(Editor’s Note: This is the final of a three-part series addressing the challenges associated with proxy warfare, in particular as it plays out in the Middle East and North Africa, and ways to address these issues at the national and international levels. Part 1 covered the risks of military assistance and part 2 focused on civilian casualties. The series is based on a recent study by an expert working group convened by the American Bar Association Center for Human Rights).
United Nations Secretary-General António Guterres presents his annual report to the Security Council today on the protection of civilians in armed conflicts. In his report, he cites the work of various ad hoc mechanisms established by the U.N. to investigate violations of the laws of armed conflict. These bodies have informed the work of the Security Council by not only identifying perpetrators of atrocities but also the source of the weapons used in such violations. As the body charged with upholding international peace and security, the Security Council has a responsibility not only to sanction those directly responsible for unlawful conduct in hostilities, but also to cut off support to perpetrators from supplier states, with measures such as arms embargoes.
Unfortunately, the Security Council’s efforts have too often been hindered by the conflicting role of its five permanent, veto-wielding members (the P-5) as the world’s main arms-exporting nations. To address this challenge, the General Assembly should establish a standing body to address the flow of weapons into armed conflicts.
Since at least 2009, the P-5 have dominated the global arms-export industry. From 2014 to 2018, the United States, Russia, France, China, and the United Kingdom accounted for more than 73 percent of exports of major weapons, according to the Stockholm International Peace Research Institute (SIPRI). Add Germany to the mix, and that number hovers a shade under 80 percent of the total world market. During this same time, Middle Eastern countries accounted for 35 percent of all global imports, as the region’s imports increased 61 percent from the previous five-year period. These numbers demonstrate the overwhelming control of the arms market held by the P-5. Couple that with their all-powerful veto in the Security Council, and so it should come as no surprise that these countries have a conflict of interest in fulfilling their obligations as members of the U.N.’s most powerful body.
As a result, throughout the Middle East, members of the P-5 continue to arm regional powerbrokers and local militias, many of whom have engaged in unspeakable atrocities. While SIPRI does an amazing job tracking publicly available information, efforts to comprehensively trace specific sources of support for these actors have been repeatedly blocked by the P-5. For example, the Security Council created a Joint Investigative Mechanism (JIM), between the U.N. and the Organization for the Prohibition of Chemical Weapons, to identify perpetrators and those otherwise involved in the use of chemical weapons in Syria. The JIM’s fourth report confirmed that Assad’s regime had dropped chlorine-filled barrel bombs on civilian areas using Russian-supplied military helicopters. While chemical weapons are covered by a separate oversight regime, the Russian-supplied helicopters that carried the bombs would be the sort of conventional arms transfer that could be monitored by the proposed body.
In response, however, Russia questioned the mechanism’s working methods, balked at the conclusions, and along with China, subsequently vetoed a resolution that would have imposed sanctions on perpetrators identified by the JIM. The final nail in JIM’s coffin came in the form of a Russian veto preventing the mandate’s renewal. So what can, and should, be done in the Middle East where competing interests in regional conflicts, like Syria or Yemen, will almost always prevent a consensus among the P-5 and thus effective response by the Security Council?
The Need for an Independent Third-Party Investigator
Proxy warfare has long plagued the Middle East and North Africa. In recent decades, cycles of foreign interventions in internal armed conflicts have led to escalatory dynamics and protracted warfare. While the provision of weapons to local partners does not necessarily itself constitute a form of proxy warfare, such support can contribute to the adverse side effects of proxy warfare between regional competitors, including higher rates of civilian casualties.
To prevent the further spread of proxy warfare in the region, the institutional conflict of interest in the Security Council must come to an end. The U.N. should establish a standing body to investigate the source and use of conflict armaments to ensure compliance with the laws of armed conflict and the U.N. Charter.
If the Security Council is unable or unwilling to do so, the General Assembly should explore the possibility of establishing an oversight body. Pursuant to the U.N. Charter, the General Assembly may “[d]iscuss any question relating to international peace and security and, except where a dispute or situation is currently being discussed by the Security Council, make recommendations on it.” As the standing body would have broad jurisdiction beyond any single dispute or situation under consideration in the Council, there would appear to be no conflict between the General Assembly’s authority to create such a body and the Security Council’s authority to address individual disputes.
There is precedent for the General Assembly mobilizing in response to the inherent failings of the council in individual conflicts. After a lack of council action to issue an arms embargo for Syria, the General Assembly in December 2016 established the International, Impartial, and Independent Mechanism (IIIM) “to assist in the investigation and prosecution of persons responsible for the most serious crimes under international law committed in the Syrian Arab Republic” from March 2011 onwards. While such a mechanism would not have the power to prevent illegal arms exports, the IIIM has successfully documented the misuse of armaments by parties to the conflict.
A permanent standing body that monitors the flow of weapons and other forms of support into war zones in order to promote compliance with relevant sanctions regimes and treaty obligations would replace ad hoc bodies created to monitor specific armed conflicts. In its 2019 report on the Security Council’s record in relation to protection of civilians, the Office for the Coordination of Humanitarian Affairs called for “systematic data collection and evidence-based analysis and reporting on the impact of conflict” and for “a common UN information management system” in order to achieve effective civilian protection. Such measures would accurately inform the council and enable adequate responses.
This permanent body could further act as an independent third-party investigator into allegations of misconduct. Arms supplier-states could then encourage compliance by making sales to a recipient-state contingent on cooperation with any investigations, consistent with the G-7’s stated commitment to encourage partners to comply with international humanitarian law.
The body could function in a similar manner as the Financial Action Task Force (FATF) — an intergovernmental organization that rates governments’ performance on efforts to reduce money laundering and terrorism financing. A positive rating from FATF facilitates access to credit. Neutral assessments of the effectiveness of arms import and export regimes would enable markets to factor in the costs associated with the potential for diversion or misuse of munitions and thereby increase costs for noncompliant States. As arms trafficking is often accompanied by money laundering and terror financing, coordination of these oversight functions may enhance visibility over related criminal activities.
It’s true that past efforts to establish such a standing body have faltered. The International Humanitarian Fact-Finding Commission (IHFFC), for example, was established by Additional Protocol I (AP I) to the Geneva Conventions to respond to incidents in relation to international humanitarian law. However, the IHFFC serves at the pleasure of States Parties to the AP I, which have been reluctant to request assistance. Indeed, from its creation in 1991, the IHFFC remained inactive until 2017. But rather than looking broadly at violations of international humanitarian law, this new body would focus narrowly on arms transfers and compliance with embargoes.
Public-reporting instruments haven’t done the trick either: As current procedures are unenforceable, compliance is uneven at best. For example, the Arms Trade Treaty (ATT) has reporting requirements to promote transparency of conventional arms transfers. But efforts to establish any mechanism to enforce the ATT withered on the vine. Only two thirds of countries obligated to submit annual reporting data for 2018 have done so, with no repercussions for the 31 countries that failed to submit.
The same issue plagues the U.N. Register of Conventional Arms (UNROCA), a voluntary, annual-reporting mechanism through which governments share information on weapons transferred during the previous year. States repeatedly submit incomplete or inaccurate information or fail to submit altogether. Case in point: in 2017, less than 25 percent of the 193 U.N. member States bothered to submit reports at all. Compliance with the UNROCA could be incorporated as a minimum standard required to reach the incentives in a FATF- or Kimberly Process-like mechanism mentioned above.
Some experts may argue that States will never consent to oversight of a matter as sensitive as military partnerships. While this will undoubtedly continue to be an issue, greater transparency will help elucidate which States are refusing to share tracing data necessary to track conflict armaments. Such information would enable the General Assembly or individual States to craft appropriate remedies, whether through multi-lateral or unilateral sanctions regimes.
The U.S. decision not to do business with the Russian arms exporter, Rosoboronexport, after it was involved in exports to the Syrian regime, is a case in point. Impartial and comprehensive monitoring of arms transfers into conflict zones that result in illegal activity would enable such countermeasures in a broader range of conflicts, not just those prioritized by States with the resources to collect this kind of information. The standing body’s investigations may also aid in criminal prosecutions of individuals responsible for war crimes.
Although non-governmental organizations go to great lengths to identify the sources of conflict armaments, their work is impeded by the refusal of States to provide necessary information and the Security Council’s lack of follow-through. For example, the Security Council mandated that warring parties in Yemen share records with the Panel of Experts it established to investigate potentially unlawful air strikes. However, the council effectively allowed Saudi Arabia to skirt this requirement by never enforcing its own directive after the Kingdom refused to hand over its records. Not only did this diminish the Security Council’s effectiveness, it also put a further onus on NGOs attempting to pick up the slack by completing their own investigations.
Amnesty International and Human Rights Watch, working in concert with local organizations, traced conflict armaments in Yemen at great risk to all involved. While this herculean effort resulted in a U.K. court order mandating a review of the decision to sell weapons to the warring parties in that conflict, NGOs simply cannot be expected to have the resources or take the risks to do this in every armed conflict around the world.
Ad Hoc Doesn’t Work
A permanent body is necessary because reliance on an ad hoc approach by the General Assembly has a number of flaws. Firstly, In recent years, these ad hoc bodies have become increasingly politicized, with governments blocking findings, the inclusion of experts, etc. Additionally, by creating mechanisms that cover only specific conflicts, we are losing critical institutional competencies and lessons learned. A foundation of knowledge cannot be built when we are constantly starting from square one. Also, it wastes precious time to wait for the Security Council or the General Assembly to arrive at a consensus, or lack thereof, on each individual conflict. Time and resources would be better spent creating a permanent mechanism that can build on its expertise. Even better if it’s led by an internationally recognized and trusted leader with a reputation for truth-telling and integrity to prevent political capture of the new institution.
When a mere five countries effectively control the entire arms market — and have the ability to thwart regulation of the market — arms sales to irresponsible actors can be expected to proliferate. Because the flow of arms into conflict zones is unlikely to be successfully addressed in the Security Council due to the conflict of interest of the P-5, we should redirect our efforts to create a permanent body independent of the Security Council. Only through the collective and visible effort of the General Assembly will it be possible to change the calculus of arms-supplying nations supporting proxies in armed conflicts around the world.
(The opinions expressed here are those of the authors. These statements have not been approved by the ABA House of Delegates or Board of Governors, and should not be construed as representing ABA policy.)