Sesión Especial de la Comisión de Asuntos Jurídicos y Políticos sobre Temas de Actualidad del Derecho Internacional Humanitario


UNREGULATED AVAILABILITY AND MISUSE OF SMALL ARMS: THE NEED FOR STRENGTHENED CONTROLS

Comments by the International Committee of the Red Cross

Mr. President,
Excellencies
Ladies and Gentlemen

In carrying out its mandate to protect and assist the victims of war, the International Committee of the Red Cross (ICRC) is constantly faced with the devastating consequences that the unregulated availability of weapons has on civilians both during and after conflict.
In 1995, the Intergovernmental Conference for the Protection of War Victims and the 26th International Conference of the Red Cross and Red Crescent called on the ICRC to examine the extent to which the availability of weapons was contributing to an increase in violations of international humanitarian law and increased suffering for the civilian population.
In 1999, the ICRC presented a study entitled "Arms availability and the situation of civilians in armed conflict" based on its first-hand experience from armed conflict and post-conflict situations around the world. The study concluded that the combination of inadequate controls on the transfer of arms and the frequent use of weapons in violation of humanitarian law, puts civilians at increased risk of abuse during and after conflicts, and undermines the legal norms designed to protect them. Ensuring that arms bearers use their weapons in accordance with the relevant norms contained in international humanitarian law becomes even more difficult when weapons of war are widely dispersed and easily accessible. Disease, starvation and abuse increase when humanitarian agencies are the object of attack and are forced to suspend operations or leave a country. The end of an armed conflict seldom means an end to violence if large quantities of arms and ammunition remain at large.

Mr President.

The study does not suggest that arms availability alone causes these effects, but that the unregulated proliferation of arms and ammunition can be a major factor in facilitating such violations and a deterioration in the situation of civilians during and after armed conflict.
Assault rifles, machine guns, grenades, mortar bombs – weapons falling into the category of small arms and light weapons – are a cause for particular concern. While these weapons are the most commonly used in today's armed conflicts, unlike major weapons systems, their availability is subject to few internationally accepted rules. Based on the conclusions of the ICRC study, the International Red Cross and Red Crescent Movement worldwide called on States to take a variety of actions to address this urgent humanitarian concern.

The widespread availability and misuse of weapons is a complex and multifaceted problem, which no single measure or solution can effectively prevent. We believe that a comprehensive approach is necessary to achieve a significant reduction in the unregulated availability and widespread misuse of weapons. This will require efforts at the global, regional and national levels aimed at addressing both the supply and demand for weapons. I would like to elaborate briefly on some of these points.

1. The need for a comprehensive approach
One of the essential elements in such a comprehensive strategy is the establishment of strict controls to prevent further unregulated proliferation of weapons and ammunition. This will require a combination of different control measures, including: strict regulation of arms transfers and arms brokering activities, effective management and security of arms and ammunition stocks and comprehensive disarmament of former combatants and disposal of surplus weapons when armed conflicts end.

To reduce the human suffering resulting from the uncontrolled availability and misuse of weapons, much greater efforts are needed to prevent arms from falling into the hands of those likely to use them to violate international humanitarian law. Although international law allows States to acquire arms for their security, under Article 1 common to the Geneva Conventions of 1949, States also have a solemn obligation to “respect and ensure respect” for humanitarian law. In light of this obligation, States have a responsibility to ensure that violations of international humanitarian law are not facilitated by unregulated access to arms and ammunition.

States party to the Geneva Conventions affirmed this responsibility at the most recent International Conference of the Red Cross and Red Crescent in December 2003. In the Agenda for Humanitarian Action adopted by the Red Cross and Red Crescent Conference in 2003, States party to the Geneva Conventions undertook to make respect for humanitarian law one of the fundamental criteria on which arms transfer decisions are assessed and were encouraged to incorporate such criteria in national laws and policies, as well as regional and global norms.

Controlling the supply of weapons should not be the only area for attention however. There are a number of complementary measures that could reduce the number of civilian casualties caused by the misuse of weapons.

Enhanced respect for existing norms and principles, such as human rights and humanitarian law, can increase people's safety and security and reduce the risk of small arms misuse. While most small arms and light weapons do have legitimate uses, steps must be taken to ensure that these weapons are in fact employed in accordance with international human rights and humanitarian law. Achieving a significant and sustainable decrease in armed violence against civilians will therefore require influencing and changing the behaviour of those who bear weapons. The ICRC can support States in providing effective training in international humanitarian law and human rights law for armed forces, police and other bearers of weapons.

To enhance the effectiveness of controls on the supply of weapons, attention must also be given to the factors that lead people to acquire and misuse weapons. Unless a reduction in the demand for weapons can be achieved, attempts to better control their supply are likely to be only partially successful and may merely shift the source of supply to the weakest link in the control chain. Personal and economic insecurity are considered two of the fundamental issues that must be addressed in this regard. Improving the security of people and communities -- including through the provision of adequate public security and criminal justice systems -- may therefore be considered one of the fundamental prerequisites to achieving a sustainable reduction in the demand for and misuse of weapons.


2. Global efforts
Mr. President

The ICRC has been pleased to note that the human costs of the uncontrolled availability and misuse of small arms and light weapons have received increased global attention in recent years, and we welcomed the adoption in 2001 of the UN Programme of Action on the Illicit Trade in Small Arms and Light Weapons as a first step towards addressing this problem on the global level. Still, the ICRC believes that States must act with greater urgency to reduce the unregulated proliferation of weapons as long as a significant improvement in the situation of civilians in zones of conflict and tension around the world is not yet evident. While regulations on the national and regional levels are essential, due to the transnational character of the global arms trade, they need to be complemented by global control mechanisms.

We hope that the forthcoming Review Conference of the UN Programme of Action, which will take place between 26 June-7 July this year, will be utilized fully to advance this issue at the global level. The development of stricter controls to prevent illegal arms brokering activities and the establishment of common minimum standards for the regulation of international arms transfers are two areas in which the ICRC hopes to see States make progress. We urge all OAS Member States to work to ensure that the 2006 Review Conference on the UN Programme of Action will result in more effective global action to end the immense human suffering facilitated by widespread proliferation and misuse of small arms and light weapons.


2. Regional and national measures
Mr. President

Much of the progress made so far in addressing small arms proliferation has been achieved at the regional level, with a number of regional organizations having developed comprehensive regional frameworks for action. We commend the pioneering role that the OAS played by adopting in 1997 the first legally-binding agreement addressing the illicit trade in small arms, namely the "Inter-American Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives and Other Related Materials". Provided they are also implemented and enforced, instruments of a legally-binding nature are in our view likely to be more effective than non-binding guidelines in preventing the illicit trade and unregulated availability of weapons.

The OAS has also been at the forefront when it comes to the development of model regulations in this area, with both the 1998 "Model Regulations on the International Movement of Firearms, their Parts, Components and Ammunition" and most recently the "Model Regulations for the Control of Brokers of Firearms, their Parts and Components and Ammunition" (2003). Illegal cross-border transfer of arms and ammunition is a significant factor fuelling crime and conflict in many areas. The strengthening and harmonization of arms transfer standards and laws is necessary to close the legal loopholes that all too often allow the unscrupulous individuals and networks engaged in the illicit arms trade to continue operating with impunity.

To more effectively prevent weapons from ending up where they are likely to be used to violate humanitarian law, the ICRC believes that all national laws and policies, as well as regional and international norms on arms transfers, should include requirements to:

1. assess the recipient's likely respect for international humanitarian law

2. not transfer arms or ammunition if there is a clear risk that they will be used for violations of humanitarian law.

In light of this, the ICRC welcomes in particular the inclusion in the OAS' Model Regulations for the Control of Brokers of Firearms of a prohibition on brokering activities and the granting of brokering licenses when there is reason to believe that these activities will lead to or seriously threaten to lead to the perpetration of war crimes. If incorporated into national laws, this provision can contribute significantly to ensuring that compliance with humanitarian law is duly considered by OAS Member States when assessing brokering licences. We would therefore urge all OAS Member States to take the necessary measures to establish strict national laws and regulations on arms brokering, including the establishment of such a prohibition.

As a region that has already made great efforts to improve controls on small arms, the ICRC would encourage the OAS to also consider developing regional criteria for arms transfer decision-making, for example in the form of a Code of Conduct on arms transfers. This would be an important complement to the existing OAS instruments, which except with regard to arms brokering do not include specific criteria for the licensing of arms transfers. Several other regional and sub-regional organizations have developed such criteria, including the EU, the OSCE and States in the Great Lakes Region and Horn of Africa. Some of these already apply to certain OAS Member States, including the Code of Conduct recently adopted by the Members of the Central American Integration System (SICA). Any regional arms transfer criteria developed by the OAS would need to take due account of States' existing obligations in this area, including relevant obligations that States have under international humanitarian law. (27)

To briefly conclude, the ICRC strongly encourages the OAS to continue its efforts to reduce the unregulated proliferation of weapons, in particular small arms and light weapons. In particular, we encourage the OAS to consider developing regional criteria for arms transfer decision-making, which take full account of States' existing obligations under international humanitarian law. The ICRC also urges OAS Member States to support further global measures in this area, including in the framework of the UN Programme of Action. In addition to establishing strict controls on the supply of weapons, complementary measures should be taken to reduce the demand for and misuse of weapons. By increasing their efforts to prevent weapons and ammunition from falling into the hands of those likely to use them to violate international humanitarian law, the OAS and its Member States can significantly contribute to improving the protection of civilians during and after armed conflicts, facilitating post-conflict reconciliation and reconstruction, and enhancing the rule of law.

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(27). A list of the main regional arms transfer documents that contain references to and criteria based on humanitarian law is available in English and Spanish.