A feature article by Finlay. H. Hamilton (Y13)
I didn’t really know what to expect when entering the Eleventh Conference of States Parties (CSP11) to the Arms Trade Treaty (ATT) late this August. But while I was readying myself to pull out schoolwork in anticipation of monotone speeches, I gradually became attuned to a tense undercurrent in the proceedings.
What I began to notice was a typically diplomatic dance. The discussions seemed to orbit around, but never fully acknowledge, the most pressing issue facing the treaty. Like with many UN conferences, the elephant in the room was noncompliance—the breaching of obligations with few repercussions. But unlike Murakami’s short story, the elephant refuses to vanish. In fact, it seems to be multiplying, becoming more real and threatening each year.
For the ATT, such elephants have included arms transfers to the conflict in Yemen, to the junta in Myanmar, and to the civil war in Sudan. This year’s elephants were countries like the UAE, Türkiye, China and Serbia that have been accused of fuelling such armed conflicts. But probably the biggest elephant was the one loitering (metaphorically) behind the Israeli placard.
The fact is that much of the world has been embroiled in polarising debates surrounding the war in Gaza ever since Israel began its military response to Hamas’ deplorable October 7th 2023 terrorist attacks. As people declare their allegiance to Palestine or Israel, clamour in favour of or opposition to sanctions and embargos, and declare or refute allegations of genocide, they seem to have forgotten the basic facts, laws and obligations to which their nations have subscribed.
There should be no blind commitment to an ossified stance of pro-Israel or pro-Palestine; instead, at the very least, there should be debate and action based on fact, on moral imperatives and on interntional laws.
In forums like CSP11, this hole in the political and public dialogue is giving governments the leeway to act with complacency and complicity, skirting around their legal duties to defend human rights and world peace. A comprehensive arms embargo of both Israel and Palestinian armed groups was needed, yet many countries fell short of this imperative. Governments need to do better, and so do we.
Sadly, none of this is new. None of the controversy, the disaster, or the plight. It was from the very ashes of some of the worst atrocities and suffering seen by man—those of WW2—that the international rules-based order was born. And after subsequent decades of struggle, humanitarian law has been expanded, amended—and repeatedly subverted.
The rules of international law, although at times flawed, are universal (for members); they are not political. Nor are they targeted, unless you place the target on yourself. They are consistent, rigorous and designed to preserve peace, security and reduce suffering for all of us. At least, they are meant to be and do all these things—but of course, they lack implementation, enforcement and active engagement.
While international law has more or less survived, and even thrived, against these headwinds over the past century, we don’t seem to have learnt the right lessons. Now, the situation for the rule of international law only appears to be worsening in a climate of increasing conflict, geopolitical tension and anti-globalist politics.
One of these sets of rules, the ATT, has been completely overlooked in the cases of Yemen, Myanmar, Sudan and now Gaza. Countries ranging from China and Russia to Western democracies have sidestepped their obligations to cease arms transfers to these conflicts.
The ATT came into force in 2014 after a decades-long push for humanitarian limitations on the transfer of arms. The ATT followed the Biological Weapons Convention (1972), the imaginatively named Convention on Certain Conventional Weapons (1983), the Chemical Weapons Convention (1992), the Mine Ban Treaty (1997), the International Tracing Instrument (2005), the Firearms Protocol (2005), and the Cluster Munition Convention (2008). It is the latest in a string of important arms limitations treaties that you have probably never heard of.
Its obscurity is all the more tragic given its crucial mandate and direct relevance to the debates centring around Gaza. The treaty’s stated aim is to “establish the highest possible common international standards for regulating” the arms trade and to “prevent and eradicate the illicit trade in conventional arms and prevent their diversion”. Put without the diplomatic jargon, this effectively means that the treaty is intended to restrict who the state parties (members) are allowed to export arms to in order to avoid supplying perpetrators of war crimes and human rights violations (like Hamas and, allegedly, Israel).
As many at CSP11 were keen to highlight, the treaty does not exist to demilitarise the world or leave states vulnerable and disarmed. Its greater purpose is contributing to peace, security and stability whilst minimising human suffering and building trust between members. Besides, it places no restrictions on conventional transfers for national security reasons, as long as these pose no risks of violating international law.
In reality, the proposals in Western countries to place arms embargos on Israel are not proposals at all, but legal imperatives for the 112 States Parties, and moral imperatives for the remaining 29 States that have signed but not yet ratified the ATT. Although, something makes me think that the US—which is a signatory but has announced it no longer intends to ratify—is not particularly open to moral imperatives at the moment.
Regardless, the debate about cutting arms transfers to Israel should not be (or have been) much of a debate at all for parties to the ATT. Articles 6 and 7 of the ATT directly prohibit member states from authorising transfers of weapons, parts, components or ammunition if they will be used in contravention to international obligations or in the commission of genocide, crimes against humanity, grave transgressions of the Geneva Conventions (1949) or attacks targeted against civilian objects or civilians protected as such.
Given the ICJ has considered South Africa’s case of genocide against Israel as “plausible”, and with Israel clearly violating its provisional measure to provide “urgently needed basic services and humanitarian assistance,” there were already two counts on which arms transfers to Israel should have been denied.
Indeed, the recent official declaration of a famine in Gaza should add weight to this position. It is hard to see how damaging or rendering inaccessible 98% of Gaza’s cropland constitutes a responsible and targeted attack on Hamas in line with international humanitarian law. Likewise, only 26% of sheep, 34% of goats, 3.8% of cattle and 1.4% of poultry in Gaza have survived Israel’s attack—Hamas may well be using civilians as human shields, but are they really hiding behind cows?
Food from crops and livestock is a basic service, and so are the 92% of all housing units that have been destroyed (among the 70% of all structures flattened or damaged). There is also evidence of Israeli authorities depriving Gazans of water, refusing access to 9/10 MSF water desalination items and damaging over 80% of the territory’s water infrastructure. With such extensive devastation of the infrastructure and amenities required for survival, it is difficult to see how this is not an attempt to make conditions in Gaza unlivable for its inhabitants. Partly as a result, on the 16th of September a UN Commission found that Israel has committed genocide in the Gaza Strip.
Of course, genocide is a term that should not be thrown around lightly. It is a complex legal concept, and while Israeli military action may reflect elements of it, Israeli intentions may not. That is, we cannot say for sure whether what is taking place in Gaza is in fact a genocide—I certainly cannot claim authority in that regard.
That said, proof of genocide is not a requisite for ceasing arms transfers as per the ATT. According to Article 7.3, if “there is an overriding risk [of violations of international law using the weapons], the exporting State Party shall not authorize the export.” It should be obvious with the evidence now available that, to put it in the ICJ’s measured terms, risk of genocide is plausible.
However, there is even more substantial evidence of general, repeated violations of international humanitarian law outside the narrow realm of genocide. Indeed, new counts seem to appear on an almost daily basis of indiscriminate attacks, including on displaced-person shelters, hospitals, aid distribution sites, journalists and humanitarian workers, as well as acts of murder, torture, sexual violence and forced displacement. Only three days before I started writing this article, the Israeli military performed a “double-strike” on Nasser hospital—the same one that Dr. Victoria Rose, who the Update has interviewed, worked at. This involved firing multiple shots with delays in between, meaning that the likelihood of subsequent (deadly) strikes being accidental is very low.
Any overriding risk of violations of international humanitarian law, like those listed above, should be enough to obligate state parties to cease arms transfers to Israel.
Nor should we forget that the ICJ has made clear in its advisory opinion of July 2024 that Israel must unconditionally end its ongoing unlawful presence in the occupied Palestinian territory. In spite of these orders, Israel recently approved the E1 settlements that would put an end to hopes for a viable, contiguous Palestinian state by dividing the territory between the West Bank and East Jerusalem. Unveiling the illegal expansion, Finance Minister Bezalel Smotrich said the idea of a Palestinian state was “being erased.” Consequently, Israeli settlement policy represents yet another violation of international law and a reason for which parties to the ATT should have unequivocally halted arms exports.
Yet, most countries party to the ATT have yet to order an official cessation of arms transfers to Israel. Over the course of the CSP11, denouncements of Israel’s unacceptable behaviour and calls to adopt comprehensive arms embargoes were notably lacking, despite their relevance to the subject of treaty implementation. There were some exceptions: Palestine, of course, called out Israel, as well as Türkiye and the Maldives, among other minor and largely muslim-majority nations. Belgium and Spain announced they had halted arms exports in accordance with the treaty, and vaguely suggested others should do the same. The EU representative said that Israel must abide by International Humanitarian Law, but conveniently forgot to mention anything about arms transfers.
Israel, for its part, rejected the Palestinian “falsehood and manipulations.” It justified its response insofar as it has the right to protect and defend its population and territory, taking “legitimate measures” to neutralise the threat and free hostages. However, Israel’s response is widely accepted as disproportionate, and its further claim that it “has and will [respond] within the realm of humanitarian law” is pretty demonstrably false. Its accusation that the Palestinian delegation did not condemn the acts of gender-based violence committed by Hamas is very reasonable, but does not excuse evidence pointing towards acts of gender-based violence perpetrated by its own Israeli Defense Forces.
Similarly, while the Israeli assertion that the ATT should address illicit arms transfers to terrorist groups like Hamas is absolutely correct and commendable, it does not detract from other priorities and obligations that ATT members have—including those to abide by international law and halt arms exports to countries who do not.
I would also repudiate the argument that embargoing Israel under the ATT is denying it the right to exist and to self-defence. Israel of course has these rights, just like any other state—but this does not give it free reign to breach international law and human rights. It is perfectly possible to defend oneself without committing grave violations of human rights on such a scale. If the Israeli government were a responsible steward of its citizens, it would stop alienating itself from the rest of the world and allow for legal, defensive arms transfers by operating in line with international law.
As mentioned, the ATT allows for largely unrestricted arms transfers if the arms in question pose no risk of committing violations of international law.
Finally, Israel’s contention that the “proliferation and distortion of the term genocide skews morality” is inconsistent with the mounting evidence of genocide that has been deemed beyond just “plausible” by leading experts on the subject.
Likewise, Israel’s declaration that the conference “should not be exploited for [Palestine’s] specific political interests” fails to recognise the direct relevance of credible accusations of humanitarian law violations to treaty obligations. Contrary to its claim, by abetting and encouraging noncompliance with the treaty, Israel itself is arguably doing more to politicise the conference than Palestine. However, if Israel was trying to say that it should not be placed at separate/higher standards compared to other nations in violation of their treaty obligations, then Israel is entirely correct in this regard—although it does not escape from the fact that they are violating the treaty themselves.
These debates over arms transfers to Israel did, however, constitute only a small fraction of the total discussion. Most of the time was taken by lengthy procedural affairs, repeated thanks to the President and Secretariat, and technocratic, repetitive and often fatuous remarks about enhancing regional cooperation, inter-agency collaboration, treaty universalisation, gender focal points, youth inclusion, funding, etc.
Now I am not denying the relevance or necessity of addressing these affairs, but their importance pales in comparison to blatant violations of the treaty. And, they were often raised in vague, status-quo affirming terms that only served to waste time.
The inefficiency of the conference was astonishing in these regards. I can only imagine how much more they could get done if delegates were told not to give thanks or make vague/general remarks in their statements, instead limiting them only to suggestions, criticisms or new announcements. After the 50th speech containing the exact same insubstantial information, one starts to understand how people overlook the UN’s achievements and become frustrated with its bureaucratic inadequacies. It certainly isn’t doing itself any favours on those lines. To survive in a Trumpian world, it needs to make a positive case, advertising its efficacy and accomplishments in an exciting, engaging and motivating way.
Sadly, probably the most exciting moment over the course of the conference, and ironically containing the most outspoken and jargon-free speech, was when a heckler burst in denouncing Israel as carrying out a genocide in Gaza and demanding it receive no more arms transfers. I don’t endorse the intrusion, but the yelling was an entertaining juxtaposition to the monotone speeches it had interrupted. When at the end of the conference the final report was produced, I remarked that it had decided surprisingly little in operative terms; the most substantive instruction moving forward was to find a venue with more stringent security…
Even if most states remained silent during debate, progress has thankfully been made in adhering to the obligations of the ATT. As of August, both Germany and Italy—the two major suppliers of arms to Israel behind the US—have announced suspensions of their transfers. Other Western nations like France, Britain, Australia, Canada, Slovenia and the Netherlands have made similar decisions.
Nevertheless, there remains tacit and veiled noncompliance in many of these instances. For example, Australia has allowed for the continuation of at least 35 military export permits to Israel even while halting new permits. Italy has acknowledged that orders made before the war were delivered during the war, contrary to the law. Data suggests some Canadian arms exports still reach Israel despite government claims.
Importantly, there is also the shady world of parts and components. France continues to ship parts which can be used for Israel’s war machine. Likewise, Australia, Canada, the UK, and other countries in the F-35 programme continue to export F-35 parts to the US, some of which end up in Israel. This is in contravention to their obligations to avoid weapon parts they produce being used for war crimes and violations of humanitarian law.
In any case, such veiled noncompliance perhaps explains the complacent silence and lack of criticism throughout the ATT on the part of many of these Western nations, who traditionally champion human rights and the rule of law.
Although probably the most egregious and publicised instance at the moment, we should remember that arms transfers to Israel are not the only violation of the ATT that has taken (or is taking) place. Four other particular case points are: China with Russia and the ruling junta in Myanmar; Western allies to Saudi Arabia in Yemen; and allegedly, transfers from the United Arab Emirates to the Rapid Support Forces (RSF) armed group in Sudan.
All in all, this operation of double standards and apparent non-compliance by member states risks compounding a vicious cycle, brought to light by the arrival of Trump in the White House—one that involves the erosion of rules, norms, and peaceful cooperation. It plays out more or less as follows:
Liberal complacency and bureaucratic inefficiency leads to ostensibly slow progress by international bodies. Meanwhile, rogue actors undermine the rules-based international order and promise to gut inefficiency in the system. Other nations follow along or fail to muster the courage to speak out and act. The public loses faith in the efficacy of international institutions. Public frustration and despondency diverts resources from these institutions, weakening them further and opening the doorway for more nationalist, populist and anti-globalist politicians. The cycle repeats.
Really it should be no wonder so many are turning away from international institutions—how can they continue to take seriously, and have faith in, instruments apparently allowing for unbridled examples of malfeasance and hypocrisy?
But for Western democracies to start walking the talk, they first need to talk the walk—that is, they need to start having difficult conversations and calling out malpractice at home and abroad. To support this, space needs to be created through empowering and encouraging CSOs, the media, politics and public discourse to advocate for and explain the merits of our international legal responsibilities. Even if we are naturally inclined to support one side of a conflict or another, it is imperative we consistently stick by the international rules-based order in the same way that we would expect equality before the law and consistency in judgements in our own domestic contexts.
When conversations start taking place, pressure must be exerted and accountability mechanisms strengthened. Not only for the integrity, credibility and functionality of the ATT, but for all the institutions that guarantee our rights, freedoms, security and help us to live fulfilling lives.
This central goal of implementation, enforcement and accountability sits at the nexus of other aims held by the treaty. For one, it is key to ‘universalisation’ (i.e., expansion of the number of states party to the treaty), which was selected by the Argentine presidency to be the priority of CSP11.
Currently around 30% of UN member states are not parties or signatories to the treaty. The failure of major arms producers like the US and Russia to ratify (or even sign, in the case of Russia) means that around half of global arms transfers are not subject to ATT human rights risk assessments, severely limiting efforts to preserve peace and security.
However, if the treaty begins to be implemented effectively and impartially, with stronger accountability, then states will be further encouraged to accede. This is because they will not be dissuaded by unfair, politicised treatment, and will see substantial benefits in terms of national security and safety for their citizens.
Likewise, efforts to strengthen reporting go hand-in-hand in with implementation and enforcement. While the ATT mandates annual reports, the compliance rate for their submission has been on a significant downward trend, with nearly half of state parties not submitting timely and complete reports. Meanwhile, the proportion of reports made secret has increased.
The setbacks in annual reports are partly explained by the lack of capacity in developing states, who struggle to submit reports on time. The mounting practice of secret reporting is associated with rising global tension and insecurity, particularly for Europe with the war in Ukraine. However, we should be cautious that national security does not become an excuse for excessive opacity or veiled noncompliance. As trust diminishes, secrecy can snowball out of control and further exacerbate tensions.
Reporting, enforcing and implementing have synergistic effects. They facilitate each other and must be encouraged and supported to establish a virtuous cycle of compliance. Additionally, they would be an important step in combatting the vicious cycle eroding international law.
Arms limitations treaties have not escaped the collapse of trust and cooperation, with destabilising and dangerous withdrawals from other treaties already taking place. For example, the Baltic States have pulled out from the Mine Ban Treaty and Lithuania has left the Convention on Cluster Munitions due to the threat of Russia.
As the Global Observatory put it, “the defence of norms depends on the willingness of member states to consistently and publicly express their disagreement with decisions that weaken humanitarian disarmament frameworks.” In the context of the ATT, this means acting impartially, following legal obligations to cut-off arms transfers whenever there is a risk of international law violations, reporting behaviour, and responding to cases where states do not comply with the above imperatives.
Overall then, my impression of the ATT’s CSP11 was a strange one: to amalgamate a few well-known metaphors, what I witnessed was the painfully ironic vignette of sailors trying to fix leaks in a boat while ignoring the giant elephants weighing it down. Leaks are important when you’re sinking, but so are massive, heavy elephants. It is much easier to remove an elephant from a boat without leaks, but if the elephants are ignored then the boat will sink anyway.
When I was able to look past the elephants, for just a second, the picture was not wholly bleak. The delegates were welcoming and friendly, and happy to see youth involvement. There were no heated arguments and angry spats—everything was civil and people generally got along despite their differences. In fact, there was even a remarkable consensus in the room on pretty much all the important issues besides the elephants.
So, we should hold out hope that our national representatives will come to their senses. That they will address the elephants in the room (or on the proverbial ship) with the same spirit of conviviality and shared responsibility that they exercised so prominently on other issues. And to help them get there, we should start pointing out the elephants more often too.