The United Nations’ landmark Arms Trade Treaty (ATT) recently received its fiftieth ratification — the number required to trigger its entry into force on Dec. 24, 2014. It was also the first anniversary since the United States became a signatory (though, the treaty is unlikely to be ratified by the US in the near future). Shortly after the deposit of the fiftieth instrument of ratification, the President of the International Committee of the Red Cross, Peter Maurer announced that:

“Faithfully and consistently applied, this treaty will ensure that weapons do not end up in the hands of those who would use them to commit war crimes or serious violations of human rights law.”

In light of recent decisions to arm “vetted” Syrian and Kurdish fighters by countries who have either signed or ratified the ATT, it is worth asking whether the ambitious convention will be “faithfully and consistently applied” when it enters into force in less than 90 days.

The prohibition and export restrictions at the “operational heart” of the ATT

Take for example, Articles 6 and 7 of the ATT. These two articles, which are at the “operational heart” of this framework treaty, outline the criteria for assessing arms export applications and are an attempt at ensuring respect for IHL and IHRL in the transfer of arms, including ammunition/munitions and their components.

Under Art. 6, States must not authorize any transfer if:

it will violate a Chapter VII measure such as an arms embargo (Art. 6(1));

it will violate that State’s “relevant international obligations under international agreements to which it is a Party, in particular those relating to the transfer of, or illicit trafficking in, conventional arms” (Art. 6(2)); or

the State has “knowledge” at the time the transfer is authorized that the arms “would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions 1949, attacks against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party” (Art. 6(3)).

So would the transfer of arms to Syrian rebels be prohibited under Article 6?

The practical effect of Art 6(1) and Art 6(2) may not be much, since they both prohibit that which is already prohibited. For example, if the arming of “moderate” Syrian rebels amounts to a “use of force” in violation of Article 2(4) of the UN Charter, then, it matters very little that it will be a violation of an “international obligation under international agreements to which it is a Party” (Article 6(2) of the ATT), because it would constitute an independent violation of international law anyway.

Even If there is an exception to the prohibition on the use of force that would be applicable to the arming of Syrian rebels, Article 6(3) appears to be of little utility to the Syria context. That is because proving a State had “knowledge” that the arms would be used to commit genocide, crimes against humanity, or the limited selection of war crimes in Article 6(3) that are applicable in non-international armed conflict, and thereby engaging state responsibility, would be difficult.

The “overriding risk” test in Art. 7

Even if the proposed transfer does not fall foul of Art. 6, Art. 7 prohibits a state from transferring arms if, after an “objective” assessment (including consideration of appropriate mitigating measures (Art 7(2)), there is an “overriding risk” that it:

“would” undermine, rather than contribute to, peace and security (Art. 7(1)(a);

“could” be used to “commit or facilitate” a serious violation of IHL, IHRL or other international laws related to terrorism or transnational organized crime (Art. 7(1)(b)).

There is no doubt that the rebel fighters, including those fighting under the banner of the “moderate” Free Syrian Army, have committed serious violations of international law. Amnesty International, Human Rights Watch, the United Nations Commission of Inquiry into Syria and the Center for Civilians in Conflict have all documented as such. Furthermore, interviews with Free Syrian Army Commanders and lower level fighters have revealed that it is difficult to make fighters respect the rules of IHL and IHRL. Many of them even lack basic knowledge of the Geneva Conventions or their Additional Protocols. Others refuse to apply the rules at all as one Free Syrian Army fighter has admitted. Even devising a “vetting system” that adequately mitigates the risk that arming rebels may facilitate “a serious violation” of international law will be difficult, as Sarah Margon explained in Just Security.

The above concerns do not automatically mean there is an “overriding risk” that would prohibit the transfer, that is, because the text of Art. 7 leaves a number of questions unanswered:

Are Art. 7(1)(a) and Art. 7(1)(b) alternative or cumulative conditions? If it is the former, does that mean a state can legally transfer arms to Syrian rebels, if it “would” “contribute to peace and security” — irrespective of the “overriding risk” they “could” be used to commit a (singular) serious violation of international law?

Whose peace and security are we talking about? Is it the exporting state, the importing state, or other states?

What is the meaning of “overriding risk” and what is its relationship with the requirement to consider mitigating measures in Art. 7(2)?

What factors should states consider in objectively assessing the risk that arms will be used to commit a serious violation of international law? Would the rebels need to make a formal commitment to apply IHL, integrate it into their training and doctrine and maintain effective accountability mechanisms for non-compliance? How would the transferring states ensure the rebels maintain effective control over the arms in order to prevent their diversion?

What about those states that have decided to provisionally apply the ATT?

About 21 states have already declared that they will provisionally apply Articles 6 and 7 of the ATT and some of those states (like Germany) are arming rebels. For these states, compliance with the ATT should be an important consideration — even before it enters into force on Dec. 24. Since provisional application of treaties produces legal effects that are capable of giving rise to legal obligations, a breach under the ATT may constitute an internationally wrongful act triggering the rules of state responsibility (see the 2014 Report of the International Law Commission at [236] and [244] (“there was agreement in the Commission that, in principle, a breach of an obligation which arose out of the provisional application of a treaty constituted an internationally wrongful act, thereby triggering the rules on the responsibility of states for internationally wrongful acts”)).

Does arming rebels “defeat the object and purpose” of the ATT?

As for other states such as the United States, France, and Australia that are arming rebels but have not made a declaration of provisional application (or, as is the case with the US, are yet to ratify the treaty), states must refrain from acts that would defeat the object and purpose of the ATT. In other words, states must not commit acts that will render performance of the treaty meaningless, or makes performance (objectively or subjectively) impossible. To do otherwise, would violate Article 18 of the Vienna Convention on the Law of Treaties (VCLT).

Article 1 of the ATT states that one of the treaty’s objects is to “prevent and eradicate the illicit trade in conventional arms and prevent their diversion” for the purpose of “contributing to international and regional peace, security and stability” and “reducing human suffering” (though, this is not exhaustive as the law of treaty interpretation requires an examination of the title, preamble and negotiations to determine the object and purpose). States in favor of arming rebels might argue they are contributing to peace, security and stability by seeking to resolve a conflict that has caused unquantifiable humanitarian suffering. But the future of Syria is by no means certain. There is a real possibility that these arms (along with ammunitions/munitions and parts) supplied to “moderate” rebels will end up as part of the illegal arms trade as the conflict progresses. A similar thing happened in Libya. According to the United Nations Panel of Experts investigating the arms flows to and from Libya, Libya is “a primary source of illicit weapons” with“[a]rsenals of non-state armed actors” being the “major source of weapons proliferation out of Libya”. Many of the weapons transferred to Libya during have ended up in conflict ridden countries such as Tunisia, Mali, Chad, Central African Republic, and Syria, on the civilian black market in Libya.

In a recent Small Arms Survey on the proliferation of Man-portable Air Defense Systems in Syria. It was noted that:

Weapons acquired by armed groups are generally more vulnerable to theft, loss, and diversion than weapons held by government… It is unclear what, if any, control measures have been implemented by the armed groups and their state sponsors. Stockpile security and end-use monitoring could help to reduce the risk of diversion—but only marginally.

As the Pentagon has recently acknowledged, the Syrian rebels are “not monolithic” and without a “command and control structure”. The decentralized structure has caused communication and coordination issues between the U.S and the rebels including those who serve with groups that have received American arms. Even if there might be increased U.S involvement on the ground than there was in Libya, implementing effective control measures ensuring against the illegal diversion of these arms will be a very difficult task and lends support to the argument that the arming rebels might, under certain circumstances, result in defeating the object and purpose of the ATT.