from explosive weapon use is adequately reflected in these assessments. Nor do all states have policies, capabilities, and trainings relevant to the use of explosive weapons or are applying them. A declaration can help to identify, develop and exchange good practices.

Assisting victims and affected communities

A declaration should assist people and affected communities, including fulfilling the rights of victims, and ensuring basic needs are met in a timely manner, as well as safe and timely access to services.

Given the number of people that are impacted, and the extensive costs and work associated with rebuilding towns and cities, as well as the burden falling upon affected countries, the scope of this commitment has received some push back from certain states. But the fact that there are a large number of victims is not a justification for denying people their rights, but rather should be driver of the urgency of addressing this problem.

The next six months
The process laid out by Ireland is expected to conclude in May or June of 2020 in Dublin, following a series of meetings in Geneva in February and March or April of 2020. Ahead of the next meeting, a draft text will be circulated in the new year, and will be the basis of discussions moving forward.

It’s an ambitious timeframe but it can be concluded successfully in this period. It is a similar timeframe and approach that delivered the Safe School’s declaration a few years ago. Civil society’s goal will be on getting a declaration that is sufficiently strong in its commitments to have a meaningful humanitarian impact.

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Further reading

INEW has published a paper on key elements for a political declaration on explosive weapons in populated areas which can be found here: http://bit.ly/Elements4Declaration as well as a Frequently Asked Questions document http://bit.ly/INEWQandA which lays out more information on policy positions on key issues.

Laura Boillot is the Coordinator of the International Network on Explosive Weapons (INEW) and Programme Manager for Article 36.

Arms Trade Issues Should See Center Stage in 2020 US Election

12/13/2019

This is the first blog post in a series looking at an array of issues in 2020 related to weapons use, the arms trade and security assistance, at times offering recommendations.

Jeff Abramson

The "should" in the title to this post is not an admonition, but rather a prediction. And a bold one. An impeachment effort is now underway related to conditions placed on security assistance to Ukraine. Plus, four Presidential vetoes were used in 2019: one to stop Congressional assertion of war powers in relation to the war in Yemen, and three to override rejection of "emergency" arms sales primarily intended to Saudi Arabia for that war. So, how could arms trade issues take an even greater public stage in 2020?

It's the election. As the 2020 campaigns kick into full gear, we should expect that those vying for the highest elected office will look for more areas where they can assert their differences with the President, especially on issues that the public supports. As the Forum's research into candidates positions is showing, there is a stark divide emerging in the approach Democratic candidates are taking on arms trade issues compared to Donald Trump. And opinion polling suggests many of these have a majority of Americans behind them.

At this moment, the divide is most striking as relates to support to Saudi Arabia. Of the seven Democratic candidates slated to appear in the December debate, six have indicated that they would cut off arms supplies to Saudi Arabia given Riyadh's behavior in the war and humanitarian crisis in Yemen. (Tom Steyer's position is unclear.) While public opinion polling highlighted by the Chicago Council of Global Affairs indicates that Americans are divided on the US relationship with Saudi Arabia, a majority, regardless of party, do believe selling weapons makes the United States less safe. It is easy to see, and unfortunately tragic to predict, that another incident of misuse of US weapons by the Saudis will occur and make it into the headlines. With it will come attention again to US arms trade decisions.

Also at odds with the President, all the Democratic candidates have indicated their support for an assault weapons ban, another issue that has majority public backing. Thus far, however, Democratic candidates have not made the connection that it is illogical to oppose assault weapons at home while at the same time making their export more efficient. While the administration is pushing for just such changes, it is easy to expect more gun control-minded Democratic candidates to make the case that the Commerce Department is not the proper home for oversight of assault weapon exports. Two have done so thus far. As some members of Congress are already doing, candidates can also make the connection to US gun laws and exports with violence in Latin America that fuels Central Americans to flee north. We quickly then link to the wall and broader immigration debates, driving the arms trade into the brighter spotlight.

It's a bit more difficult to predict that the Arms Trade Treaty (ATT) itself will become an election issue. President Trump's repudiation of the treaty at an NRA convention in Indianapolis in April certainly was popular with the crowd there and echoed the ill-informed stance that Congressional detractors have taken that the treaty infringes on US rights. It would not be surprising that candidates who publicly criticize the NRA would also then take up the ATT. Three have explicitly supported the treaty thus far, and a number others have taken steps in the past to block opposition to it.

Candidates seeking to distinguish themselves from each other may also branch out into issues where positions have yet to be claimed. Public opinion polling shows that a majority of Americans are strongly or somewhat opposed to using lethal autonomous weapons systems in war (aka killer robots). This is an obvious area where a candidate such as Andrew Yang, who comes from the tech field and talks frequently about artificial intelligence, could be the first to also acknowledge where human-centered limits make sense and support efforts such as those led by the growing Campaign to Stop Killer Robots to ban the development and use of such weapons.

Other issues ripe for candidates to explore include declarations on the use of explosive weapons in populated areas, an initiative with increasing international attention that currently lacks US diplomatic support. Treaties such as the Mine Ban Treaty and Convention on Cluster Munitions, that are supported by nearly all of NATO and other traditional US allies, but to which the US has yet to commit, can also provide candidates a way to distinguish themselves.

It is, of course, much too early to predict who will be elected as president roughly 11 months from now. It is, however, a much safer bet that arms trade issues will have a prominent role in the public discourse that leads up to the November 3 vote.

Jeff Abramson is a senior fellow at the Arms Control Association and manages the Forum on the Arms Trade.