Serbia, Arms Exports, and International Law Obligations
Following the leak of documents from the US Pentagon over the past couple of weeks, news reports had picked up on the alleged statements it contains on Serbia’s commitment to provide arms to Kyiv. According to reporters, insight into the documents reveals Serbia’ reluctance to provide training to the Ukrainian forces, but that it was willing and capable of providing arms to Ukraine, as well as that it had already committed itself to doing so. In several pronouncements by the highest Serbian state officials, these allegations were vehemently denied. They stated that Serbia was not providing weapons to neither Ukraine nor Russia, that Serbia has not exported arms to the parties to the conflict since the beginning of the invasion, and that Serbia does not plan on doing so in the future.
As part of these introductory remarks, we should recall that this sort of question is not exactly new. A cursory overview gives us a similar pattern of allegations when it comes to arms exports (and denials thereof) to Myanmar, Yemen, Saudi Arabia or the UAE. These other examples also warrant posing the same question of how much consideration Serbia gives to international legal norms concerning arms exports. Therefore, what this blog aims to do, political implications of such moves aside, is to outline the international legal obligations that should be on our radar when we speak about any decision to provide arms to any party to any armed conflict.
What the Arms Trade Treaty tells us?
A preliminary point: does the Arms Trade Treaty come into play at all? The specificity of the Arms Trade Treaty (ATT) is that it requires only the exporting State to have ratified the instrument. It does not look into questions of whether the recipients are also parties to the treaty. Hence, the ATT comes into play simply by virtue of the fact that Serbia has ratified it in 2014. For instance, in the context of the present case, the fact that Ukraine is a signatory but not yet party to the treaty, and that Russia has not joined the treaty, therefore does not change much.
Moving on to substantive matters regulated by the treaty, two cornerstone provisions are its Articles 6 and 7.
Article 6
3. A State Party shall not authorize any transfer of conventional arms covered under Article 2 (1) or of items covered under Article 3 or Article 4, 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.
Article 6 therefore obliges Serbia (the exporting State) to refrain from authorising the export of weapons if Serbia knows the weapons will be used in the commission of international crimes, including certain war crimes. The provision is considered to also englobe constructive knowledge of such acts, which means that it includes cases where the exporter should have known about such use of the weapons in light of available evidence. (Sands, Clapham, Ní Ghrálaigh, Legal Opinion, 43) Hence, Article 6 imposes an implicit duty on Serbia (the exporting State) to appraise the receiver’s capacity to ensure respect for international humanitarian law (IHL). Therein, the exporter can account for its past conduct, commitments, as well as measures to prevent and repress IHL violations instituted by the importer. (ICRC, Arms Transfer Decisions Practical Guide, 7).
Article 7
Export and Export Assessment
1. If the export is not prohibited under Article 6, each exporting State Party, prior to authorization of the export of conventional arms covered under Article 2 (1) or of items covered under Article 3 or Article 4, under its jurisdiction and pursuant to its national control system, shall, in an objective and non-discriminatory manner, taking into account relevant factors, including information provided by the importing State in accordance with Article 8 (1), 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;
iii. commit or facilitate an act constituting an offence under international conventions or protocols relating to terrorism to which the exporting State is a Party; or
iv. commit or facilitate an act constituting an offence under international conventions or protocols relating to transnational organized crime to which the exporting State is a Party.
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.
Complementary to this provision, Article 7 puts forward the obligation on Serbia to examine the risk of the export having negative repercussions, notwithstanding its compliance with Article 6. This assessment requires appraising whether the weapons might be used to contribute or undermine peace and security, or as an enabling factor to a serious violation of IHL (war crimes in international and non-international armed conflicts, under either treaty or customary law) or international human rights law (IHRL) - a ius cogens violation, or gross or systematic violations - an act of terrorism or transnational organised crime.
The assessment should factor in information such as the exported weapons (type and amount), the users, the situation in the destination country and the export route. (Academy Briefing, 26)
An important discrepancy between Articles 6 and 7 lies in the degree of awareness about the potential occurrence of unlawful conduct necessary to prevent the export. While Article 6 requires at least constructive knowledge about the specific intended use of the weapon, a “potential causal link” would suffice to justify the prohibition of authorisation under Article 7. This is embedded in the very wording of the provision, which puts forward that there is a risk that the exported arm ‘could’ be used in committing or facilitating the violation. (Academy Briefing, 26-27)
How the risk assessment should look like?
In carrying out the risk assessment, weight should be given to factors of the past and present track record of respecting IHL by the actor receiving the weapons; their commitment to respect IHL, as well as their capacity to ensure a use of weapons consistent with IHL and HRL norms. The track record includes both questions of whether the party was responsible for the commission of serious IHL violations, as well as whether it took steps to prevent or punish IHL violations. Further, the commitment to respect IHL includes an appraisal of all-things national implementation. The factor takes a look at not only the ratification of key international legal instruments, but also its steps towards their implementation in domestic legal systems, including domestic criminal repression and cooperation with international courts; and the integration of IHL and HRL in relevant military manuals and trainings of armed forces. Lastly, the capacity to ensure an IHL and IHRL-compliant way of employing the received arms englobes questions of end-user guarantees, control over military equipment and exercise of clear command and control. Lastly, the information sources from which the risk assessment can draw upon is also quite broad, and includes reports of the UN, both local and international NGOs, information from national diplomatic missions working in the State, the media, as well as open- and closed-source intelligence. (ICRC, Arms Transfer Decisions Practical Guide, 14-21)
Treaty provisions state that, should the risk assessment show an overriding risk of such violations occurring despite mitigating measures, the exporting State must refrain from authorising the export. Nonetheless, the interpretation of the notion “overriding risk” is subject to dispute. Scholars and some States have interpreted this term to mean “substantial”, or similarly, “more likely than not”. (Clapham et al, ATT Commentary, 275) To the contrary, other States argue that this notion presumes a balancing test between the export’s negative and positive effects. They argue that the possible negative repercussions should be weighed against its positive effects of the arms export on peace and security, encompassing the greater capacity of the importing state to defend itself against external aggression or impede internal violence. (Clapham et al, ATT Commentary, 254) Nonetheless, such an interpretation would give leeway for states to use ends to justify the means, creating a dangerous loophole and potentially undermining human rights protection. (Clapham, The ATT: A call for an Awakening, 4) Thus, although potentially not unlawful, in the event that there is one, such a Government position would need to attract the attention of the Parliament and CSO representatives.
When would Serbia become “dragged” into the conflict? International humanitarian law and conflict classification?
One of the phenomena that has attracted the attention of IHL experts regarding the armed conflict in Ukraine is the question of the role of third countries. In other words, at what point does a state's support to a belligerent make that third state a party to the conflict?
There is international agreement around the fact that conflict classification is a bilateral exercise, and in cases where multiple actors are involved in a single conflict, the classification of the conflict needs to be assessed at the bilateral level between all of those involved. (Ferraro, ICRC’s legal position, 1241-1242) However, it has been highlighted that such an approach does not fully correspond to modern-day armed conflicts. Particularly in situations where a third State might be providing support to the State in the fight against an armed group on its territory, we would often find ourselves with a situation where simply the criterion of intensity would not be satisfied in order to establish the existence of an armed conflict between the third State and the armed group. In such a scenario, the fragmented approach to conflict classification could lead to the governing framework of IHL escaping the conduct of the third State, and not being applicable to it. To prevent such an outcome, a support-based approach was put forward by the ICRC, for the context of interventions of multinational forces. According to the support-based approach, IHL applies to an actor (State or multinational force) when the following requirements are met:
In the territory where the third actors’ troops intervene, there is a pre-existing NIAC.
The third actor’s forces conduct hostilities in the context of an ongoing war.
The third actor’s forces' combat activities are conducted in support of a party to that pre-existing conflict
The action is performed in response to a formal decision by this third actor to support a side involved in the pre-existing conflict.
Taking it a step further in light of the situation in Ukraine, scholars conceived the scenario where such involvement of third actors is not direct, but consists of forms of indirect support such as intelligence sharing. They posed the question of whether such indirect support could render the supporting actor to become a party to the conflict itself. Most notably, Schmitt put forward the following factors based on the ICRC’s support-based approach that would need to be examined:
An intention on the part of the supporting State to contribute to particular hostilities activities conducted by the supported State or to hinder those conducted by the State's adversary;
The extent to which the support helps or hinders specific conduct of hostilities activities;
The extent to which the support is integral to the supported State's specific conduct of hostilities operations or defensive action against its adversary;
The delay or lag between receiving intelligence and putting it to use.
These four elements indicate that a specific link would need to be established between the provision of the support provided by the third State and the conduct of the supported actor. In other words, general material support increasing the overall capacity of the State would not, without more, render the supporting State a party to the conflict. Indeed, similar to what Schmitt underlines in the context of intelligence sharing, the support would need to be tied to specific operations of the parties.
Even though it is not a party to the conflict, does Serbia hold certain obligations according to IHL in the context of Ukraine?
Finally, what Serbia needs to consider along the process is its obligations beyond its ATT obligations. Within the realm of IHL and complementary to the ATT, it has a Common Article 1 obligation to act with due diligence so as to ensure respect for IHL. The obligation to ensure respect with IHL, and particularly its external dimension, is a due diligence obligation of actors to take feasible steps to influence parties to the conflict towards respecting IHL. The fact that participation in the arming of a party to the conflict arguably coincides with an increase in the width of measures that this supporting actor could take, in line with its capacity to influence the party’s behaviour.
