[Dr Tomas Hamilton (@tomhamilton) is a Researcher at the University of Amsterdam and Managing Editor of the VICI-funded project ‘Rethinking the Outer Limits of Secondary Liability f…
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China Would Violate the Arms Trade Treaty If It Sends Weapons to Russia for Use in Ukraine: Part I
06.04.22 |
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Dr Tomas Hamilton (@tomhamilton) is a Researcher at the University of Amsterdam and Managing Editor of the VICI-funded project ‘Rethinking the Outer Limits of Secondary Liability for International Crimes and Serious Human Rights Violations’.]
As Russian aggression against Ukraine continues and evidence of war crimes and crimes against humanity mounts, third-party States and individuals may be considering their potential liability for supplying arms to Russia.
On
24 March 2022, the US reiterated its
warning to China of ‘implications and consequences’ if it provides military aid to Russia, as did
NATO leaders.
Reportedly, US intelligence shared with allies shows that Russia requested supplies from China including surface-to-air missiles, drones, intelligence-related equipment and armoured and logistics vehicles. Beijing denies that any military assistance is being considered, while it has refused to join what it calls the
West’s ‘unilateral sanctions’. China’s denial comes in the context of a
joint statement by Russia and China on 4 February 2022 against NATO expansion, emphasizing that: ‘[f]riendship between the two States has no limits, there are no ”forbidden“ areas of cooperation’.
A salient fact overlooked in the legal commentary is that China acceded to
the Arms Trade Treaty (‘ATT’) on 6 July 2020. In view of the obligations in the ATT, this blog post argues that China is prohibited from exporting most weapons to Russia since, at the very least, there is an overriding risk that they would be use in Ukraine in a manner that would contribute to undermining international peace and security. In the context of Russia’s ongoing act of aggression against Ukraine, the ATT prohibits China from sending any weapons to Russia absent credible assurances that they serve regular military and security purposes and will not be used in Ukraine. Importantly, some of the prohibitions under the ATT would not depend on establishing that the arms are linked to war crimes.
In addition to the ATT, this blog post recognises that Chinese military aid to Russia would almost certainly
be a basis for China’s responsibility under international law in accordance with Articles 16 and 41(2) of the International Law Commission’s Draft Articles on State Responsibility (‘ASR’), as well as the prohibitions in Common Article 1 of the Geneva Conventions. And under international criminal law, the CEOs of China’s arms manufacturing corporations and Chinese State officials could be responsible through doctrines of aiding and abetting. In order to establish the international law standard to determine whether China, and its State officials and CEOs, are prohibited from exporting arms to Russia, this blog post suggests that the specific treaty requirements of the ATT may provide an appropriate
lex specialis that is relevant to the determination of both State responsibility and individual responsibility
.
This post supplements my arguments made on the
Just Security blog that there has been a lack of attention in the commentary on Russia and Ukraine to global arms control norms, and that these norms should be articulated, and not abandoned, during this time of crisis in Ukraine.
What Violations Might Russia Commit Using Chinese Weapons?
Since the invasion of Ukraine on 24 February 2022, Russia is almost certainly responsible for an unlawful act of aggression, constituting a violation of Article 2(4) of the UN Charter and an international crime under the Rome Statute.
There are strong and credible allegations of Russian war crimes and crimes against humanity in Ukraine. Notably, since 24 February, the World Health Organization’s
Surveillance System for Attacks on Health Care has documented 57 unlawful attacks on health care carried out with heavy weapons that would almost certainly qualify as war crimes. Prior to the invasion, evidence had also been
accumulating of Russian war crimes and crimes against humanity following the annexation of Crimea in 2014.
So far, Russia’s operations in Ukraine appear to have been carried out primarily, or exclusively, with Russian-made equipment. This could easily change, as Russia depletes its stocks of certain arms or material as the conflict wears on. If foreign arms are imported in Ukraine, the current circumstances of the conflict make it impossible for a supplier State to deny the obvious likelihood of supporting Russian unlawful actions.
It is normally Russia that exports weapons to China, and not the other way around. This highlights that if Russia is indeed seeking military aid from China, it is due to the exceptional military demands it is facing in its Ukraine offensive. Of the items that Russia
reportedly requested from China, the surface-to-air missiles, and perhaps other conventional weapons, would fall squarely within the scope of the ATT, as would parts or components of conventional weapons.
The use of Chinese drones by Russia is already commonplace in the Ukraine conflict according to
Financial Times analysis. It is unclear whether these would be military drones with lethal capacity that are subject to export regulation, or may be
simple commercial drones that fall outside the scope of the ATT.
China’s Accession to the Arms Trade Treaty
China is subject to the rules of the ATT, according to which a State Party must not transfer conventional arms, ammunition, parts and components, where this would violate relevant international obligations (Article 6(2)); where it has ‘knowledge’ the weapons will be used in the commission of war crimes or crimes against humanity (Article 6(3)); or where the State Party determines there is an ‘overriding risk’ that the supplied arms will undermine peace and security or be used in the commission of war crimes or crimes against humanity (Article 7). Depending on the nature and surrounding circumstances of military aid provided by China, there would likely be violations of all three of these areas of the ATT.
China has grown increasingly committed to international norms on arms control in recent years. The object and purpose of the ATT, according to Article 1, includes ‘[c]ontributing to international and regional peace, security and stability’. It was consistent with this objective that, upon ratification on 6 July 2020, China
released a statement that ‘[ratification] demonstrates China’s resolve and sincerity in maintaining international arms control regime, supporting multilateralism, and forging a community with a shared future for mankind. It will further enhance the treaty’s universality and contribute to global security governance and international arms control process.”
The failure of the United States to ratify the ATT has been emphasised by China to increasingly portray itself in diplomacy as a responsible actor in global arms control. In September 2021, Beijing
criticised the US for its ‘political’ use of military support to Taiwan, and pointed to US supplied weapons captured by the Taliban in Afghanistan (see further
comments here and
here). More recently,
in their joint statement of 4 February, Russia and China noted ‘the denunciation by the United States of a number of important international arms control agreements has an extremely negative impact on international and regional security and stability.’
China’s Obligations Under Article 6 of the ATT Not to Transfer Arms to Russia
It appears that China is barred by Article 6(2) of the ATT from providing any support that Russia would use in the war. In effect, since the war is itself internationally unlawful, the prohibition in Article 6(2) subsumes any question of a prohibition under Article 6(3) on international crimes. Or at least, wherever there is an Article 6(3) violation, there would also, necessarily, be a cumulative violation under Article 6(2).
Article 6(2) of the ATT provides as follows:
[a] State Party shall not authorize any transfer of [conventional arms, ammunition, parts and components], if the transfer would violate its relevant international obligations under international agreements to which it is a Party, in particular those relating to the transfer of, or illicit trafficking in, conventional arms. […]
Could these provisions prohibit China from supplying weapons to Russia on the basis that this would violate China’s international obligations under Article 2(4) of the UN Charter? Arguably, as a UN member state, China is prohibited from providing arms where these would be used to commit an act of aggression or illegal use of force against another State, since these actions would be a clear and serious violation of its international obligations under an international agreement, namely, the UN Charter. This is to paraphrase a leading
commentary on the ATT by Clapham et al (at 6.66), which argues that:
‘Knowingly assisting a state through arms transfers to commit an act of aggression is already a violation of international law. Again as with the violation of international law which comprises assisting an armed non-state actor fighting against a state, the ATT may also prohibit transfers by UN member states where these would be used to commit an act of aggression or illegal use of force against another state. Such action will be a clear and serious violation of its obligations under an international agreement: the UN Charter.’
In the current circumstances of Russia’s unlawful invasion of Ukraine, China might additionally violate the following provisions of Article 6(3) of the ATT:
3. A State Party shall not authorize any transfer of [conventional arms, ammunition, parts and components], if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.
It is notable that the list of international crimes in Article 6(3) of the ATT does not include the crime of aggression. This is a peculiar omission from the ATT, and was apparently deliberate, since the final text did not include
the proposal of Liechtenstein in 2012 (p. 52): ‘Be used to commit or facilitate serious violations of international criminal law, including genocide, crimes against humanity, war crimes and crimes of aggression’ (emphasis added). Neither did it include
the proposal in the Draft ATT (6.66) based on a State Party’s assessment of substantial risks that the weapons ‘would ‘provoke, prolong or aggravate acts of aggression or other breaches of the peace’. It would therefore seem clear that Article 6(3) also does not preclude the provision of general military aid to Russia on grounds of knowledge of an act of aggression.
Nonetheless,
arguendo, China would be prohibited by Article 6(3) from supplying conventional arms, ammunition, parts and components to Russia where it
knows they will be used in, for instance, the bombing of hospitals, theatres or other civilian targets in Ukraine. Also, we can exclude from consideration under the ATT any non-conventional weapons that would
per se be prohibited from cross-border sale and export, and the use of which is a violation of IHL, ie chemical and biological weapons. The ATT applies to weapons that China could, in normal circumstances, trade lawfully.
It is clear that even if China was to recognize that its military aid would be used by Russia in hostilities against Ukraine, not all military aid to Russia would be linked to an international crime. A supply of ration-packs to be used by Russian forces in Ukraine, for instance, is unlikely to raise knowledge of ‘use in the commission of war crimes’, and it would not in any case be within the scope of the ATT. Even in a situation where China, hypothetically, was to supply missile parts to be used in attacks in Ukraine, they may be understood to be used in legitimate and proportionate attacks on military targets; their supply does not necessarily raise knowledge of use in a specific violation of international humanitarian law, such that Article 6(3) would not necessarily prohibit their use.
While it is widely accepted that Russia’s attack is a blatant
jus ad bellum violation, this
does not mean that all Russian military operations contravene
jus in bello. Unless China knows that exports will be used in violations, Article 6(3) does not preclude the provision of general military aid to Russia, even where China knows its supplies are going to be used in military operations in Ukraine. It is likely, in other words, that China would always have an arguable case
in relation to Article 6(3) that it did not know of a clear link between the supplied weapons and an anticipated Russian war crime. Even as the conflict wears on and evidence of war crimes mounts, it may remain hard to establish that a supplier State
knows (for the purposes of Article 6(3)) that violations will be committed with the supplied weapons. It would probably require a scenario where violations are so numerous or so systematic that any supply of weapons used in military activities carries the knowledge of improper use. Nonetheless, for these reasons, the Article 7 provisions (based on risk assessment) are more likely of relevance than the Article 6 provisions (based on knowledge).
This underscores that the relevant sub-provision for China is Article 6(2), with its general prohibition on weapons supplies where it is known they will violate the supplier State’s treaty obligations under Article 2(4) of the UN Charter (if we accept the argument in the
Clapham et al commentary referred to above). The existence of this general prohibition avoids the aberrant outcome that would result if China was prohibited under Article 6(3) from supplying weapons that it knows will be used in a human rights violation of lesser seriousness (eg violations of the civil rights of political dissidents) while at the same time permitted to supply those weapons if they were used in a massive and unlawful invasion of a peaceful State.
[Dr Tomas Hamilton (@tomhamilton) is a Researcher at the University of Amsterdam and Managing Editor of the VICI-funded project ‘Rethinking the Outer Limits of Secondary Liability f…
opiniojuris.org
China Would Violate the Arms Trade Treaty If It Sends Weapons to Russia for Use in Ukraine: Part II
07.04.22 |
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Dr Tomas Hamilton (@tomhamilton) is a Researcher at the University of Amsterdam and Managing Editor of the VICI-funded project ‘Rethinking the Outer Limits of Secondary Liability for International Crimes and Serious Human Rights Violations’.]
China’s Obligations Under Article 7 of the ATT Not to Transfer Arms to Russia
In the event that assistance does not fall into the above mandatory prohibitions of Article 6, for instance if Russia provides assurances that the military aid is for use by its regular domestic police forces, China would still be required to conduct assessments under the ATT of the risks associated with the exported weapons. Article 7 provides,
inter alia, (my emphasis):
7. 1. If the export is not prohibited under Article 6, each exporting State Party […] shall […] assess the potential that the conventional arms or items:
(a) would contribute to or undermine peace and security;
(b) could be used to:
(i) commit or facilitate a serious violation of international humanitarian law;
(ii) commit or facilitate a serious violation of international human rights law;
[…]
3. If, after conducting this assessment and considering available mitigating measures, the exporting State Party determines that there is an overriding risk of any of the negative consequences in paragraph 1, the exporting State Party shall not authorize the export.
4. The exporting State Party, in making this assessment, shall take into account the risk of the [conventional arms, ammunition, parts and components] being used to commit or facilitate serious acts of gender- based violence or serious acts of violence against women and children.
Under the first of these sub-provisions, if China has information that a shipment of arms to Russia is bound for the war in Ukraine, there would be an overriding risk that that arms would contribute to undermining international peace and security, since they would help Russia in an ongoing violation of
jus ad bellum. The leading commentaries on the ATT recognise that the scope of Article 7(1)(a) encompasses undermining peace and security by providing arms to a state likely to be engaged in future violations of
jus ad bellum (
Clapham et al., 7.34), including where this constitutes a crime of aggression (
Da Silva and Wood, p.155). Importantly, the peace and security provisions of Article 7(1)(a) are ‘international’ in character, so they do not provide a ‘loophole’ for a bad faith interpretation of the provision, whereby a State Party could interpret the terms as relating to ‘national security’ and therefore justify exports on spurious grounds of upholding an aggressive State’s purported national security concerns.
Any arms that China assesses as bound for use in Ukraine would contribute to undermining peace and security and violate Article 7(1)(a). Any such arms transfers might additionally violate Article 7(1)(b) if used in serious violations of international humanitarian law or international human rights law under Article 7(1)(b),or serious acts of violence against women and children under Article 7(4). Due to the difficulties of linking specific shipments of weapons to specific anticipated incidents in Ukraine, violations under Article 7(1)(b) and Article 7(4) are likely to be harder to establish during the risk assessment than the broader ‘undermining peace and security’ prohibition in Article 7(1)(a).
Article 7 requires an assessment of ‘overriding risk’ (which has been equated with the ‘clear risk’ standard in EU arms control laws –
see Wood et al, p. 169) of the ‘potential’ usage of the arms to ‘contribute’ to undermining peace and security. In the circumstances of Ukraine, the relevant assessment for China would simply be whether there is an overriding risk that the items sent to Russia are going to be used in the war. However, following
Clapham et al. (7.31), the standard could be even lower – just the result of the mere delivery of the arms to Russia, even if not used in Ukraine, could be understood as sufficient to ‘contribute’ in some way to Russia’s actions in undermining global security. In other words, any arms sent to Russia that have a knock-on supporting effect on its military capacities to attack Ukraine could qualify. This would be a broad reading, however, and could be undone by Russia demonstrating that the arms did nothing more than address regular domestic policing needs, for instance (of course this does not rule-out that those regular domestic policing needs
could be a basis for ATT prohibition). In any case, the threshold level for information about Russia’s intended use of the weapons that would trigger an export ban under Article 7(3) certainly appears to be lower than the standard under Article 6(2) of awareness that the transfer would violate China’s relevant international obligations under the UN Charter.
It is therefore Article 7(1)(a) of the ATT that provides the important minimum threshold: China must not authorise any shipment of weapons to Russia where it identifies an overriding risk of their use in the war in Ukraine.
Information Available to China about Russia’s Intended Use of the Weapons
A ‘hard case’ borderline scenario of prohibition under the ATT could arise if China supplies weapons based on assurances from Russia that they will not be used in Ukraine, but are instead intended for Russia’s regular and legitimate military and security needs.
In this situation, an assessment would still be required under Article 7(1)(a) of the overriding risk that the weapons would, in spite of and contrary to Russian assurances, be used in the war in Ukraine and therefore contribute to undermining peace and security. Such a scenario would then engage China in determinations under Article 7(2) as to whether it could take measures to mitigate the risk of the prohibited use in Ukraine, for instance by securing an undertaking from Russia that the items will not be used for purposes other than the declared regular usage. In this regard, it is salient that these provisions were included in the ATT primarily in relation to avoiding the risks of diversion from intended end-users to other recipients, not to mitigating unlawful uses by a purchasing State. It is hard to see how China could realistically mitigate these risks
bona fide, or obtain any binding commitment that would prevent Russia from using the weapons in Ukraine
mala fides.
At the present time, in order for any military aid requested by Russia from China to be permissible under the ATT, it would need to be accompanied by information substantiating that the weapons are not for use in Ukraine (of course this would not exclude possibilities of wrongful use against Russian civilians’ human rights. There is an obligation under Article 8(1) according to which States party to the ATT that are importing arms, must take measures to ensure that ‘appropriate and relevant information’ is provided to the exporting State Party to assist in the export assessment under Article 7. However, since Russia is not an ATT State Party (neither is it a signatory), Article 8(1) does not apply and it is under no treaty obligation to provide this information, although of course doing so could facilitate China in meeting its obligations under the ATT.
The bottom-line here, however, is that if Russia is seeking military aid from China at the present time, it is likely for use in Ukraine. If the reports cited by US intelligence are accurate, Russia has requested military aid
expressly for use to attack Ukraine, removing any possibility of risk mitigation, and making the arms exports undoubtedly unlawful under Article 7(1).
In sum then, the ATT does not appear to prevent China from continuing to supply weapons to Russia for its regular and legitimate military and security needs. At least under the ATT, the illegal invasion of Ukraine does not
per se mean that States must suspend regular support for Russia, for instance for its police and domestic security apparatus (of course, irrespective of the Ukraine situation there may be rights violations by Russian authorities that could trigger an ATT prohibition). Indeed, the Preamble to the ATT recognizes ‘the legitimate political, security, economic and commercial interests of States in the international trade in conventional arms’. However, as soon as China detects the potential overriding risk for an exported weapon to be used in the invasion of Ukraine (this need not rise to the level of ‘knowledge’), the ATT absolutely prohibits China from authorising such exports. This is a low bar, and would seem to apply to all of the rumoured conventional arms sales to Russia at present, since any such weapons raise an overriding risk of possible use in Ukraine.
The ATT Offers a Lex Specialis for Chinese Arms Exports to Russia
Following this detailed analysis of Articles 6 and 7, it can be seen that the ATT provides a more specific set of international law obligations to clarify the conditions in which a State must not transfer weapons to another State, than under
general international law.
These specific treaty law prohibitions of the ATT exist in the context of several other relevant prohibitions under international law. Chinese military aid to Russia would almost certainly provide a basis for China’s responsibility under international law in accordance with Articles 16 and 41(2) of the ASR, as well as the prohibitions in Common Article 1 of the Geneva Conventions, as Oona Hathaway and Ryan Goodman argue on their
Just Security blog. There are further questions as to whether China would violate the
principle of neutrality, gain the status of a
belligerent party and be subject to
countermeasures.
Under international criminal law, the CEOs of China’s arms manufacturing corporations and Chinese State officials with authority over arms exports would need to consider the risk of individual responsibility under doctrines of aiding and abetting.
Tom Dannenbaum has already pointed out the potential complicity of Russian industrialists in international crimes; the prospect of external military assistance to Russia could broaden the scope of individual complicity considerably.
There is no relevant arms embargo in place. Unlike in many armed conflicts, Chinese exports to Russia are not subject to any UN Security Council arms embargo, and the
EU arms embargo on Russia since 2014 does not apply to China. Arguably, the ATT’s prohibitions take on a heightened importance in the situation where a State Party is considering the types of risks associated with arms exports that would normally for the basis for a UN Security Council embargo to be imposed under Chapter VII of the UN Charter but for an inevitable veto.
In general, arms control laws have received very little attention in the commentary on Ukraine since the invasion of 24 February. I would argue that arms control laws are highly relevant, both as a matter of international law and as a tool for legal diplomacy, to hopefully dissuade China from sending weapons to Russia for use in Ukraine where this is deemed unlawful. I would also argue, as I am developing for a forthcoming OUP monograph
The Arms Trade and International Criminal Law, that the prohibitions in Article 6(3) and 7 not only govern national export licensing requirements, they also provide a
lex specialis on the prohibition of arms exports that may be relevant to determining the scope of responsibility in accordance with the rules of State responsibility and international criminal law.
Conclusions About the Relevance of ATT Violations for China
Beyond international law, the serious ramifications if China decides to assist Russia are being
described in stark terms: ‘China would in effect be entering a proxy war with the US and Nato nations that are backing Ukraine’, a decision that could ‘spell the end for the globalised economic system that has fuelled China’s extraordinary rise over the past 40 years.’
If pushed to recognise that supporting Russia would make hypocrisy of its ratification of the ATT and proclaimed commitment to global arms export norms, China might simply point to the US failure to ratify. But putting aside the whataboutism of US non-ratification of the ATT, China would still have violated its treaty obligations. In this context, China’s recent affirmations of
‘resolve and sincerity’ in maintaining international arms control norms provides an additional legal argument in the diplomatic toolkit, which could contribute to persuading China to resist the economic pull of Russia’s growing need for external sources of weaponry.
