06 Apr China Would Violate the Arms Trade Treaty If It Sends Weapons to Russia for Use in Ukraine: Part I
[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.
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