Is the time right to make ‘provision of weapons’ an international crime?

Abstract

International law places the regulation of the arms market under the aegis of State sovereignty. It is by means of State authorisation, an inherently political act, that arms transfers are granted legitimacy. Over past decades, States have sought to establish communal standards to harmonise domestic decision-making processes. The interrelation between weapons availability and transnational crime, armed conflicts and human rights abuses led the international community to attempt to establish a ‘responsible’ arms market, one that aims to avoid exacerbation of these forms of violence. To this end, three legislative instruments progressively put in place a framework of legally binding obligations for the establishment of a more controlled arms market. However, the enforcement of this framework has proven to be quite ineffective. No centralised authority, sanctioning mechanism or judicial review has been put in place to address States’ failures to live up to their commitments. In turn, this translates into the impossibility to challenge the presumption of legitimacy given by the authorising licence. Ultimately, the system rests on States’ goodwill to live up to their commitments, which de facto restores the supremacy of politics on the matter. The article challenges this perspective and suggests that not only does providing arms with the knowledge that they will be used for the commission of violations of human rights and humanitarian law fall under the aegis of international criminal law, but it should be prosecuted as an independent crime rather than a form of complicity. The discrimen between the mental element of the perpetrator and of the provider does not lie in a different degree of intensity but, rather, in a different quality of the same. Knowingly providing arms for the perpetration of criminal conducts is, per se, a source of harm to the community, the prevention of which would be sufficient to justify the establishment of an independent crime. This recognition would reinforce the value of individual agency of the actors involved and, in turn, enhance accountability in a domain that remains substantially devoid of judicial review.