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Event Recap: Legal Approaches to Reduce Gun Violence -- Mexican and U.S. Strategies, August 18, 2021

8/30/2021

Video of event available at https://youtu.be/cg3WshmbtfI?t=124

This recap should not be quoted directly and does not fully describe the nuances of comments made. Please listen to video for direct quotations. The Forum thanks Lauren Speiser for the notes and initial draft of this recap. Panelists are not responsible for the summaries provided here. This event was hosted by the Network to Prevent Gun Violence in the Americas, the Forum on the Arms Trade, the Giffords Law Center, and Global Exchange

Panelists

Ioan Grillo (website) - journalist and author, including of Blood Gun Money: How America Arms Gangs and Cartels -- recent Foreign Policy argument "Why Mexico Is Right to Sue U.S. Gun Companies," and NBC news interview
Steve Shadowen (website) - Founding Partner, Hilliard & Shadowen LLP -- legal complaint (link)
Kristen Rand (website) - slides (pdf), Violence Policy resources on gun industry regulation (link)
John Lindsay Poland (website) - Coordinator, Project to Stop US Arms to Mexico -- proposed legal sale discussed (link), Stop US Arms to Mexico press release "Mexico vs. Gun Companies",

Welcome and Opening Remarks: John Lindsay-Poland described Mexican gun violence as an “unprecedented and growing humanitarian crisis.” (link) He then spoke about the Mexican government’s unprecedented lawsuit (filed August 4th) against 11 US gun manufacturers and distributors, who allege that those companies are responsible for much of the violence occurring in Mexico. Lindsay-Poland briefly introduced the panelists and provided descriptions of their recent work.

Panel: Each panelist gave an overview of their unique expertise regarding the legalities and challenges in current U.S.-Mexico gun relations.

Ioan Grillo (link) spoke of gun violence in Mexico since the early 2000s as growing “from... crime story... to what seemed like an armed conflict.” Grillo explained that gun violence has a massive impact in Mexico, describing the intensity of the violence. Grillo used anecdotal evidence of how a now-imprisoned gun trafficker would drive to Dallas gun shows and buy 12 AR-15 rifles with no identification. Grillo urged for change, saying that buying guns is not a question of challenging 2nd Amendment rights. His suggested recommendations include universal background checks in the U.S., and regulations targeting ghost guns and straw buyers. Grillo finds the lawsuit to be a powerful move by the Mexican government.

Steve Shadowen (link) speaking on his own behalf, briefly began by indicating that there is little controversy with “respect to the facts.” The lawsuit alleges that the gun manufacturers’ policies are insufficient in preventing U.S. guns from entering Mexico in large numbers, thus materially contributing to the damage suffered in Mexico. On the legal theory, Shadowen explained the nuance of tort law, which is the law governing negligence and recovery of damage for negligence, which secures the balance between the economic interests of the gun manufacturers and those who are harmed with those products. Shadowen expressed that tort law as applicable in Mexican jurisdiction can be applied to U.S. gun manufacturers because they are knowingly selling products that cause harm to the people and economy of Mexico. Shadowen explains that, in international law, this is not a controversial principle. Shadowen briefly outlined the nuance of Protection of Lawful Commerce in Arms Act (PLCAA), explaining that the Mexican government intends to prove in this case that the PLCAA does not apply when the injury occurs outside the US.

Kristen Rand (link) presented on the marketing strategies of U.S. gun manufacturers, specifically addressing the militaristic imagery and language used in their advertisements. Rand used examples of advertisement from a variety of manufacturers and weapons to support her argument that manufacturers explicitly target Mexican and U.S. buyers looking to build what are in essence their own armies (slides). Rand noted the challenges of firearms and ammunition being the only consumer products that are exempt from federal health and safety regulations, and that PLCAA bars some types of civil liability.

Moderator Lindsay-Poland (link) spoke briefly about U.S. government-licensed legal exports to Mexico and the lack of transparency surrounding the final destination of U.S.-made guns, including those to be sold to the Mexican Navy under a new sale proposed in July (link), which has been accused of torturing detainees and committing other forms of inhumane treatment.

Q&A:

Grillo (link) explained how the link to guns and violence in Mexico had fallen off the table for about a decade after Fast and Furious and that the lawsuit is a “solid strategy,” noting that in the lawsuit he sees two “big deals”:
- First, he believes the judicial process has led in the past to big changes through law where politics has failed, drawing parallels to tobacco and pharma lawsuits.
- Second, the lawsuit has put the issue in the news. Grillo believes there are concrete changes that can be made.

Shadowen (link) dove further into the legalities of the Mexican lawsuit, comparing it to actions in the late 1990s and early 2000s by local governments related to gun violence, as well as the opioid litigation in the U.S. today, with hopes that Mexico can prove a causal chain similar to those used in opioid lawsuits. His main point was, when one knowingly sends their products to another jurisdiction that causes harm in a systematic way, they are responsible. He also briefly discussed the capabilities, and in a broad way, what manufacturers could do to avoid the harm caused. The lawsuit alleges that it is a relatively small number of gun traffickers that are responsible for the majority of these guns sales to Mexico. It’s the absence of U.S. tort law being applied that has allowed this situation to develop.

Rand (link) noted that the strategy of marketing guns with militarized images is especially relevant to Mexico and the Caribbean, with U.S. manufacturers knowing what's going on and being culpable. Lindsay-Poland added that the weapons are used in essence to build armies as a way to contest territory, gaining legal and illegal control over economic activities.

Lindsay-Poland spoke (link) on legal exports, including why Sig Sauer may not be in the lawsuit, as well as possible needed legislative and policy changes. He highlighted the need for end-use controls, also recommending the return of all firearms export oversight from the Commerce Department’s Commerce Control List to the State Department’s U.S. Munitions List.

Rand (link) suggests activists get involved with local and national groups, and recommends that the U.S. pass a universal background check. She also emphasizes the need for further regulations on ghost guns and pistol braces.

Grillo (link) suggests strengthening measures on private sellers, straw buyers, theft, and ghost guns. He says that they must all be confronted or as one is addressed another will become more prevalent. Grillo similarly recommends universal background checks, passing a federal firearm trafficking law, increasing recommended sentences, extended background checks, and further legislation. He also suggested joint actions by other Central and South American governments with Mexico would be interesting to explore.

Lindsay-Poland (link) noted that checks on legal firearms exports often occur after export, not before license, that a very small percentage are checked, and that those checked are not often held accountable for human rights abuses. He further recommends identifying end users and committing to controls for excluding end users implicated in human rights abuses. He also said that key knowledge gaps include the circumstances around where and how firearms were distributed and recovered.

Shadowen (link) discussed possible paths of the suit and predicts it could last 3-4 years, or even longer.

Final comments:

Rand (link) spoke about her excitement about the new lawsuit, and the need for gun industry accountability.

Grillo (link) emphasized that gun violence is not normal -- it's not a natural force -- and that simply saying other countries might provide weapons if the U.S. didn't is not credible nor a reason for inaction.

Shadowen (link) spoke about the effect of violence on families and his frustration about the acceptance of such unbelievable harm. “We will do everything we can within the confines of a lawsuit..." to create change.

Lindsay-Poland (link) commented how the lawsuit was important to helping everyone see that lives of Mexican individuals are as important as all lives, including those in the U.S.

Additional resources:

The Daily (podcast) from the New York Times, "Why Mexico is Suing U.S. Gunmakers," August 24, 2021.
William S. Dodge and Ingrid Wuerth, "Mexico v. Smith & Wesson: Does US Immunity for Gun Manufacturers Apply Extraterritorially?" Just Security, August 19, 2021.
Alejandro Celorio Alcántara, legal advisor to Mexico’s Ministry of Foreign Affairs, Washington Post op-ed, August 14, 2021
Center for American Progress: "Frequently Asked Questions About Gun Industry Immunity"
Esther Sanchez-Gomez, litigation attorney at Giffords Law Center, "Mexico, drowning in American guns, is suing gun manufacturers," Daily Journal, August 11, 2021
Ghost guns
- proposed rule change, public comment period now closed
- new lawsuit filed in San Francisco, see San Francisco Chronicle, August 18, 2021
Research on exports to Mexico
- "Invisible Weapons, Indelible Pain: The Urgent Necessity for Transparency in the U.S. and Mexican Gun Trade," Mexican Commission for the Defense and Promotion of Human Rights, Stop US Arms to Mexico,Center for Ecumenical Studies., July 2021
- "Deadly Trade: How European and Israeli Arms Exports are Accelerating Violence in Mexico," Global Exchange (US), Vredesactie (Belgium), OPAL (Italy), Agir pour la Paix (Belgium), American Friends Service Committee (Israel), Ohne Rüstung Leben (Germany), NESEHNUTÍ (Czech Republic), Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, and the Centro de Estudios Ecuménicos (Mexico), see p. 25 for more on Sig Sauer, December 2020
- "Fact Sheet on Sig Sauer Arms Exports to Mexico," Stop US Arms to Mexico, last updated 2018
U.S. export licensing of assault weapons - see Forum on the Arms Trade resource page on USML changes

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Event Recap: Divestment and Transition, July 21, 2021

7/28/2021

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click for video

(first event in series: Exploration of Arms Reduction and Jobs)

Video of event available at https://youtu.be/0rwErPjE16k

Panelists discussed their work individually around weapons divestment campaigns, ethical investor advising, and communities finding employment alternatives to the defense industry.

Jeff Abramson, Director of the Forum on the Arms Trade and senior fellow at the Arms Control Association, kicked off the event (3:43) with an introduction of panelists and a recognition that, because there are real people and jobs tied to the arms manufacturing industry, a full conversation about divestment must take into account employment alternatives and ways forward to ensure a smooth transition.

Lillian Mauldin, founding member of Women for Weapons Trade Transparency, then spoke about Women for Weapons Trade Transparency’s efforts to convince the University of Texas/Texas A&M Investment Management Company (UTIMCO) to divest from their $52.5 million worth of weapons manufacturers debt and equity securities in their Permanent University Fund as of August 2020 (7:47). She discussed how these investments are currently putting UTIMCO at significant risk of financial, legal, and reputational loss, due to the numerous lawsuits and human rights law violations brought against many of the weapons manufacturers in which UTIMCO is currently invested. She discussed precedent for the implementation of screens to prevent investments in weapons manufacturers; touching on examples of Norway's Government Pension Fund and Eventide Asset Management. Addressing employment concerns brought by some engineering students at UT Austin regarding UTIMCO’s potential divestment, Lillian emphasized that UTIMCO’s investments were purely as a result of their fiduciary duty to the UT System, and not a result of their desire to build relationships with certain companies or funds. Finally, Lillian discussed Women for Weapons Trade Transparency’s plan to take the campaign to the UT System Board of Regents following UTIMCO’s denial of capability to implement policy suggestions aligned with divestment. See also:

Women for Weapons Trade Transparency’s UTIMCO Weapons Manufacturer Investments Report (pdf) and 5 minute video presentation

Rich Stazinski, Executive Director of the Heartland Initiative, discussed Heartland’s work to help institutional investors better understand risks of investing in companies involved in conflict-affected and high-risk areas (15:08). He discussed historical precedent for socially responsible investment, including colonial-era Quaker opposition to prisons, Protestant refusal to invest in nuclear weapons in the 1960s, South African resistance to apartheid in the 1980s, and the development of concern with harm to civilians that developed in the 1990s. Rich elaborated on the differences between screening and divestment. Generally speaking, divestment is the act of intentionally selling shares of a company as part of a campaign to reprimand them for a proscribed behavior. Screening on the other hand is the removal of companies that are rated as poor performers on Environment, Social or Governance (ESG) or other indicators. This often occurs before shares are ever purchased. Rich referenced the emerging gap in investment screening regarding artificial intelligence and surveillance technologies, noting that current screening practices are not considering these new technologies and a diversified weapons market. Since production for these new technologies is often spread widely across multiple vendors, many companies contributing to modern weaponry are not being captured by existing investment screening. When asked by Lillian what could be done to fill in these gaps, Rich recommended that activists develop relationships with technical experts and asset owners so that all parties understand the evolving landscape. Finally, Rich commented on conduct-based exclusion in socially responsible investing practices. He remarked that most funds have relied on UN Security Council (UNSC) arms embargoes as standards for exclusion, but due to the highly politicized nature of UNSC proceedings, these designations fail to screen actors. See also:

Sam Jones & Richard Stazinski, “Advancing business respect for human rights in conflict-affected areas through the UNGPs,” Business and Human Rights Resource Centre, June 9, 2021.
David Kaye and Marietje Schaake, “Opinion: Global spyware such as Pegasus is a threat to democracy. Here’s how to stop it.” Washington Post, July 19, 2021.
Presbyterian Church USA Divestment/Proscription list, 2019

Atlanta-based journalist Taylor Barnes (website) discussed her work covering defense industry workers and defense communities (22:27). Taylor commented that many defense industry workers during the pandemic were surprised to find out that they were designated as essential workers. She described a video of Anthony, a Fort Worth Lockheed Martin worker who was infected with Covid-19, that went viral among F35 manufacturers in Fort Worth Texas after he called into question Lockheed Martin’s care for its employees. Taylor described her solutions journalism coverage of the transition from defense industry to green economy jobs in Huntsville, Alabama; particularly how one one engineer adapted his understanding of jet engines from his time working on fighter jets to create an innovating new wind energy technology. She recounted how a union leader at a Space Force contractor near Huntsville discussed her reporting live on pro-labor talk radio and told listeners,, “transitioning from defense to climate spending is something that actually helps working people, rather than killing working people overseas.” Lastly, Taylor discussed her latest coverage of community concern in Asheville, North Carolina over the construction of a F-35 engine parts plant for a division of Raytheon. The deal was negotiated without public transparency and the town’s residents only had one hour on one day to voice their opposition in a town hall meeting. A coalition of individuals opposing the deal, Reject Raytheon AVL, believes that the green economy will create far more jobs than the military industrial complex. See also:

Taylor Barnes, “'Honk for humane jobs': NC activists challenge subsidies for weapons maker,” Facing South/Responsible Statecraft, July 21, 2021; “From arms to renewables: How workers in this Southern military industrial hub are converting the economy,” Southerly, October 27, 2020; and “Trump Administration Quietly Adds Foreign Arms Sale to List of ‘Essential Work’ Some defense workers say their lives shouldn’t be risked to make weapons,” In These Times, May 19, 2020

During the Q&A, guest commentator William Hartung, Director of the Arms and Security Program of Center for International Policy, discussed the green economic transition as a political issue (41:40). He commented that, in Congress, supporting the military industrial complex for job creation is the path of least resistance. When asked by Lillian how defense contractors and weapons manufacturers play up job creation in their lobbying and advertising, William described how jobs are put up front in defense industry advertising, and how defense industry lobbyists use jobs as a lobbying tool to encourage representatives to support increased funding for these companies. He also outlined his research finding that job creation numbers are often overinflated, in particular those associated with arms sales to Saudi Arabia.

The panel ended with optimistic, forward-looking remarks from panelists. Lillian emphasized the importance of coalition advocacy and solidarity among those who envision a world in which the manufacture, sale, and use of arms and weapons of war has decreased. Indeed, Rich remarked, “The next generation of advocates are even less constrained by convention than those that came before them. The goal isn’t simply to fix our world, but to build a better new one.”

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Los procesos de desarme y el control de armas deben de tener en el centro de sus acciones a las personas

4/27/2021

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Parece que es evidente la consigna del título de este artículo, ya que el desarme humanitario busca reducir el sufrimiento humano. Sin embargo, a lo largo del tiempo, nos hemos dado cuenta de la necesidad de recordarlo, tanto al momento en que se hacen las negociaciones multilaterales o se emprenden nuevas iniciativas locales, es importante poner sobre la mesa que todo lo que se hace es por y para las personas que son constantemente afectadas por la violencia armada en el mundo.

¿Por qué lo digo? Durante el 2020, vimos el fortalecimiento de múltiples iniciativas dirigidas desde el seno de las Naciones Unidas para incorporar las voces de jóvenes de todo el mundo, que nos ayudaran a evidenciar que las dinámicas de la violencia armada son diferentes de acuerdo con los contextos en los que surge, así como en los efectos diferenciados dentro de una misma población. De igual manera, el impulso de la sociedad civil no se hizo esperar, con la creación de redes como la Global IANSA Youth for Gun Control, en el fortalecimiento de la iniciativa Youth Network parte de la Campaign to Stop Killer Robots, o las Voces Emergentes del Forum on the Arms Trade.

La urgencia del llamado de “cese al fuego” mundial por parte del Secretario General durante la pandemia por COVID-19, nunca había sido más urgente, pues la emergencia sanitaria estaba evidenciando lo frágiles de nuestras estructuras sociales y si, constantemente, nos encontramos señalando cómo ponemos en condiciones de vulnerabilidad a las poblaciones migrantes, a los niños, niñas y adolescentes, a las mujeres y las personas de la comunidad LGBTQ+, entre otras, entonces el coronavirus nos mostró cuán profundamente estaban arraigados los daños y que tan cotidianamente decidíamos ignorarles.

Ahora, sólo tenemos que voltear ligeramente la vista para percatarnos de los resultados catastróficos de la violencia armada bajo una pandemia de la que no se preveían los alcances inmediatos, ni las secuelas.

Pero no debemos de sucumbir ante la desesperación. Todas estas circunstancias, nos dan la oportunidad de no seguir repitiendo los mismos discursos en los mismos espacios, sino de abrir canales para escuchar otras visiones y acciones, replantearnos los ejercicios democráticos en donde no sólo es necesario hacer lo que dicen “las voces de las mayorías”, sino que, desde el impulso feminista que también ha permeado nuestro mundo contemporáneo, incluir la palabra de las mal llamadas “minorías” y de aquellas “formas” que tradicionalmente se han ignorado o subestimado.

¿Cómo vamos a entender cuáles son las necesidades de la población objetivo, sino les entendemos como sujetos activos de derechos? Dejemos que los cantos de Brasil de Linda Quebrada y Jup do Bairro nos inunden los sentidos para detectar qué nos falta por atender, que las historias como La Llorona de Guatemala nos cuente de dónde venimos, o que los Scouts nos cuenten por qué los #RobotsAsesinos son parte de una realidad que pronto nos alcanzará en América Latina.

Esta semana del 26 al 29 de abril se llevan a cabo los Grupos de Trabajo del Tratado sobre el Comercio de Armas, de cara a la Séptima Conferencia de Estados Partes del Tratado, que se espera suceda del 30 de agosto al 03 de septiembre de este 2021. Desde la sociedad civil y la Academia estaremos dando seguimiento a las discusiones que se pondrán en las mesas de trabajo para la prevención del desvío de armamento convencional, la promoción y adopción de medidas que transparenten las transferencias de estas mercancías entre los Estados, así como la búsqueda de formas de implementar las disposiciones del Tratado de manera aterrizada al interior de cada uno de los países de acuerdo a sus circunstancias particulares. Todo esto en aras de que, en algún momento, los Estados acuerden comprometerse para avanzar en el camino de evitar el sufrimiento humano.

Particularmente, el Tratado sobre el Comercio de Armas abre la oportunidad de revisar las exportaciones que se realicen por parte de los países, resaltando la importancia de evitar violaciones al derecho internacional de los derechos humanos[1], así como la violencia por motivos de género[2]. Y es precisamente por los efectos tan convulsos que ha evidenciado la pandemia de COVID-19, que fortalecer y apoyar los pasos de los liderazgos de la sociedad, pero especialmente el de las poblaciones que están siendo afectadas de manera diferenciada, se vuelve pertinente.

Estos ejercicios no se deben de ver de facultad exclusiva de los países, sino que es necesario voltear al interior y recuperar cuáles son las preocupaciones de la gente y entonces sí, ampliar el espectro de protección que nos brinda el contenido de este Tratado en particular. La violencia con armas de fuego es un tema primordial en nuestra región.

Como Cindy Kamtchoum lo señaló durante las sesiones de octubre de 2020 de Primer Comité de la Asamblea General de las Naciones Unidas: “Escuchen nuestras voces, inclúyanos en los procesos de toma de decisiones que, literalmente, determinan si viviremos.”

[1] Tratado sobre el Comercio de Armas, Asamblea General de Naciones Unidas, 2 de abril de 2013, art. 7.1.b) ii)
[2] Ibid., art. 7.4.

Montserrat Martínez Téllez is research consultant on gender and armed violence for 24-0 Mexico,

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Weapons for peace? What to expect in 2021 from the EU’s new ‘peace facility’

1/11/2021

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This is the fourth blog post in a series looking at an array of issues in 2021 related to weapons use, the arms trade and security assistance, at times offering recommendations.

Roy Isbister

Frank Slijper

Just before the close of 2020, EU member states’ foreign ministries reached agreement over the set-up of the European Peace Facility (EPF) to pay for "external action having military or defence implications". It is meant to "swiftly respond to crises and conflicts" and "to empower partner countries". Its initial focus is expected to be on Africa, however its potential reach is global. While only half the size of its original ask (due to some nervousness about the basic concept and larger budgetary constraints), the EPF still provides for € 5 billion to be spent over the next seven years, including on controversial ‘train and equip’ packages. By establishing this as an ‘off-budget’ facility, member states are circumventing EU treaties under which the EU budget cannot be used to provide arms. The type of arms envisaged as being suitable for transfer under the EPF include those frequently causing the most harm and most at risk of misuse and diversion in fragile contexts, such as small arms and light weapons (SALW) and their ammunition, armoured vehicles, etc.

Civil society organisations, including ours, have long argued against the EPF, as recent history suggests that providing weapons and ammunition to security forces in fragile states is more likely to exacerbate than solve local and regional conflicts. As we argued, along with twelve other organisations in a 2019 letter to the EU foreign policy chief, and in a November 2020 statement from 40 civil society organisations from around the world, we have seen little evidence that military-focused ‘train and equip’ efforts lead to improved peace, justice, and development outcomes. On the contrary, experience demonstrates that this type of military assistance can harm peace and development and rarely provides its intended leverage. It often fails to address the underlying drivers of conflict and can instead be counterproductive, leading to unintended consequences, such as the violent repression of peaceful civil society actions, furthering the impunity of military forces, fomenting military-backed violence and conflict, and corruption.

The initial focus of the EPF is likely to be in Africa, possibly in the Sahel, where Burkina Faso, Chad, Mali, Mauritania and Niger have set up a joint force known as the G5 with 5,000 troops to confront jihadists. Somalia and the Central African Republic have also been mentioned as potential beneficiaries.

Whereas German Foreign Minister Heiko Maas calls the EPF “a fundamental investment in peace and stability that will allow the EU and its partners to effectively and flexibly address international crises”, there is reason to be wary that the EPF will be used to advance the interests of EU member states more than and potentially at the expense of the security of the people affected by crises. Time and again we have seen examples of military aid transferred to further European geopolitical interests rather than in support of the human security needs of people in fragile states.

Recent statements by key European figures strengthen such fears. Speaking about the EPF in February 2020, EU foreign policy chief Josep Borrell stated: "We need guns, we need arms, we need military capacities and that is what we are going to help provide to our African friends because their security is our security. […] We are not going to grow, we are not going to invest, we are not going to create jobs without stability". In December 2020, President Emmanuel Macron of France (which has been a leading proponent of the EPF) said in a joint press conference with Egyptian President Abdel Fattah al-Sisi that he “will not condition matters of defence and economic cooperation on ... disagreements (over human rights).” While this was not in the direct context of the EPF, it nevertheless raises obvious and significant concerns about how the EPF will be used.

Beyond its fundamental conceptual failings, the EPF as it stands now also has numerous operational shortcomings. These include a lack of transparency, both in decision-making as well as public reporting; weak and permissive safeguards against ‘misuse’; a lack of meaningful involvement of local people affected by crises and insecurity (in support of whom EPF actions will ostensibly be undertaken), at any point in the process; and a weak due-diligence framework to ensure the Facility’s activities are conducted in accordance with international law.

Instead of establishing a strong framework of safeguards within the EPF itself to pritoritise the protection of civilians and their rights, member states have instead chosen to push decisions on these matters downstream, such that they will be decided politically for each assistance measure under the Facility. This means that maintaining high standards on arms transfers, strict application of international law and effective oversight will be vulnerable to political pressure and excessive secrecy.

The unresolved weaknesses of the EPF are risking the EU’s self-styled reputation as a force for good. However, little resistance to its adoption is expected from either the European Parliament or national parliaments, if they have a say at all. Therefore, as so often, it seems it will fall to civil society to hold member states to account.

Roy Isbister heads the Arms Unit at Saferworld, based in the United Kingdom, leading their work on conventional arms.

Frank Slijper leads the Arms Trade project at PAX, based in the Netherlands.

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Judicial Review redux in the UK over sales to Saudi Arabia and Coalition

1/6/2021

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This is the third blog post in a series looking at an array of issues in 2021 related to weapons use, the arms trade and security assistance, at times offering recommendations.

Sam Perlo-Freeman

It seems like we’ve been here before. This year, the Campaign Against Arms Trade (CAAT) hopes to take the UK Government to court, seeking a Judicial Review over its decision last July to continue arms sales to Saudi Arabia and its coalition allies in the war in Yemen, in spite of the devastating human toll exacted by that conflict, and the overwhelming evidence of gross and repeated violations of International Humanitarian Law (IHL) by the Coalition.

Didn’t CAAT just win a case like this a year or so ago? Yes, indeed.

The story so far: In June 2019, the Court of Appeal, overturning a previous High Court decision, ruled that the process by which the government made decisions on export licences to Saudi Arabia for use in Yemen was “irrational and unlawful”. Specifically, Criterion 2c of the government’s Consolidated Criteria on arms exports states that an export licence shall be refused if there is a “clear risk” that the equipment “might be used” for serious violations of IHL. Yet, the government had not even attempted an assessment of past patterns of violations of IHL by Saudi Arabia and the Coalition. Instead, it had relied on its ongoing engagement with and training of the Saudi government and military to conclude there was no “clear risk”.

The Court of Appeal rejected this absurd position, that a previous record of violations was irrelevant to an assessment of future risk, and the government had to stop issuing new licences to Coalition states for possible use in Yemen, and to retake all past licencing decisions on a lawful basis. (However, existing licences, including indefinite Open General licences, were not cancelled, allowing BAE Systems’ extensive support for the Saudi Air Force to continue unabated).

A year later, in July 2020, the government announced that it had completed its review, and concluded that all was well, there were only a “small number” of possible violations of IHL among all the hundreds of incidents assessed, and that these were “isolated incidents” that did not constitute any “pattern”. Therefore, there was indeed no “clear risk” of future violations, and that arms sales could continue without any concern for the potential civilian toll this might exact.

It is this latest decision that CAAT is challenging. The idea that there have only been a “small number” of violations of IHL flies in the face of a huge body of evidence from UN experts and Yemeni and international NGOs. These organisations have used highly rigorous methodologies and sources, and have access to on-the-ground witnesses, which the UK government does not. The evidence includes repeated bombings of residential areas, schools, hospitals, market places, agricultural targets, and many others, usually with no evidence of any nearby military target . According to the Yemen Data Project, almost a third of the thousands of Coalition air strikes since the bombing began in 2015 have struck civilian targets. The “patterns” of violations are plain to see.

The government have provided only the barest outline of how they have reached these, on the face of it, absurd conclusions. They have not said what constitutes a “small number” of cases, or what they mean by a “pattern”, only that the incidents occurred “...at different times, in different circumstances and for different reasons”.

The next stage of this saga – which started with CAAT’s initial application to the High Court in 2016 – is for CAAT to seek permission for a new Judicial Review - “JR2” - of the government’s review of licencing in response to CAAT’s victory in the original Judicial Review. This starts again with the High Court, and could yet go all the way to the Supreme Court. (For those not familiar with the UK court hierarchy, check this). While the full Grounds of CAAT’s application are subject to legal confidentiality, the basic premises are straightforward:

1) We challenge the conclusion that there are only a “small number” of cases of violations of IHL, based on the huge volume of evidence above.

2) We likewise challenge the conclusion that there is no “pattern” of violations.

3) We argue that, even if there were no “pattern”, this would not be sufficient to conclude that there is no clear risk of future violations. Even a single incident could constitute a serious violation of IHL, and there can very well be a risk of further “isolated” incidents even so.

Since we know so little about the government’s methodology, or even the details of their conclusions, which they say must be kept secret for reasons of national security, we have no idea what evidence the government may or may not have to support its conclusions. If we are granted permission for JR2, most of this evidence will have to be heard in Closed session, where CAAT will be represented by security-cleared Special Advocates, who cannot disclose the content of the sessions to CAAT or our regular lawyers.

We do not know, therefore, what secret evidence the government might bring to these closed sessions in an attempt to justify their conclusions. But we find it hard to believe that there is anything that could reasonably gainsay the vast weight of evidence from so many credible and respected sources.

The way it appears to us is that, whatever the evidence, and whatever courts have said about previous decision-making processes, the government is determined to find a way to interpret things that allow them to maintain its relationship with the UK’s overwhelmingly largest arms customer, Saudi Arabia, whatever mental and legal gymnastics this may require.

We hope that the courts will exhibit similar scepticism. The government must respond to our Grounds for Judicial Review by January 22nd, after which the High Court will decide if, on the basis of these submissions, we have a case. If not, we may still seek a hearing to decide if the case may proceed. If JR2 does get the go-ahead, it will be months yet before it comes to court.

The case, as they say, continues.

Sam Perlo-Freeman is Research Coordinator at the Campaign Against Arms Trade.

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Victim Assistance: what can we expect in 2021?

1/5/2021

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This is the second blog post in a series looking at an array of issues in 2021 related to weapons use, the arms trade and security assistance, at times offering recommendations.

Wanda Muñoz

Assistance to victims of antipersonnel mines and cluster munitions has been constantly evolving since it first was included as an obligation in Article 6.3 of the Mine Ban Treaty.

For instance, it is now agreed that:

Victim assistance (VA) is a holistic process and set of services that includes health, rehabilitation, psychosocial support, education and social and economic inclusion.
VA should not discriminate among survivors of different weapons, or between them and people with impairments from other causes; and it should be planned, implemented, monitored and evaluated with the full participation of survivors and other people with disabilities and their representative organizations.
VA should include and respond to the needs and rights of survivors, the families of those killed and injured, and affected communities; and it should incorporate gender, age and diversity considerations.
VA should be incorporated into larger frameworks related to the United Nations Convention on the Rights of People with Disabilities (UNCRPD) and the Sustainable Development Goals (SDGs), among others, in order to be sustainable. For this strategy to be effective, it should incorporate referral services and monitoring mechanisms that ensure that survivors are effectively accessing their rights.

With this in mind, what developments can we expect on victim assistance in 2021?

We will see more and more research by survivors’ organizations. Research by the Afghan Landmine Survivor Organization (ALSO) and Fundación Red de Sobrevivientes de El Salvador on the impact of COVID, and an ongoing project by the Latin American Network of Mine Survivors on armed violence, are excellent examples and should continue to be supported by the international community.

The rights of people with disabilities, including survivors, in situations of emergency, will be addressed more specifically thanks to Action #40 of the Oslo Action Plan. State Parties to the Mine Ban Treaty should report on measures to ensure people with disabilities including survivors participate in, and benefit from, safety and protection programs in situations of conflict, humanitarian emergencies and natural disasters. In this regard, if State Parties to the Convention on Cluster Munitions want to facilitate synergies and ensure clarity that all survivors have the same rights, a similar Action should be included in the Lausanne Action Plan.

Digital accessibility will be further developed and normalized due to the ongoing movement and travel restrictions because of the COVID-19 pandemic. As more and more communications go online, and more diverse people connect via electronic platforms and services, everyone -including those involved in victim assistance- should think about how to make online communications accessible to people with different types of impairments through assistive technologies such as screen readers, magnifiers, captioning and transcriptions. The captioning and presence of a sign language interpreter in the VA meetings organized by the Implementation Support Unit of the Geneva International Center for Humanitarian Demining is an excellent example (and the captioning is useful too for those of us – the majority in those meetings- for whom English is not our mother tongue!). More thought needs to go into how we can ensure that communication technologies can be made accessible to those that are more marginalized and who often live in rural and remote areas; and to those with multiple impairments, such as deafblind persons. This can be vital, for instance, to contact essential services in cases of domestic violence; to ask for help during natural disasters; to have access to peer to peer support; or to get information about how to access rights and services, more generally.

Age and gender approaches will become clearer in the practices and in the reports of State Parties; and gender-based violence against women and girls with disabilities may start getting onto the table. It is a major issue that should be addressed if we really want to work towards gender equality. Indeed, UNFPA has reported that girls and women with disabilities face up to ten more time more sexual violence than those without disabilities! And, as we all know, the situation has been exacerbated during the pandemic. Gender-based violence was already brought up by women survivors and activists with disabilities from Pakistan and Nicaragua at the Jordan "Fostering Partnerships: Global Conference on Assistance to Victims of Anti-Personnel Mines and Other Explosive Remnants of War, and Disability Rights" conference in 2019, for instance; and briefly discussed with Ms. Soledad Cisternas, UN Special Envoy for Disability and Accessibility, at a recent meeting on victim assistance.

Meaningful synergies between the Mine Ban Treaty, the Convention on Cluster Munitions, the UNCRPD and other frameworks will continue to be strengthened. The “VA Community” now systematically includes organizations and institutions working on the rights of people with disabilities in all discussions. But it is fundamental to underline that such synergies should go hand in hand with referral services and monitoring mechanisms that can effectively make sure that survivors are truly accessing services through these other frameworks. This is particularly crucial when international financial support dedicated to VA continues a downward trend; and when there seems to be a lack of evidence that suppressing VA funds and targeted programs without such referral services and monitoring mechanisms actually works. Evidence-based research should be carried out to evaluate to what extent survivors are effectively accessing their rights through larger frameworks; and what mechanisms need to be in place for these synergies to work- based on field experience and on the actual experience of survivors themselves.

In 2021, those of us interested or working on victim assistance can also look forward to:

The First Meeting of State Parties of the Treaty on the Prohibition of Nuclear Weapons, which should address victim assistance;
The work of Human Rights Watch and Harvard Law School International Human Rights Clinic on the victims and the consequences of the use of incendiary weapons; and
The international process related to the use of explosive weapons in populated areas, which should include strong victim assistance considerations.

Undoubtedly, 2021 will also be a challenging year. But It should be one that continues the collective work to ensure we build a more inclusive, accessible world for all – including women, girls, men and boys who are survivors, families of those killed and injured, and the communities affected by all types of weapons.

Wanda Muñoz is a member of SEHLAC in Mexico and an inclusion, victim assistance, and humanitarian disarmament expert.

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Early Actions to Watch for a More Responsible U.S. Arms Trade Policy

1/4/2021

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This is the first blog post in a series looking at an array of issues in 2021 related to weapons use, the arms trade and security assistance, at times offering recommendations.

Jeff Abramson

We should know almost immediately if the next U.S. administration will take a more responsible approach to the arms trade. That's because a 30-day Congressional review period on the sale of 7500 precision-guided munitions to Saudi Arabia will end just after the expected January 20 inauguration of the next President. At that point, the new Biden administration would be able to issue licenses for the sale (unless Congress quickly takes blocking actions before then). If Biden keeps to expectations, he will not issue those licenses. That would be consistent with his October 2 pledge:

Under a Biden-Harris administration, we will reassess our relationship with the Kingdom, end U.S. support for Saudi Arabia’s war in Yemen, and make sure America does not check its values at the door to sell arms or buy oil.

If Biden truly wants to uphold values and make U.S. weapons recipients accountable for their actions, his administration could also take steps to slow and suspend major weapons sales to the United Arab Emirates. Less than a month ago, nearly all the Democrats in the Senate made clear their opposition to much of a $23 billion arms package to Abu Dhabi that the Trump administration is attempting to rush forward in its closing days. The UAE, which remains a key partner in the Saudi-UAE coalition in Yemen and is violating the UN arms embargo on Libya, simply should not be receiving U.S. arms at this time.

At present, there is not a clear indication from the incoming President on what he will do with these time-sensitive sales. Whether any of the necessary letters of offer and acceptance (LOAs) have been signed with the UAE that would put contracts in place is not clear, despite Trump administration efforts to move ahead. If not, Biden can delay concluding them. If some LOAs are signed, he can also hold off on delivery, especially for armed drones, precision-guided and other munitions that could be transferred most quickly. While the Abraham Accords offer great promise for improving regional relations in the Middle East, the reward for the accords should be peace and a lessening of prospects for conflict, not the influx of tens of billions in new weaponry.

How the U.S. approaches arming yet other countries in the Middle East, including Egypt, Israel, Qatar, Bahrain and more, will be closely watched as the Biden team has indicated a desire to rejoin the Joint Comprehensive Plan of Action (a.k.a. the Iran nuclear deal). Fueling regional arms races could make that more difficult.

Biden has also promised to reverse the Trump administration policy that transferred export oversight for semi-automatic and many other small arms to the Commerce Department, which ended Congressional transparency into such sales. Quick steps to return to the previous policy would also show his administration seeks a more responsible arms trade approach.

As the Obama presidency was nearing its end in late 2016 and early 2017, his administration held back on weapons sale to Saudi Arabia, Bahrain, and Nigeria that the Trump administration later moved forward. It will be promising if Biden renews concerns about arms sales to many regimes with highly problematic human rights records that Trump has supported, including to the Philippines (amongst a long list of countries).

Even more telling would be actions to again support the Arms Trade Treaty. An easy early first step would be for the Biden administration to retract the letter Trump sent to the United Nations in 2019 that denied legal obligations from the United States' 2013 signature. Further efforts to honor U.S. signature to the ATT, including to seek ratification of the treaty (as embedded in the 2020 Democratic party platform), may take longer but would also show U.S. dedication to again align itself with nearly all its allies in promoting global norms on responsible arms trade.

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

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

7/1/2020

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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.

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

5/26/2020

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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.

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

1/13/2020

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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

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Event Recap: Legal Approaches to Reduce Gun Violence -- Mexican and U.S. Strategies, August 18, 2021

Event Recap: Divestment and Transition, July 21, 2021

Los procesos de desarme y el control de armas deben de tener en el centro de sus acciones a las personas

Weapons for peace? What to expect in 2021 from the EU’s new ‘peace facility’

Judicial Review redux in the UK over sales to Saudi Arabia and Coalition

Victim Assistance: what can we expect in 2021?

Early Actions to Watch for a More Responsible U.S. Arms Trade Policy

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

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

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

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