Comments by the International Committee of the Red Cross

In carrying out its mandate to protect and assist the victims of war, the ICRC is constantly faced with the devastating consequences that the unregulated arms availability has on civilians both during and after conflict.

A study undertaken by the ICRC in the late 1990s based on its field experience demonstrated that the combination of inadequate controls on the transfer of arms and the frequent use of weapons in violation of humanitarian law, puts civilians at increased risk of abuse during and after conflicts, and undermines the legal norms designed to protect them. Disease, starvation and abuse increase when humanitarian agencies are the object of attack and are forced to suspend operations or leave a country.

Widespread arms availability after the end of hostilities undermines the rule of law and threatens efforts at reconciliation. The study does not suggest that arms availability alone causes these effects, but that the proliferation of arms can be a major factor in facilitating such violations and a deterioration in the situation of civilians during and after armed conflict One of the central conclusions of the ICRC study is that the current pattern of arms transfers, because it is largely outside international control, is a matter of urgent humanitarian concern.

Assault rifles, machine guns, grenades, mortar bombs - weapons falling into the category of small arms and light weapons - are a cause for particular concern. While these weapons are the most commonly used in today's armed conflicts, unlike major weapons systems, their availability is subject to few internationally accepted rules. They are also the most frequently used to deliberately target civilians. The International Red Cross and Red Crescent Movement world wide have called on States to take a variety of actions to address this urgent humanitarian concern.

The establishment of strict controls to prevent the further unregulated proliferation of weapons is among the essential measures required to reduce the human suffering resulting from the uncontrolled availability and misuse of weapons. This will require a combination of different control measures, including: strict regulations of arms transfer decision-making and arms brokering activities, effective management and security of weapons stocks, the inclusion of provisions in peace settlements for the control and disposal of surplus weapons after armed conflict, and reinforcement of mechanisms to ensure respect for United Nations and regional arms embargoes.

The ICRC is encouraged by growing attention that has been directed at the humanitarian impacts of weapons availability and misuse. The UN Programme of Action adopted in 2001 provides the first step towards addressing this problem on the global level. In addition, a number of regional organizations have developed comprehensive regional frameworks for action, such as the OSCE and the OAS. The large range of activities undertaken by governments, international organizations and NGOs, provide clear evidence of an increased awareness and willingness to work to reduce the human cost of unregulated weapons proliferation and availability.

Still the ICRC believes that States must act with greater urgency to strengthen controls at the global level as long as a significant improvement in the situation of civilians in zones of conflict and tension around the world is not yet evident. The upcoming Second Biennial Meeting of States to Consider the Implementation of the UN Programme of Action in July this year, as well as the Review Conference of the UN Programme of Action in 2006 must be utilized fully to advance this issue at the global level. The development of an international system to prevent illegal arms brokering activities and the establishment of common minimum standards for arms transfers are two areas in which the ICRC hopes to see States make progress.

A huge proportion of the civilian suffering we witness in the field each day, year after year, results from the easy availability of small conventional weapons and ammunition to forces which act with no regard for .the norms of international humanitarian law or human rights law. Yet all of these weapons originate in States Parties to the Geneva Conventions and fall into the hands of those who violate these norms through inadequate controls on their availability.

Significantly enhanced efforts are still needed to prevent arms from falling into the hands of those likely to use them to violate international humanitarian law. Ensuring that violations of international humanitarian law are not facilitated by unregulated access to arms and ammunition is an existing responsibility of States as part of their obligation to "respect and ensure respect" for international humanitarian law under Article 1 common to the Geneva Conventions of 1949. States party to the Geneva Conventions affirmed this responsibility at the most recent International Conference of the Red Cross and Red Crescent in December 2003.

Arms transfer decisions must include a consideration of how the weapons are likely to be used. A recipient's respect for international humanitarian law-the rules that govern the use of weapons in armed conflict and protect victims of war-is a particularly relevant consideration in decisions to transfer military-style arms and ammunition and must be accorded the same importance in arms transfer decision-making as compliance with human rights. The ICRC therefore believes that all national laws and policies and international norms on small arms and light weapons transfers should include requirements to:

1. assess the recipient's likely respect for international humanitarian law

2. not transfer weapons if they are likely to be used to violate humanitarian law.

It is encouraging that several recent national laws and regional regulations on arms transfers have incorporated explicit references to international humanitarian law as one of the criteria to be considered in arms transfer decision-making. This includes laws adopted by the United Kingdom and Germany and regional Codes of Conduct or Model Regulations adopted in the framework of the OSCE, EU, OAU and OAS(see Annex). Furthermore, in the Agenda for Humanitarian Action adopted by the Red Cross and Red Crescent Conference in 2003,

States undertook to make respect for international humanitarian law one of the fundamental criteria on which arms transfer decisions are assessed and incorporate such criteria in both national laws or policies and regional and global norms (see Annex). As a country that has already made great efforts to improve controls on conventional arms transfers, the ICRC would encourage South Africa to consider further improving its national laws and regulations in this area by explicitly requiring an assessment of the recipient's respect for humanitarian law in its arms transfer decision-making procedures.

Harmonization of arms transfer standards at the regional level is also important to prevent . weapons from ending up where they are likely to be used to violate humanitarian law and - human rights. Illegal cross-border transfer of arms and ammunition is a significant factor fuelling crime and conflict in many areas and the strengthening and harmonizing of national laws are required to dose the legal loopholes that enable the unscrupulous individuals and networks engaged in the illicit small arms trade to continue operating with impunity.

The ICRC therefore welcomes the adoption of legally binding agreements at the regional and sub-regional levels intended to strengthen controls over the flow of firearms, such as the SADC Protocol and the Nairobi Protocol. Provided they are also implemented and enforced, instruments of a legally-binding nature are likely to be more effective than non-binding guidelines in preventing the unregulated availability in weapons. It is commendable that Africa as a continent as severely affected by unregulated arms availability is playing a leading role in the development of legally binding rules in this area. The ICRC considers that regional standards for arms transfers are needed to complement such regional agreements. This would significantly strengthen the agreements that presently do not include specific criteria for arms transfer decision-making, including the SADC Protocol. Any regional standards developed should take full account of States' existing obligations under international humanitarian law, by including international humanitarian law as one of the fundamental criteria on which arms transfer decisions are made.

Nevertheless, a strict principle on paper cannot effectively prevent weapons from falling into the hands of those likely to use them to commit abuses, unless it is applied in a systematic and rigorous manner. Assessing compliance in specific cases can be a complex task. The ICRC has therefore proposed a set of indicators that could assist States when assessing the recipient's likely respect for humanitarian law. While not intended to be an exhaustive list, these indicators could provide a basis for development of more specific guidelines at the national level:

1. whether the recipient has ratified humanitarian law instruments or made other formal engagements to apply the rules of international humanitarian law;

2. whether the recipient has trained its armed forces in the application of international humanitarian law;

3. whether the recipient has taken the measures necessary for the repression of serious violations of international humanitarian law;

4. whether a recipient who is, or has been, engaged in an armed conflict has failed to punish those responsible for serious violations of international humanitarian law and to cause such

breaches to cease;

5. whether stable authority structures capable of ensuring respect for international humanitarian law exist in the area under control of the recipient;

6. whether the recipient maintains strict and effective control over the internal distribution of arms and ammunition and their further transfer across international borders;

7. whether the recipient is the actual 'end user* of arms and ammunition, will accept verification of this and will undertake not to transfer these to third parties without the authorization of the supplier State.

Controlling the supply of weapons should not be the only area for attention however. The ICRC has also proposed a number of complementary measures that could reduce the number of civilian casualties caused by the misuse of weapons.

In order to enhance the effectiveness of controls on the supply of weapons, attention must also be given to the factors that lead people to acquire and to misuse weapons. Personal and economic insecurity are considered two of the fundamental issues that must be addressed to achieve a substantial, long-term reduction in the civilian demand for weapons Improving the security of people and communities - including through the provision of adequate public security and criminal justice systems - is therefore considered one of the fundamental prerequisites to lessening the demand for arms.

Enhanced respect for existing norms and principles, such as human rights and humanitarian law, can increase people's safety and security and reduce the risk of small arms misuse While most small arms and light weapons do have legitimate uses, steps must be taken to ensure that these weapons are in fact employed in accordance with international human rights and humanitarian la~vl` Achieving a significant and sustainable decrease in armed violence against civilians will therefore require influencing and changing the behaviour of those who bear weapons.

Various approaches are required.

law and of the limits - set by international law and local norms - on the use of weapons. With a view to the long term, placing emphasis on influencing the attitudes f young people is particularly important

As part of its prevention activities, the ICRC supports States in providing effective training in international humanitarian law and human rights law for armed forces, police and other bearers of weapons. The ICRC also undertakes a range of other activities in the area of public awareness-raising and education, in order to promote adherence to and respect for humanitarian law.

Because the widespread availability and misuse of weapons is a complex and multifaceted problem, which no single measure or solution can effectively prevent, a comprehensive approach to the prevention of small-arms violence is likely to yield the most significant long- term results. At the national as well as the international level this will require moving beyond a traditional arms control approach and to significantly increase the involvement from the humanitarian, health, development, crime prevention and other sectors. If the ultimate goal is to reduce the tremendous human suffering caused by small arms violence, all relevant means must be employed. The reduction of death, injury and suffering perpetrated with small arms must be the criterion on which solutions are based and against which their effectiveness and adequacy are measured.