By Lisa Misol
From Rwanda’s genocide to massacres by paramilitaries and rebels in Colombia, the provision of arms, ammunition, and other forms of military support to known human rights abusers has enabled them to carry out atrocities against civilians. The perpetrators of war crimes, crimes against humanity, and genocide are on notice that they may be hauled before a national or international criminal tribunal to face charges. Yet the individuals and states who provide the weapons used in massive human rights abuses have so far been let off the hook for their central role in facilitating these crimes.
Individual arms traffickers and the states who use their services reject out of hand the idea that they bear some responsibility for fueling abuses. Human rights organizations and their allies in the humanitarian, public health, development, conflict prevention, and disarmament communities have set out to prove otherwise. These activists have long worked to develop strong norms to prevent arms transfers in certain circumstances, including transfers that would facilitate the commission of human rights abuses and war crimes, the concern here. Increasingly, they are turning to the obligations of states and individuals under international law, especially concepts akin to complicity, to establish a norm against arms supplies to abusers that has teeth.
Arms and Human Rights Abuses
In the early hours of January 6, l999, rebels of the Revolutionary United Front (RUF) launched an offensive against the Sierra Leonean capital, Freetown. As the rebels took control of the city, they turned their weapons on the civilian population. The rebels gunned down civilians within their houses, rounded them up and massacred them on the streets, hacked off the hands of children and adults, burned people alive in their houses and cars, and systematically sexually assaulted women and girls. Before withdrawing from the city later that month, the rebels set fire to neighborhoods, leaving entire city blocks in ashes and over 51,000 people homeless. On their way back to the hills, the RUF took with them thousands of abductees, mostly children and young women. All told, several thousands of civilians were killed in Freetown by the end of January.
The RUF was heavily backed by the government of Charles Taylor in Liberia, which provided arms, troops, and other support in exchange for diamonds and other riches that were under the RUF’s control in Sierra Leone. Never mind that both Liberia and the RUF were subject to mandatory United Nations arms embargoes. All Taylor needed were regional allies such as Burkina Faso willing to provide false cover for weapons deliveries, arms suppliers such as Ukraine willing to sell weapons with no questions asked, and the vast networks provided by private traffickers such as Victor Bout to acquire and move the goods from Point A to Point B, falsifying the paperwork along the way. The private actors involved and the governments they worked with were exposed, including in detailed reports by U.N. investigators. But in spite of about a dozen U.N. investigative reports on violations of arms embargoes imposed on gross abusers—in Angola, Liberia, Rwanda, Sierra Leone, and Somalia—not one of the persons named in the reports has been convicted in national courts for having breached these embargoes and thus having facilitated horrific abuses.
Against this backdrop of impunity, the indictment of Liberia’s Charles Taylor by the U.N.-backed Special Court for Sierra Leone represents a watershed. It helps illustrate the concept of responsibility for atrocities committed by abusive forces whom one has supported by furnishing weapons or through other means. The indictment charges Taylor with “individual criminal responsibility” for crimes against humanity, war crimes, and other serious violations of international humanitarian law committed in Sierra Leone by the RUF and allied forces. His responsibility, as detailed in the indictment, is based in part on his role in providing “financial support, military training, personnel, arms, ammunition and other support and encouragement” to these notoriously brutal rebels. By pointing to legal responsibility under international criminal law, the indictment is emblematic of an important approach. Arms campaigners are increasingly turning to human rights and humanitarian law as a basis to assert the responsibilities of both states and individuals.
Arms Transfers and the Responsibility of States
Recognition of states’ responsibility to control arms transfers has evolved over time. Affected communities, activists, and progressive governments have moved the debate toward a greater recognition of the human rights consequences of weapons flows and greater consideration of the obligations this imposes on suppliers. This suggests important opportunities to strengthen the emerging norm against arms supplies to abusers.
Building norms from the bottom up
For many years, ethical arguments have been a backbone of efforts to prevent arms from getting into the wrong hands. Nongovernmental organizations (NGOs) have long called for an end to government-authorized military assistance to gross abusers and decried the lack of control on private traffickers. Research has helped spotlight the problem. Groundbreaking investigative reports by Human Rights Watch and Amnesty International in the mid-1990s exposed the role of France, South Africa, Israel, Albania, Bulgaria, and others in arms supplies to Rwanda before and immediately after the 1994 genocide. As events in Rwanda tragically unfolded, the U.N. arms embargo imposed in the midst of the genocide went unheeded. Responding to such concerns, the U.N. Security Council in 1995 formed a commission of inquiry, known as UNICOI, to investigate violations of the Rwanda arms embargo. The Security Council largely buried the work of this commission, however, as its findings were deemed to be too politically sensitive. Little will existed to embarrass states, let alone hold anyone accountable.
Awareness of the human cost of uncontrolled transfers grew throughout the 1990s, as civil wars were spread in many parts of the world. Civilians have been caught in the crossfire or directly targeted by armed attackers. Journalists, humanitarian workers, and peacekeepers have witnessed this violence and often themselves been victims of it. Spurred by such atrocities and by continued civil society research and campaigning, states progressively adopted minimum arms-transfer criteria at the national, regional, and international level. For example, as a new spirit of ethics in foreign policy took hold—in principle if considerably less firmly in practice—in South Africa in 1994 and in the United Kingdom in 1997, these states pledged to halt arms transfers to human rights abusers. By the late 1990s, growing pressure helped lead to a number of voluntary regional and sub-regional measures that built on such national-level commitments. For example, in 1998 the European Union adopted a Code of Conduct on Arms Exports. That same year, the Economic Community of West African States adopted a three-year moratorium, since extended, on the import, export, and manufacture of small arms and light weapons. These and other measures have marked progress, but have fallen woefully short of the mark. A key weakness is that they are not binding and are thus often disregarded in practice.
Much attention has focused on the widespread availability and devastating misuse of one category of conventional weapon: small arms and light weapons, which are personal weapons such as pistols, assault rifles, and rocket-propelled grenade launchers. Some of this attention has been directed to ensuring that minimum arms transfer criteria are in place to keep such weapons out of the hands of abusers. But there also has been resistance to the idea of the responsibility of states with regard to authorized transfers—so called “legal” transfers—and many governments have insisted on discussing small arms only with respect to their illicit traffic—i.e., in cases where there is no state authorization. In July 2001, the U.N. hosted the first-ever international conference on small arms. It drew needed attention to this global scourge and helped motivate states to begin to tackle it. The conference resulted in a “Program of Action” document specifying actions that should be taken at the national, regional, and international level. Unfortunately, this was a watered-down consensus document focused on preventing and combating illicit small arms transfers, and it largely leaves aside the issue of government-authorized arms deals.
Since 2001, states in some regions have been able to find common ground and have agreed on measures to restrain authorized arms transfers. An ever-growing number of states have promised not to approve arms transfers where there is reason to believe these will contribute to human rights abuses and violations of international law. Such commitments are in keeping with the duty of states to respect and ensure respect for international human rights and humanitarian law.
Toward legally binding measures
Despite pledges to the contrary, weapons continue to find their way all too readily to areas—from the Democratic Republic of Congo to Sri Lanka—where they are used to commit serious human rights abuses and violations of international humanitarian law. There have been many calls from civil society to give binding legal status to existing commitments. State practice is slowly developing in this area, in part in response to scandals. In 2002, for example, Belgium—in contravention of the E.U. Code of Conduct—approved an arms transfer to Nepal, a country in conflict whose government had been implicated in a pattern of serious human rights abuses involving abduction, torture, and summary executions. The Nepal arms affair led a Belgian government minister to resign and prompted the federal parliament to pass a landmark law making national arms export criteria binding. These criteria are largely based on the E.U. Code of Conduct—and include a requirement that recipients of arms must comply with human rights and international humanitarian law.
Another important trend has been greater, if still uneven, attention to the enforcement of arms embargoes on gross human rights abusers. The efforts of UNICOI in the mid-1990s to document arms supplies to the forces that committed genocide in Rwanda were downplayed at the time. But the UNICOI experience helped open the door to a series of hard-hitting U.N. investigations that garnered greater public attention. Beginning with a March 2000 report on violations of an embargo then in place against Angolan rebels, various U.N. investigations by panels of experts have given new legitimacy and a name—“naming and shaming”—to efforts to hold arms suppliers and traffickers responsible for their behavior. These investigations have largely focused on the private traffickers who are a crucial link in the sanctions-busting chain. But the panels also have named governments, including heads of governments. For example, the president of Burkina Faso was accused of directly facilitating Liberia’s arms-for-diamonds trade, to the benefit of the RUF in Sierra Leone.
U.N. arms embargoes are binding on states, but in reality this means little if there are no consequences for their violation. Beginning with the first Angola panel report, the U.N. has considered imposing secondary sanctions on governments found to have breached the embargoes. This was done once, in the case of Liberia, which was subjected to a strengthened arms embargo as well as a travel ban, diamond sanctions, and later timber sanctions, in response to its support for rebels in Sierra Leone in violation of the U.N. embargo.
International law and the role of states in arms transfers
Beyond respecting arms embargoes, states have other international legal responsibilities they should consider when weighing weapons transfer decisions. For example, the 2001 U.N. Program of Action on small arms included an important reference to states’ obligations. It acknowledged that national arms export controls must be “consistent with existing obligations of states under relevant international law.” It offered no further elaboration. Arms campaigners have called on states to affirm that those obligations encompass international human rights and humanitarian law. In these and other ways, states have been forced to consider their responsibility under international law for the consequences of their arms transfers.
States involved in arms transfers bear a measure of responsibility for the abuses carried out with the weapons they furnish. This is true of arms-supplying states that approve arms deals where they have reason to believe the weapons may be misused. Exporting states in particular—as well as those that serve as transshipment points or as bases for arms brokering, transport, and financing—also must share in the responsibility for abuses when they fail to exercise adequate control over private traffickers who make weapons available to anyone who can pay.
The notion that one state can bear legal responsibility for helping another state breach international law has been recognized by a leading international body that promotes and codifies developments in international law. The International Law Commission, in its Articles on Responsibility of States for Internationally Wrongful Acts, adopted in 2001, concluded that: “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State.” In its commentary to the articles, the ILC applied this legal concept to the question of arms transfers: “[A] State may incur responsibility if it assists another State to circumvent [U.N.] sanctions —or provides material aid to a State that uses the aid to commit human rights violations. In this respect, the United Nations General Assembly has called on Member States in a number of cases to refrain from supplying arms and other military assistance to countries found to be committing serious human rights violations. Where the allegation is that the assistance of a State has facilitated human rights abuses by another State, the particular circumstances of each case must be carefully examined to determine whether the aiding State was aware of and intended to facilitate the commission of the internationally wrongful conduct.”
The question of the “secondary responsibility” of governments for armed atrocities has recently been examined by a special rapporteur on human rights and small arms with the U.N. Sub-Commission on the Protection and Promotion of Human Rights. In a May 2002 working paper, she highlighted that: “States are prohibited from aiding another State in the commission of internationally wrongful acts. That prohibition could be invoked in situations where a transferring State supplies small arms to another State with knowledge that those arms are likely to be used in a violation of human rights or humanitarian law — States do have important obligations under international human rights and humanitarian law that could be interpreted to prohibit them from transferring small arms knowing they will be used to violate human rights.” Her work has stressed, as noted in her June 2003 preliminary report, that “[t]o prevent transfer of small arms into situations where they will be used to commit serious violations of international human rights and humanitarian law, the international community should — further articulate principles regarding State responsibility in the transfer of small arms.”
This approach is at the core of a proposed international Arms Trade Treaty, which would be a binding instrument containing strong human rights and international humanitarian law criteria to govern the arms transfer decisions of states. The Arms Trade Treaty grew out of an earlier initiative by Nobel Peace Laureates, led by former Costa Rican president Oscar Arias, to promote international standards on arms transfers. The draft treaty addresses the existing obligations of states under international law and applies them to decisions to authorize arms transfers. Its central provisions would prohibit arms transfers where the authorizing government knows or ought reasonably to know that the weapons will be used to commit genocide, crimes against humanity, serious human rights abuses, or serious violations of international humanitarian law.
In October 2003, Amnesty International, Oxfam, and the International Action Network on Small Arms—consisting of more than 500 organizations, including Human Rights Watch—launched the “Control Arms” campaign in some seventy countries. The centerpiece of this effort is a push to promote negotiation of an Arms Trade Treaty by 2006, when the U.N. will host a follow-up to the 2001 small arms conference. The proposed Arms Trade Treaty is intended to cover all conventional arms and would apply to all manner of arms transfers, including transshipment and re-exports, not only direct exports. Some states have begun to step forward to champion the treaty idea, with Mali and Costa Rica taking an early lead. Negotiating such a binding international instrument on arms transfers would represent a major step forward in defining state responsibility for the human rights consequences of arms transfers.
Arms Transfers and Individual Responsibility
Just as there is a major push to hold states responsible for authorizing transfers of arms used to commit violations of human rights and international humanitarian law, there is also an impetus towards holding individuals accountable for their involvement in such arms transfers under international criminal law. Private arms trafficking to gross human rights abusers is in part an issue of state responsibility, in that such transfers often can be traced to governments that fail to implement and enforce adequate controls on private traffickers. In some cases, governments knowingly take part in illicit arms trafficking, as when officials provide false cover for arms shipments they know are destined elsewhere. But arms traffickers often do not work on behalf of specific states and instead have multiple clients, sometimes arming opposing sides in a given conflict. As arms traffickers establish transnational criminal enterprises, they seek to avoid the reach of national law. To address this widespread problem, nongovernmental groups have pressed for states to impose controls on arms brokers, licensing their activities using strict human rights criteria, and to move forward to negotiate binding international treaties on arms brokering and marking and tracing of weapons.
There is also scope to consider the individual responsibility of arms traffickers under international law. A review of the recent practice of international criminal tribunals suggests how this could come about. Under international criminal law, there are various ways in which a person may incur individual criminal responsibility. The most obvious way is as perpetrator, the person who directly commits the crime, as in the case of an individual soldier who slaughters civilians. A second possibility involves a person who holds a position of superior authority. Under the principle of “command responsibility,” this person can be held responsible for crimes committed by a subordinate, where the superior knew or had reason to know of the subordinate’s intended or actual crimes and failed to take the necessary and reasonable measures to prevent the crime or to punish the perpetrator. Neither of these two theories is likely to cover the activities of the arms trafficker who supplies the weapons used by the perpetrators.
The legal concept of complicity may be relevant in such cases. In lay terms, complicity relates to knowingly helping someone commit a crime without necessarily sharing the intent of the perpetrator. The Special Court in Sierra Leone drew on this legal concept in its indictment of Charles Taylor. Among other things, Taylor stands indicted for having “aided and abetted” abuses perpetrated by Sierra Leonean rebels—including acts that terrorized the civilian population, unlawful killings, widespread sexual violence, extensive physical violence, the use of child soldiers, abductions and forced labor, looting and burning, and attacks on peacekeepers and humanitarian workers—through the provision of financing, training, weapons, and other support and encouragement to the rebels. Taylor is also accused of more direct involvement in crimes in Sierra Leone and so it is not clear to what extent the Special Court will examine complicity theory even if Taylor is apprehended and tried, but the indictment itself is nonetheless an intriguing development for those looking for new ways to hold arms suppliers accountable.
Relevant case law
An examination of case law from other international criminal tribunals illuminates the potential for prosecuting arms suppliers for providing weapons to known abusers.
The concept of individual criminal responsibility for assisting in the commission of a crime without directly committing that crime is a general principle of criminal law. Indeed, one can be prosecuted for aiding many types of crimes recognized under international law. The International Criminal Tribunal for the Former Yugoslavia (ICTY) has elaborated this point in the context of cases involving accessories to war crimes and crimes against humanity. “Aiding” in international criminal law entails providing practical assistance that has a substantial effect on the commission of the crime.81 According to the ICTY, an “aider” must intentionally provide assistance to the perpetrator with knowledge of the perpetrator’s intent to commit a crime, but need not himself or herself support the aim of the perpetrator.82 Moreover, the ICTY has stated that a person may be liable as an accessory whether the assistance is provided before, during, or after the specific crime in question is committed.83
In the case of the crimes of genocide and torture, international conventions outlawing those acts explicitly state that acts of complicity in those crimes are punishable.84 The International Criminal Tribunal for Rwanda (ICTR) has further outlined what the specific crime of complicity in genocide entails. As elaborated by the ICTR, there are three elements of complicity in genocide: complicity by procuring means to commit genocide, by knowingly aiding and abetting genocide, or by instigating genocide.85 The first element is the one most likely to apply in relation to arms transfers, though the second could conceivably apply as well in some circumstances.
The ICTR trial chamber explicitly linked weapons to genocide, by stating that one may be complicit in genocide “by procuring means, such as weapons, instruments or any other means, used to commit genocide, with the accomplice knowing that such means would be used for such a purpose.”86 Thus, a person who knowingly provides weapons to a group that he or she was aware was carrying out a genocidal campaign could in principle be tried as an accomplice to acts of genocide. This could be true of someone who distributed the weapons in Rwanda, as has been alleged in several cases brought before the ICTR. An arms trafficker based outside a country in which genocide takes place could also in principle be prosecuted as an accomplice to genocide for making weapons available to genocidal forces.
The potential to prosecute: Illustrative examples
The statutes of neither the ICTR nor ICTY specifically identify the provision of weapons or other concrete military assistance as constituting practical assistance for the purposes of establishing criminal liability for “aiding” in the commission of a crime, yet the case law cited above suggests it is reasonable to interpret them as such. It would be interesting to push this approach further and explore the possibilities of prosecuting an arms supplier under this theory. Persons involved in arms supply networks, by providing such assistance, may in some circumstances make a contribution to the crimes committed with those weapons. Where there is also evidence that these persons were aware of the intent of their clients to commit certain crimes, then they toomightbe held legally responsible.
In the case of the crime of complicity in genocide, to date no international prosecution has been attempted against an arms trafficker outside the country for making weapons available to genocidal forces. One illustrative example, however, suggests some of the elements a prosecution along those lines might entail. The case is that of Mil-Tec, a British company that delivered weapons to the Rwandan armed forces, including in air deliveries after the genocide was underway.87 The government that led the Rwandan genocide took power following the April 6, 1994, killing of then President Juvenal Habyarimana. One of the first acts of the new interim government was to make contact with Mil-Tec to place an urgent order for U.S.$854,000 worth of arms and ammunition. Ultimately, Rwandan records show, Mil-Tec provided a total U.S.$5.5 million worth of ammunition and grenades in five separate deliveries on April 18, April 25, May 5, May 9, and May 20. The last of these violated a mandatory U.N. arms embargo imposed on May 17, 1994.88 The genocide was underway during the time of the arms deliveries—and was widely reported—so one could try to establish that arms traffickers supplying the interim Rwandan government knewhow the weapons would be used.
One might also be able to prosecute individuals who supply arms to forces known to be responsible for crimes other than genocide, namely war crimes and crimes against humanity. Here the example of Victor Bout, described by one expert as “the McDonald’s of arms trafficking – the brand name” is perhaps apt as an illustration. A string of U.N. reports have accused Bout, a Russian citizen, of playing a key role in illicit weapons deliveries to Angola, Sierra Leone, and Liberia, and of involvement in military transport and the illegal plunder of natural resources in the DRC. In order to establish criminal liability under a complicity theory, one would also need to show that Bout was aware of the circumstances in the recipient countries, the human rights records of the parties he supplied, and their intent to commit more crimes. Bout, who denies being involved in sanctions-busting, is currently in Moscow, successfully avoiding arrest under an international arrest warrant issued by Belgium.
Legal theories in action
The indictment of Charles Taylor by the Sierra Leone Special Court (SCSL) explicitly treats the cross-border provision of weapons and other military support to known violators as a prosecutable offense. The case against Charles Taylor rests on much more than the transfer of weapons, and a trial against him would be important in many respects. But to the extent that he is found criminally responsible for providing material support to the RUF, it could serve as an important precedent and wake-up call to arms traffickers the world over.
The Taylor indictment is not the only opportunity to send that message. The SCSL has ongoing investigations related to the arming of the RUF. The Court is actively investigating cases involving those who orchestrated arms shipments. Consistent with its mandate, it is focused on those who thus bear the “greatest responsibility” for the atrocities committed in Sierra Leone, meaning in this case those who played a central role in the provision of arms. As confirmed to Human Rights Watch by the SCSL’s Chief of Investigations, Alan White: “If a person is the principal supplier of arms and knows that and also knows that the weapons will be misused, then this person certainly would have individual criminal responsibility and would be prosecuted [by the Court].” The statute of the SCSL specifically provides for prosecution of “a person who planned, instigated, ordered, committed or otherwise aided and abetted” the crimes it sets forth.
While the Special Court is focused on the masterminds of the atrocities in Sierra Leone and their main backers, a Truth and Reconciliation Commission also is examining who took part in gross abuses in Sierra Leone and who assisted them in the commission of those crimes. To the extent that it looks at the role of arms traffickers, the work of this commission also would help ensure greater accountability for their actions.
The International Criminal Court provides a key possible venue for holding individuals responsible for “the most serious crimes of concern to the international community.” The statute of the International Criminal Court explicitly asserts the responsibility of someone who “[f]or the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission.”
The chief prosecutor of the International Criminal Court, Luis Moreno-Ocampo, has expressed interest in the role of private actors in fueling war crimes and crimes against humanity, with special reference to the illegal exploitation of resources in the Democratic Republic of Congo. If and when the Court prosecutes persons who have been complicit in or conspired in the commission of gross abuses, it will help further elaborate the legal basis to hold individuals criminally responsible for fanning the flames of armed conflict and associated abuses.
Another possibility, as yet unexplored by the international community, would be to allow international courts to prosecute arms traffickers for violating arms embargoes. Such action would address only those human rights crises that are covered by an arms embargo, but would be an important complement to other efforts. It could be accomplished if an international or hybrid court created to prosecute atrocities in a country subject to a U.N. arms embargo, such as Liberia, were to include violations of that embargo in the list of crimes in its statute. Foreseeing such a possibility, the Security Council could note in its resolutions that violations by governments and individuals of the embargoes it imposes might be prosecuted before international criminal courts with jurisdiction.
Examination and possibly further development of existing legal theories may shed some light on the responsibilities of both states and individuals with respect to the transfer of weapons to gross abusers. Progress to date has been slow, however, and there is a need to push these concepts further to secure change. The governments and private traffickers who dismiss the very notion that they might be held responsible for supplying weapons to known abusers need to learn that they are wrong: they can and should be held accountable for their role in facilitating atrocities.
81 See, for example, Prosecutor v. Furundzija, Case No. IT-95-17/1 (Trial Chamber), December 10, 1998, para. 234-5, 249; Prosecutor v. Vasiljevic, Case No. IT-98-32-T (Trial Chamber), November 29, 2002, para. 70; and Prosecutor v. Blaskic, Case No. IT-95-14 (Trial Chamber), March 3, 2000, para. 285.
82 See, for example, Blaskic, (Trial Chamber), March 3, 2000, para. 286; Furundzija, (Trial Chamber), December 10, 1998, para. 246; and Furundzija, (Trial Chamber), December 10, 1998, para. 245, 249.
83 See, for example, Vasiljevic, (Trial Chamber), November 29, 2002, para. 70; and Blaskic, (Trial Chamber), March 3, 2000, para. 285.
84 Convention on the Prevention and Punishment of the Crime of Genocide, December 9, 1948, Article 3 (e); and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, Article 4 (1).
85 Prosecutor v. Akayesu, Case No. ICTR-96-4-T (Trial Chamber), September 2, 1998, para. 533-537. See also, for example, Prosecutor v. Semanza, Case No. ICTR-97-20 (Trial Chamber), May 15, 2003, para. 393, 395.
86 Akayesu, (Trial Chamber), September 2, 1998, para. 533-537. The Chamber defined complicity “per the Rwandan Penal Code.”
87 See, for example, Human Rights Watch, Leave None to Tell the Story: Genocide in Rwanda (New York: Human Rights Watch, 1999), pp. 649-53.
88 Mil-Tec was registered in the Isle of Man, which at the time was not covered in the U.K. legislation codifying the U.N. arms embargo into British law. Due to another loophole, the company also escaped scrutiny under U.K. arms export controls. Thus the activities of Mil-Tec were technically legal and could not be the basis for a prosecution under national law. See, for example, “Human Rights Watch Calls on Britain to Crack Down on Violators of International Arms Embargoes,” Press Release, November 25, 1996.