War crimes: providing the means

“People or companies that conduct (international) trade... in weapons or raw materials used for their production, should be warned that – if they do not exercise increased vigilance – they can become involved in most serious criminal offences. It should be made clear to them that they will face prosecution and long-term prison sentences...”

Court of Appeal The Hague, Judgment, 9 May 2007

Earlier this month, the Supreme Court of the Netherlands upheld the conviction of a Dutch businessman, Frans van Anraat, for being an accessory to war crimes committed by the Iraqi regime in the 1980s. It thereby confirmed in most regards a 2007 judgment by the Court of Appeal in The Hague, which had found Van Anraat guilty of being an accessory to a violation of the laws and customs of war for having 'intentionally provided the opportunity and means' for attacks with mustard gas carried out in 1987 and 1988.

Between 1980 and 1988, Van Anraat had supplied Saddam Hussein's regime with at least 1'160 tons of TDG. TDG (short for 'Thiodiglycol' ) can be used to make mustard gas, a poisonous gas first used in World War I. This gas was used by Iraq in multiple attacks during the war with Iran on places in that country, as well as on the border region between Iraq and Iran, which is mainly inhabited by Kurds. Mustard gas, as well as TDG, today fall under the 1993 Chemical Weapons Convention (CWC).

In the Court's view, Van Anraat knew that the TDG he supplied would be used for the production of mustard gas. Although TDG also has civilian applications, the Appeals Court considered that in the quantities as supplied by Van Anraat, the TDG could not have been used for non-military purposes. And, because Iraq was at war, Anraat was also 'very aware of the fact that – 'in the ordinary course of events' – the gas was going to be used', and that this use was actually taking place.

It should be noted that Dutch export control law did not require a special license for the export of TDG until the beginning of 1985. And of course, the Chemical Weapons Convention only entered into force in 1997. The 1925 Geneva Protocol certainly prohibited the use of mustard gas in war, but it said nothing about the possession, production or transfer of chemical weapon precursors. In addition, it was arguably only applicable in international armed conflicts, (although the customary international law norm against chemical weapons use was possibly already broader in scope and applied also to internal armed conflicts).

Van Anraat did not commit war crimes himself, nor did he supply the weapons with which they were committed. He 'only' furnished a precursor thereof (although an essential one) - a chemical moreover, that has legitimate civilian applications. Nevertheless, Van Anraat was convicted of a crime (a separate civil case will also be brought against him by victims of the attacks) because the Court found that 'it is beyond doubt that the regime in Bagdad...committed extensive and extremely gross violations of the international humanitarian law' – violations, to which Anraat made a 'conscious' and 'substantial contribution'.

In finding that serious violations of the laws of war had been committed, the Court did not exclusively base itself on the fact that a prohibited weapon had been used. Therefore, this judgment should also be of interest to persons trading in other types of weapons, including small arms and light weapons (SALW). The judgment sets another important precedent for holding criminally responsible persons who transfer arms that are likely to be used to commit gross violations of human rights law or serious violations of international humanitarian law. Hopefully, a future Arms Trade Treaty will ensure greater accountability in the international arms trade.

Maya Brehm

Photo Credit: Adapted from 'Justitia in Frankfurt' by chaouki on Flickr.

References:

• Gerechtshof 's-Gravenhage (Court of Appeal The Hague), Judgment, 9 May 2007, LJN: BA6734.

• Hoge Raad der Nederlanden (Supreme Court of the Netherlands), Judgment, 30 June 2009, LJN: BG4822.
  

UN Small Arms Process "Back on Track"

Emmanuel Jal raps about his experiences as a child soldier in Sudan in front of delegates to the 3rd Biennial Meeting of States to consider implementation of the UN Programme of Action on the illicit trade in small arms and light weapons (photo by the author).

UN Member States met in New York all last week to examine, as they do every two years, how the 2001 Programme of Action to curb the illicit trade in small arms and light weapons is being implemented. A lot was at stake in this meeting. Guns are used to take the lives of about 300,000 people every year. They injure and disable about three times that number and commit millions more to living in perpetual poverty and fear. As some participating States pointed out, speaking from their own national experience, the uncontrolled proliferation and misuse of guns is a matter of life and death in many parts of the world.

I devoted two previous posts to previewing this meeting. The first - "the pros and cons of precedent" - outlined the difficulties that the UN small arms process has experienced since the Programme of Action was agreed in 2001, as well as plans that had been proposed to overcome these and to make this - the 3rd Biennial Meeting of States on the Programme of Action - the most effective one yet. The second post - "Testing the international community's resolve on small arms and light weapons" - reported on opposition that was beginning to be voiced by one or two States to the new, more focused approach being proposed by the Chair. It argued that:

The choice, at least, would seem to be a simple one: Give in to pressure from a small minority of States and revert to an approach that has twice proven less than effective. Or, go with what the vast majority of States wants - an effective, focused meeting that stands a much better chance of advancing international efforts to curb the illicit small arms trade and of sketching out a much-needed agenda for future action.

The meeting last week was indeed presented with this choice. But not, as I had predicted, at its beginning but at the very end, when Iran forced a vote on the outcome document. The document - substantive, detailed and forward-looking - passed with the overwhelming majority of 134 States in favour, none against and 2 abstentions (Iran and Zimbabwe). The Netherlands Ambassador proclaimed triumphantly - and to loud applause - at the close of the meeting, "The UN Programme of Action on small arms is back on track!"

This was a truly remarkable achievement on a number of levels. The two main reforms proposed months before by the Chair - to make international cooperation and assistance and national capacity-building the overarching theme, and to focus the meeting on a small number of other issues (tracing, brokering, and stockpile management and surplus disposal) - worked better than anyone could have anticipated. States largely dispensed with delivering rambling and unfocused national statements, which had taken up so much valuable time at the two previous biennial meetings. Instead, they engaged in much more in-depth, substantive and at times even genuinely interactive debate on the focus issues.

Not only that. The substantive discussions were prepared well in advance of the meeting by States designated by the Chair - Egypt, Colombia, the Republic of Korea and Switzerland. Each consulted widely in advance of the meeting and prepared detailed discussion papers that helped, during the meeting, to focus minds on the issues at hand. Nongovernmental experts introduced the discussions with insightful overviews of where the problems lay - also an innovation in these kinds of meetings. Draft text for the outcome document, drawing on the discussions that had taken place, was posted on the meeting's website by 9am every morning (necessitating, it should be acknowledged, some dedicated people working all night).

The meeting also broke a number of other diplomatic molds. Music, for example, played an interesting role. At one point, the Chair invited Emmanuel Jal, an up-and-coming rapper from Sudan, to perform in front of delegates in the plenary hall one of the many songs he has composed reflecting on his experiences as a child soldier (Mr. Jal was abducted when he was six years old and sent to fight with the rebel army in Sudan's civil war). The effect was powerful and brought home, more eloquently than any statement could have, the importance of global efforts to stem the illicit arms trade.

Sticking with the musical theme, the Chair - Ambassador Dalius Cekuolis of Lithuania (himself an accomplished musician) - later quoted jazz trumpeter Dizzy Gillespie in an attempt to move participants towards agreement on an outcome document: "When you hit a bum note, don't stay on it too long," he quoted the master as saying and also pointed out that the difference between being in harmony or not can be a matter of raising or lowering the note by a semi-tone (or even, in some Asian music, by a quarter tone).

Achieving this harmony turned out, in the end, to be quite tough. By Friday - the last day of the meeting - the Chair had produced a detailed, forward-looking outcome document focusing on the four focus themes as well as a number of other issues that had been raised during the week's discussion. Already before lunch, participating States were ready to allow the Chair bring down the gavel on this document. He would have done so were it not for Iran, who complained about the new way that the meeting had been run and asked instead to have the proposed outcome document annexed to the procedural report of the meeting - something that would have significantly downgraded its status.

It was clear, however, that Iran was completely alone in holding this position. Many States in the room tried their best to bring Iran around. Some pleaded, some shouted, some cajoled but none were successful. In the end, the only option remaining to the Chair, aside from caving in to Iran's demand, was to proceed to a vote - a first for the UN small arms process.

The Chair proposed a vote by show of hands. Iran requested a recorded vote and so everyone had to traipse up the corridor to another room with the required voting machinery. Before the vote, Iran, clearly displeased, said that it would abstain and cryptically announced that, in retaliation of sorts, it would consider resorting to voting in other issue-areas of disarmament and arms control as well (!). The only surprise of the vote itself was that Zimbabwe joined Iran in abstaining. All other participating States - all 134 of them - voted in favour of adopting the outcome document as an integral part of the meeting's report.

In the end, there was consensus on how to move forward with global efforts to curb the illicit trade in small arms and light weapons. It's just that Iran and Zimbabwe chose not to join it. In the end, there was harmony; although two voices chose not to sing.

Patrick Mc Carthy

NPT newsflash - Bingo! Game On!

(For background about the NPT preparatory meeting see our 6 May posting further below.)

Walking into an NPT conference is always a bit of a surreal experience. Here in Vienna we have governmental and non-governmental representatives from over 180 countries sipping exceedingly stimulating coffee and debating the not-so-finer details of nuclear disarmament and non-proliferation. Except that, until now, they haven’t been.

The conference to prepare for the 2010 nuclear Non-Proliferation Treaty Review Conference began over a week ago and still they have yet to adopt an agenda. So out of a ten day meeting, we are on day seven with no substantive discussion. This is reminiscent of what happened at the Review Conference in 2005 when Egypt, the US and France, along with a number of other states were locked in battle over how to characterise recent review meetings in the agenda.

This year it has been Iran. And only Iran. The US and Egypt are basking in the praise for their restraint and having put their differences behind them – at least for now and of course only on the decision of the agenda.

So the big question at this meeting has been: will we even get started?

And I can now answer that question at last with an alleluia, shout of proclamation, yes!!

Iran objected to a phrase in the agenda referring to full compliance with the treaty (who could possibly object to that? Indeed, you may wonder). Last Friday, South Africa proposed a fix that a decision could be recorded that:

"The meeting decides that it understands the reference in the agenda to 'reaffirming the need for full compliance with the Treaty' to mean that it will consider compliance with all the provisions of the Treaty".

Following a long statement in which Iran made critical comments regarding the Chair’s conduct of consultations (Ambassador Amano responded in a dignified manner, thus not letting such criticism pass), Iran has just accepted the constructive fix this morning in a “display of goodwill and flexibility”. The fix will be in the form of an asterisk noting the South African-proposed text as a footnote to agenda item six (that deals with the substantive agenda including the phrase on reaffirming the need for full compliance with the Treaty). The agenda was therefore adopted at 11.40am and substantive work can now begin officially.

But why was all this happening?

After all, Iran has received the censure and disapproval of the international community through Security Council resolutions and through the IAEA Board of Governors reports. Why should they be worrying about a mild slap on the wrist contained within a chairman’s summary at a preparatory meeting of the NPT? Why would they isolate themselves in this way and prevent substantive work and development of the Treaty?

A number of explanations have been mooted by varying shades of political opinion and over the next few days in the margins of the official work that will now begin, I may be able to test them out against the evidence.

So now, from the Austria Conference Centre: onwards and sideways!


This is a guest blog from Dr Patricia Lewis. Patricia is Director of UNIDIR.


Reference

Photo of the Austria Centre Vienna, where the NPT meeting is taking place (retrieved from the Austria Centre Vienna website)