Green Lantern: UNGA Informal Debate on ‘Harmony with Nature”

23 Apr

As a nod to Earth Day 2013, the UN General Assembly was the setting for an ‘informal debate’ focused on ways to more effectively promote planetary ‘harmony’.

A half-full conference room listened to a short presentation from the UN Secretary-General Ban Ki-moon and more passionate speeches by the UN General Assembly President, Mr. Vuk Jeremić of Serbia, and by Ministers from Bolivia and Ecuador, two ‘left-leaning’ governments that tend to exercise a great deal of control over national economic outcomes.

There were some valuable reminders shared by these four speakers during what was a bit of an ideologically-imbalanced opening session.   From our own organizational standpoint, it is good to be reminded that consumption in the developed world is largely optional and has increasingly deleterious impacts on natural health in all global regions.  In addition, we should recognize that too much of the ‘green’ movement has been co-opted by those who seek to institutionalize levels of developed world consumption while attempting to ‘manage’ levels of growth in less developed nations.

At the debate, there were also renewed calls for a ‘universal declaration’ of the rights of nature tied to an alleged, if helpful, ‘right to recovery’ for nature that has been ravaged by a preponderance of short-term economic resource use disconnected from any reasonable capacity for future generations to access (and preserve) the same resources.

Our economic situation has been increasingly dark in recent times – inequities and shortages abound, as do the toxic effects of our mindless exploitation.    While it is not yet clear how ‘nature rights’ could be properly identified and enforced, nor is it clear how economic reform would result in locally based economies rather than state structures attempting to micro-manage large scale economic development, it is critically important to shine a light on alternatives that are urgent, viable and fair.  Needless to say, we don’t have sufficient alternatives at present. We need to keep the lantern lit as much as possible.

An office like ours has very limited access to deliberations on economic futures.   From our experience in meetings such as this one, it is clear that States too have limited options, more limited than they generally acknowledge.  Economic decisions, more and more, take place beyond the reach of states in board rooms and investment houses.  Whatever one thinks of “Occupy’ and other movements to expose economic inequities, including in economic decision making, it is clear that this current system is being driven by self-interested and unaccountable forces.   If such forces were merely accumulating wealth, there would be sufficient cause for general concern.  That accumulated wealth is driving so much planetary dysfunction should be cause for the loudest general alarm.

Simply put, there are biological limits to economic growth.   And those limits are not being acknowledged, let alone respected.   As one of the ministers from Ecuador wondered aloud and with some urgency, “Who precisely is going to bell this cat?”  How will that be accomplished? The cat has a defensive, nasty disposition and sharp claws.  It will take some real courage to bell it.  Until that happens, though, the rest of us will largely remain ignorant (willfully or otherwise) of the ways that our lives are about to become more painful and toxic than they need to be!

Our collective disenchantment with our economic system seems to grow daily.   At the same time, our resistance to economic change borders on the neurotic.   We have deep addictions to unsustainable and largely optional patters of consumption that remain stubborn in their remedial application and are also quite devastating to our long-term biological prospects.

On Earth Day, we need to shine more light on the structures and choices that undermine a ‘green’ agenda – unequal economic access, unsustainable (and largely optional) patterns of consumption, and more.  We also need to renew our connections with some of our more ‘intimate’ ecological processes – how our food is grown, where our drinking water comes from, what happens to our waste when we are ‘done’ with it.

Our ignorance of basic environmental processes as well as our insistence that we own everything we use are both planet-defeating attitudes. Our preference for owning a neighbor’s land to having a neighbor undermines community integrity.   Our relentless pursuit of non-essential consumer goods represents a psychologically defective, wasteful application of time and resources.   Our ability to simultaneously express a deep love for our children while contributing to the demise of the system that supports their lives is a dangerous inconsistency.  Clearly, we must continue to shine a light on these and other discontinuities, and then organize a viable, participatory strategy to overcome them.

 

–Dr. Robert Zuber

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UNDC 2013: Memory Lane

19 Apr

Among the proposals emerging from this year’s session of the UN Disarmament Commission (UNDC), there were two that particularly caught our eye. The Swiss proposals presented during the opening exchange of views calling for more involvement by experts in the work of the UNDC is one that Global Action to Prevent War and Armed Conflict (GAPW) has discussed in other commentary and fully supports in practice.

The other proposal that we wished to highlight was provided in a working paper by the Egyptian delegation, often among the most thoughtful delegations on disarmament matters. While their proposals specific to both substantive working groups will no doubt help to frame discussions during the third and final year III of the current UNDC cycle, the opening paragraphs of their paper (A/cn.10/2013/WP.1) are perhaps the most actionable in terms of their implications for the ongoing deliberative potential of the UNDC.

Paragraphs 1 and 2 of the Egyptian paper highlight an ongoing problem for both the UNDC and many other parts of the UN system — a lack of institutional memory.  Given the turnover in diplomatic missions and ODA staff, and given the lack of interest in or invitations to NGO experts with a deep interest in supporting the efforts of the UNDC (Reaching Critical Will and GAPW are generally the only NGO monitors in the room — when we are allowed to be there), it is difficult if not impossible to keep track of what the Egyptian working paper calls “unfinished business,” including both proposals not implemented and consensus not reached.   Aside from information and commentary posted on the Reaching Critical Will, there has been little effort to summarize key discussions, insights or proposals.   As RCW recognizes, it is difficult to “nurture” (to quote the Egyptian paper) new ideas when you can’t remember what those ideas are, let alone track their development.

Delegates with a longer term engagement with the UNDC will recognize the degree to which deliberations have followed a well-worn path. Moreover, the nature of involvement with the UNDC has changed over the years, with fewer delegations consisting of experts from Geneva and more and more of the deliberative burdens falling on already overworked diplomats from New York missions. There has been less and less energy around the UNDC in recent years, which to our mind requires some urgent remedial response. GAPW would like to endorse, consistent with the Swiss and Egyptian proposals, that the UNDC promote side events in partnership with NGO experts to more thoroughly investigate substantive and procedural matters that are germane to the mandate of the UNDC but also at times impede its progress.

It may be, as some NAM-affiliated delegations have suggested, that the UNDC will require a more robust overhaul, perhaps within the context of another Special Session on Disarmament (SSOD IV). But until that issue is resolved, the UNDC would do well to establish procedures for reporting and stakeholder engagement that can preserve institutional memory and allow interested observers in and out of government to track both UNDC progress and impediments over time.

There are, as Egypt notes, some fairly simple ideas that can enrich the experience of the UNDC for both participants and observers.  Having more sets of trusted eyes in the room for future UNDC sessions would certainly help ensure that the best of the Commission deliberations can find more suitable, trustworthy venues where they can be studied, assessed and even acted upon.

 

–Dr. Robert Zuber

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UN Disarmament Commission Concludes Without Consensus Recommendations: Moving Towards Final Year in Review Cycle

19 Apr

The UN Disarmament Commission (UNDC) concluded the second year in its three-year cycle on Friday, 19 April without adoption of consensus recommendations or guidelines. Much of the discourse during the concluding plenary had a positive tone with delegations noting that the work done in the 2013 substantive session will “set the stage” for progress next year, and in his concluding remarks, Chair Ambassador Christopher Grima of Malta called the three-week session “productive” and rich in discussion. Still, it is discouraging that the session could not come to more concrete conclusions.

The 2013 UNDC adopted a procedural report took account of the session’s organization of work, documents submitted by the Secretary-General (the annual report of the Conference on Disarmament) as well as by member states (a working paper from the delegation of Egypt), as well as the reports of the two subsidiary working groups. The delegations of Iran and Algeria underscored that converting the status of the Chairman’s non-papers to a working paper does not set a precedent for future sessions nor does it enjoy consensus. Indeed, both reports of the subsidiary working groups clearly noted that all working papers “do not represent negotiated positions or command consensus and should not set a precedent.”

The culture of stalemate across the UN disarmament machinery cannot afford any further delays.  While the progress made in both working groups of this session on the development of working papers is clear insofar as there is some substantive work upon which to build, it is discouraging that the international community must endure yet another delay of concrete movement forward in any part of the failing multilateral disarmament machinery. As noted by High Representative for Disarmament Affairs Angela Kane in her opening remarks three weeks ago, the UNDC will be judged not according to its words, but its quality of its outcomes.  Once again, without adoption of recommendation of guidelines, there is little on which to positively assess the UNDC beyond yet another year of national statements and non-consensual working papers.

In the 20 years since its re-establishment in 1979, the UNDC was able to reach consensus a total of sixteen times to adopt guidelines or recommendations on a wide variety of disarmament issues. However, most strikingly, all of these consensus outcomes came before 1999 illustrating that any momentum generated in the UNDC has been elusive at best over the last fourteen sessions. Some combination of lack of political will and immoveable working methods surely accounts for the paralysis that continues to plague the UNDC, a paralysis also apparent in the inability of the Conference on Disarmament to adopt a program of work for more than fifteen years. While a fourth Special Session on Disarmament (SSOD IV) could dissolve and re-establish the UNDC to revamp its working methods, mandate, or perhaps both, the short-term provides only the opportunity to make one last stitch effort at consensus at next year’s 2014 substantive session building on the progress made in the working group papers presented by this year’s Chairpersons.

In addition to the substantive discussions in the two working groups, discussions of working methods arose. As noted by several delegations during the general exchange of views at the opening of this year’s session, the lack of willingness to adapt working methods to better address the lingering stalemate as well as the UNDC’s inability to reach consensus recommendations are worrisome trends. The proposals from the Swiss delegation to revitalize the UNDC’s working methods (limiting the agenda to one item, opening deliberations to experts, and submitting an annual report to the UN General Assembly regardless of the session’s outcome) must be more seriously considered if the UNDC is to move away from the road to irrelevance on which it is headed. Ambassador Grima agreed that the working methods would need to be reviewed for both how it conducts deliberations and how even limited success can be better reported after each session. Moreover, Ambassador Grima said that the application of consensus in the UNDC should be reflected upon.

Working Group I:  Nuclear Disarmament and Non-Proliferation

The agenda item on nuclear disarmament and non-proliferation, an item that is mandated to be addressed at every session of the UNDC, once again saw divergence of views. Working Group I (WGI), chaired by the Ambassador Naif bin Bandar Al-Sudairy of Saudi Arabia, adopted a report outlining its procedures over the last three weeks.  Other documents presented to WGI included a working paper submitted by the US entitled “Preventing the use of nuclear weapons” (WP1), and two working papers submitted by the Chairman entitled “Recommendations for achieving the objective of nuclear disarmament and non-proliferation of nuclear weapons” (WP2), and “General guiding elements for achieving nuclear disarmament and non-proliferation” (WP3), respectively.  Also discussed in WGI was a compendium text of comments on the working papers of the Chairman (CRP2). CRP2 is a compilation of proposals made by member states during the consultations. It is clearly noted in the report that the working papers “could form a basis for further deliberations for the formulation of consensus recommendations at the conclusion of the Commission’s three-year examination of agenda item 4 at its substantive session in 2014.”

WP2 outlines so-called “recommendations” for achieving nuclear disarmament and non-proliferation and recalls several current initiatives to take forward multilateral negotiations, including the open-ended working group (OEWG) in Geneva, the group of governmental experts (GGE) that will make recommendations on possible aspects of a Fissile Material Cut-Off Treaty (FMCT), and the upcoming September 2013 High-level meeting of the UNGA on nuclear disarmament. Also taken up in this document is the issue of the Middle East Weapons of Mass Destruction Free Zone (WMDFZ), for which a 2012 conference was not convened as mandated by the 2010 nuclear Non-Proliferation Treaty (NPT) Review Conference outcome document. The DC document calls for such a conference to be convened “without further delay as soon as possible.” WP3 on “guiding elements” reconfirms the mutually reinforcing relationship between nuclear disarmament and non-proliferation and the importance of multilateralism in achieving nuclear disarmament. This document also “expresses grave concern about the current status of the disarmament machinery, including the lack of substantive progress in the Conference on Disarmament for more than a decade.”

The working paper presented by the US is a disappointing review of the US’ nuclear weapons policy underscoring the importance of a “future, step-by-step” approach to disarmament. The paper calls this approach “the only practical path” towards complete nuclear disarmament as there is “no quick fix.” The paper goes on to highlight the US and Russian new START commitments as well as the proliferation risks associated with the DPRK, Iran, and Syria, but does little on elaborating how disarmament obligations will be met in a serious and timely manner. The Comprehensive Test Ban Treaty (CTBT) and a FMCT are identified as “essential multilateral steps for nuclear disarmament,” both of which do little to further disarmament but instead have a distinct non-proliferation focus. Lastly, the US paper underscores the Nuclear Security Summit process as well as the Permanent 5 (P5) process as contributors to “strengthening global architecture that governs nuclear security” and “breaking new ground” on engaging new issues related to disarmament, non-proliferation, transparency, and confidence-building measures. However, it is still unclear what precisely a “step-by-step” approach would entail or what “new ground” is being broken. Such P5 declarations are often clouded in vague reiterations of previously accepted NPT commitments and the modernization programs currently being undertaken in all the nuclear weapon states further undermines the international community’s pursuit of the goal of nuclear abolition.

The working paper provided by the delegation of Egypt (WP1) considered by the committee as a whole noted that the League of Arab States is concerned about the issue of the Middle East and “expects a conclusion highlighting ways to ensure the implementation of the 2010 Review Conference commitments and to convene a conference on the establishment of a zone free of nuclear weapons” in 2013. The fact that the Middle East conference was not convened during the 2012 calendar year will continue to be an issue of contention in all fora of the disarmament machinery as well as the upcoming NPT preparatory committee session in Geneva this coming week.

Working Group II: Confidence-Building Measures in the Field of Conventional Weapons   

Working Group II (WGII), devoted to confidence-building measures (CBMs) in the field of conventional arms, also adopted a procedural report and considered a working paper presented by Ireland on behalf of the European Union entitled “Practical confidence-building measures in the field of conventional weapons.” The Chairman, Mr. Knut Langeland of Norway, presented a non-paper that included principles as well as practical CBMs such as transparency and information exchange measures (the UN Register on Conventional Arms, the UN Report on Military Expenditure, the Programme of Action on small arms (UNPoA), and the International Tracing Instrument (ITI)), observation and verification measures, military constraint measures, and cooperation and assistance. The previously mentioned working paper from the delegation of Egypt also addressed the issue of CBMs in conventional weapons measures noting that any CBM process must address overproduction, increased levels of stockpiling and mutual accountability, as well as principles in the UN Charter such as references to crimes of aggression and foreign occupation.

The WGII Chairman’s non-paper, drafted under Mr. Langeland’s own responsibility, also references existing instruments in the field of conventional arms, such as the Convention on Certain Conventional Weapons (CCW), the Anti-Personnel Mines Treaty, the Convention on Cluster Munitions (CCM), as well as the recently adopted Arms Trade Treaty (ATT). The paper “encourages” member states to “consider signing and ratifying” the ATT after it open for signature on 3 June 2013. The working paper contains brackets and bold text that highlight the various proposals made during the working group’s consultations. Mr. Langeland noted that hopefully some parts of the non-paper illustrated areas for possible consensus and a basis for work next year.

Last chance in 2014

In an environment of low-yielding (if non-yielding) multilateral disarmament machinery, there is a growing intolerance for delay in any part of its operations. With another year of the UNDC passing without adoption of recommendations or conclusions, it is quite clear that it has not been fulfilling its role as the deliberative body of the machinery providing consensus recommendations and guidelines for consideration in the General Assembly First Committee.

The general sense of the session this year has been that its deliberations will provide “a good basis” for the formulation and adoption of consensus recommendations and guidelines next year in 2014. However, according to this line of argument, the last fourteen sessions of the UNDC have formed a “basis” for adoption of consensus recommendations or guidelines. Delaying yet another year does nothing to address the stalemate in the disarmament machinery, but does increase the stakes for next year’s session. The pressure is most certainly on to finally adopt consensus recommendations and end a fifteen-year UNDC drought.

 

–Katherine Prizeman

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The Third Review Conference of the Chemical Weapons Convention (CWC)

17 Apr

For the last two weeks (9-18 April 2013), states parties to the Chemical Weapons Convention (CWC) have been meeting at The Hague for the third CWC Review Conference. The CWC, adopted in 1993 and now comprised of 188 states parties, has been hailed a success by many disarmament civil society advocates and member states alike for setting a high multilateral disarmament standard. In particular, the CWC’s robust verification regime implemented through the Technical Secretariat of the Organization for the Prohibition of Chemical Weapons (OPCW) has been identified as the type of verification measure that should be required for all comprehensive and universal disarmament measures, namely a similar convention on nuclear weapons.

Secretary-General Ban Ki-moon was on hand to deliver opening remarks to the Review Conference and urged complete chemical weapons disarmament before the next meeting scheduled for 2018. Also noteworthy, non-governmental organizations addressed a CWC Review Conference for the first time in an official plenary setting.

The previous two CWC Review Conferences (Rev Con), as well as the current third session, are mandated by the Treaty itself to “undertake reviews of the operation of this Convention. Such reviews shall take into account any relevant scientific or technological developments.” This Rev Con, covered capably by colleagues at The Hague (see: cbw-events.org.uk for up-to-date and current analysis and summary), has seen the emergence of some several themes, some more contentious than others. As reported by colleagues present at the Rev Con, some of the important issues arising from the current debate include

Syria

As expected, the issue of the alleged use of chemical weapons in Syria has been treated at the Rev Con. The government of Syria, which is not a CWC state party, has requested that the Secretary-General investigate allegations of use by the rebel groups. The Syrian government submitted allegations of chemical weapons use by rebel groups on 20 May. However, the investigation has not yet taken place nor the investigating team dispatched to Syria. Allegations concerning both parties in the conflict have ultimately complicated and delayed the investigation. States parties have been debating how precisely to treat this issue in the forthcoming Final Document. It remains to be seen how this current issue will appear in the document.

Post-Destruction Era

As set forth in the Convention, all chemical weapons were to be destroyed within ten years of entry-into-force of the Treaty (29 April 2007) with a possible extension of five years. This original deadline has not been met. A “Final Extended Deadline of 29 April 2012” taken by the Conference of States Parties (CSP) in 2011 refers to the states parties Libya, Russia, and the United States that have not yet fully destroyed their remaining stockpiles. This decision requires that these possessor states report (albeit in closed sessions) to each regular session of the Executive Council on measures undertaken to accelerate progress or overcome problems related to destruction programs. As these issues of destruction are particularly sensitive, these discussions have been challenging to engage. Nevertheless, it has been argued by some NGO colleagues that it is not a lack of political will that has been inhibiting destruction and that states parties with existing stocks have, in fact, been working towards destruction. Rather, technical and economic reasons have been identified as the main contributors to the delay in destruction activities.

Furthermore, given that stakeholders are now discussing a ‘post-destruction era’, the future role of the OPCW is being debated. The responsibilities of verification, consultation, and cooperation will inevitably be shifted as universal destruction of all existing chemical weapons is fully realized over the next (hopefully) few years.

Advancements in Science and Technology

Article XI of the Convention concerning economic and technological development has also been addressed. Wide recognition that the CWC must keep pace with scientific and technological developments is clear and the work of the Scientific Advisory Board has been specifically underscored. Such “future-proofing” of the CWC is an important component of its long-term success in maintaining a world free of chemical weapons.

The CWC in the Context of Multilateral Disarmament Failures

The success of the chemical weapons regime is encouraging in the broader disarmament field that often struggles with a lack of consensus and a deficit of political will necessary to eliminate such egregious weapons of mass destruction. It is clear that elimination of an entire category of WMD is possible through universal participation and robust verification. This helpful and successful strategy must be vigorously pursued in other disarmament contexts.

The current stalemate that seems almost endemic to various parts of the UN disarmament machinery—the UN Disarmament Commission and the Conference on Disarmament—as well as other perceived failures in multilateral disarmament such as the slow progress made in implementing the 2010 nuclear Non-Proliferation Treaty (NPT) Action Plan and the failure to convene a 2012 conference on a Middle Zone Free of Weapons of Mass Destruction have made so-called “successes” in disarmament difficult to come by. Nevertheless, the hope is that the CWC will be just the first of many future multilateral disarmament instruments that strengthen the rule of law and eliminate such heinous weapons with the potential to wreak unthinkable havoc on humanity.

 

–Katherine Prizeman

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Facing History and Ourselves: GA Debate on the Role of International Criminal Justice in Reconciliation

15 Apr

On April 10, the President of the General Assembly’s Office initiated a 1 ½ day event focused on the relationship of international justice – specifically the International Criminal Tribunal for the Former Yugoslavia (ICTY) – and prospects for national and regional reconciliation. The President of the GA offered opening remarks.

The event drew a large crowd of diplomats and a few civil society representatives, though many of the folks we spoke with came for the spectacle as much as for the content.    Many were aware of the decision by several invited persons – including Adama Dieng, UN Special Adviser on the Prevention of Genocide, and Kenneth Roth, executive director of Human Rights Watch – to cancel their participation in the event precisely because of the specter of a contentious and one-sided event that hung over the room.

Those who chose to stay away had their share of good reasons to do so.  The event itself was a carefully choreographed and at times intellectually dishonest exercise that sought to rehabilitate the reputation of the Serbian government and people by attacking the foundations of the system of international justice for which Serbian government behavior was an initial impetus.

The event may have done more to polarize the international community than to help explore legitimate concerns regarding the effectiveness of our international legal architecture, specifically concerns focused on the unresolved inconsistencies of the system of justice established by the UN Security Council – itself a politically compromised body.   Sadly the event did too little to enhance understanding of how international law functions, the nature and limitation of Tribunal mandates, or the complementary functions needed to establish conditions of positive reconciliation.  It should be noted here that it was not specifically the task of the Tribunal to promote conditions for reconciliation divorced from (often neglected) initiatives by other parts of the UN system let alone by the regional States themselves.

Nor was there any discussion of how the behavior of Serbs and others led us down the path where Tribunals were considered to be a viable option to national courts which, 20 years after this phase of violence commenced, have still proven themselves unwilling and unable to prosecute their own.   The Serbs-as-victims line is not completely without merit, insofar as international efforts to end impunity were selective and inadvertently reinforced negative stereotypes about Serbian ethnic communities, even regarding the ability of their newly elected representatives to contribute as viable members of the international community.  But such damage has remedial options that should have been explored carefully, one of which should NOT have been calls to dismantle the Tribunal, especially with key figures still awaiting trial. Moreover, we must have more clarity regarding what is wrong with the Tribunals, what can be fixed, and how we would avoid making the same mistakes again in other international fora mandated to end impunity for the most horrible, State-sanctioned crimes.

There is certainly merit to attempts to understand more clearly the limitations and compromises of our system of international criminal justice.   They clearly exist, and it would be wrong to sweep them under the rug.   At the same time, many of the complaints throughout the event were as unbalanced as the alleged behaviors of international prosecutors and their judicial processes.   Below I attempt to wade through what I and others felt to be a swamp of sloppy and compromised analysis to make the following points:

  • While it is important for any Tribunal to be sensitive to the impacts of their prosecutions and convictions on public perceptions, it is commonplace for victims of abuse to be dissatisfied with the results of court action that presumes to apply justice to victims’ allegations.   Courts must weigh options and evidence.   They cannot convict if there is insufficient evidence, regardless of the need of victims for conviction.   Nor can a Tribunal impose punitive measures beyond relevant sentencing guidelines.   It would appear that the Tribunal did its work within an environment where governments and constituents were rooting for it to fail.   That it has partially succeeded in fulfilling its mandate has little to do with levels of regional cooperation, including efforts to understand and work with the Tribunal’s limitations.  The Tribunal was treated by many as more like a tax collector to be spurned than a reconciler to be welcomed, officials’ contentions to the contrary.
  • Moreover, a Tribunal is not responsible for addressing all violations of law, but only those that rise to a level that establishes a clear and compelling interest for international prosecutors. While many of us, for good reason, recoil from the notion of symbolic justice – that is, prosecuting some as a ‘lesson’ to others – there is clearly a tendency to focus the attention of Tribunals on the highest established levels of accountability for gross violence and violations of rights.  Given the many resource and political limitations of the Tribunal, there is little justification for spending time on the equivalent of ‘street level drug dealers’ when the narcotics bosses are firmly within your sights.
  • Tribunals were established by the Security Council as a function of its (self-perceived) Charter-mandated responsibility for the maintenance of international peace and security.   Many States are uncomfortable (as are we) with the recent history of Council effort to expand its own mandate beyond what we believe to be the intent of the Charter.  Nevertheless, it is not clear where the viable, authorized alternatives might be to Council oversight of peace and security concerns, especially if we accept, which some on the panels clearly did not, that State “sovereignty implies responsibility” for the protection of civilian populations.  Invoking a recycled, Westphalian notion of sovereignty, as some participants did, was most unfortunate.   States participate in the UN, not because it is perfect or because they are rushing to cede national authority to international institutions, but because they recognize the limitations of State centrism in a multi-polar world.     There are things that States want and need that they simply cannot get within a system that holds them solely and rigorously responsible for all internal matters – including the economy, security and international justice.
  • As highlighted on day 2 of the GA debate, a clear majority of States continue to support (in theory and even in practice) the work of international Tribunals while affirming the duty of responsible parties to ensure that justice is pursued in a fair, impartial and vigorous manner.  But it is also clear that ‘responsible parties’ are not confined to Council members and Tribunal officials.   They also include States and the political entities within States.   It is clear to most States that the fair and equitable pursuit of justice in countries wracked by ethnic bitterness and massive human rights violations – let alone the larger agendas of national and regional reconciliation – cannot find success in the absence of support from those very same regional governments.      It was disturbing to many participants at this event that so few commitments to reconciliation – new or existing – were made or highlighted by the very States that were criticizing the limitations of the Tribunal in this area.      It is unfortunate at best for States that have not done nearly enough to foster national and regional reconciliation to claim that a Tribunal somehow has ‘magic bullets’ to share in this area.
  • National justice systems, as many States acknowledge, are ultimately the best setting for the adjudication of grave violations of human rights.   As our program partners in Guatemala indicate, their national courts are taking responsibility for sexual slavery and other crimes committed under previous governments, albeit tentatively and belatedly. National courts in Guatemala have advantages that do not accrue to international Tribunals, including having a more contextualized understanding of the impact of indictments and prosecutions on elements as diverse as national mood and access to justice.  We must utilize and support national judicial authorities wherever it is practical to do so, though the opinion of most at the GA debate is that we must also be able to supplement such capacity at the international level where needed.

At the end of the day, the debate failed some basic tenets of intellectual and political viability.   For instance, it seemed odd at best to attack the Tribunal for not solving problems inconsistent with its mandate, while essentially letting off the hook States and other stakeholders for which reconciliation tasks are very much within their sphere of responsibility.  Moreover,  to dismiss (as did some ‘scholars’ in this process) the relevance of international criminal justice altogether without any viable alternatives  or suggestions for practically modifying the limitations which were legitimately called to account seemed to us to be an unprofessional attempt to toss the baby out with the bathwater.

We can do better than this.  Thankfully, many participating States pointed us in a more fruitful way forward.

 

—Dr. Robert Zuber

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Gender-Based Violence in the Arms Trade Treaty

8 Apr

After two separate negotiating conferences, in July 2012 and March 2013 respectively, an Arms Trade Treaty (ATT) has finally been adopted. The text (hereinafter “Final Text”) that was adopted on 2 April 2013 in the UN General Assembly by majority vote (155-22-3) contains strong references to gender-based violence (GBV). The objective of the ATT is to create a “comprehensive, legally binding instrument establishing common international standards for the import, export and transfer of conventional a

[1] This process, which began in 2006, came to an end just a few days after the conclusion of the “Final Conference on the Arms Trade Treaty,” which took place 18-28 March 2013. Although this Final Conference was unable to reach consensus, the draft text was brought to the UNGA and passed by an overwhelming majority of member states. This short brief provides an overview of the role of GBV within the Arms Trade Treaty negotiations as well some concluding thoughts about the significance of its inclusion in the Treaty.

In our policy brief on Gender and Disarmament: Making Important Policy Linkages to the ATT and UNPoA, GAPW highlighted the effects that the illicit trade in arms can have on domestic violence, conflict-related sexual violence, and how such arms can be mis-used in ways that deter women from participating in social and political life.[2]  Given the pervasive effect of the illicit flow of arms in perpetuating violence against women and limiting women’s participation, sufficient attention to a gender perspective is essential in effective disarmament and arms control discussions in order to create a reliable security sector.[3] Special attention should be paid to women’s agency because women in many countries tend to be under-represented in social and political life and tend to have limited access to education, employment, health-care, and judicial processes. [4]

The relationship between violence against women and the illicit flow of small arms was highlighted in the recent agreed conclusions of the 57th Session of the Commission on the Status of Women (CSW57)[5] as well as in the statement issued by the Committee on the Elimination of Discrimination against Women (CEDAW) on 24 July 2012.[6] Moreover, women’s participation in disarmament processes was highlighted in the UNGA First Committee Resolution on Women, Disarmament, Non-Proliferation and Arms Control.[7]

As states agreed by consensus in the recent CSW57 conclusions, GBV is “a form of discrimination that seriously violates and impairs or nullifies the enjoyment by women and girls of all human rights and fundamental freedoms.”[8] Member states also agreed by consensus at the CSW57 that violence against women “means any act of gender-based violence that results in, or is likely to result in, physical, sexual, psychological harm or suffering to women and girls, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.”[9]

It is worth noting here the ATT is not a disarmament treaty per se, though there are clear linkages between the central purpose of the ATT – ending diverted transfers – and efforts to end arms-related violence against women. In this context, there are two relevant GBV references in the ATT text. In the Preamble, states parties recognize “that civilians, particularly women and children, account for the vast majority of those adversely affected by armed conflict and armed violence.”[10] This reference is not significantly different from the one found in the 26 July 2012 “Draft Treaty Text,” (hereinafter “Draft Treaty Text”) which formed the basis for March 2013 negotiations. The Draft Treaty Text recognized that “women and children are particularly affected in situations of conflict and armed violence.”[11] The reference to “armed conflict” was included in the Final Text at the request of many states, including the Caribbean Community (CARICOM), Nigeria, Norway, Sweden, and Switzerland. Nevertheless, it is unfortunate the reference to women and children as a homogeneous group is still included, as this suggests that women and children are affected by conflict and violence in the same way.

Additionally, the preambular paragraph in the Final Text does not include the link between GBV and international humanitarian law (IHL), which had been included in the Chair’s Non-Paper from 22 March 2013. The Non-Paper underscores that “recognizing acts of gender based violence may constitute violations of international humanitarian law and human rights law.”[12] This was particularly relevant and important given the discussions to strengthen the relationship between gender and IHL. Furthermore, the Final Text does not include any language on women’s participation and the role of women as agents of change.  Even though there has previously been agreed language on women’s agency within disarmament processes,[13] the disregard for participation reinforces the notion of women as vulnerable. This omission also continues to place emphasis on women as victims of violence, as opposed to their capacities, skills and experience as leaders in prevention and protection strategies.

The second reference to GBV is in the risk assessment section, Article 7 in the Final Text. In the Draft Treaty Text, GBV was to be taken into consideration after the state assessed whether or not a particular export would violate IHL and international human rights law (IHRL).[14] In making its decision to authorize the export, a state party could establish risk mitigation measures, and would not authorize the export if there was an “overriding” risk. The state party could also take “feasible measures” to ensure that the export would not lead to diversion or be used “to commit or facilitate gender-based violence or violence against children.”[15] One of the challenges with this reference was that it treated GBV as a less important criterion than the IHL/IHLR considerations. Additionally, the reference called for ‘feasible measures’ to be taken, although there was much ambiguity around what that could entail and there was a concern that the “overriding risk” standard allowed too much discretion on the part of the exporting state.[16]  Finally, there were concerns that due to the placement of the GBV provision in the Draft Treaty Text, its location raised questions about the relationship between GBV and IHL.

The Final Text is much improved. In the text adopted on 2 April 2013, under Article 7, GBV is listed as a binding criterion. In making its assessment under Article 7, the exporting party shall consider if the export contributes to violations of IHL, IHRL and shall also take into account the risk that the transfer will be “used to commit or facilitate serious acts of gender based violence or serious acts of violence against women and children.”[17] This reference is much stronger than in the Draft Treaty Text as it makes the GBV criteria binding and the ambiguity surrounding “feasible measures” eliminated. Additionally, as Ray Acheson notes in the Arms Trade Treaty Monitor, this binding criterion “requires states to act with due diligence to ensure the arms transfer would not be diverted to non-state actors such as death squads, militias, or gangs that commit acts of gender-based violence.”[18] At the same time, however, the reference discusses GBV and violence against women in the same sentence which may be somewhat redundant, and the recurring homogeneous reference to women and children continues.

Overall, it is undisputable that the final text of the ATT contains a strong reference to GBV and one that is a good starting point for further improvement, certainly much better than the July 26 Draft Treaty Text. At the same time, the GBV references must be seen in the context of the rest of the Treaty and the loopholes that remain, including but not limited to the limited definitions of arms included in the scope, the limited scope of activities covered, the lack of an unambiguous prohibition regarding mass atrocity crimes, the “overriding risk” consideration and the lack of public reporting.[19] These factors are not only important when considering the objectives of the Treaty, but also when considering the ability to detect, prevent and monitor instances of GBV stemming from the unauthorized arms trade. As discussions move on to interpretation, ratification and implementation, the effectiveness of the GBV provisions will have to be determined based on how effective the Treaty will be in holding states accountable to its provisions. Given the lack of a strong accountability mechanism within the Treaty, this can prove to be challenging.

Additionally, from a gender perspective, the two-week negotiation process that ultimately brought about the adoption of the ATT reaffirmed the limited priority the GBV issue still has for some states, the challenges that remain regarding mainstreaming gender in relevant disarmament and security-related processes, and the recurring hesitance to talk about women’s participation, despite previously-agreed language (by consensus) promoting their agency. While over 100 member states supported a stronger GBV reference in the ATT, there were still some states that objected to the inclusion of GBV in the text, and preferred “violence against women” as well as states that promoted the inherent inclusion of GBV within IHL, but did not support a specific reference to women.

As attention starts to shift to the post-2015, including the passage of the Millennium Development Goals (MDG) deadline, the challenges that were evident in the ATT negotiations, as well as in relevant processes such as the CSW, must be taken under consideration in forming appropriate policy strategies. Some valuable recommendations include:

  • More support for women’s participation in relevant processes, including but not limited to security, judicial, and development forums.
  • More attention to and support for mainstreaming gender issues within relevant processes to promote gender as a priority issue and to be addressed as main issues are negotiated.
  • Increasing awareness on the legally and politically binding instruments that are in place to support the advancement of women’s rights.
  • More attention to and support for promoting collaboration between instruments and processes that share complementary mandates on combating GBV.

 

—Melina Lito

 

[1] A/RES/61/89 (2006), paras. 1 and 2.

[2] See, Gender and Disarmament: Making Important Linkages to the ATT and UNPoA: A Policy Brief.

[3] See, Gender and Disarmament: Making Important Linkages to the ATT and UNPoA: A Policy Brief.

[4] See, Gender and Disarmament: Making Important Linkages to the ATT and UNPoA: A Policy Brief.

[5] See, Commission on the Status of Women, 57th Session, March 2013, Elimination and prevention of all forms of violence against women and girls, Agreed Conclusions, Advance Unedited Version, available at http://www.un.org/womenwatch/daw/csw/csw57/CSW57_agreed_conclusions_advance_unedited_version_18_March_2013.pdf

[6] Statement of the Committee on the Elimination of Discrimination against Women on the Need for a Gender Perspective in the Text of the Arms Trade Treaty, Adopted on 24 July 2012 during the 52nd sessionhttp://www2.ohchr.org/english/bodies/cedaw/docs/statements/StatementGenderPerspective.pdf

[7] A/C.1/67/L.35/Rev.1

[8] Commission on the Status of Women, 57th Session, March 2013, Elimination and prevention of all forms of violence against women and girls, Agreed Conclusions, Advance Unedited Version, available at http://www.un.org/womenwatch/daw/csw/csw57/CSW57_agreed_conclusions_advance_unedited_version_18_March_2013.pdf

[9] Commission on the Status of Women, 57th Session, March 2013, Elimination and prevention of all forms of violence against women and girls, Agreed Conclusions, Advance Unedited Version, available at http://www.un.org/womenwatch/daw/csw/csw57/CSW57_agreed_conclusions_advance_unedited_version_18_March_2013.pdf

[10] Final United Nations Conference of the Arms Trade Treaty, Draft Decision, 27 March 2013, available at http://www.un.org/disarmament/ATT/docs/Draft_ATT_text_27_Mar_2013-E.pdf

[11] United Nations Conference on the Arms Trade Treaty, Draft of the Arms Trade Treaty, 1 August 2012, available at http://www.un.org/ga/search/view_doc.asp?symbol=A/CONF.217/CRP.1&Lang=E.

[12] United Nations Final Conference on the Arms Trade Treaty, President’s Non-Paper, 22 March 2013, Draft of the Arms Trade Treaty, available at http://www.un.org/disarmament/ATT/docs/Presidents_Non_Paper_of_22_March_2013_(ATT_Final_Conference).pdf,

[13] See for instance the First Committee Resolution on Women, Disarmament, Non-Proliferation and Arms Control, A/C.1/67/L.35/Rev.1 (2012).

[14] See, United Nations Conference on the Arms Trade Treaty, Draft of the Arms Trade Treaty, Article 4(2),  1 August 2012, available at http://www.un.org/ga/search/view_doc.asp?symbol=A/CONF.217/CRP.1&Lang=E

[15] United Nations Conference on the Arms Trade Treaty, Draft of the Arms Trade Treaty, Article 4(6)(b), 1 August 2012, available at http://www.un.org/ga/search/view_doc.asp?symbol=A/CONF.217/CRP.1&Lang=E.

[16] Ray Acheson, Demanding more from An Arms Trade Treaty, Arms Trade Treaty Monitor, 27 July 2012, Vol. 5, No, 18.

[17] Final United Nations Conference of the Arms Trade Treaty, Draft Decision, 27 March 2013, available at http://www.un.org/disarmament/ATT/docs/Draft_ATT_text_27_Mar_2013-E.pdf

[18] Ray Acheson, Maria Butler, and Sofia Tuvestad, Preventing armed gender-based violence: a binding requirement in the new draft ATT text, Arms Trade Treaty Monitor 6.9.

[19] See, Ray Acheson, A Tale of Two Treaties, Arms Trade Treaty Monitor, 28 March 2013, No. 6.9.

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Opening of the 2013 Substantive Session of the UN Disarmament Commission: Time for Progress

4 Apr

As the UN Disarmament Commission (UNDC) opens its annual substantive session, a body which enjoys universal membership and is often referred to as the UN’s “disarmament think tank,” there is much anxiety around its ability to garner a consensus outcome before the end of its three-week program of work. This is the middle session of the triennial discussion cycle, which will conclude next year in 2014. The 2013 session has adopted two agenda items for its program of work—“Recommendations for achieving nuclear disarmament and non-proliferation” and “Practical confidence-building measures in the field of conventional weapons,” respectively. Although the UNDC has previously reached consensus to adopt guidelines or recommendations on 16 occasions since its re-establishment in 1979, it has not been able to achieve such consensus since 1999 when it adopted Guidelines for Nuclear Weapon Free Zones. Thus, last year’s session marked the 13th consecutive year that the UNDC closed without adoption of any recommendations.

The UNDC, a deliberate body that is tasked to put forth guidelines, standards, and recommendations to be presented to the UN General Assembly First Committee, is the oldest component of the UN disarmament machinery and is intended to play an important role in the early stage of development of new global norms for disarmament. In theory, such deliberative and consensus recommendations have the potential to serve as the basis for future multilateral negotiations, namely negotiations in the Geneva-based Conference on Disarmament. The delegation of China noted in its general debate remarks, “…the UNDC has played an important role in setting a priority agenda for multilateral disarmament negotiations.” However, this once-relevant role has been increasingly diminished and undermined with each passing year without adoption of any substantive recommendations.

This year’s session is chaired by Ambassador Christopher Grima of Malta who offered opening remarks to the UNDC underscoring that meaningful progress on the disarmament agenda is urgently needed in a time when the multilateral disarmament machinery continues to yield very little. Serious obstacles remain in the way of the entry-into-force of the Comprehensive Test Ban Treaty (CTBT), the 2010 NPT Action Plan is far from fully implemented, nuclear weapon system modernization programs are under way in all the nuclear weapon states, proliferation risks remain high, and the recent postponement of the conference on the establishment of a Nuclear Weapon Free Zone (NWFZ) in the Middle East has injected new levels of distrust into the NPT regime. With this backdrop, Ambassador Grima noted, “…with each failed attempt to reach consensus the risk of this body becoming irrelevant draws even closer.”

Several delegations offered remarks during the general exchange of views focused on the first agenda item, nuclear disarmament and non-proliferation. The Non-Aligned Movement (NAM), the Community of Latin American and Caribbean states (CELAC), the Africa Group, the Arab Group, and the European Union all offered regional and cross-regional perspectives on the UNDC’s work going forward and reiterated concerns over the status of the UN disarmament machinery. The delegation of Indonesia, speaking on behalf of NAM, underscored the lack of progress by nuclear weapon states to accomplish total elimination of such weapons and also regretted the recent failure to convene the conference on the Middle East NWFZ. Likewise, the representative of Cuba spoke on behalf of CELAC and underscored the importance of addressing all three pillars of the NPT—disarmament, non-proliferation, and peaceful uses of nuclear energy. CELAC as well as the Africa Group called for convening of a high-level conference “to identify ways and means of eliminating nuclear weapons and prohibit their development, production, acquisition, testing, stockpiling, transfer, use or threat of use, and to provide for their destruction.” In addition, the Arab Group and the NAM statements also welcomed the forthcoming High-level meeting of the General Assembly on Nuclear Disarmament scheduled for 26 September 2013. Furthermore, the delegation of Iran called for adoption of a specific principle under agenda item 1 noted as follows: “There is no legal, political or security reason to justify the possession of nuclear weapons by any country and their total elimination is the only absolute guarantee against the threat posed by such weapons.”

In terms of the deadlock that has plagued the UNDC, many delegations called for greater political will to achieve consensus in this forum, including the delegations of India, Malaysia, Moldova, Pakistan, and the Republic of Korea. In contrast, other delegations offered specific proposals related to the UNDC’s working methods, many of which would be welcome contributions to making the UNDC more useful, relevant, and productive. The Swiss delegation offered recommendations for improving the Commission’s working methods including focusing each session on just one agenda item, opening the UNDC’s full deliberations to Secretariat staff members, academia, and civil society, as well as submitting a report to the General Assembly on the Commission’s exchanges regardless of whether or not consensus recommendations are reached. Other recommendations included the Egyptian proposals for developing a portal that contains all former proposals and working papers that were discussed in earlier sessions as well as convening side events to elaborate on fresh ideas and test new conclusions. The delegation of Norway noted that working methods could be examined more carefully through production of a Chair’s Summary at the conclusion of the UNDC’s session.

It is more important than ever to use this session of the UNDC as a point of departure from the “status quo,” avoiding generic statements in support of nuclear disarmament and non-proliferation or commitment to existing UN instruments. Now is the time to urgently strive to break the deadlocks that seem almost endemic to most parts of the UN disarmament machinery. Indeed, a lack of political will may be, in part, causing this stalemate, but opening up the working methods to new, innovative, and more interactive exchanges is a key strategy in overcoming stalemate.

It is imperative that the UNDC fulfill its role in providing the UNGA First Committee with recommendations so that the First Committee’s work also becomes more effective. In many ways, the UN disarmament machinery is only as strong as its weakest link, but none need be weak at all. As the UNDC begins its issue-specific deliberations in the working groups, it is essential to bear in mind what High Representative Kane warned at the opening of the session—the UNDC will be judged less by words and more by the quality of its outcomes.

 

–Katherine Prizeman

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Looking to the Future of the ATT and Shifting Attention to Implementation

3 Apr

After more than a decade of advocating for and working towards a robust and comprehensive arms trade treaty (ATT), relevant stakeholders can now mark a conclusion to the first step in this process. This was an imperfect process that yielded an imperfect treaty. Nevertheless, the task now is to take what has been adopted and ensure that it has the most effective impact possible on the ground so that the human suffering caused by the illicit and unregulated arms trade—the original purpose of and impetus for this process—is prevented to the greatest extent possible.

Adoption of the treaty text

Last week, delegates to the “Final Diplomatic Conference on the Arms Trade Treaty” were unable to adopt, by consensus, an ATT due to formal objections by the Democratic People’s Republic of Korea (DRPK), Iran, and Syria. But the text was brought to a vote on Tuesday, 2 April through a UN General Assembly (UNGA) resolution sponsored by more than 100 states. An overwhelming majority of UN member states voted in favor of this resolution, thus adopting the ATT text. The final tally was an overwhelming 154 states in favor, 23 abstentions, and three votes against (DPRK, Iran, and Syria).

The adoption of the ATT at the conclusion of these two weeks, even if it was a few days after the close of the Diplomatic Conference, was surely due in part to the strong leadership and good management of the President of the Conference, Ambassador Peter Woolcott of Australia. Ambassador Woolcott was able to bring forth a text that had enough support to garner easy passage quickly in the UNGA.

However, not all states were satisfied enough with the text to vote in favor of its adoption. After Tuesday’s vote, the so-called “skeptics” reiterated their well-known concerns and opposition to the text, noting substantive omissions and dissatisfaction with the process. The delegations of Belarus, Bolivia, Cuba, DPRK, Ecuador, Egypt, India, Indonesia, Iran, Nicaragua, Russia, Sudan, Syria, and Venezuela were among those that took to the floor to offer explanations of vote (EOV).

Several of these delegations continued to regret the absence of a prohibition against the transfer of arms to unauthorized non-state actors, references to the principle of self-determination of peoples under foreign occupation, an independent section dedicated to definitions, and an accountability mechanism for exporting states. These states also expressed dissatisfaction with the overall imbalance of the text in the favor of exporters and, thereby, the possibility for political manipulation. The Russian delegate reiterated his delegation’s specific concern over the language of article 6(3) related to the knowledge-based test for atrocity crimes. Moreover, the delegations of Ecuador and Pakistan warned against attempts to re-define consensus and the Egyptian and Chinese delegations warned against setting a precedent of forcing a UNGA vote in such processes. Many of these delegations also noted that they would reserve the right to re-examine the text and its possible implementation back in their capitals.

On the other hand, many states expressed robust support for future development of the ATT and its strong implementation, support that will be crucial for the ATT’s future effectiveness. A statement from a diverse group of 98 states, delivered by the delegation of Mexico, noted, “At the beginning of this process we set out to make a real difference in people’s lives. This continues to be our commitment, which we will carry out through the implementation of this Treaty.” Indeed, “making a difference” is the sincere hope of this Treaty. Thus, attention must now shift to implementation. These 98 states also reinforced their commitment to making the Treaty stronger through implementation. In addition, the original “co-authors” of the first ATT resolution in the UNGA—Argentina, Costa Rica, Finland, Japan, Kenya, and the UK—also offered a joint statement noting that adoption of the text is just “one landmark” and the responsibility to support implementation remains.

Looking back over the process

The ATT text represents a convergence, albeit a compromised one, of the majority view that the arms industry needs regulation in the form of a legally-binding instrument. Undoubtedly, the text and the process that came before it have represented the emergence of new international norms that the transfer of arms must be denied when there is serious risk of violations of international humanitarian law (IHL), international human rights law (IHRL), and when there is a likelihood that such arms would undermine peace and security. Furthermore, the undertaking of the ATT process has also underscored the need for greater transparency and accountability in the arms trade, bringing it out of the shadows and more prominently in the public domain. It is clear that the ATT writ large has been a worthy endeavor, if flawed, in attempting to consolidate the international drive towards these goals. The treaty has the potential to serve as a useful tool to continue to work towards these goals of reducing risk and increasing some levels of transparency.

Nevertheless, despite the good will of many of the stakeholders that have been dedicated to this process over the last decade, undisputed victory cannot be claimed. The text is not the ideal iteration of what an ATT could be or even the version that the group of 116 states called for in a joint statement during the second week of the Final Conference. These states called for a treaty with a comprehensive scope of items and activities, reflective of existing international legal obligations and norms, and one that enhances transparency and prohibits the transfer of arms when there is “substantial” risk of serious violations of international law, including IHL and IHRL or risk of diversion. Unfortunately, the text’s provisions do not live up to these standards nor fulfill the calls from the vast majority of the governments, international organizations, and civil society groups. This is, of course, in part due to the tremendous compromising power of consensus.

Indeed, the text that has been adopted is a product of a consensus process whereby progressive states had to compromise to keep certain states “on board” with the final product. Any process that is subject to this constraint will indubitably be forced much closer to the lowest common denominator than the highest aspirations, even if the majority of states support the latter. The ATT process has been no exception, with the concerns and interests of a few states being reflected despite opposition from most other states (in particular, the retention of “overriding risk” and the exclusion of ammunition/munitions and parts and components from the full scope of the treaty).

The question becomes: is the text that has been adopted going to, in practice, not only set norms and goals, but positively change arms transfer policy so that it will make a difference in the lives of those who suffer armed conflict and armed violence? Ultimately, the jury is still out. As many states and civil society representatives have noted, the adoption of a treaty is not a victory in-and-of-itself, but step one of a longer process. The real work of evaluating its impact will have to begin immediately. Therefore, the work of the Conference of States Parties (CSP), the national implementation of treaty obligations, and the ongoing interpretation and implementation of its provisions will be all the more important.

A final look at the text

Many significant issues remain unchanged and new ambiguities have been introduced, making the treaty much less reflective of the majority opinion of states and more reflective of minority interests. Nevertheless, positive aspects of the treaty deserve underscoring in terms of looking forward to implementation:

  • Ammunitions/munitions, parts, and components are covered by prohibitions and export assessment, and are required to be regulated by national control systems.
  • Prohibitions have been set forth that require denial of authorization of transfers if there is knowledge that such arms would be used for the commission of mass atrocity crimes, including genocide and crimes against humanity, as well as war crimes and attacks against civilians.
  • Binding criteria for export assessment include if the transfer would undermine peace and security, facilitate serious violations of IHL or IHRL, acts of terrorism, or acts relating to organized transnational crime. Moreover, the text also includes a binding criterion for preventing gender-based violence (GBV). States shall not be permitted to authorize the transfer where there is an “overriding risk” the weapons will be used to commit or facilitate GBV.
  • A detailed article on diversion lays forth measures that states parties should take in cooperating with one another in order to address diversion risks and enhance the practice of effective anti-diversion measures.
  • States parties involved in transfers must take measures to prevent diversion of items in the scope.
  • The provisions on international cooperation encourages that states parties jointly support others in investigations, prosecutions, and judicial proceedings in relation to violations of national measures pursuant to the treaty. Likewise, states parties are encouraged to provide assistance in concrete areas related to the arms trade, notably stockpile management, model legislation, and disarmament, demobilization and reintegration programmes (DDR).
  • The CSP has the ability to review implementation of the treaty, including developments in the field of conventional arm as well as to consider issues arising from the interpretation of the treaty. This thus allows, at least in a limited fashion, that the treaty can be adjusted to respond to evolving technological and security advances.
  • Amendments can be adopted, as a “last resort,” by a three-fourths majority should adoption by consensus fail.

Despite the retention of these positive provisions, some loopholes and weaknesses still remain that will continue to pose challenges in the implementation of the ATT. These weaknesses and loopholes will have to be dealt with, to the greatest extent possible, during the follow-up meetings of the CSP.

  • Ammunition/munitions and parts and components are not covered by the obligations under import, brokering, transit or trans-shipment, or reporting.
  • The “floor” of the definitions of the items in the scope is limited to the UN Register of Conventional Arms and “other relevant United Nations instruments” at the time of entry-into-force and, therefore, states can “freeze” definitions established more than two decades prior.
  • Non-commercial activities such as gifts, loans, and leases are not expressly covered under the definition of “transfer.”
  • There is no explicit prohibition against transfers that would violate human rights.
  • Inclusion of the term “overriding risk” ostensibly allows states to proceed with a transfer even if there is substantial risk of violations of IHL or IHRL if there is some other risk (political, economic, or otherwise) is noted to “override” these risks.
  • References to socio-economic development and corrupt practices were dropped from export assessment criteria.
  • When states parties become aware of new information, they are not required to revoke or suspend an authorization, but are merely “encouraged to reassess the authorization” after possible consultations with the importing state.
  • Public reporting is not mandatory and states parties can exclude any information deemed “sensitive” from a national security standpoint from reports to the Secretariat.

Moving Forward

The time for substantive improvements of the text has passed. In moving forward with the ATT process, attention must shift to implementation and interpretation in order to ensure that the robust provisions that have been adopted are implemented in the best and most consistent way, while those that are still weak are not allowed to limit the overall effectiveness of the Treaty. Indeed, this is only the beginning of evaluating the ATT’s effectiveness.

This was an imperfect process that yielded an imperfect treaty. Nevertheless, the task now is to take what has been adopted and ensure that it has the most effective impact possible on the ground so that the negative consequences of the illicit and unregulated arms trade—the original purpose of and impetus for this process—are limited to the greatest extent possible. As noted by the group of 98 states in its joint statement following adoption of the text, “The hard work starts now. We must secure the rapid entry into force of this historic Treaty and implement it as soon as possible.”

 

—Katherine Prizeman

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After the Spotlight: Following Post-Election Kenya

1 Apr

On 26 March 2013, The World Policy Institute and Fireside Research presented After the Spotlight: Following Post-Election Kenya, a panel discussion featuring, via skype from Kenya, John Githongo, CEO of Inuka Kenya Ltd. and Kwame Owino, CEO of the Institute of Economic Affairs. The panel discussion was moderated by Eddie Mandhry, Associate Director of NYU Africa House, and hosted by Cleary Gottlieb Steen and Hamilton LLP in New York City.

The panel discussion intended to investigate the challenges arising from the most recent elections in Kenya, particularly in the light of the domestic, regional and global complications of the 2007 elections. With over 1000 people dead, 350,000 people displaced, and the mass violence that erupted in the 2007 elections, this discussion was pertinent to the goals and mission of Global Action to Prevent War, which seeks to address broad themes and issues related to human security in diverse global regions.

On 4 March 2013, Uhuru Kenyatta and William Ruto were elected as President and Deputy President Elect of Kenya, respectively. Kenyatta, who is the son of the first Kenyan President Jomo Kenyatta, has been accused by the International Criminal Court of committing crimes against humanity in the 2007 elections. President Elect Kenyatta has since been summoned to The Hague for such indictment of war crimes. Furthermore, in 2010, Kenya became party to the Rome Statute.

The panel discussion began with outlining the importance of ethnicity and identity in Kenyan politics. According to Githongo, this election has been the most important election in Kenyan history since its independence as it marks a new constitution based on so-called “Western liberal models.” Moreover, a new voting procedure was put in place. This included a high-tech biometric voter registration system, on which $250 million was spent, and the electoral provinces were expanded from 8 to 47 providing for new positions and constituencies to encourage free and fair elections and greater representativeness. In this same vein, the former Secretary-General of the United Nations Kofi Annan founded the Election Management Body Policy, which seeks to address arising problems as well as to prevent election-related violence.

Unfortunately, the digital portion of the election failed. The IEBC, Independent Electoral and Boundaries Commission, the so-called contracted election “watchdog,” claimed that the new biometric voter identification system failed. However, opposition parties claim that this was a conspiracy to rig the elections. The two main opposition parties have since contested the results of the election, and, as a result, the official results are still pending.

QUESTIONS TO PARTICIPANTS IN KENYA:

  • So far, many governments from the international community have already called President Elect Uhuru Kenyatta to congratulate him on the elections. These governments include China and other African Nations. Given this, if the Kenyan Supreme Court upholds Kenyatta’s election, what are the implications for an indictment against Kenyatta by the ICC? What if Kenyatta fails to present himself to the ICC?
  • If the Supreme Court does not uphold Kenyatta’s election, another election will need to be held within 60 days. Does Kenya have enough money to do so?  Even more so, does the country have the capacity to do so?
  • If Kenyatta is confirmed, do we suspect there to be violence?
  • Are the institutions that were responsible for this election facing court charges for their handling of the elections?
  • What kind of media was used during the Kenyan elections? Was this majority negative or positive?
  • What kind of campaign was conducted before the elections?

RESPONSES

In the event that the Supreme Court decides on a run-off, the question of who will run the election will be tantamount. Githongo made it very clear that Kenya does not have the capacity to run another election within 60 days following the results of the Supreme Court decision. He stated that perhaps the international community could step in to run a second election, but likewise warned that Kenyans may see this as imperialist sentimentalism, which is already a sensitive issue in Kenya. Therefore, having the international community intervene in this matter may not be a viable option either. He also noted that the Kenyan people have the will and capacity to carry out the elections if necessary, but that they do not have sufficient technological capacity necessary to do so.

Githongo argued that since politics in Kenya have been organized around ethnic lines, this election has consolidated such ethnic-based attitudes even further. Furthermore, there is an ethnic divide among the Kenyan leadership that includes ethnic supremacy and entitlement. The “losers” of the 2007 and 2013 elections continue to feel exclusion from the leadership system and continue to feel as though there has been insufficient justice in the matter. This obviously also increases the likelihood of violence.

Githongo described the silence of the Kenyan people as powerful and that it speaks to the narratives that were cultivated along ethnic lines during the previous election. According to Githongo, there is a “narrative of exclusion” that constitutes an emphasis on numbers such that if an individual is not a part of the right numbers, then one’s vote does not count.

Githongo also explained that the ICC has played a huge role in the external messages of the elections, which has created a dichotomous relationship based on whether or not one supports the ICC. According to Githongo, these messages have been relayed quite simply as: “If you do not support the ICC, then you are not a nationalist and if you support the ICC, then you are an imperialist.” The campaigns were structured in such a way that communicated to citizens that they were not voting against an individual, but rather against the country or against the Western forces.

Githongo stated that it is important to speak about the role the media has played in the coverage of this election. Since the media was accused in 2007 of fueling the violence that ensued post-elections, it is now over-compensating by being ‘overly-cautious’ not to report, on the even “soft violence,” which is happening across the country. It would seem that the media is censoring itself.

Overall, Githongo stated that this election has caused Kenya to revert backwards in terms of its democratization process. Additionally, there is a worry that in the future, depending on the outcome of the ICC trials and the Supreme Court decision, on whether or not to uphold Kenyatta and Ruto’s victory.

It is expected that the incoming government will have to take Kenya out of what Githingo described as a “hole.” Addressing this “hole” is imperative as Kenya is geopolitically important to the international community and global economy. With the discovery of coal, oil and many other mineral elements, it has been argued that the Kenyan private and financial sector is positioned to take off in terms of capital formation, the quality of education and human capital, and skilled labor within the workforce, particularly with regards to financial services.

 

****Since this panel discussion, the Kenyan Supreme Court has upheld the election of President Uhuru Kenyatta and Deputy President William Ruto even with the former’s impending summons to The Hague for war crimes and crimes against humanity. 

 

–Shari Smith, Intern GAPW

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International Media and the Arms Trade Treaty

22 Mar

The final round of the arms trade treaty negotiations (18-28 March 2013) has been attracting global attention, expressed by numerous press outlets worldwide, mainstream as well as alternative, signaling a growing and strengthening awareness process throughout the world and revealing a justified sense of urgency. An awareness of the illicit arms trade’s mortal consequences has manifested itself as a comprehensive matter of conscience, a situation that is as a result calling for global provisions now. It also shows the willingness to publicly negotiate and back a legal framework that has the strength and capability to regulate a global, $70 billion business. An idea that was initiated by a group of Nobel peace prize laureates in the mid-1990’s seems to have come to fruition.

The level of awareness demonstrates political will that affects the everyday citizen, who might not be part of a politicized environment via an organization or institution, but has the option to vote, donate, and maybe down the line, organize in a political fashion. Just as diverse in national interest and approach as are member states and civil society, so are media outlets that position themselves as voices in the process.

The Financial Times granted a forum to the foreign ministers of Denmark, Germany, Mexico, The Netherlands, UK, Costa Rica, Argentina, and Finland to call for an effective arms trade treaty, defining the negotiations an “historic opportunity” and appealing to the aspect of “common responsibility.” One paragraph explicitly addresses the fact that the treaty has no intention to “obstruct the legitimate trade in arms.” Furthermore it points out that the treaty is meant to “fully recognize every state’s right to legitimate self-defense.” Additionally, “Neither does the treaty set rules for domestic arms regulation nor laws on the possession of arms; this is categorically a matter for national authorities to determine.”

Despite national sovereignty on domestic arms regulation, the US based National Rifle Association (NRA), which promotes the rights of citizens to bear arms, made it a tradition to claim that the UN is trying to end private gun ownership in the US. This strategy is primarily geared towards fundraising from NRA constituents. Not only has fear proven to be a hot seller, the US Constitution’s second amendment is an extremely sensitive and emotionally charged topic.

UK journalist Karen McVeigh focuses on NRA rhetoric in her story “NRA accused of stirring ‘anti-UN panic’ in campaign against Arms Trade Treaty,” from 17 March 2013in The Guardian. “For years, the NRA has painted the UN as a bogeyman figure, claiming in its literature and fundraising drives that there is an international conspiracy to ‘grab your guns’. Last July, when negotiations on the Arms Trade Treaty broke down – in part because of US resistance to global regulations on gun sales – the gun lobby group claimed victory for ‘killing the UN ATT’.” Rick Gladstone from the New York Times states in the context of an ATT and the NRA, that in February of this year, the American Bar Association’s Center for Human Rights published a report describing that the ATT, as currently drafted, “did not exceed the scope of American trade statutes that already regulate the import and export of weapons.” Gladstone points out that the study clearly outlines, “U.S. ratification of the treaty would not infringe upon rights guaranteed by the Second Amendment.” In the Huffington Post, UN High Representative for Disarmament Affairs Angela Kane pointed out, “This absurd but often-repeated claim requires a strong rebuttal.”

The German media outlets Deutsche Welle and die tageszeitung focus on the fact that the current ATT text from July last year would undercut not only European, and particularly existing German regulations, as they relate to the arms trade and therefore describe the need of stronger language.

This year’s ATT host country, Australia’s media outlets have been vocally promoting the process back home, at times lending media platforms to civil society. National Director of Amnesty Australia, Claire Mallinson,took the stage with an op-ed piece for The Australian on 18 March. Here she describes the ongoing illegal arms transfers from Russia to the Assad regime in Syria and the failure of the UNSC to impose an arms embargo. Mallinson continues, “This strong evidence and the indiscriminate nature of conflict shows that even with the best of intentions, as it currently stands, Australian organizations and individuals that sell weapons and defense technology have no way of controlling where these devices end up.” Meanwhile Dr. Helen Szoke of Oxfam Australia is urging her government on ABC TV to “help close off any loopholes” in the existing draft.

The African news network AllAfrica named, in the article “Africa: Curbing the Arms Trade?” from 19 March, a few grave obstacles to a “strong treaty without major loopholes.” Firstly there is, “The fact that the five permanent members of the UN Security Council are among the largest exporters of conventional arms,” which impacts decision making and ultimately the strength of a treaty framework. Secondly, the concern that, “In the United States, the powerful National Rifle Association is campaigning against the treaty.” It is a legitimate concern, since the author is referring to a non-profit that, according to the Washington Post, was able to spend $32 million in 2012, lobbying their one and only objective.

Obviously, press coverage often reflects or opposes national interests of individual member states, and therefore might individually pursue/back different levels of regulation or at times lack diversified, technical policy details at all. However, the nearly unanimous, international media echo in favor of a treaty does not only once more put the UN on the map as a global hub for political decision making, but reflects a strong, global concern that reaches far beyond a plea for arms business as usual.

 

—Lia Petridis Maiello

 

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