Resourses for Counter-Terrorist Operations, or Gunpowder for Ukraine Civil War

10.03.2015

The U.S. and EU leaders and public are discussing whether they should supply weapons to Poroshenko government in Ukraine. Let us look at the legal aspect of the issue.

At the same time we will bear in mind that according to the monitoring mission around six thousand people have died in the war zone since last April. There have been almost fifteen thousand casualties. According to the UN representative, ruthless destruction of people took place.

Arms Trade Treaty (ATT)

In December 2014, the Arms Trade Treaty (ATT) entered into force. This document was ratified by all EU states, whereas the United States has only signed it so far.

The limits on weapons supplies in the framework of the ATT turned out to be general and not too specific. According to this document, participating states should on their own assess the risks connected with weapons supply.

Article 7

Export and Export Assessment

1. If the export is not prohibited under Article 6, each exporting State Party, prior to authorization of the export of conventional arms covered under Article 2 (1) or of items covered under Article 3 or Article 4, under its jurisdiction and pursuant to its national control system, shall, in an objective and non-discriminatory manner, taking into account relevant factors, including information provided by the importing State in accordance with Article 8 (1), assess the potential that the conventional arms or items:

(a) would contribute to or undermine peace and security;

(b) could be used to:

(i) commit or facilitate a serious violation of international humanitarian law;

(ii) commit or facilitate a serious violation of international human rights law;

3. If, after conducting this assessment and considering available mitigating measures, the exporting State Party determines that there is an overriding risk of any of the negative consequences in paragraph 1, the exporting State Party shall not authorize the export.

4. The exporting State Party, in making this assessment, shall take into account the risk of the conventional arms covered under Article 2 (1) or of the items covered under Article 3 or Article 4 being used to commit or facilitate serious acts of genderbased violence or serious acts of violence against women and children.

It follows from the text that when making a decision on granting a license to the weapons export, the government of the exporting countries should foresee and take into account the risk that the given weapons supply could damage peace or security, be used for serious violation of international law and human rights (the level of ‘seriousness’ is also determined by the exporter). They also should take into account the risk that the supplied weapons could be used to commit or facilitate serious acts of gender-based violence or serious acts of violence against women and children.

Despite the fact that the European Union has entirely concrete criteria for above-mentioned risks, the fact that national governments have a right to individually assess and interpret the given issues significantly weakens the fixed limitations.

There is an impression that NATO Secretaries General Anders Fogh Rasmussen, and thereafter Jens Stoltenberg were specifically mentioning this when they repeated: “NATO as an organization does not have its own weapons or military equipment. The decision to supply weapons belongs to individual governments. Therefore, NATO is not going to interfere in the national decision making process of the Alliance members on supplying weapons to Ukraine.” 

Meanwhile, the Article 6 of the ATT, among the reasons for direct prohibitions of weapons supply, mentions crimes against humanity and “serious breaches of the 1949 Geneva Conventions, attacks against civilian objects or civilians under protection”.

Article 6, n.3 (Prohibitions)

A State Party shall not authorize any transfer of conventional arms covered under Article 2 (1) or of items covered under Article 3 or Article 4, if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.

The 1949 Geneva Conventions do not specify the rules of internal armed conflict – a civil war (after all, what we are seeing in Ukraine is, indeed, a civil war) or anti-terrorist operations.  However, the Conventions require from the parties to a conflict to distinguish between civilians and direct participants of military operations (combatants).  Attacks on civilian targets, civilian population and individual civilians are prohibited.

Attacks may only be directed against military targets. The use of weapons or methods of war that cause unnecessary losses or excessive sufferings are also forbidden.

However certain interpretations of the ATT suggest that the supply of weapons to the Poroshenko government would not be inconsistent with the ATT and would not pose a direct threat to civilian population.

Arms sales to Ukraine are more severely regulated within the European Union in its “Council Common Position on Common Rules on Militaty Technologies and Equipment Export Control” (December 2008).

The EU Common Position, 2008

According to the Common Position, “Member States shall deny an export licence for military technology or equipment which would provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination.“  In addition, the document stipulates that member states must refuse from exporting if there is a threat that “intended recipient would use the military technology or equipment to be exported aggressively against another country or to assert by force a territorial claim.“

Supplying arms to Ukraine would violate at least three of eight basic criteria which member states must consider when granting licenses for arms exports:

  1. Respect for human rights in the country of final destination as well as respect by that country of international humanitarian law;
  2. Internal situation in the country of final destination—Member States shall deny an export license for military technology or equipment which would provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination;
  3. Preservation of regional peace, security and stability

Should European countries decide to supply arms to Ukraine, it would become a serious challenge for the EU export control system and European civil society, which made a lot of efforts to establish the European Union common rules for the arms sale.  Today this truly effective tool, provided by both state and public control mechanisms, is questioned.  Temptations to make exceptions to the rules are great, but these exceptions may very well become the rule.

As for the ATT, the decision to export arms to Ukraine would be a gravestone for the young international treaty, a monument to how good intentions are breaken down when faced with political realities.

What options do the U.S. and NATO have to support the Ukranian Armed Forces?  The same they have always had.  Just like those used by the USA to support the mujahideen in their fight against the USSR – secret operations.

But this is the issue of another discussion. 

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