Archive | May, 2012

The Arms Trade Treaty: No Treaty, Weak Treaty, ‘Plan B’?

25 May

As the Arms Trade Treaty (ATT) preparations are drawing to a close and diplomats and civil society alike anxiously await the July Diplomatic Conference, much of the attention has turned to the possible configurations of a (hopefully) forthcoming consensus treaty. Some would argue that it is best to focus on making the negotiations a success rather than prematurely anticipating their failure. As such, the levels of pessimism and optimism vary according to whom one is talking, whether a member state delegation or civil society advocate.

One could continue to debate the ‘nuts and bolts’ of treaty language from scope and final provisions to the strength of the humanitarian references included. Nevertheless, I would argue that it is absolutely necessary at this point to, at the very least, objectively evaluate and consider the possible scenarios of the 4-week Diplomatic Conference and the corresponding consequences of each circumstance irrespective of one’s position on the desired outcome. Such an evaluation would be useful insofar as it would essentially reveal the net effect of each outcome, whether positive or negative, on what I see as the most desirable outcome of the ATT process—a robust instrument of international standards to regulate the global business of the transfer of arms that is fully implementable to include a comprehensive scope, primary attention on diversion, provisions and structure to facilitate international cooperation and assistance that will ultimately stop transfers of arms and ammunition that fuel conflict, poverty, and serious violations of human rights and international humanitarian law.

Questions on the minds of many who have dedicated themselves to this process for over a decade are clear— is a weak treaty better than no treaty at all? Would a weak treaty do more harm than the harm caused by opting out of the process altogether? Where are the ‘redlines’ that would warrant such an abandonment come July? Are there alternatives for negotiating an ATT within the UN system, or perhaps outside it? In order to address these inquiries it is important to contextualize the ATT debate. To my mind, the ATT process will encompass much more than the month of July. It is essential to assume a long-term perspective, in particular a process through which states commit to a review process that establishes regular meetings of states parties to assess and adjust the ATT to better reflect evolving security circumstances. Moreover, as with all multilateral negotiations, the ATT has not and will not be formulated in a vacuum. In 2012, member states are faced with parallel disarmament and arms control challenges—high stakes for a Conference on the establishment of a weapons of mass destruction-free zone in the Middle East, a continued stalemate in the Geneva-based Conference on Disarmament now stretching over 15 years, and a 13th straight year without consensus recommendations in the Disarmament Commission. Furthermore, a failed negotiation on an ATT would, in turn, also cast a long shadow over the Review Conference of the UNPoA, which is scheduled to take place in August after the ATT negotiations have concluded.

What, then, are the possible scenarios for the ATT Conference? It seems that two of the principle scenarios—adoption of a weak treaty or adoption of no treaty at all—will have significant negative consequences. The only outcome that would not have negative effects would be adoption, by consensus, of an ideal treaty characterized by high levels of state accountability (especially on weapons diversion), oversight capacity for an Implementation Support Unit (ISU), and strong, binding humanitarian language. However, as this process is subject to a consensus rule, a provision that was introduced by the US as a precondition for taking part in the negotiations, this scenario is highly unlikely. Some member states, including the US, have already made clear that a high level of oversight, or any oversight, will not be acceptable and that it is entirely a national prerogative to determine how to manage national export controls in response to any international standards adopted in the ATT. Other member states have continuously asserted that the ATT is a trade treaty seeking merely to regulate the legal business of arms transfers and will not seek to limit the right of member states to sell or purchase arms by overburdening them with treaty-specific reporting obligations.

Therefore, I highlight two principle scenarios and what effect each would have on the long-term process. There are strong arguments that an ATT deemed ‘weak’ is better than no treaty at all. Some would argue that a strong review process with the possibility for improving on the first iteration of the ATT would be a generally positive outcome. Similar to the evolutionary process of the International Criminal Court (ICC), the argument would be that the ATT will most likely require sequential refinement under the auspices of a regular cycle of review conferences in order to achieve even close to its full potential, but that such refinements are possible and preferable to abandoning to the process altogether.

It could also likewise be argued that prospects for success of an ATT next July, as opposed to this July, is not any higher (especially given the consensus provision); thus any postponement would be futile, especially given the weight of the consensus provision. In light of other related UN processes such as the UNPoA, a completely failed ATT Conference would be severely detrimental to the other, in many cases already broken, parts of the multilateral disarmament machinery dealing a major legitimacy blow to the system. Even if the ATT is not universally considered a disarmament treaty per se it is certainly being treated as such by civil society and some member states. A failed process would indubitably be a serious blow to a system desperately in need of tangible victories.

In contrast, there are those that argue, and rightfully so, that a weak treaty would have far greater negative effects in the aggregate. A weak treaty— a simple list of principles which member states should bear mind in when transferring weapons without any accountability or implementation mechanism—could be used as cover for future transfers of questionable character. Signatories could argue that they are acting in accordance with their international law obligations as parties to the ATT, have evaluated a given transfer according to this list of principles (‘bearing them in mind’), and have nonetheless decided to continue the dubious transfer. Moreover, a weak ATT could potentially be used as the basis for states seeking to curtail UN efforts to advocate for better controls of illicit small arms or for stronger application of international humanitarian and human rights law related to the production or use of armaments. Either of these outcomes would fuel considerable skepticism regarding the viability of the UN in regulating the global arms trade, not to mention anger at the UN for creating ‘cover’ for bad behavior rather than eliminating said behavior.

Universality of the ATT process will have a direct effect on its strength—the more member states that subscribe to it, the weaker it will inevitably become. This debate begs the question, then, when is it better to walk away from the process than to proceed with a weak treaty? What are the points that are ‘non-negotiable’? For each member state, the answer to this question will vary. The CARICOM states have placed tremendous emphasis on the inclusion of SALWs in the scope, while the UK has recently underscored the arms trade as the ‘greatest threat to development, beyond disease and disaster’. Brazil, on the other hand, has continuously asserted its marked opposition to references to corruption, development, and stability in the criteria. Needless to say, the ‘redlines’ are not uniform and vary according to national interests, but it is absolutely essential that delegations know what those lines are before formal negotiations begin in July. Delegations must evaluate when the best course of action would be to ‘walk away’ from the process and seek alternatives elsewhere.

If delegations choose to ‘walk away’ from the process in July, alternative forums for negotiating an ATT are available, but also with their own set of limitations. There is the option to take the issue to the General Assembly in the fall and seek a new resolution and form of recourse to get negotiations back on track. Some like-minded states have discussed, unofficially, the possibility of opting out of the universal process in order to pursue a more comprehensive ATT, but one that will inevitably have fewer signatories. Foregoing a universal forum for ATT negotiation could call into question the future relevance of universal negotiations in the field of disarmament and arms control, which is already in serious jeopardy given the CD paralysis. Furthermore, such an approach would meet the same difficulties as have been encountered with regards to international efforts to ban cluster munitions and landmines. While such courses of action of like-minded states contribute to norm-setting, they likely fail to provide a universal framework for addressing the issue at hand. The value added of an ATT that is not universal, most especially one that does not legally bind the primary arms manufacturers and exporters, is not altogether lost, but certainly substantially diminished. The states subject to such treaties negotiated outside the universal process are usually those already committed to the regulations.

What, then, is the best scenario? The best scenario is, as previously mentioned, a robust and comprehensive instrument with full implementation capacity. However, this is not the only question that should be asked. The focus now should not be just on what is the best scenario, but also on the best path towards the ideal scenario, even after July negotiations conclude, by objectively evaluating the consequences of each of the most likely negotiating outcomes.

 

–Katherine Prizeman

‘Small-5’ Propose GA Resolution on Improving Working Methods of the Security Council

17 May

Known as the ‘Small-5,’ Costa Rica, Jordan, Liechtenstein, Singapore, and Switzerland presented a draft resolution that seeks to improve the working methods of the Security Council without proposed amendments to the UN Charter. As such, these states advocate that this resolution will have no bearing on the ongoing and separate negotiations for reform and expansion of the Security Council. Member states such as India and Brazil have opposed the resolution given their interest in and support for an amendment to the Charter that would expand the Security Council’s membership and give their delegations a permanent seat. The P5 members have also made clear their opposition noting that they do not see a role for the General Assembly in offering recommendations to the Security Council.

Led by the mission of Switzerland and its Permanent Representative Ambassador Paul Seger, this group has worked for improvement in the working methods of the Security Council since 2006. In March 2012, the S-5 tabled a resolution and have since undertaken several rounds of consultations with member states, in particular the P5, to identify a way forward with regards to these recommendations. This effort has been pursued both in the General Assembly and through cooperation with the Security Council’s Informal Working Group on Documentation and other Procedural Questions. The S-5 had decided it is time to bring the resolution to a vote in the GA and allow member states, although the adoption of such a resolution would not be binding, to communicate a political and moral message on improving the accountability, transparency, and effectiveness of the Council. However, as of Friday 18 May, Ambassador Seger of Switzerland decided to withdraw the resolution after increasing pressure from opponents of the resolution. Faced with the prospect of procedural wrangling that would “engulf the entire Membership and leave everyone confused”, he said the S-5 had decided to withdraw the text.

Ambassador Seger addressed the GA this week under the agenda item “Follow-up to the outcome of the Millennium Summit” offering remarks on the content of the resolution. He gave a similar presentation in April 2012 describing the S-5’s proposals.

The principle recommendations include:

  • A greater role for the troop-contributing countries (TCCs) and those that make large financial contributions in the preparation and modification of mandates for peacekeeping missions
  • Standing invitations to the Chairs of country-specific configurations of the Peacebuilding Commission to participate in relevant debates and, when appropriate, informal discussions
  • Better access for interested and directly concerned States to subsidiary organs
  • Establishing a working group on lessons learned in order to analyze reasons for non-implementation or lack of effectiveness to suggest mechanisms aimed at enhancing implementation of decisions
All the proposals are based on long-standing dissatisfaction with the way in which the Council does its work. In particular, GAPW would welcome strong and institutionalized methods of ‘assessment’,  particularly on questions of implementation, of resolutions and decisions of the Council.  The lack of assessment was no more apparent than in the case of Libya in which the Council lost control of the ‘narrative’ after adoption of the original resolution. This was indicative in part by the fact that the resolution barely surfaced in the discourse around NATO’s implementation of it. It wasn’t until the operation itself ended that the resolution was cited. In its aftermath, both Russia and China expressed serious concerns over the implementation of Resolution 1973, which has undoubtedly contributed to the decision by these P5 members to veto an subsequent Western-sponsored resolution threatening sanctions against Syria for the killings of civilians.
It seems the most ‘controversial’ proposals deal directly with the use of the veto. The S-5 proposes what they consider to be “nothing radical or revolutionary” noting that they fully respect the Charter-based right to the veto. P5 states are called to:
  • Explain the reasons for resorting to a veto or declaring its intention to do so by circulating a copy of the explanation as a separate Security Council document to all member states
  • Refrain from using the veto to block Council action aimed at preventing or ending genocide, war crimes, and crimes against humanity (as legally defined in the Rome Statute for the ICC)
  • Establish a practice, in appropriate cases, of declaring  that when casting a negative vote on a draft resolution it does not constitute a veto thus allowing the P5 member to cast a negative vote while not blocking the action altogether

Many members of civil society have advocated for such a provision to be added to the veto power– requesting that P5 members consider refraining from using their vetoes on action aimed at preventing or ending genocide, warm crimes, and crimes against humanity as defined in the Rome Statute. Civil society and member states alike cite paragraph 139 of the 2005 World Summit Outcome document, stating that “the international community, through the UN, has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means to help protect populations from genocide, war crimes, and crimes against humanity; and that when a state is manifestly failing, the international community has a responsibility to take timely and decisive response, including measures authorized by the Security Council under Chapter VII.” Nonetheless, it goes without saying that garnering support for recommendations to change the highly politicized issue of the veto are fraught with challenges. In order to combat this spirit of contention, the S-5 has tried to make clear that their intention is not to abolish the veto, but to provide recommendations only on how and when it should be used.

It seems that the primary concern of the S-5 is the lack of access for non-members of the Security Council to the Council’s work due to weak transparency and accountability measures, rather than a concern over the composition of the Council. The S-5 has tried to make clear that what they propose is a way forward through which Council members can seek the view of member states outside the Council without prejudice to the need for often timely action on sensitive  matters. Striking this balance is a difficult, but important goal for moving forward successfully with these recommendations.

—Katherine Prizeman

First Prep Com of New NPT Review Cycle Concludes in Vienna

15 May

From 30 April to 11 May, the first session of the Preparatory Committee (Prep Com) for the 2015 Review Conference of the nuclear Non-Proliferation Treaty (NPT) met in Vienna, Austria. The Prep Com adopted a final report and a factual Chair’s summary as a working paper of the Committee (not a consensus document), under the authorship of Ambassador Peter Woolcott of Australia. Two welcome developments from this session of the Prep Com were the 16-country statement on the humanitarian dimension of nuclear disarmament as well as the increase in attention paid to addressing modernization of existing arsenals as a threat to the credibility of the NPT regime. Both of these initiatives were referenced in the Chair’s summary. Furthermore, the government of Norway announced that it would be host to a conference in 2013 on the humanitarian dimensions of nuclear weapons.

The Prep Com did not accomplish much in the way of advancing the disarmament agenda insofar as there was neither a thorough review of the implementation of the 2010 Action Plan nor adoption of strategies for moving forward commitments to nuclear disarmament. As has been the case in previous NPT review cycles, many member states, particularly the nuclear weapon states (NWS), chose to focus on non-proliferation rather than disarmament (article VI) obligations. Following general debate, the discussion was divided into three clusters– implementation of provisions relating to non-proliferation, disarmament, and international peace and security with discussion on specific issues of nuclear disarmament and security assurances (Cluster 1); implementation of provisions relating to non-proliferation, safeguards, and nuclear-weapon-free zones (NWFZs) with specific issue debate on regional issues including the 1995 resolution on the creation of a NWFZ in the Middle East (Cluster 2); implementation of the provisions relating to the “inalienable right” of states parties to develop research, production, and use of nuclear energy for peaceful purposes (Cluster 3).

There are still many concerns about the  earnestness of commitments to nuclear disarmament through the full implementation of article VI of the NPT, particularly given the continued call by some member states,  including Russia and China, for first “creating the conditions” for nuclear disarmament by maintaining “strategic stability” and “undiminished security for all.” These calls for continued reliance on nuclear weapons stand in striking contrast to the increasingly unified call for nuclear abolition by the majority of states parties to the NPT. At parallel and civil society meetings, there were also calls for addressing NATO’s continued reliance on nuclear weapons as part of its security framework, especially in light of the Chicago Summit to take place 20-21 May and the release of the Defense and Deterrence Posture Review (D&DPR). In March 2011, NATO began a year-long round of consultations on a new D&DPR.  Many members of civil society noted the innate contradiction that exists between NPT obligations and the current NATO deterrence policies. Professor Erika Simpson of the University of Western Ontario suggested that it is not altogether surprising that horizontal proliferators are trying to acquire nuclear weapons when NATO members themselves rely on nuclear deterrence for their protection.

A frustrating and diversionary debate lives on as member states remain divided between those who wished to emphasize combating non-proliferation risks (i.e. Iran and DPRK) and those underscoring the lack of substantial movement on disarmament and the hypocrisy that surrounds these debates. Brazil’s representative underscored a “groundless addiction” to nuclear weapons noting that the international community has already banned two other categories of weapons of mass destruction (chemical and biological). A joint P5 statement was “pleased to recall” that the group met in July 2011 “with a view to considering progress on  the commitments made” at the 2010 Review Conference, clearing indicating no urgency in reporting on, let alone adopting, concrete disarmament measures. The Australian delegation called for greater transparency from the NWS with regards to such joint meetings. Although this Prep Com did not see concrete reporting, the 2010 Action Plan “calls upon” the NWS to report to the 2014 Prep Com and the 2015 Review Conference on their undertakings related to Action 5, thereby placing a timeline (however weak) on progress towards nuclear disarmament. There were also many statements of concern regarding the nuclear programs of Iran and the DPRK, including a call by the UK that Iran implement “practical steps to build confidence around the world that Iran will implement its international obligations and does not intend to build a nuclear weapon.” The Iranian delegation, of course, defended its program as entirely peaceful and called the accusations “baseless allegations of non-compliance,” while also noting that Iran has been previously denied access to IAEA safety workshops. Other member states called for the DPRK to cease all tests and rejoin the NPT.

Also under discussion during the Prep Com was the status of implementation of the 1995 resolution on the establishment of a weapons of mass destruction free zone (WMDFZ) in the Middle East. The facilitator of the 2012 Conference, Jaakko Laajava, Under-Secretary of State for Political Affairs of Finland, addressed the Prep Com, but could not offer many details as no date or agenda has been set, although it is expected that it will be held in Helsinki in December. Ambassador Laajava pledged to continue consultations in the region that will focus on the agenda, modalities, outcome of the conference, and follow-up mechanisms. Ambassador Laajava also noted that not all states in the region have confirmed their participation, even though universal participation by all states in the region is considered by many states to be a non-negotiable element for success of the conference. Moreover, several member states called for greater efforts on the part of the co-sponsors (US, UK, and Russia) to facilitate the conference. The US reiterated its familiar position that regional peace is a prerequisite for the establishment of a WMDFZ and stated that the agenda must be larger than singling out any “particular state.”

The third cluster, that which deals with peaceful uses, consisted of multiple assertions of the ‘right’ to produce ‘peaceful’ nuclear energy. An astonishingly small number of delegations acknowledged the Fukushima disaster or offered an honest assessment of its effect on the future of nuclear energy. The US delegation acknowledged that Fukushima “affected public perceptions of the safety of nuclear power,” but argued that “the basic factors that led to an increased interest in nuclear power before that incident have not changed.” The Japanese delegation asserted its commitment to improving safety standards of its nuclear power facilities. The Norwegian and New Zealand delegations stated that they have chosen not to pursue nuclear energy programs, although these states do not dispute the right to pursue such energy and emphasize that they have exercised their right by not pursuing nuclear power. The Austrian delegation was the stand-out among the group, rightly noting that nuclear power can never be 100 percent safe and is not a panacea for climate change or sustainable development given its safety, security, and proliferation risks.

Although it was just the first session of three prior to the 2015 Rev Con, each meeting of states parties to the NPT is critical to the health, sustainability, and, most importantly, full implementation of dual non-proliferation and disarmament obligations. As is often noted by member states and civil society alike, the NPT is the only binding, multilateral framework available for addressing the blight of nuclear weapons. It must not be allowed to become merely a forum for conversation, but rather a legal document to be rigorously implemented in its totality.

 

–Katherine Prizeman

Lessons learned from World Press Freedom Day at UN Headquarters

11 May

Commemorating the journalists who have been losing their lives in the constant battle for truth, several UN delegations and journalists from various media outlets, traditional and new media, participated in the recent World Press Freedom Day at the UN headquarters.

A call for the revision of Security Council Resolution 1738 on the protection of journalists that was unanimously adopted in 2006 and sponsored by France and Greece was proposed by Delphine Halgand, Washington DC Director from Reporters without Borders. The proposal comes at a time when the fatalities among media representatives is still shocking, especially since more than 500 journalists were killed within the past ten years, 63 in 2011 while 161 were jailed. Even within the first five months of 2012, fatalities continue with 21 journalists already killed.

The events accompanying World Press Freedom Day at the UN detailed the ongoing lack of protection for journalists in conflict zones and the sometimes deliberate killings of media professionals who, in their role as watchdogs, can traditionally facilitate social change.

At the same time panelists were discussing the impact and potential of social media helping social progress, not ignoring the actual danger of fact falsification through social media outlets. Guest speaker Amy Goodman from the independent news outlet “Democracy Now” discussed the status quo of corporate media in the United States and their actual lack of commitment to press freedom and balanced reporting. “The press could be the greatest force of peace on earth,” she said.

Overall, it was an informative day that inspired discussions that should not remain mere points of debate, but urgently need to be translated into legislation for the protection of truth on behalf of peace.

-Lia Petridis Maiello

 

Gender issues and the International Criminal Court

9 May

 

Recently, GAPW participated in a panel discussion on Gender and the ICC, primarily on how gender-based crimes are prosecuted by the ICC and some of the challenges of the Court.  The discussion focused mostly on victim testimony. While victims of gender-based violence are open to talk about their experiences privately, they refuse to testify on the stand, and sometimes even change their stories on the stand, because of the stigma they will face within their families or communities, should their experiences be made public.

The issues of stigma and prosecution of gender-based crimes are relevant not only in the context of testifying in court, but also in providing healing to survivors of violence and communities and subsequently promoting reintegration. Healing is a necessary step to ensure for the adequate reintegration of survivors back into their communities and to promote a culture of participation and gender equality.  Survivors of violence can often face stigma within their communities in that they can be accused for being at fault or responsible for the violence they suffered. Publicly reporting and sharing such abuses can make the survivors, and their families, targets of stigma or cultural/community taboos. Accountability and prosecution of these crimes can make significant progress in changing those misconceptions or taboos that the victim is the offender, or that women are the only victims of sexual violence and that men cannot be the victims of sexual abuse as well.  Therefore, investigating, arresting, charging perpetrators and holding them accountable in an international tribunal can help promote a culture of deterrence and reintegration, and subsequently encourage victims to come forward and share their experiences at a public trial without fearing of the consequences within their communities.

Among the other topics discussed at the panel presentation included internal gender issues that the ICC is faced with, such as staff misconduct or gender balance, managing a heavy case load, as well as gender-based crimes and sexual and reproductive crimes.  As we move forward, of course, we must ensure that voices from the victims are allowed and encouraged in the trial proceedings. By the same token, however, we must provide for the security of these victims to share their stories, whether by ensuring that their families and work lives will be taken care while away testifying or ensuring that they will not be stigmatized within their own communities for sharing the abuses they suffered.

Finally, it is important to emphasize that issues of prosecution and accountability for gender-based crimes, as well as issues of accessibility and agency, and overall international peace and security, are complimentary issues within the UN and other relevant stakeholders, including the ICC, and we must continue to promote collaborative work to tackle these challenges effectively.

-Melina Lito 

Women’s Political Participation and Peacekeeping

8 May

Recently, Executive Director of UN Women, Michelle Bachelet, and Under-Secretary General for Peacekeeping, Herve Ladsous, held a joint Security Council briefing on women peace and security issues, focusing on women’s political participation and protection from a peacekeeping perspective, respectively.  While Madame Bachelet focused on women’s agency, in particular the need for women to play a role in conflict resolution and encouraged their participation and engagement in peacemaking and peacebuilding processes, Mr. Ladsous focused on the protection of women and the need for more training and protection in order to establish a reliable security sector for women’s participation.

Madame Bachelet discussed that most of women’s political participation has been at informal stages and that has not translated at high level.  Women’s participation is a necessary component to resolving a crisis situation and it must be integrated into peace or mediation agreements; of course, of special importance is the role of mediators and advisers and their role in bringing attention to women in conflict resolution.  On rule of law as one of the most important elements of peacekeeping and peacebuilding, she stressed the importance of referring cases to the ICC and other tribunals and assessing lessons learned from previous cases.  She also linked reparations with relieving economic and social marginalization that can be at the root of the violence against women.  

Among the suggestions made include creating more opportunities for women to participate in conflict resolution and peacebuilding forums by inviting them in donor conferences and other international engagement processes. In addition, consults with SRSGs, advisors, Member States and other relevant stakeholders on the need of women’s participation in conflict resolution are promoted in hopes of encouraging and engaging more women in peacemaking and peacebuilding processes. Also, a review of lessons learned from international criminal tribunals and their prosecutions on sexual and gender-based violence that can be applied to future processes.  

Adding upon Madame Bachelet’s theme of political participation, Mr. Ladsous discussed that while peacekeeping has seen progress in the participation in election and political institutions, more remains be done. He noted that one of the major problems of participation of women in election processes, both as candidates and voters, is the lack of freedom of movement and more needs to be done to ensure for the security of women in such settings. Mr. Ladsous outlined some of the steps taken from the UN Missions on the ground to assure for the protection of women, including establishing temporary special measures or holding elections workshops or training police officers. But, while peacekeepers are there to protect civilians directly, the main responsibility to protect continues to lie with the host state itself and peacekeeping cannot be a substitute for that.  Stronger national institutions that promote security and decrease levels of violence need to be in place; civilian capacities need to be strengthened, and protection efforts need to be sustained and multiplied.

Overall, creating a reliable security sector for women’s participation is, of course, essential not only to the protection and prevention of violence against women, but also to women’s participation. As we move forward and evaluate UN Mission mandates, it is important to reflect and assess the progress on the ground on these issues.  

-Melina Lito