Inclusion Of Gender-Based Violence Concerns In Arms Transfers Decisions: Case Of Arms Trade Treaty – Analysis

By José Francisco Alvarado Cóbar and Giovanna Maletta

Article 7(4) of the Arms Trade Treaty requires that states parties—when deciding whether to approve an arms export—shall take into account the risk that the items may be used to commit or facilitate serious acts of gender-based violence (GBV) or violence against women and children.

The inclusion of GBV in the ATT is particularly important as—for the first time—it means that the link between these acts and weak arms trade regulation is formally recognized by an international and legally binding treaty. However, there is still a lack of agreement on how this provision should be implemented at the national level due to limited understanding of the different forms of GBV and how such considerations can and should be factored into arms export decision making. This has led the Latvian Presidency of the Fifth Conference of States Parties of the ATT (CSP5)—taking place in Geneva during 26–30 August—to make GBV a focus theme of its term.

Ahead of CSP5, this piece aims at providing an overview of what is generally understood to constitute GBV. It will also describe how this concept has progressively entered the mainstream security agenda and how the recognition of the impact of the illicit trade in conventional arms on GBV has been translated into the ATT. Finally, it will highlight the main issues related to the implementation of this provision and what type of measures have been proposed to address them.  

Gender and the international security agenda

Although there is no single definition of GBV, this term can be understood as violence directed against a person on the basis of gender or sex and it includes acts that can inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. Also, while men and boys are disproportionately represented as victims of violent death worldwide and are forcibly recruited during times of war, violence against women and girls is the most widespread form of GBV. When this type of violence translates into high rates of femicide, the most lethal type of violence against women, half of these killings are perpetrated with small arms. 

The issue of women affected by armed conflict emerged as a focus of discussion at the international level during the 1995 Beijing Fourth World Conference on Women, where the UN Secretary General noted that in armed conflicts, women and children’s human rights are routinely violated, and these violations disproportionately affect women because of their gender. The foremost UN resolution on Women, Peace and Security (WPS) followed up on these remarks and called on all parties involved in armed conflicts to take measures to protect women and girls from GBV in such situations. Subsequent resolutions,[1] built on this and called for action against sexual violence in conflict, women’s participation at all levels of the conflict cycle and the promotion of gender equality. It is also worth mentioning that the most egregious forms of GBV—rape, sexual slavery, enforced prostitution, and others—are also recognized by the  International Criminal Court as crimes against humanity and as serious violations of international humanitarian law (IHL) that could amount to war crimes.[2] Article 3 of the Geneva Conventions also stipulates that all persons not actively involved in a conflict shall be treated ‘humanely without any adverse distinction’ based, inter alia, on sex.  

Intersection between arms and gender

Against this backdrop, during the annual meeting of the Commission on the Status of Women (CSW) at the UN in March 2013, the Commission noted that the illicit use and trade in SALW ‘aggravates violence, inter alia, against women and girls’. The CSW sought to emphasize SALW, as GBV is facilitated by these weapons, including domestic violence and sexual violence in non-conflict, conflict-affected and post-conflict settings.

The international community has demonstrated an increased awareness of the relationship between illicit trade and proliferation of conventional arms and GBV. In 2001, the UN Office for Disarmament Affairs (UNODA) issued a briefing note assessing the linkages between small arms issues and gender perspectives. In addition, the 2001 UN Programme of Action on SALW (UNPOA) recognized in its preamble the ‘negative impact’ of the illicit trade in SALW on women. Subsequent UN General Assembly Resolutions on ‘Women, disarmament, non-proliferation and arms control’, have called upon states to include women in national and regional coordination mechanisms related to disarmament and arms control. This includes the 2030 Agenda for Sustainable Development in 2015, with relevant goals and targets such as SDG 5.2 on eliminating all forms of violence against all women and girls, and SDG 16.4 to reduce illicit financial and arms flows. More explicit efforts are being made to link both goals by refraining states from authorizing arms exports in light of GBV risks as well as incorporating gender perspective in the development of national legislation and policies on disarmament and arms control. Most recently, the outcome document of the Third UNPOA Review Conference in 2018, included ambitious language on gender and the recognition of the key role of eradicating the illicit trade in SALW in combating GBV.  

The inclusion of GBV in the Arms Trade Treaty

The ATT is the first international treaty which formally recognizes the link between the arms trade and GBV. The inclusion of GBV within its operative provisions represented the outcome of the campaigning work conducted by NGOs and civil society organizations with support from a group of states that ‘championed’ this issue.[3] The incorporation of such principles within an instrument regulating arms exports generated tensions during the negotiations. States that were opposed to a direct reference to GBV and violence against women in the text argued, among other things, that there was no legal definition of these terms and that these issues would already be captured by the Treaty’s provisions on IHL and human rights. The reference was also opposed by states with more traditional views on gender-based roles. Conversely, supporters argued that it was important to have such reference as these human rights violations are often overlooked in arms transfers decisions. Although Article 7(4) of the ATT may be seen as the attempt to find a compromise between these two positions, the way this is structured did not resolve this dichotomy.

Article 7(4) of the ATT specifies that states parties—when considering whether to approve an arms export—shall ‘take into account’ the risk that the items may be used to commit or facilitate serious acts of GBV or violence against women and children. This provision comes after the exporters—based on how Article 7 is structured—should have had already assessed the presence of the risks outlined in Article 7(1) (e.g. serious violations of IHL or human rights), if there are measures that could mitigate them or whether these risks are ‘overriding’ in spite of the presence of such measures. Therefore, while it is clear that states parties have an obligation to deny a transfer if there is an ‘overriding risk’ that this may result in one of the negative outcomes outlined in Article 7(1), the same may not apply to transfers that risk resulting in the negative situations indicated in Article 7(4). At the same time, since GBV acts could also constitute serious violations of IHL and International Human Rights Law (IHRL), the presence of such risk would in any case trigger the obligation to deny the transfer on the basis of Article 7(1).

It is worth mentioning that although GBV is only explicitly mentioned within Article 7, the cross-cutting nature of these acts could mean that related considerations within the ATT may also go beyond this provision and touch upon other obligations, such as those concerning prohibitions. This may be the case for acts of GBV that could amount to crimes against humanity and war crimes, which would trigger a prohibition to transfer under Article 6.3. Such a relationship has also been recognized by the Presidency and discussed within the Working Group on Effective Treaty Implementation (WGETI).  

The implementation of Arms Trade Treaty provisions on GBV

Main issues

In 2018, Latvia announced that gender and arms-related gender-based violence would be the official theme of its Presidency. In this framework, the Presidency decided to focus in particular on three issues: (a) gender-balanced representation in ATT-related decision-making processes; (b) the gendered impact of armed violence and conflict; and (c) the implementation of GBV-related risk assessment as foreseen by the Treaty.

The application of this provision has generated questions on whether GBV risks should be assessed separately or included into a wider process of risk assessment. In addition, the formulation of this obligation has been defined as being ‘overly broad, unenforceable and unverifiable’. The fact that no agreement on the terminology (e.g. the term ‘gender’) was reached during the Treaty’s negotiations and the overlap between the references to both GBV and ‘violence against women and children’, may create confusion about the scope of this article. Furthermore, the widespread lack of a ‘baseline understanding of GBV’ among states parties and the absence of a strong interest in discussing these topics in certain countries, also represents an obstacle and makes it difficult to properly consider such risk in arms transfer decisions.[4]

Furthermore, although sources are made available by UN agencies, NGOs and other organizations,  it may still be complicated to measure the prevalence of GBV in the recipient country. This type of violence is generally underreported due to the social stigma attached to it or the impunity of perpetrators and quantitative data may not always be reliable. The general lack of relevant expertise on GBV among officials responsible for export licensing decisions may also represent a limitation to a well-informed risk assessment. However, even in cases where a prevalence of GBV would be detected, exporting states still need to determine if this provides sufficient grounds to deny a particular arms export. For example, on the basis of a narrow reading of the ATT, prevalence of GBV in a recipient state would not—on its own—be seen as grounds to deny an export of armored vehicles to a state’s military forces.

Practices developed by states parties

States parties rarely have an export control criterion explicitly referring to GBV. Furthermore, to date, none of them has reportedly issued a denial based on Article 7(4) nor have they explicitly required importing states to make commitments on GBV by including a specific reference in the end-use/r documentation that they ask them to  sign. Still, the majority of these states have indicated GBV as a concern that they are already applying prior to authorizing an export. As such, states appear to be of the view that they have developed practices with reference to GBV risk assessment, but these have generally been embedded within the assessment of the impact of arms exports on IHL and IHRL.

The EU Common Position on arms exports makes no explicit reference to GBV. However, since 2015, its User’s Guide—which provides guidance on how the Common Position should be implemented—asserts that these issues shall be taken into account in line with the ATT obligations as part of the implementation of Criterion 2 (which calls to assess the respect for human rights and IHL in the recipient country). This has been the approach adopted, for instance, by Sweden, which also clearly considers the GBV criterion in the ATT in relation with Articles 7(1) and 6(3). In addition, the Swedish licensing authority not only considers the specific risk that the exported arms could violate human rights, but it makes an assessment of the overall human rights situation within the recipient country—which also includes gender specific violations.[5] In 2014, the UK, following the signature of the ATT, amended the Consolidated EU and National Arms Export Licensing Criteria to explicitly mention GBV or serious violence against women or children in Criterion 2. As a result, in considering the risk that items might be used for internal repression or in the commission of a serious violation of IHL, the Government will also take account of the risk that the items might be used to commit GBV or serious violence against women or children. In making this assessment, the FCO considers a range of factors, including, for example, the capability and the end-use of the equipment and the end-user’s human rights and IHL compliance record.[6] In some countries, the application of GBV risk assessments requires a clear and evidence-based link between the risk of GBV and the specific exports under consideration. Latvia conducts a GBV-risk assessment not only for exports but also for transits and transshipments and has developed a list of guiding questions. Finally, certain countries have addressed the lack of gender expertise among licensing officers through trainings or, more generally, by relying on information from NGOs, UN agencies or other reports or consulting GBV experts in other ministries or embassies.

Having taken note of these issues, the Presidency has elaborated a list of policy recommendations to be considered for adoption during CSP5. These include discussions to clarify the interpretation of key terms but also the compilation of provisions that states parties are developing for GBV risk assessment. Furthermore, the Presidency has suggested developing a manual providing GBV risk assessment’s guidance as well as elements for a voluntary training guide in GBV. Finally, in addition to considering the inclusion of GBV question in the template for annual reporting, the Presidency also advanced specific suggestions related to international assistance.

This includes giving a greater prominence to the inclusion of GBV in assistance work, including the activities supported by the ATT Voluntary Trust Fund (VTF). As noted by implementers, there is a clear need for building states’ capacity in this field and the lack of availability of guidance material in languages other than English has been indicated as a significant obstacle.[7] This could be something addressed through assistance funding. SIPRI’s mapping ATT-relevant assistance and cooperation database also constitutes a useful tool to mainstream gender-related issues within their assistance work as it also contains information on activities focused on GBV. Information about these activities could help relevant stakeholders to plan and coordinate GBV-focused assistance by identifying available expertise and funding in the field as well as gaps in coverage. The website also contains a document database where related guidance developed by other organizations such as Control Arms or WILPF has been included.  

Conclusions

The inclusion of gender-related considerations in the realm of mainstream security has led to the recognition of the role played by conventional arms—particularly SALW—in facilitating GBV and the disproportionate impact of these acts on women and girls. The ATT has recognized these instances through the inclusion of specific language that obliges states parties to take GBV into account in their arms transfers decisions. For this the ATT has been praised for challenging the ‘historical invisibility of GBV’ and for triggering discussions that probably would have not had the same visibility otherwise. [8]

The work of the Latvian Presidency has contributed to further stimulating these discussions which are also relevant for the wider framework on the WPS Agenda. These include the need to have a more diverse representation (in terms of gender balance and gender-relevant expertise) within arms control fora which could also be addressed in other relevant contexts. In addition, the Presidency has encouraged states parties to collect and publish gender disaggregated data in order to increase the understanding of the gendered impact of armed violence. This could build on existing work, as the one recently carried out by GunPolicy.org and funded by UNSCAR. These data may also contribute to a wider understanding of the WPS architecture, including an intersectional approach of GBV and arms in both conflict and non-conflict situations. Finally, with regards to the practical implementation of GBV risk assessment, the Presidency recognized that this is still a work in progress and there are several points that would need further clarification. One of them could be a shared understanding of what constitutes GBV. As the first legally binding international instrument to use this term, the ATT offers an interesting platform to address this discussion and inform other debates. Depending on the outcome of CSP5, the discussions may help to shed some light on how states have coped with the implementation of GBV risk assessments in their arms transfer decisions, to share good practices and further increase states’ awareness on this issue.

*About the authors:

• José Francisco Alvarado Cóbar is a Research Assistant in the SIPRI Peace and Development Programme.
• Giovanna Maletta is a Researcher in the Dual-Use and Arms Trade Control Programme at SIPRI.

Source: This article was published by SIPRI

[1] UNSC Resolutions 1820, 1888, 1889, 1969, 2106, 2122 and 2242.

[2] See Art. 7(1)(g) and Art. 8(b)(xxii).

[3] These states were originally Iceland, Trinidad and Tobago, Norway Finland, Kenya and Malawi.

[4] Representative of Control Arms, Communication with authors, 15 August 2019.

[5] Representative of the Swedish Ministry for Foreign Affairs, Communication with authors, 7 August 2019.

[6] UK Government Representative, Communication with authors, 23 August 2019.

[7] Representative of Control Arms, Communication with authors, 15 August 2019

[8] Representative of Control Arms, Communication with authors, 15 August 2019