Armas ligeras - boivin

Volume 87 Number 859 September 2005

Complicity and beyond: International law and the transfer of small arms and light weapons
Alexandra Boivin*
Alexandra Boivin holds B.A. and B.C.L./LL.B. degrees from McGill University and a Masters degree (DEA) in International Humanitarian Law from the Graduate Institute of International Studies, Geneva.

Abstract Momentum is growing around a proposedtreaty governing the international transfer of small arms and light weapons. Those promoting the new instrument emphasize the existing obligations of States, under the law of State responsibility, not to aid or assist another State in violating international law. This article explores the extent to which the prohibition of “complicity” is a sufficient basis for requiring States to consider theend-use of the weapons they transfer. It offers suggestions for strengthening the effectiveness of the current draft treaty in a way that places respect for international humanitarian law and human rights at its core.
: : : : : : : Small arms and light weapons that fall into the wrong hands often become tools of oppression, used to commit violations of human rights and international humanitarian law.They frequently exacerbate situations of regional instability and armed conflict and hinder post-conflict reconstruction. According to recent figures put forward by the Conventional Arms Branch of the United Nations Department for Disarmament Affairs, there are over 600 million small arms and
* Elements of this article derive from work the author carried out for the Centre for HumanitarianDialogue as background for the publication “Missing Pieces: Directions for reducing gun violence through the UN process on small arms control”, released in July 2005, and available at . The author wishes to thank the Centre for permission to publish text from this original work. She also wishes to thank David Petrasek, personally, for the opportunity to explore the issues discussed, as well as RoryMacmillan for his valuable comments and suggestions. 467
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A. Boivin — Complicity and beyond

light weapons in circulation worldwide. “Of 49 major conflicts in the 1990s, 47 were waged with small arms as the weapons of choice. Small arms are responsible for over half a million deaths per year, including 300,000 in armed conflict and 200,000 more from homicides and suicides.”2 The small armsproblem has many interrelated and interdependent facets, from the conditions that create demand for these weapons to the abuses they facilitate and their rampant availability. Controlling cross-border transfers of weapons is a particular challenge for the international community because it cannot be fully addressed without the concerted action of all States. It is a typical collective actionproblem, where lower regulatory standards or lesser regulatory capacity of a few States can usurp the best intentions of the rest. Too easily, small arms find their way to those who abuse them because States have not sufficiently controlled what leaves their territory and to whom it goes. Increasingly, attention is being given to the nexus between the availability of small arms and the perpetration ofviolent acts on a large scale. This has led some States to include end-use criteria based on human rights and humanitarian law in their arms transfer laws and policies. This development is a positive step in the fight against the misuse of small arms. The trend, however, is not followed by all major arms-exporting nations, and the international law standards used to assess whether or not a transfershould be authorized are by no means interpreted uniformly or consistently. The lack of comprehensiveness and uniformity results in a permissive environment for the continued transfer of weapons to recipients likely to use them in violation of international law. Momentum is growing in support of a proposed international instrument that would codify the notion that States must prevent weapons...