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ATT EXPERT GROUP Arms exports, terror and crime: Reducing risk under the Arms Trade Treaty

Jillian Rafferty Elizabeth Kirkham Roy Isbister

BRIEFING NO.7 – APRIL 2021 Acknowledgements

Saferworld would like to express gratitude to the governments of Germany and Switzerland for their generous support for the ATT Expert Group, in particular during the COVID-19 pandemic. Saferworld would also like to extend sincere thanks to Jillian Rafferty, Legal Fellow, Women’s International League for Peace and Freedom, who provided the expert legal analysis of ATT Article 7(1)(b)(iii–iv), which forms the core of this report, and for compiling the detailed Annex. Thanks also to Cindy Ebbs, Co-Director of Control Arms for her valuable input and advice. The risk assessment outline and the hypothetical case studies were developed by Elizabeth Kirkham and Roy Isbister of Saferworld’s Arms Unit. Thanks also go to Jatinder Padda for copyediting and to Jane Stevenson for designing the report. Saferworld would also like to thank all government and civil society representatives that have participated in, and contributed to, the eight in-person and seven virtual meetings of the ATT Expert Group that have been held so far.

© Saferworld, April 2021. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means electronic, mechanical, photocopying, recording or otherwise, without full attribution. Saferworld welcomes and encourages the utilisation and dissemination of the material included in this publication. ATT EXPERT GROUP

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13 Decision-making 11 Commit/facilitate trends and future Current Peace and security Mitigation measures Defining ‘peace and security’ Defining ‘contribute to or undermine’ crime, and peace and security transnational organised Terrorism, International conventions and protocols relating to transnational organised crime to transnational organised International relating conventions and protocols to ‘commit or facilitate’ harms or Generally speaking, how can weapons be used offences? under to ‘commit or facilitate’ offences How can weapons be understood to be used and/or transnational organised crime? international to terrorism law relating to terrorism International relating conventions and protocols Step 1: Identifying obligations and offences Step 1: Identifying obligations and offences Step 2: Assessing the risks Peace and security Commit or facilitate International conventions or protocols relating to terrorism or transnational to terrorism International relating conventions or protocols organised crime Contents Arms export assessment: five hypothetical cases to relating under international conventions or protocols ANNEX: Offences and to transnational organised crime terrorism Applying Article 7: the assessment process Legal analysis Introduction 4. 3. 2. 1. ATT EXPERT GROUP 1 ATT EXPERT GROUP entered into force in 2014, States Parties have have Parties 2014, in States force into entered 1 https://www.thearmstradetreaty.org/hyper-images/file/ ) TheArmsTradeTreaty1/TheArmsTradeTreaty.pdf can help inform States Parties’ export risk assessment processes, aided by a few a few by aided processes, exportassessment risk Parties’ States inform help can States for tools and tangible concrete provide to effort an In casestudies. hypothetical is a the briefing to annexed uniformly, the ATT implement to theyas work Parties and in 23 conventions the out laid the offences of explanation and list comprehensive TNOC. and terrorism to relating protocols application and implementation of Article 7(1)(b)(iii–iv), and contributing to those to contributing and Article 7(1)(b)(iii–iv), of implementation and application out laying hand, at provisions of the analysis legal a provides The paper discussions. several terms of key the meanings exploring protocols, and conventions relevant to Parties States asks the Article assessment 7 risk how considering and in Article 7, peace and and hand, the TNOC, one on and between terrorism the interplay consider analysis this how of an exploration with concludes The paper theother. on security, policy and practice – spanning United Nations (UN) Security Council Resolutions, Security (UN) Council Resolutions, Nations United policy– spanning practice and UN and of a widearray by publications and reports Resolutions, General Assembly the purposes For practice. state developed of years many and organisations, regional terrorism to relating it under obligations Parties’ States and the ATT understanding of law. treaty agreed-upon and written TNOC, focus on is the clear and onthe discussions tofuture serve purpose: aims dual briefing a both This stimulating remain elusive and States Parties’ implementation practices will inevitably diverge. will practices inevitably implementation Parties’ States and elusive remain of bodies overlapping but Article dealof 7(1)(b)(iii–iv) with separate provisions The relating protocols and conventions international four just are There law. international and these conventions However, terrorism. to relating 19 TNOC,to whileare there international body of a larger atop they sit Rather, vacuum. in a exist not do protocols the work of interpreting and fully implementing the ATT. fully implementing and interpreting of the work the provisions of discussion little beenhas comparatively there work, that Despite organised transnational and terrorism to relating Article7(1)(b)(iii–iv) ATT within is evident: one thing However, unclear. remain this for reasons crime (TNOC). The and the terrorism of the implementation on discussions substantive of in the absence will thoseprovisions of interpretations common Article under 7, TNOC provisions Since the Arms Trade Treaty (ATT) Treaty Trade the Arms Since their to coordinate effort in an (CSP) Parties States of Conferences six for met formally ATT the process, CSP The treaty. the landmark of implementation and interpretation contribute that NGOs the numerous and process, that feed into that Groups Working support to theseyears six past hard worked advocacytheirexpertise, have and analysis Introduction

United Nations (2013), ‘The Arms Trade Treaty’ ( Treaty’ United Nations (2013), ‘The Arms Trade

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‘could to … commit used be or facilitate an constituting act an offence under ‘would contribute to and or undermine security’ peace The firsttruecounter-terrorism treaty –the1937ConventionforPrevention andPunishment of Terrorism –wasadopted service/11579.pdf (1937), ‘Conventionfor thePrevention andPunishment ofTerrorism’, Preamble andArticle1( systems. WhentheLeagueofNationswas dissolved, thisConventionlargelyfellbythewayside.SeeLeagueofNations or thegeneralpublic’.TheConventionalso mandatedthecriminalisationofterrorist actswithinstates’domestic legal a Stateandintendedorcalculatedtocreate astateofterror inthemindsofparticularpersons,oragroup ofpersons terrorism character’.This comprehensive ofaninternational Conventiondefinedterrorism as‘criminalactsdirected against under theLeagueofNations.Itwasspecifically designedto‘mak[e]more effective theprevention andpunishmentof instrument known as Comprehensive the Convention against International Terrorism, offences under internationallaw. To date, there is no single international treaty that all definesterrorism-related conventionsandprotocolsInternational relating toterrorism state has not ratified. state exporting the which –including is aparty conventions those importing the which commit or facilitate offences internationalall under counter-terrorism conventions to for example, state exporting the must consider weapons the whether to used could be or commitments on of part the importing the state is not relevant So, respect. inthis relevant to analysis. this The existence or absence of international legal obligations Importantly, it is the question has ratified. 7 are by determined conventions the and protocols ATT the which State Party in protocols relating to terrorism State and Each TNOC. Party’s obligations under Article to commit used could be or facilitate offences under international conventions or 7 requiresArticle States Parties to evaluate potential the that weapons the export they transnational organised crime or to relating terrorism protocols or conventions International international law, according to state’s exporting the obligations. to commit or facilitate terrorist deemed acts or transnational offences criminal under andon security peace In other words, an State exporting Party must consider stateexporting is a party international conventions or protocols’ relating to terrorism or to the which TNOC discriminatory’ manner, to ‘assess potential’ the that, 7 ofArticle ATT the requires an State exporting Party, in an ‘objective and non- Legal analysis ) exporting and the possibility the that weapons the transferred used could be state’s obligations under international law that are 2 States have spent last the 25years negotiating an inter alia inter both the effects effects the transferthe of , the exported items: exported , the https://dl.wdl.org/11579/ 3 ATT EXPERT GROUP This ‘wrongful ‘wrongful This 4 https://legal.un.org/ilc/ Generally, a State Party Party a State Generally, 3 ) These treaties and protocols tend to use the word useword to tend the protocols and These treaties

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As a result, the most logical interpretation of the ATT understands ‘offence’ ‘offence’ understands the ATT of logical the most interpretation a result, As 6 expert

protocols relating to terrorism might be read to require States Parties to criminalise acts that are considered lawful under considered States Parties to criminalise acts that are to require might be read to terrorism relating protocols during the course of armed conflict, For example, under international humanitarian law, international humanitarian law. contrast, a party to that armed conflict may lawfully target military objects – including, for example, a military barracks. By criminal) act the destruction of (and therefore ask states to define as a terrorist international to terrorism laws relating a government among other or public facility for the purposes of influencing a government by intimidation or coercion, a military barracks during the course of attacking a non-state armed group motives. Under these overlapping fields of law, military gains or attempting to induce surrender a non-international armed conflict for the purpose of attaining concrete could be both lawful under international under other international humanitarian law and unlawful as an act of terrorism and national law. adequate action to prevent the wrongful acts of others, or when the prevailing government has insufficient control over its control government acts of others, or when the prevailing has insufficient the wrongful adequate action to prevent behaviour of private actors. in the wrongful territory to rein Navigation’, Article 3 ( other states’ domestic law regarding Each state’s some allow for civil or administrative liability rather than criminal liability. etc., would determine if government capacity for actors can be held liable in their official actions, state actor immunity, committing those offences. the international and treaties too broadly, If interpreted on the other. the one hand, and international humanitarian law, [See Annex for a complete list of the international conventions and protocols relating relating protocols and conventions the international of list a complete [See for Annex under defined each.] offences key and terrorism, to Acts’, Document A/56/10 ( ‘Draft Articles on Responsibility of States for Internationally Wrongful documentation/english/reports/a_56_10.pdf requires that States Parties hold financers of terrorism criminally, civilly or civilly criminally, terrorism of financers hold Parties States that requires liable. administratively material. nuclear criminaliseof to the theft There are 19 international conventions and protocols relating to terrorism, and and each terrorism, to relating protocols and conventions international 19 are There offences. of a variety sets up law. domestic under offence as a criminal aircraft hijacking define to Parties majority of the treaties and protocols relating to terrorism specifically enumerate specifically enumerate terrorism to relating protocols and the treaties of majority agreement. under the ‘offences’ to Parties States motivate to and describeto prohibit they actions the to seek ‘offence’ punish. otherwisepunishable or or terrorism be wrongful act to constitute defined an mean to law. international of sources therelevant under control over its territory or the activities of insurgent non-state actors. non-state insurgent the activitiesof territory or its over control state of array a wide including sweeping, and broad is ‘offence’ of interpretation act’ legal international a state’s with compliance of strictly is out that conduct private and obligations. treaties relevant actan mean that to could be understood ‘offence’ an Alternatively, vast The otherwise to punishable. or or be wrongful terrorism constitute to declare be interpreted in one of two ways. Under one interpretation, an ‘offence’ could could be ‘offence’ an interpretation, one Under ways. two of one in be interpreted Party, a State or individual private a whether action, taken by any mean to understood law. international under act’ a ‘wrongful which constitutes international under obligations its of actsviolation in it act where a wrongful commits Party State to the attributed also may be actors private of actions wrongful The law. of degree Party’s the State to example, for relating, conditions set of narrow a under a clear definition of terrorism, though many identify specific acts that constitute constitute specific identify actsthat many though terrorism, of definition a clear systems. criminalise in theirdomestic must Parties States that or terrorism could weapons if exportedthe consider to Party State an exporting ATTrequires The international under offence’ an act constituting ‘an facilitate or be used commit to can under those treaties ‘offence’ An terrorism. to relating protocols and treaties att prevailed. has approach piecemeal a been Instead, finalised.not has agreement that but address primarily and directly that protocols and treaties 19 are there Currently, of include them none However, terrorism. to counter efforts multilateral and terrorism See, for example, United Nations (1988), ‘Convention for the Suppression of Unlawful Acts Against the Safety of Maritime See, for example, United Nations (1988), ‘Convention for the Suppression although criminal offences, states to create require Most under such treaties. as defined Anyone can commit an offence on to terrorism, relating be tension between international and protocols may It is important to note that there treaties For a comprehensive explanation of ‘wrongful acts’ under international law, see the International Law Commission (2001), acts’ under international law, explanation of ‘wrongful For a comprehensive government attributed to a state when the prevailing fails to take of private actors are actions Ibid. Most often, the wrongful The International Convention for the Suppression of the Financing of Terrorism Terrorism of of Financing the Suppression the for Convention International The Parties States requires Material Nuclear of Protection Physical on the The Convention The Convention for the Suppression of Unlawful Seizure of Aircraft requires States States requires Aircraft of Unlawful Seizure of Suppression the for The Convention

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Ibid. Ibid. Ibid. Ibid. The Protocol againstthe Smuggling of Migrants Land,Sea and by Air includes an The Protocol to Prevent, Suppress and Punish Trafficking in Persons,especially The Protocol againstthe Illicit Manufacturing of and Trafficking in Firearms, their UN Office onDrugsandCrime(2019),’UnitedNationsConventionagainst Transnational OrganizedCrimeandtheProtocols Thereto’ ( [See Annex for[See acomplete list of international the conventions and protocols relating and third the to marking the and tracing of firearms’. licensing intending to ensure legitimate manufacturing of, and trafficking in, firearms; requirements and definitions;secondthe to asystem of government authorizations or manufacturingto illegal of, and trafficking in, firearms basis the on the of Protocol normative provisions: first the relates the establishmentto of criminal offences related crime-control measures and implement, domestic intheir order, legal of three sets and ammunition’. To comply with Protocol, this States Parties must ‘adopt of a series illicit manufacturing of, and trafficking in, partsfirearms, their and components cooperation among States Parties in order to prevent, combat and eradicate the Parts and Components and Ammunition aims ‘to promote, facilitate and strengthen and preventing worst the forms of exploitation’. their cooperation among States Parties, protecting while rights the of smuggled migrants at preventing and combating smuggling the of migrants, as well as promoting agreed-upon definition of smuggling of migrants. whole,As a this Protocol ‘aims ofvictims trafficking persons in full respect theirfor with human rights’. in order ‘to facilitate convergence in national approaches’ and ‘protect and assist the Women and Children, includes an agreed-upon definition traffickingof persons, in adopted concurrently with, or shortly after, UNCTOC itself: In addition, Convention the is supplemented by three protocols, of all were which assistance for building or capacity upgrading of necessary the national authorities.’ and law enforcement cooperation; and promotion the of training and technical adoptionthe of and new sweeping frameworks for extradition, mutual assistance legal organised group, criminal money laundering, corruption and of obstruction justice; including: creation the of domestic offences criminal suchparticipation as in an Parties commit to ‘taking of measures aseries against transnational organised crime, against Transnational Organized (UNCTOC). Crime internationalThe primary instrument regardingConventionthe UN is TNOC wrongful or punishable under relevant the sources of international law. ATT understands ‘offence’ to mean defined to an act constitute be orotherwise TNOC conventions and protocols relating to terrorism, interpretation most the logical of the out that activities States Parties must and criminalise work to prevent. As with the There are four conventions primary and protocols relatingsets Each to TNOC. organised crime conventionsandprotocolsInternational relating totransnational att law. weaponsthe to used could be Key 7risk assessment to Article the State is exporting the Party’s assessment of whether facilitate or Commit andto TNOC, key offences each.] defined under

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no commit . 7 or or facilitate various offences under international 12 11 8 Under Convention, this States ) 10 9

5 ATT EXPERT GROUP 19 This This Max Planck 15 This This Max Planck 20 The plain plain The 18 https://www.merriam- Using this Using ( 14 (Oxford: Oxford University Oxford (Oxford: harms (for example, example, (for harms Both state complicity and and complicity Both state https://legal.un.org/ilc/documentation/ 21 https://treaties.un.org/doc/ https://treaties.un.org/doc/ 16 commit (Oxford: Oxford University Press), para. 7.35. University Press), Oxford (Oxford: Merriam-Webster Online Edition Merriam-Webster ) ) https://www.thearmstradetreaty.org/hyper-images/file/ The Arms Trade Treaty: A Commentary Treaty: The Arms Trade ) , 2019; ‘Facilitate’ in

7 . , December, p 14. See also International p 14. See also Law Commission (2001), ‘Draft Articles , December, no

, February. , February. on the ATT reinforces this understanding of ‘commit or or ‘commit of this understanding reinforces theATT on ) The ATT’s purposes include ‘[c]ontributing to international and and to international purposes ‘[c]ontributing include ATT’s The The Arms Trade Treaty: A Commentary Treaty: The Arms Trade ) 17 briefing those harms (for example, the military vehicles used to gather the militaryused gather to vehicles example, (for thoseharms ·

also provides several examples of the use of weapons to ‘facilitate’ ‘facilitate’ to weapons the useof of several examples alsoprovides notes that the use of arms ‘may be one or more steps removed from the from removed steps more or be one ‘may arms the use of that notes group Similarly, when two or more terms are used in a list, international law law used international a list, in are terms more or when two Similarly,

facilitate 13 Oxford English Living Dictionaries Commentary Oxford Commentary expert

TheArmsTradeTreaty1/TheArmsTradeTreaty.pdf (2015), ‘Complicity’ in Lanovoy V of the ATT; nature and preventive contrast to the forward-looking direct Encyclopedia of Public International Law Acts’, Document A/56/10 ( on Responsibility of States for Internationally Wrongful english/reports/a_56_10.pdf Encyclopaedias of International Law webster.com/dictionary/facilitate Article 7. See, for example, Casey-Maslen S et al. (2016), Treaty: Law School International the Arms Trade Human Rights Clinic (2019), ‘Interpreting para. 7.35. See also Harvard Press), Violence in Article 7 Risk Assessments’, April, p 6. International Human Rights Law and Gender-Based Treaties/1980/01/19800127%2000-52%20AM/Ch_XXIII_01.pdf interpretations are inconsistent with the ATT’s purpose. theATT’s with inconsistent are interpretations whoselegal purpose regimes from to is derived are standard abetting’ and the ‘aiding Treaties/1980/01/19800127%2000-52%20AM/Ch_XXIII_01.pdf Unius (Est) Exclusio Alterius’, See, for example, Senegacnik A (2018), ‘Expressio treaties. of logic in interpreting indirectly indirectly the victims). together Interpretations or facilitate’. ‘commit of interpretations certainly alternative are There or complicity state and hand, the one on facilitate’ or analogise between ‘commit that these but been considered, have hand, the other on standard abetting’ and ‘aiding an who are later summarily executed with other weapons or by other means’. other by or weapons other with executed summarily later who are later who are people up military being usedround to of vehicles take the form could for exporting tothe need points text directly treaty rifles.The assault with executed use both thepotential processes, in their assessment risk consider, to Parties States directly to theTreaty thescope under of weapons of to weapons of use and the potential summary riflesused execution) for the assault facilitate’ in its explanation of Article 7(1)(b)(i–ii), on the use of weapons to commit commit to weapons the use Article of on 7(1)(b)(i–ii), of explanation in its facilitate’ The law. humanitarian and rights human international of violations facilitate or Commentary itself. theviolation still facilitates but law, international relevant of actual violation’ The up people round used could be to that ‘weapons example, for These include, violations. to mean ‘to make easier’. This meaning serves to reinforce the ATT’s purposes of ATT’s the servesreinforce meaning This to easier’. make ‘to mean to Parties States exporting that ensuring by suffering human and instability preventing harms to contribute or cause can use that weapons scope of the broad to attend law. recognised international under The suggests that, in the context of the ATT, ‘facilitate’ adds a ‘broader range of conduct conduct of range a ‘broader adds ‘facilitate’ theATT, of in thecontext that, suggests consider’. should export officials that usage arms and its with consistent is a treaty of the interpretation that alsorequires law International purpose. objectand suffering’. human ‘[r]educing and peace, security stability’ regional and ‘facilitate’ and carry out’ ‘to mean to ‘commit’ understands text the Treaty of meaning Under international law, treaty terms must be interpreted in light of their ordinary their ordinary of light in beinterpreted must terms treaty law, international Under meaning. another. one from meanings distinct those have terms that presumes ‘Commit’ carry perpetrateor out’. ‘to mean be to can understood ‘commit’ approach, something mean must ‘facilitate’ therefore and action, carrying an directly out implies or easier’. possible make something ‘to means ‘facilitate’ Ordinarily, different. att facilitate’ to ‘commit or weapons be used speaking, how can Generally offences? harms or United Nations (2013), ‘The Arms Trade Treaty’, Article 1 ( Treaty’, United Nations (2013), ‘The Arms Trade Casey-Maslen S et al. (2016), is in act is committed’ and therefore only accrues after the principal wrongful for complicity Note that ‘responsibility ‘Facilitate’ in in ‘facilitate’ as it applies elsewhere the word Note that this is consistent with how other legal experts have interpreted Article 31 ( United Nations (1980), ‘Vienna Convention on the Law of Treaties’, United Nations (1980), ‘Vienna Convention on the Law of Treaties’, Article 31 ( United Nations (1980), ‘Vienna Convention on the Law of Treaties’, it is widely understood as a rule Although this principle is not enshrined in the Vienna Convention on the Law of Treaties, Ibid.

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ATT EXPERT GROUP The slightlygreater challenge ininterpretingrisk 7 theassessment Article is in weapons to guard used could be human the cargo against by discovery authorities. the from authorised the pilot(s). If offence the in question is smugglingpersons, in hijacking aircraft, a civil then a weapon wrestto be couldused control the of aircraft individual, aweapon then that to directly inflict used could be harm. the If offence is action. Ifor the perpetrating offence the in question causingis harm bodily to an fields. Arms are to used ‘commit’ offences they assistwhen indirectly out carrying Arms can clearly to ‘commit’ used be offences under internationallaw these in trafficking and more. similarly broad, spanning corruption, smuggling inpersons, money laundering, arms interfering with aviation civil navigation). In transnational treaties, crime offences are large-scale harm (placing and/or detonating an explosive on board aircraft, a civil or (such as seizing control of aship, or using a ship a terrorist to and further purpose), kidnapping an internationally protected individual, for example), maritime offences terrorism treaties, offences span individualpersonal or property (killing crimes or protocols relating to Annex terrorism widely for (see and vary details). In TNOC the Meanwhile, it is clear that offences the established under internationaltreaties and under relevant the sources of international law. defined to constituteact wrongfulbe terrorism or or TNOC, or punishable,otherwise a result, most the sensible interpretation of ATT the understands ‘offence’ to mean an treaties and protocols relating clearly to TNOC out As set to curtail. seek actions they to prohibit and to motivate States Parties to punish. four the Likewise, international terrorism, and vast the majority word the use ‘offence’ seek the actions they to describe As noted above, there are 19 distinct international treaties and protocols relating to organised crime? offences lawrelating underinternational toterrorism and/ortransnational How canweaponsbeunderstoodtoused‘commitorfacilitate’ meaning of terms, the is most appropriate in understanding 7. Article Therefore, a forward-looking interpretation of ‘commit or facilitate’, thebased on plain individual liability criminal for past harms. those of weapons future inthe of perpetration harm, rather than for of sake the establishing Party to at look destination the country’s past violations inorder to consider role the of ATT the is forward-looking. In other words, ATT the requires an State exporting state’s past behaviour as an indicator of future risks of purpose harm, primary the ofas part its risk assessment, an State exporting Party closely looks at an importing neither aimslaw; to anticipate, or to prevent, harms. Although ATT the demands that, create liability and assign fault to individuals for past their violations of international att facilitating corruption. officialtheir theweaponsduties, are integralthe to corrupt transaction – constituting preferential terms are established to elicit an official’s improper derogation from a facilitation of smuggling. the If offence the is corruption, sale ina of weapons whose directly involve of use the aweapon, but subduing the of migrants might –constituting aidthe of weapons. If offence the is smuggling migrants,the smuggling mightitself not terrorist offender the so might purpose, firstwho does wrest control the of ship with before ultimate the offence. the If offence, for example, is using a ship a further to holder, or subdue assist victim the of perpetration in the apredicate that act comes Often, weapons arethought to ‘facilitate’ offences thethey weapon-when embolden significantlyscope wider of uses of weaponsthan is afforded the to word ‘commit’. straightforward interpretation of 7. Article This meaning encompassesrightfully a earlier, plain the meaning of ‘facilitate’ –‘to make easier’ – is most the sensible and determining how arms can ‘facilitate’ harms the 7aims Article to prevent. As noted

expert

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The ATT’s own text own ATT’s The 22 ); UN General Assembly (2015), 26 https://www.un.org/en/development/ ) Max Planck Encyclopaedia of Public International suggesting that ‘peace and security’ and ‘peace that suggesting ); UN Security Council Resolution 2122 (2013), S/RES/ 23 to peace and security by enabling a state a state peace security enabling to and by https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B- https://www.thearmstradetreaty.org/hyper-images/file/ https://www.thearmstradetreaty.org/hyper-images/file/ 27 ); UN General Assembly (2013), ‘Follow-up to General Assembly resolution ); UN General Assembly (2013), ‘Follow-up to General Assembly resolution contribute ) )

7 . Conceptually, this idea has its roots in the UN Charter the in UN Charter roots this its idea has Conceptually, 24 no https://digitallibrary.un.org/record/763700?ln=en

on the ATT provides helpful suggestions regarding how how regarding suggestions helpful provides theATT on briefing ·

, arms exports could , arms group

Far from looking only at the existence of conflict, modern considerations of modern conflict, considerations of the existence at only looking from Far 25 https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_res_2122.pdf Oxford Commentary expert

, March. ); UN Security Council Resolution 1325 (2000), S/RES/1325 ( https://digitallibrary.un.org/record/174748?ln=en https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_RES_60_1.pdf https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_RES_70_1_E. Law ( 66/290 on human security’, A/68/685 ( 2030 Agenda for Sustainable Development’, A/RES/70/1 ( our world: the ‘Transforming desa/population/migration/generalassembly/docs/globalcompact/A_RES_70_1_E.pdf TheArmsTradeTreaty1/TheArmsTradeTreaty.pdf TheArmsTradeTreaty1/TheArmsTradeTreaty.pdf Summit Outcome’, A/RES/60/1 See UN General Assembly (2005), ‘World is central to sustainable peace and security. ( our world: the 2030 Agenda for Sustainable Development’, A/RES/70/1 See also UN General Assembly (2015), ‘Transforming ( pdf 6D27-4E9C-8CD3-CF6E4FF96FF9%7D/WPS%20SRES1325%20.pdf 2122 ( The the to According peace security. undermine or and to contribute might weapons Commentary and ‘seal to or itself’, defend to be to able threat terrorist a or insurgency an ‘facing Traditionally, the maintenance of ‘peace and security’ is invoked in the context of of the in context security’ and invoked is ‘peace of the maintenance Traditionally, requires the ATT But peace security. to and ‘threats’ are that phenomena or actions (‘undermine’) threaten could exported weapons both how consider to Parties States peace that to’) (‘contribute bolster could thoseweapons peace security how and and security. and rule of law, protection of dignity and socio-economic welfare. socio-economic and dignity of protection rule law, of between relationship reinforcing’ ‘mutually and recognises the interconnectedness peace security. and and welfare human Defining ‘contribute to or undermine’ evidenced in countless UN General Assembly and UN Security Council resolutions UN Security and Council resolutions UN General Assembly evidenced in countless decades. two the past across peace just than rather peace’, of conditions the‘material protecting to commitment itself. is welfare Human welfare. human of assessment a holistic security’and include ‘peace effective as well as life, to threats physical of the absence includes It concept. a broad can be geographically limited. In contrast, Article 7 of the ATT refers only to ‘peace ‘peace to only refers the ATT Article of 7 contrast, In limited. becan geographically Article understand should we Therefore, modification. or limit without security’, and concerns. international and regional domestic, security’ cover and to ‘peace 7’s the presence security’ focuson to and tended ‘peace of notions traditional Although as approach, encompassing modernmore a conflict, the takes of trend absence or Defining ‘peace and security’ Defining ‘peace ‘international’, to References broadly. security’ beinterpreted and should ‘Peace various UN documents, in peace securityand appear ‘national’ and ‘regional’ itself, theATT within and treaties international Peace and security they whether the weapons evaluate to Parties States Articlerequires 7(1)(a) ATT peace security’. undermine or and to contribute export ‘would att the to consider Parties States exporting requires Article assessment 7 risk ATT’s The factors as and – equal weight with facilitation and bothcommission for weapons use of the assessment. risk on heavily weighing d’Argent P, Susani N (2009), ‘United Nations, Purposes and Principles’, in d’Argent P, Ibid., ‘Preamble, Principles, and Article 1’. Principles, and Article Ibid., ‘Preamble, welfare Note that the UN General Assembly and the UN Security Council have voiced their support for the idea that human United Nations (2013), ‘The Arms Trade Treaty’, Article 7 ( Treaty’, United Nations (2013), ‘The Arms Trade See, for example, Economic and Social Council (1993), ‘Conclusion of the High-Level Ministerial Segment’, E/1993/102 See, for example, Economic and Social Council (1993), ‘Conclusion of the High-Level Ministerial Segment’, E/1993/102 ( Preamble Treaty’, United Nations (2013), ‘The Arms Trade

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ATT EXPERT GROUP n n n n 31 30 29 28

Potential effects the export of on human welfare ina holisticsense –a consideration Particular the effects both of Implications of for export the destination the country’s domestic and security, peace Likely effects the export of on international and security.peace andregional This Casey-Maslen Setal.(2016), See, forexample,United Nations(2001),‘Protocol againsttheIllicitManufacturingofandTrafficking inFirearms, theirParts Harvard HumanRights Clinic(2019),‘Interpreting LawSchoolInternational theArmsTrade Treaty: Human International Ibid, para.7.34. consensus is reflected across UNdocuments, including General UN Assemblykey and UNinmaintainingthe and security, peace as central to treaties’ the purpose. invokespecifically ‘peace’ and/or security’,and ‘peace as the well as pivotal role of subjects forthese support. Nearly of all treaties the relating to terrorism and TNOC We than language the no look further need of many the treaties and protocols on fundamental that belief terrorism both and organised make crime world the less safe. to limitseeks relatingactivities to terrorism both and organised of because crime a domestically, regionally and internationally. The international communitythus Terrorism and are TNOC commonly and understood to undermine security – peace relatesTNOC and to security. peace requires aclear understanding of how international law concerning terrorism and backfeed into, and inform, evaluation the instep one. As aresult, risk assessment the Although steps these are discrete, it is quite likely that evaluation the in step two may to commit used could be or facilitate an offencethe under relevant fields of law. and second, assessing risk that and the on security; weapons peace the transferred discrete steps: first, potentialassessingthe positive and negative effects transfer the of international law, including laws relating to terrorism or This TNOC. process hastwo with chance the that to arms commit used those could be or facilitate offences under considering effects the the of exported would-be arms security,peace and on along 7 requiresArticle States exporting Parties to conduct athorough assessment, Terrorism, transnationalorganisedcrime,andpeacesecurity that must reiterated be throughout assessment. the in combination with other recent or upcoming transfers of weapons. and security, considering relevant the both inisolation export and relevant the export state unrest. and persecution local including any potential for weapons the to exacerbate or mitigate insurgencies, civil n n evaluation must consider both: factors include: potential weapons would export contribute to orand undermine security. peace Those StateAn exporting Party should consider factors several in evaluating a whether obligations 6and under Article 7. Article that weapons the for used could be impermissible ends, consistent with Treaty’s the challenges, anfaces serious security ATT exporting State Party must assess risk the repression of own [their] people’. provided to ‘states that may war wage against illegal other states’ or engage in‘wanton gangs’. control its borders to prevent infiltration by foreign terrorists or organised criminal att and Components Ammunition:Preamble’ ( Rights LawandGender-Based inArticle 7RiskAssessments’,April,p9. Violence

the potentialthe destabilisingthat effect excessive accumulations of weaponscan have potentialthe bolsteringthat effect preventive measures, such as disarmament and on regional and international and security peace arms control, can have and on security peace

expert 28 Conversely, arms could exports

group

· · briefing The ArmsTrade Treaty: ACommentary

no quantity . 7 29 https://treaties.un.org/doc/source/recenttexts/18-12_c_e.pdf In all cases, including In cases, all importing the when state and the and the undermine type (Oxford: Oxford UniversityPress), para. 7.33. of arms transferred being on peace 30 peace and security if they are ifthey and security peace ) 31 This 9 ATT EXPERT GROUP 32 ) and UN 33 ) 35 ) ) https://undocs.org/en/A/HRC/40/52 https://undocs.org/en/S/RES/2462(2019) undermine access to opportunity, and drive drive and opportunity, to access undermine 34 https://undocs.org/S/RES/2396(2017)

7 . no

https://undocs.org/en/A/HRC/43/46 briefing · group expert

Security Council Resolution S/RES/2396 (2017) ( act in undermine peace and security; likewise, a State Party could theoretically in fact obligations under these treaties, peace and security. but in fact further violation of these treaties rights of civil society actors and human rights defenders’, A/HRC/40/52 ( A/HRC/43/46, para. 20 ( extremism’, Party must conclude that the export fails the Article 7 risk assessment (see next chapter (seechapter next the the export Article assessment fails 7 risk that conclude must Party further discussion). for carefully at the importing state’s actual practices regarding terrorism and organised organised and terrorism actualregarding practices state’s the importing at carefully on practicesof thosepeace effects negative and the positive evaluating carefully crime, and terrorism to activitiesrelating policiesor state’s the importing If security. and and/or shrink space, civic violence, escalate rights, human crime undermine organised be could arms if theexport of and organisations, extremist violent to recruitment drive then the exportingState law, the relevant under violations facilitate or used commit to In other words, counter-terrorism efforts often bring with them serious deleterious withdeleterious them serious bring often efforts counter-terrorism words, other In state’s a result, As a and and peacesecurity. welfare, human rights, human on effects the that guarantee doesnot terrorism to relating laws international with compliance state that to weapons transferring that nor peace security, to and contributing is state look must Party exporting State an Instead, peace security. to and willcontribute shrink space for civic engagement, civic shrinkspace for seeks punish. to the law organisations the very for terrorist recruitment bearing on imperatives and the political implications are Also considering worth serveor criminalmay complicated terrorist as of certain actors description The states. that practices policiesand times be usedcountenance at to may and political ends, otherwise justify. to might be harder But the assessment should not end there. Although, as noted above, international international above, noted as Although, there. end not should the assessment But peace security, bolster and to TNOC aims theoretically and terrorism to relating law been has as well- threat, terrorist real a is there where Even murkier. is the reality efforts counter-terrorism states’ all experts UN toooften NGOs, by and documented serve the very undermine Counter-terrorism to peace security protect. and they to aim civil unrest, escalate rights, human violate frequently their enforcement and laws conventions – should be understood to be be peace security. to undermining understood – should and conventions be could used exported arms that concludes Party exporting State if an words, other In the law inthe 7(1)(b) evaluation, of under those fields offences facilitate or commit to peaceundermine would theexported weapons that also conclude should Party State securitythe and 7(1)(a) evaluation. under The treaties covered by Article 7(1)(b)(iii–iv) – those relating to terrorism and to and terrorism to relating Article – by those 7(1)(b)(iii–iv) covered The treaties of thefurthering maintenance by and theory, in least at all motivated, TNOC – are a consistent creating or terrorism criminalising By peace security. and international to aims theoretically community TNOC, the international for liability of scheme these conventions – of theviolation that logically follows It peace security. bolster and underthese defined further to offences exportedthe weapons use of including att justify the to crime, transnational and terrorism on UN Security Council resolutions both phenomena. counter to activity international coordinating in role central UN’s See, for example, UN Security Council Resolution S/RES/2462 (2019) ( A State Party could, while in compliance with its rebuttable. therefore and are both presumptions, Note that these are on civic space and the and violent extremism terrorism to address UN Human Rights Council (2019), ‘Impact of measures and countering violent UN Human Rights Council (2020), ‘Human rights impact of policies and practices aimed at preventing

35 34 32 33

10

ATT EXPERT GROUP c. b. a. 3 37 36

Saferworld (2018),‘ImplementingtheATT: Undertakinganarmstransferriskassessment’,ATT ExpertGroup BriefingNo.6, Saferworld (2016),‘ImplementingtheATT: Essentialelementsofaneffective armstransfercontrol system’,ATT ExpertGroup risk-assessment August ( an-effective-arms-transfer-control-system Briefing No.5,July( anewnot for undertaken be eachlicence application. Instead, an compilation initial The first two elements this of set – as process out in points a. andabove b. – would Party stateexporting should: relating to terrorism or to it which TNOC is a party, acompetent authority within the facilitate an constituting act an offence under international conventions or protocols When considering or whether not aproposed to commit arms used could be export or Step 1: obligations Identifying and offences way of anumber of hypothetical arms cases. export illustrationspractical of a number of relevant provided be potential will scenarios by to, and inform, a thorough and objective out; risk assessment set be following will this, State Party. In first the instance,some the considerationsof key that should contribute application of ATT 7(1)(b)(iii–iv) Article from of perspective the an ATT exporting The following seeks to provide an elaboration of a step-by-step process forthe risk assessmentexport found can be inbriefing No.6 found inATT Group Expert briefing No.5 constructionthe and composition of an effective transferarms control systemcanbe national control system as required under ATT information 5(detailed Article on applied.11, should be also risk This assessment process part shouldbe of an established human rights law, and gender-based violence –plus risk of the diversion, Article as per 7 –includingArticle relating and to security, peace international humanitarian and overall risk assessment export process. process this During other criteria included in part and to as shouldspecific armsbe undertaken of exports a TNOC State Party’s As noted earlier, application the of ATT’s the 7provisions Article concerning terrorism the assessmentprocess Applying Article7: conduct regular checks to update list the of instruments legal and associated offences identify those legal instruments legal those identify relating to terrorism and to State the which TNOC is a compile a list of offences instruments legal those under identified https://www.saferworld.org.uk/resources/publications/1181-implementing-the-att-undertaking-an-arms-transfer- ) http://www.saferworld.org.uk/resources/publications/1081-implementing-the-att-essential-elements-of- ) 36 and guidance as to how an to undertake 37 ).

11 ATT EXPERT GROUP and 38 of the of of the of of the identified theidentified of of the identified theidentified of commission facilitation facilitation commission

7 . no briefing ·

obligations under international law – and not the obligations of the of the obligations not and – law international under obligations group to an unauthorised recipient and usedthe in and recipient unauthorised an to usedthe in and recipient unauthorised an to

its own its expert

diverted diverted be used by either the importer or the intended recipient in the recipient the intended or the importer be either used by be used by either the importer or the intended recipient in the recipient the intended or the importer be either used by be verify and can present misleading information. Information that is relied upon for an arms export risk assessment should Information that is relied misleading information. verify and can present sources. trusted and fact-checked always be taken from identified terrorism and TNOC offences TNOCand terrorism identified TNOC offences and terrorism TNOC offences and terrorism authority within an ATT State Party must consider the risk that the arms proposed for for proposed the arms the that risk consider must Party State ATT an within authority export could: offences TNOCand terrorism identified to terrorism or TNOC to which it is a party, the exporting State Party is bound to to bound is Party theexporting State a party, is TNOC which it to or terrorism to consider and terrorism- applicable the identified Having country. destination or importing these mind in and that bearing therein, theoffences and instruments TNOC-related competent the actors, non-state by as well as states by be committed may offences country of destination. destination. countryof Commit/facilitate facilitate or exportbe could used arms commit to an thethat risk assessing When relating protocols or conventions international under offence an act constituting an recipient profiles and for the development of institutional knowledge which can can which knowledge of institutional development the for and profiles recipient upon Drawing assessments. usesubsequent in for updated, and upon, be drawn be to made decisions quick relatively enable may information body of existing an acts export terrorist with being used arms connection in an theof risks concerning more and additional where also suggest may information such TNOC;equally, or and/or recipient the prospective into be needs to carried out investigation in-depth including for example its foreign ministry and its law enforcement, intelligence and and intelligence enforcement, ministry law its and foreign its example for including bodies, UN (including security services; organisations a widevariety of addition, in media outlets NGOs, academicinstitutions, and research Interpol/Europol, alsocan provide companies while private online, information provide sources) other as part is conducted that research Documented purchase. services for profiling risk country/ of a database for material provide should export assessment risk arms an of Step 2: Assessing 2: Step the risks TNOC risks and the terrorism of carry assessment fully a to informed out order In willneed to authority export, the competent arms a prospective with associated recipient TNOCpotential in and terrorism the of risks concerning information access resources, own the exporting state’s by becan provided Information countries. personnel concerned with the arms export assessment process within a competent a competent within process export assessment the arms with concerned personnel and terrorism to relating instruments of list (a comprehensive authority national to this Annex in the found be can thereunder offences of list associated an TNOC and briefing). att instruments applicable of a list be undertaken out a view would with setting to exercise changes and when as needupdated to only be would which offences, relevant and relevant to all available made be should updates, subsequent and occurred. list, The Care should be taken when using open source information – and in particular digital social media which can be difficult to information – and in particular digital social media which can be difficult source should be taken when using open Care be

38

c. d. b. a. 12

ATT EXPERT GROUP

39

United Nations(2013), ‘TheArmsTrade Treaty’, Principles( TheArmsTradeTreaty1/TheArmsTradeTreaty.pdf Furthermore, ‘peace the justification and security’ shouldbasis thenot be for failing subject to no less interrogation than any of other aprospective aspect arms transfer. claims of nature this should not accepted be at should face value; indeed, they be complicated todesigned serve ends political open to and dispute. be so Accordingly, spurious;be description their of actors certain as terrorist or may criminal be also states that actions their are or to designed address necessary terrorism or may TNOC andundermine security. peace However, such assertions by prospective importing that follows is that afailure by state exporting the to supply arms would, in effect, terrorist or threat, criminal and thereby protect and security. peace The implication purchasethe to of enable arms certain is necessary to them respond to a perceived place. Such circumstances could involve a prospective importing state claiming that a potential means of preventing or combatting terrorism or offences TNOC taking It is important to consider also situations where export/import the of arms as is seen of negativelikelihood the outcomes. to ameliorate any such concerns and, instead, would reinforce almost certainly the unlikelyor it that TNOC, is very application the of ATT 7(1)(a)would Article serve to commit or facilitate offences under conventions or protocols relating to terrorism applicationthe of 7(1)(b)(iii–iv) concludes that aproposed arms used could be export human, national, regional or international and security. peace Accordingly, where more likely to to commitused or facilitate offences under terrorism instrumentsor TNOC is far analysis legal inthe earlier,discussed any of export arms that presents a risk of being a proposed arms export 7 ofArticle ATT the requires also an State exporting Party to consider whether Peace andsecurity to amuch bigger problem in future. relatively limited or moderate concern, instances ifthe are increasing could this point actions and corruption. Even ifsuch factors are, at of time the assessment, the of developing instability, conflict, insurgency, activity,paramilitary organised criminal regional trends and potential the for changed circumstances, including inrelation to potentialthe state exporting must awider, take forward-looking of view national/ it may not provide acomplete picture of risks thatthe exist. In addition, therefore, on previous behaviour it –be relatively recent or more historical – is insufficient, as or involvement in/support for of acts terrorism. However, an assessment solely based within state structures and non-government agencies, involvement their inTNOC, past behaviour of recipient, the including for existence the of significant corruption In conducting assessment, this potential the state exporting must look Current andfuture trends att choose to explore,choose jointly with prospective the importing state, possibility the of under terrorism or instruments. TNOC In State such exporting the cases, Party may risks of arms the in question to commit used being or facilitate offences as described and where competent the authority of state exporting the identifiessome low-level to exportation the of arms to a state challenges that and security is peace experiencing It is possible, however, to envisage circumstances where consideration is given being Mitigation measures 6, 7(1)(b), 7(4) orArticles 11. manner’, to apply provisions the of ATT the ina ‘consistent, objective and non-discriminatory

expert 39 nor for authorising transfers where would they contravene any or of all

group undermine

· · briefing would contribute to or undermine or to contribute would rather than

no . 7 ) contribute https://www.thearmstradetreaty.org/hyper-images/file/ to peace and security – whether it –whether and is to security peace peace and security. peace As inter alia inter at the 13 ATT EXPERT GROUP

7 . no briefing · group expert

Pursuant to the above process, a State Party will need to make a decision on whether on will a decision need make Party to a State process, the above to Pursuant their at the information of export, based an theirassessment on deny or authorise to to arms of a range export of thepotential scenarios for disposal. hypothetical Some in the consideration, for setout, are challenges a variety of facing countries/end-users chapter. next to negate particular identified risks. In such a situation, the mitigation measures measures mitigation the a situation, such In particular risks. identified negate to if only thenproceed export, which should the arms of in advance be deployed should effect. theachieved desired demonstrably have in question the measures Decision-making att measures mitigation thisregard, In risks. theperceived address to measures mitigation are that as end-user certificates, such those, – beyond measures specific targeted are in order adopted – which are process export assessment risk arms the normal partof 14

ATT EXPERT GROUP 4 Relevant offences: drug-trafficking and money-launderingoperations. ofevidence organised activity among criminal armed gangs, including international given and received as to so ensure that law enforcement officers do actnot on clear corruption atwhereby ranks among all B–specifically payment inCountry police is Assessing risks: to links elementssuspected of national the services. security state authorities and are, instead, more grip inthe of organised groups criminal with B, where densely certain populated urban areas are not under effective control the of A is considering ofCountry export the 150 hand guns to force police the inCountry Example 1 and (iv). commit or facilitate terrorism or offences TNOC set as out in 7(1)(b)(iii) Article ATT assessmentthe that is considered being here relates only to arms that to used could be criteria, including ATT 7(1)(a),7(1)(b)(i) and Articles (ii), 7(4) and 11(2);however, its conclusions. In some of presented, scenarios the concerns relate to other export range of factors and concerns might shape and into feed assessment the process and arms have These exports. developed in been order to stimulate discussion on how a The followingset outcases avariety scenarioshypothetical involvingof potential five hypotheticalcases Arms exportassessment: Decision: workingstarting with those inunits identified as prone to corruption. corruption training with aone-week refresher course after six months police,for all a commitmenthas been from Minister the of Interior the to provide atwo-week anti- Consultations: exercise in the acting of her or his official duties. directly orwhether indirectly, in order that official the in questionacts or refrains from Corruption is committed apublic when official solicits or accepts an undue advantage, covering a range of illicit including activities, corruption and money laundering. Organized requires which Crime States Parties to create domestic offences criminal ? Following an approach to relevant authorities B, there in Country Open-source information points to widespread and long-standing Country Ais aParty Country to UNConvention the against Transnational

15 ATT EXPERT GROUP

7 . in hostage-taking. no

Country C is a Party to the International Convention Against the Against Convention the International to Country a Party is C inter alia briefing ·

Previous exports of military equipment from Country E’s partner Countryfrom E’s military exportsof equipment Previous There is some suggestion that some level of support for the for support of level some that suggestion is some There Following discussions with the authorities in Country D, it becomes becomes it in Country D, the authorities with discussions Following group

? expert

is unknown, but local militias who are involved in bombings and human smuggling smuggling human and bombings in involved local who militias are but unknown, is included that to identical, not if been similar, body seen armour wearing activitieshave shipment. in the missing outcomes. While a number of shipments over the past two years have arrived safely safely arrived have years two thepast over shipments of a number While outcomes. body and ammunition of shipment a recently more recipients, theirintended with alleged to due the local airportby the authorities main at up held was armour could steps before disappeared subsequently this materiel irregularities; paperwork shipment of the exactThe whereabouts problem. the supposed be resolve taken to Country E is considering the export of military-spec the exportCountry of considering veryE is high frequency (VHF) peacekeeping international to guns 200 submachine and transceivers handheld a where and civil war from emerging is that a fragile state in Country located F, forces trafficking. people to bombings terrorist coexist,from threats of range complex Assessing risks: yielded varyingin Country located F have forces international C to A and countries Decision: 3 Example clear that there is little that can be done in the short term to reduce the risks that arms, arms, thethat risks reduce to term in theshort be can done that little is there that clear greater and training better While insurgents. of the hands fall into if exported, would risks, such offset to be Countryable of D may in the security forces professionalism the government Meanwhile, externalassistance. require time and take some this may exists that the insurgents for the sympathy of the extent down play to keen appears the military. within Taking of Hostages (1979) which establishes a single primary offence – the taking of – the taking primary a single offence which establishes (1979) Hostages of Taking to and threatening detaining, or as defines seizing which – theConvention hostages party a third to compel to in order person, another detain, to continue or kill, injure, of the release for condition implicit or explicit act an as any doing, from abstain or do, the hostage. Consultations: arms and ammunition with them. Accordingly, if Country export to rifleswas C them. Accordingly, with ammunition and arms military active the to units, deployed subsequently they were and Countryto D, by diverted or insurgents, by be could captured the weapons that exists possibility used and defectors, Relevant offences: Assessing risks: there Moreover, in Country D. security apparatus the state within exists insurgents the where insurgents and security between forces state clashes of beena number have ammunition and weapons military vehicles, been and personnel, overrun, have former and low of number significant, has also but been There a small, beencaptured. have taking the insurgents, join defected to military who have personnel medium-ranked Country C is considering the export of 250 automatic rifles, 50,000 rounds of rounds 50,000 rifles, automatic 250 the exportCountry of considering C is an in Country fighting D which is the army to vehicles armoured ten and ammunition of acts committing for known are insurgents The borderlands. its in insurgency armed the civilian subduing and coercing of a means – as hostage-taking including terror – over leverage creating of means a as and active theyare where in theareas population authorities. state the national att Example 2 16

ATT EXPERT GROUP eye to any unusual activity. have of paid Defence to Ministry (MoD) been Gto turn personnel ablind inCountry of involved being inarms Unsubstantiated deals. rumours are circulating that bribes projects in countries same inthe sub-region H. Neither as Country have atrack-record intermediaries are directors of companies that have won tenders for construction civil Financialto Chief the Officer the exporting of company both while G, Country in Preliminary research suggests that one has intermediary strong connections personal arewho rumoured receiving to be significant sums for an unspecified amount of work. through two intermediaries Gand H– other the – one in Country inCountry based helicoptersthe declared unexpectedly its intention that should arranged deal the be smoothly towards aconclusion, prime the company exporting Gfor inCountry Assessing risks: anddecade has spent billions of USdollars process. inthe regional power. strengthening Hhas been forces Country its military over past the helicopters and 12fixed-wing combat aircraftally H– an Country to and emerging G is process inthe Country of agreeing acontract for of export the sixattack Example 4 Decision: already unstable environment. concerns remain regarding potential the provocation that might this create within an shipment of two-way radios and submachine However, escort. guns with amilitary passage of arms the shipment to international the forces would to provide be the understandings or guarantees. The only course thatof action would guaranteesafe a competent authority at country’s the main have airport little yielded way inthe of consultations regarding of arms security the shipments are difficult. locate Efforts to Consultations: organising or directing other persons to engage in people trafficking. exploitation, inaddition to attempting to traffic, participating as anaccomplice, and requires(2000), which states trafficking persons to criminalise in of thefor purpose Suppress and Punish Trafficking in Persons, Especially Women Children and are offences also treaty.this under also E is Country theParty to Protocol to Prevent, Attempting, organising, directing, participating or contributing to such activities in order to cause death or injury/in order to cause and destruction economic loss. a state, government or public place or facility in order to and cause death or injury; delivering, placing, discharging or detonating an explosive or into other device lethal Suppression of Terrorist Bombings (1997), establishes which offences including: Relevant offences: att Decision: businesstheir and are amatter for company exporter the H. and Country licensingthe authority G, but maintain inCountry they that concerns these are not have incontactbeen paid. with H also of FinancehasCountry The been Ministry in reluctant to share information detailed about work the for intermediaries the which arrangements. The MoD has not provided satisfactory a reply andso farbeen has information from MoD the G regarding in Country for need the new these Consultations: question or acts refrains from exercise inthe acting of her or his official duties. accepts an undue advantage, directly or whether indirectly, inorder that official the in offencecriminal of corruption,which is committedwhen a public solicitsofficial or Transnational Organized requires which Crime States Parties to create domestic the Relevant offences:

expert ? ?

group The Ministry been H of FinancehasCountry Therequesting Ministry in fragmented The nature of authority F Country meansthat in While at firstthe discussions aroundthe contract were proceeding

· · briefing Country Eis Party Country to International the Convention for the

Countries Gand Hare Parties both to UNConvention the Against

no . 7

17 ATT EXPERT GROUP

7 . no

Country Y is a party to the UN Convention against Transnational Transnational against Country a party the Y is Convention UN to briefing ·

Intelligence sources point to some past links past between some the police to in point sources Intelligence Discussions with relevant authorities in Country Z have resulted in resulted in Country Z have authorities relevant with Discussions group

? expert

Decision: there is an interest in establishing effective mitigation measures, including through through including measures, mitigation effective in establishing interest an is there all police of responsibility the individual ensure to safeguards of the implementation their takingfrom them prohibiting fortheirincluding service officers weapons, terms that indicated have office Minister’s thePrime with Discussions home. weapons of safeguards. regime new of the establishment the for beingdrafted are reference of Corruption is committed when a public official solicits or accepts an undue advantage, advantage, undue an accepts or solicits official when a public committed is Corruption from refrains or acts question in theofficial that order in indirectly, whether or directly duties. official his or her of actingin the exercise Consultations: a new police for intended are guns the hand that assurances providing the government Furthermore, Minister. Prime ofthe the office runwhich is from unit anti-corruption running. However, following concerted action by the authorities, such connections are are connections such theauthorities, action by concerted following running. However, in their extent. limited be to relatively considered now Relevant offences: criminal offences domestic create to Parties States Crime which requires Organized laundering. money and corruption activities, including illicit of a range covering Country Y is considering the export of 200 hand guns to the police force in Country in Z, the police force to guns hand 200 the exportCountry of considering Y is of the control effective under not are areas urban populated certain densely where with criminal groups organised of in the grip more instead, are, and authorities state security services. the national of suspected elements linksto Assessing risks: and gun drug-trafficking in involvement including Country criminalgroups, Z, and att 5 Example 18

ATT EXPERT GROUP 19 ATT EXPERT GROUP

26 30 20 21 22 22 23 20 23 27 27 28 28 29 29 30 30 30 24 25 25 25 25 26 26 26 26 27 20 20 21

International Convention for the Suppression of the Financing of Terrorism (1999) International of the Financing of Terrorism Convention for the Suppression of Hostages (1979) International Convention Against the Taking and Punishment of Crimes Against InternationallyConvention on the Prevention Persons (1973) Protected Protocol to the Convention for the Suppression of Unlawful Acts against the Safety to the Convention for the Suppression Protocol of Maritime Navigation (2005) Bombings (1997) International of Terrorist Convention for the Suppression Convention on the Marking of Plastic Explosives for the Purpose of Detection (1991) Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Convention for the Suppression Navigation (1988) of Unlawful Acts Against the Safety of Fixed Platforms for the Suppression Protocol located on the Continental Shelf (1988) of Unlawful Acts Against the Safety for the Suppression to the Protocol Protocol of Fixed Platforms located on the Continental Shelf (2005) Protocol to Amend the Convention on Offences and Certain Acts Committed on to Amend the Convention on Offences Protocol (2014) Aircraft Board (2005) International of Acts of Nuclear Terrorism Convention for the Suppression of Nuclear Material (1980) Convention on the Physical Protection of Nuclear Material (2005) Amendments to the Convention on the Physical Protection Convention for the Suppression of Unlawful Seizure of Aircraft (1970) of Aircraft of Unlawful Seizure Convention for the Suppression of Unlawful Seizure Supplementary to the Convention for the Suppression Protocol (2010) of Aircraft (1963) Aircraft and Certain Other Acts Committed On Board Convention on Offences of Unlawful Acts of Violence at Airports Serving for the Suppression Protocol (1988) InternationalCivil Aviation Convention on the Suppression of Unlawful Acts Relating to International Convention on the Suppression (2010) Civil Aviation of Unlawful Acts Against the Safety of Convention for the Suppression (1971) Civil Aviation criminal group Participation in an organised of crime Laundering the proceeds 21 Corruption Obstruction of justice 29 Explosives Other 27 Maritime Nuclear Aircraft and/or civil aviation Aircraft Organized Crime (2001) supplementing the against the Smuggling of Migrants by Land, Sea and Air, Protocol Organized Crime (2001) United Nations Convention against Transnational their Parts and in Firearms, against the Illicit Manufacturing of and Trafficking Protocol the United Nations Convention against Components and Ammunition, supplementing Crime (2001) Organized Transnational Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and in Persons, Especially and Punish Trafficking Suppress to Prevent, Protocol supplementing the United Nations Convention against Transnational Children, protocols relating to terrorism and to transnational to transnational and to terrorism relating protocols crime organised Crime (2000) Organized against Transnational United Nations Convention ANNEX: or conventions under international Offences treaties under counter-terrorism Offences under transnational organised crime treaties Offences

20

ATT EXPERT GROUP n n n n n n

acquiring, possessing or using property, knowing –at property the time the is concealing or nature, disguising true the source, location, disposition, movement, arethey committed in one state but have substantial effects on another state. arethey committed in one state but involve an organised group criminal that engages arethey committed in one state but asubstantial of part preparation, their planning, arethey committed in more than one state that property the is proceeds the of either of crime, with purpose the concealing the Classic laundering consists of converting or transferring property, with knowledge the words, widest the range of that crimes are components of ultimate the offences. Convention notes must include widest the range of predicate offences – in other Under it UNCTOC, the is an offence launderto the proceeds whichtheof crime, Laundering theproceeds of crime involvingcrime an organised group. criminal she organises, directs, aids, facilitates abets, or counsels commission the of a serious Finally, a person is guilty of participating inan organised group criminal he when or contribute to achievement the of group’s the aim. criminal group’s inthe active part other withactivities knowledge that participation this will he or she an takes in an active part organised group’s or activities, criminal an takes In addition, a person is guilty of participating inan organised group criminal when benefittingfrom that crime. an offence to conspirewith others to commit seriouswiththeof a crime purpose obtaining afinancial or other materialbenefit from thatcrime. Inother words, it is commit a seriouscrime, for relating, apurpose directly or whether indirectly, to Most typically, offence this consists of agreeingwith one or more people other to Under it UNCTOC, the is an offence participateto in an group. organised criminal Participation inanorganisedcriminalgroup ofobstruction justice. group;criminal (2) laundering proceeds the of (3) corruption; crime; and (4) ConventionThe then establishes four broad offences: (1) participation in an organised in more activities in criminal than one state direction or control place takes in another state offences aretransnational if: addressestransnational specifically crimes and offences. The Convention notes that The United NationsConvention against Transnational Organized (UNCTOC) Crime United NationsConventionagainstTransnational OrganizedCrime(2000) treaties crime organised transnational under Offences att Convention. facilitates,abets, or counsels commission the of any of offences the establishedthe in associates with; enters into aconspiracy to commit; attempts to commit; and aids, Finally, a person launders proceeds the of he when orcrime she participates in; received – that property the is proceeds the of crime. ownership of or rights to property, knowing that property the is proceeds the of crime Additional that activities constitute laundering include: consequences. legal evade origin of property the illegal or of helping aperson involved predicate inthe offence

expert

group

· · briefing

no . 7 21 ATT EXPERT GROUP

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Third, the Protocol notes that trafficking in persons must be carried out for the out must be carried in persons trafficking that notes Protocol the Third, the exploiting include could exploitation the victim(s).That purposes exploiting of services, or labour forced sexual of exploitation, forms other others, of prostitution organs. of the servitude, practices, removal and related slaveryand transportation, transfer, harbouring or receipt of persons are all activities covered all activities covered are persons of receipt or harbouring transfer, transportation, in persons’. ‘trafficking under in persons: trafficking committing of means discusses various the Protocol Second, power; of abuse deception; fraud; coercion; of forms other or force use of or the threat the to achieve benefits of receiving or the giving vulnerability; or of position a of abuse person. another over control who a person has of consent Women and Children requires that states criminalise trafficking in persons forthe in criminalise persons trafficking states that requires Children and Women as participating in traffic persons, to attempting as well as purpose exploitation, of to other persons or directing organising and in persons, in trafficking accomplice an intraffic persons. that recruitment, notes it First, broadly. in persons’ ‘trafficking defines Protocol The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially and Punish Trafficking Suppress to Prevent, Protocol supplementing the United Nations Convention and Children, Women Organized Crime against Transnational EspeciallyPersons, in Trafficking Punish and Suppress Prevent, to Protocol The or to interfere in the testimony or production of evidence in a proceeding relating to to relating evidence a proceeding in of production or in thetestimony interfere to or TNOC offences. intimidation or threats force, also is physical the usejustice of obstructionSecond, of to relating duties official’s enforcement law or a justice of the exercise with interfere to TNOC offences. Obstruction of justice two specific defines treaty The obstruct to justice. offence an is the UNCTOC, it Under justice. of obstruction as offences the or – intimidation or threats force, physical the use is of justice obstruction of First, falsetestimony to induce order – in advantage an undue of or giving offering promise, In other words, corruption has been committed when a person attempts to bribe an an bribe to when attempts person a been has committed corruption words, other In or accepts official solicits an when hasequallycommitted been corruption and official, a bribe. the to accomplice an whenthey are corruption of guilty is person a Finally, corruption. of commission The second offence that constitutes corruption is committed when a public official public a when committed is corruption constitutes that offence The second the that in order indirectly, whetheror directly advantage, undue an accepts or solicits Again, duties. official his or her of exercise inthe acting from refrains or official acts could it be the official; be destined for advantage necessarythe promised not is that it entity. or person another to directed The first offence is committed when an individual promises, offers or gives to a public a to gives or offers promises, individual an when committed is offence first The official to the motivate to advantage, undue an indirectly, or whether directly official, not necessary is It duties. official his or her of acting in the exercise from refrain act or another could to it be directed the official; be destinedfor advantage thepromised that entity. or person att Corruption of umbrella under the contained offences two are the UNCTOC, there Under ‘corruption’. 22

ATT EXPERT GROUP likely to endanger, lives the or safety of migrants the concerned. an offence Likewise, ‘aggravated’: an offence listed above is an ‘aggravated offence’ where it endangers, or is Finally, most unlike other related agreements, Protocol the defines certain offences as commission, and organising or directing other persons to commit offences. the attemptingcriminalise above the offences,participating as an accomplicetheir in As with many other similar treaties, Protocol the requires also States Parties to means.other illegal requirements legal the to stay there, instead using either means out set above or any national or permanent resident of astate to remain state in the without complying with Third,the Protocol requires States enabling Parties to criminalise personwho a is not a byis used being any person other than document’s the holder. rightful of offence the they whenare responsible for anytravel or identificationdocument that or obtained through misrepresentation, corruption or duress. Finally, aperson is guilty responsible for any travel or identification documentthat improperlybeen has issued such documents. Alternatively,modify aperson is guilty of offence the they whenare made or altered by anyone other than aperson or agency authorised to make, issue or arethey responsible for any travel or identification documentthat falsely been has of enabling purpose the smuggling migrants. Aperson is guilty of offence the when possessing fraudulent travel or identity documents, that when activity is done with Second, Protocol the requires States Parties procuring, to providing criminalise or exchange for smuggling their of migrants. order to obtain, directly or whether indirectly, afinancial or other materialbenefit in activity to constitute migrant smuggling, perpetrator the must have it carried out in into aState Party of person is the which not anational or apermanent resident. For the The Protocol defines that offence the as procurement a person of illegalentry the of First and foremost, Protocol the includes offence actual the of smuggling of migrants. offences are as follows. Parties must various criminalise relatingactivities to smuggling migrants. Those Under Protocol the against Smuggling the of Migrants by and Air, Land, Sea States Organized Crime supplementing theUnitedNationsConventionagainstTransnational Protocol againsttheSmugglingofMigrantsbyLand,SeaandAir, is a child.persons victim ifthe that means the noted above to not convict need used be an offender traffickingof in as means the noted aboveSecond, are the intrafficking victim. used the Protocol notes clear that of trafficking avictim cannot consent the to intended exploitation, so long Finally, Protocol the makes two important clarifications. First,the Protocol makes att constitute manufacturing’. ‘illicit Firearms (and and parts their components, and as well as of and parts their components and of ammunition. Various activities The first offenceestablished the under illicitProtocol the is manufacturing offirearms, following offences. Partstheir and Components and Ammunition, States Parties must the criminalise Under Protocol the against Illicit the Manufacturing of and Trafficking inFirearms, Nations ConventionagainstTransnational OrganizedCrime their PartsandComponentsAmmunition,supplementing theUnited Protocol againsttheIllicitManufacturingofand Trafficking inFirearms, such treatment for migrants’ the exploitation. is ‘aggravated’ it when entails inhuman or degrading treatment of migrants, including

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Aircraft (2010) Aircraft (1988) Civil Aviation International Aviation (2010) Aviation (1971) Aircraft civil and/or aviation civil and/or aircraft to related terrorism acts of address protocols or Seven treaties following: the are agreements The aviation. the definitions of offences set out in earlier agreements. earlier out in set offences of the definitions to according protocols and treaties This counter-terrorism goessectionthe through constitute behaviour types clarifying of what above, out laid categories the thematic agreement. under each offences There are 19 primary treaties and protocols that address terrorism and/or related acts. related and/or terrorism address that protocols and primary 19 treaties are There aircraft/civil categories: thematic four fallinto broadly thoseagreements of Sixteen three remaining The explosives. and regulation; maritime materials; nuclear aviation; crimes and hostages, of the taking terrorism, financing to relating issues on touch set of agreements these majority vast The persons. protected internationally against modifyprotocols, of the some is the as or, with case offences, specific define and out facilitating or counselling the commission of those offences. of thecommission counselling or facilitating treaties Offences under counter-terrorism Finally, the third offence established under the Protocol is is falsifying or the illegally Protocol under the established offence the third Finally, firearms. on the markings altering or removing obliterating, as establishes theProtocol agreements, related other many with as addition, In an accomplice as participating offences; above the commit to attempting offences: directing, organising, and offences; in abetting those and aiding in thoseoffences; as well as in their parts and components and in ammunition. ‘Illicit trafficking’ trafficking’ ‘Illicit ammunition. in and components in theirparts as and well as of transfer or movement, sale, delivery, export, acquisition, the import, includes territory the or across from ammunition and/or components, and their parts firearms, Parties States theinvolved of one as solong Party, State another to Party State one of of also trafficking occurs Illicit awhen transfer thetransfer. authorise does not marked. properly not is ammunition and/or components, and their parts firearms, the activities take place firearms, in isthe trafficking illicit Protocol underthe established offence The second att assembled or manufactured when theyare manufactured illicitly are ammunition) circumstances: thefollowing under Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Seizure of Unlawful of theSuppression for theConvention to Supplementary Protocol (1963) On Aircraft Actsand Board Certain Committed Offences Other on Convention Airports Servingat Violence of Acts Unlawful of the Suppression for Protocol Convention on the Suppression of Unlawful Acts Relating to International Civil International to Relating Acts Unlawful of the Suppression on Convention CivilAviation of theSafety Against Acts Unlawful of the Suppression for Convention (1970) Aircraft Seizure of Unlawful of the Suppression for Convention from parts and components that were illicitly trafficked illicitly were that components parts and from where Party the State of authority a competent from authorisation or a licence without manufacture. of at the time the firearms marking without

6. 4. 5. 2. 3. 1. n n n 24

ATT EXPERT GROUP 12. 10. 14. 14. 13. 11. 9. 8. 7. 6. 5. 4. 3. 2. 1. 7. Transporting or facilitating transport, the on board an aircraft, of anysource material, Transporting or facilitating transfer, the on board an aircraft, of anyequipment, Transporting or facilitating transport, the on board an aircraft, of anyBCN weapon. Destroying or seriously damaging facilities the of an using airport, any device, Performing an of act violence against a person at an causes which airport or is likely Transporting or facilitating transport, the on board an aircraft, of any explosive or Using against, or on board, an aircraft anyBCN weapon or explosive, or any Releasing or discharging from an aircraft any biological, chemical or nuclear (BCN) Using an aircraft causeto injury,bodily serious death, seriousdamageor to property Communicating information known thereby false, to be endangering safety the of an Destroying or damaging air navigation facilities, or interfering with operation, their if Placing on an aircraft adevice or substance likely to destroythe aircraft,likely to cause Destroying an aircraft, causingor damage to an aircraft that renders it incapable of Intentionally performing an of act violence against another on person while board an Protocol to Amend Convention the on Offences CommittedCertain and Acts on materials, software or relatedthat technology significantly contributes the design, to nuclear activity. knowing that it is intended in anuclear used to be explosive activity or in any other fissionablespecial material, equipmentor or material related to fissionable material, any act. or compelling a government or international organisation to do or abstain from doing cause death or serious injuryor damage, of intimidating with purpose the apopulation materialradioactive with knowledge the that its intended is to use cause or threaten to injury or seriousdamage to property or to environment. the orradioactive similar substances, that cause or is likely to cause death, seriousbodily environment. likely to cause, injury or death, serious damage seriousbodily to property or to the weapon or explosive, or any or radioactive similar substance that causes, or is or to environment. the aircraft in flight. are acts these likely to endanger safety the of an aircraft inflight. damage to it rendering it incapable of flight, or likely to endanger safetyits inflight. flying thator is likely to endangerthe aircraft’s safety in flight. aircraft in flight, that if likelyact is to endanger the safety the of aircraft. under treaty. the Those offences theare following: Aviation (2010) lays out that activities 14 States Parties have agreed constitute offences ConventionThe the on Suppression of Unlawful Relating Acts to International Civil Convention ontheSuppressionCivilAviation ofUnlawfulActsRelatingtoInternational (2010) AircraftBoard (2014) att more persons to commit offences; and contributing the commissionto of offences by prosecution or punishment relating to committing offences; agreeingwith one or or directing others to commit offences; assisting anotherpersonevade investigation, to offences:threatening to commit offences; attempting to commit offences; organising As with many other agreements relating to terrorism, treaty this defines as also airport. substance or weapon, ina way that endangers or is likely to endanger safety at that endangers or is likely to endanger safety at that airport. to cause serious injuryor death, using any substance device, or weapon, inaway that manufacture weapon. or of delivery aBCN

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a group, whether by aiming to further the group’s general criminal activity or with with criminal or general activity further to the group’s aiming whether by a group, the group. of the intention of knowledge Convention on Offences and Certain Other Acts Committed On Board Aircraft (1963) Aircraft and Certain Other Acts Committed On Board Convention on Offences On Aircraft and ActsCommitted Board Certain on Offences Other The Convention pre-existing to responses Parties’ States coordinate to attempts primarily (1963) an as establishes, agreement the In addition, penal laws. under states’ those offences attempting to commit an offence; organising or directing others to commit an offence; offence; an commit to others or directing organising offence; an commit to attempting to evade person another assisting offence; in an accomplice an as participating more or one with agreeing offence; an for punishment or prosecution investigation, by offences of to commission the contributing and offence; an commit to persons with criminal or general activity furtherto the group’s aiming whether by a group, thegroup. of the intention of knowledge any other form of intimidation, or by any technological means. technological any by or intimidation, of form other any Convention. the1970 under offences: as establishes theProtocol treaties, related other with as addition, In (2010) Unlawful of Suppression the for to the Convention Supplementary Protocol The Suppression forthe modifies (2010), which theConvention Aircraft Seizureof 1970 out inthe laid offences replaces the (1970), Aircraft Seizure of Unlawful of offences: two the following with Convention an aircraft in flight, a person unlawfully and by force, threat of force, or other or force, of threat force, by and a unlawfully person flight, in aircraft an The to do so. attempts or the aircraft, of control exercises seizesor intimidation, or whoperson a performs of accomplice acting an as also prohibits Convention act. an such perform to attempts of Aircraft of Unlawful Seizure Supplementary to the Convention for the Suppression Protocol offences: attempting to commit offences; acting as an accomplice of awho person an accomplice as acting offences; commit to attempting offences: offences. commit to attempts or commits (1970) of Aircraft of Unlawful Seizure Convention for the Suppression establishes (1970) Aircraft of Unlawful Seizure of Suppression the for The Convention on when, board offence an is it agreement, Under the primary offence. one just these acts are likely to endanger the safety of an aircraft in flight. aircraft an of the safety endanger to likely theseacts are flight. in aircraft alsoas defines this treaty terrorism, to relating agreements other many with As that act is likely to endanger the safety of the aircraft. of the safety endanger to act likely is that flight. in safety aircraft’s the to endanger is likely or that flying in flight. its safety to endanger likely or flight, of incapable it rendering it to damage Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (1971) of Civil Aviation Acts Against the Safety of Unlawful for the Suppression Convention of Civil Safety the Against Acts Unlawful of Suppression the for The Convention offences agreed constitute Partieshave States activities that five (1971)out lays Aviation following: arethe offences Those thetreaty. under att Seizing or exercising control of an aircraft by force or threat of force, by coercion, by by coercion, force, of or threat force by aircraft an of control exercising Seizingor or protocol under defined this offences other commit to threat a credible Making Destroying or damaging air navigation facilities, or interfering with their operation, if theiroperation, with interfering or facilities, navigation air damaging or Destroying an of the safety endangering be to false, thereby known information Communicating Committing any act of violence against another person on board an aircraft in flight, if flight, in aircraft an board on person another against violence act of any Committing of incapable it renders that aircraft an to damage or causing aircraft, an Destroying cause to likely aircraft, the destroy to likely substance or a device aircraft an on Placing 2. 1. 5. 4. 2. 3. 1. 26

ATT EXPERT GROUP 4. 3. 2. 1. 2. 1. Demanding, and unlawfully intentionally, material, radioactive or adevice a nuclear Credibly threatening to commit above the offences. Using, inany way, material radioactive or or adevice, using or damaging a nuclear Possessing material, radioactive or making or with intent the possessing adevice, to Destroying or seriously damaging facilities the of international an that airport serves Performing an of act violence against international a person at an serving airport civil legal person, anlegal international organisation or a state to door refrain from doing an act. damage to property or to environment, the or with intent the to compel anatural or intent to cause death injury, or serious bodily or with intent the to cause substantial facility inamanner releases which or release risks the of material, radioactive with the property or environment. the cause death injury or or with intent the seriousbodily to cause substantial damage to outsets four offences: The InternationalConvention forthe Suppression of Acts of Nuclear Terrorism (2005) ConventionfortheSuppression ofActsNuclearTerrorismInternational (2005) Nuclear Acts Committed Aircraft OnBoard (1963), notset does out any new offences. AircraftBoard Conventionthe which modifies (2014), Other on Certain Offences and The Protocol Conventionto Amendthe on Offences CertainCommitted Acts and on (2014) Protocol toAmendtheConventiononOffences andCertainActsCommittedonBoard Aircraft unlawfully, intentionally, and using any substance device, or weapon. of if that airport, endangers the act or is likely to endanger safety, committed when aviation,civil or an aircraft locatedthere, notservice or disrupting in services the any substance device, or weapon. or is likely to endanger safety, committed when unlawfully, intentionally, and using aviation causes which or is likely to cause serious injury or death, if that endangers act Acts Other CommittedCertain Aircraft On Board (1963),sets out justtwo offences: International Aviation Civil Conventionthe (1988), modifies which on Offences and The Protocol forthe Suppression of Unlawful Acts of ViolenceServing at Airports Aviation (1988) Protocol Civil fortheSuppression atAirportsServingInternational ofUnlawfulActsViolence board an aircraft. property on that aircraft,which jeopardiseas well as acts ordergood and discipline on offence,which may acts jeopardiseor do safetythe of an aircraft or persons the of or att to undertake forto undertake protection the of nuclear materials. establish clear offences, instead thatfocusing the activities on States Parties arebound ConventionThe the on Physical Protection of Nuclear Material (1980)not does Convention onthePhysicalProtection ofNuclearMaterial(1980) group. the group’s the to further activity general or criminal with knowledge of intention the of offences; or contributing the commissionto of offences bya group, whether by aiming participating as an accomplice in offences; organising or directing others to commit In addition, Convention the establishes as offences: attempting to commit offences; facility, by means of credible threat or of use force.

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7 The Protocol establishes the following offences: following the establishes Protocol The . 1 no briefing · group expert

the above offences. the above Article 1. other form of intimidation. of form other safety. safety. its endanger to or the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (1988), (1988), Navigation Maritime of the Safety Against Acts Unlawful of the Suppression are which platforms’, ‘fixed to relevant are all offences These offences. four establishes or structure permanently installation ‘artificialisland, an as Protocol by the defined or resources of exploitation or the sea-bedto thepurpose exploration of for attached purposes’. economic other for Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms located on for the Suppression Protocol the Continental Shelf (1988) of Fixed Safety the Against Acts Unlawful of Suppression the for Protocol The for which modifies (1988), the Shelf Convention the Continental on located Platforms commit, the offences listed above. listed the offences commit, alsoas defines this treaty terrorism, to relating agreements other many with As of commission in the others abetting offences; commit to attempting offences: to them to compel order in or legal persons physical other or threatening offences; ship. a of navigation safe the endanger to are likely offences if those offences, commit ship. a ship. of navigation the safe endanger to actlikely is that if theiroperation, ship. endanger the safe navigation of the ship. of navigation the safe endanger the ship. of navigation the safe endanger the of navigation the safe endanger to act likely is if that cargo, its or the ship to damage Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation of Unlawful Acts Against Convention for the Suppression (1988) Maritime of Safety the Against Acts Unlawful of Suppression the for The Convention seven offences: sets(1988) out Navigation and maintain a legislative and regulatory framework’ that governs the physical the physical governs that framework’ regulatory and a legislative maintain and materials. nuclear of protection Maritime att Material (2005) of Nuclear on the Physical Protection to the Convention Amendments Material Nuclear of Protection Physical on the to the Convention Amendments The ‘establish Parties States that require instead but offences, clear establish do not (2005) Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms located on the Continental Shelf (1988), for the Suppression Protocol Injuring or killing any person in connection with committing or attempting to commit commit to attempting or committing with in connection person killingany or Injuring Seizing or exercising control over a fixed platform, by force, by threat of force or by any any by or force of by threat force, by platform, fixed a over control exercising Seizingor platform’s fixed the to endanger likely damage or causing platform a fixed Destroying platform the to destroy is likely that platform fixed a on substance a device Placing or Injuring or killing any person in connection with committing, or attempting to to attempting or committing, with in connection person killingany or Injuring Placing a device or substance on a ship that is likely to destroy the ship, or to cause cause to or theship, destroy to likely is that ship a on substance a device Placing or with interfering or facilities navigational maritime damaging seriously or Destroying a of navigation the safe endangering falseinformation communicating Knowingly Seizing or exercising control of a ship by force, by threat of force or by intimidation. by or force of threat by force, by a ship of control exercising Seizingor to actlikely is that if a ship, board on a person against violence actof an Performing to act likely is if that cargo, its or a ship to damage causing or a ship, Destroying

1

4. 2. 3. 1. 7. 7. 5. 6. 4. 3. 1. 2. 28

ATT EXPERT GROUP 5. 4. 3. 2. 1. 4. 3. 2. 1. Using a ship inamanner that causes death, serious injuryor damage, with the Discharging oil, light natural gas or another hazardous or noxious substance that Using against, or on, aship, or discharging from aship, any explosive, radioactive Threatening to commit any the of offences Convention the under in order to compel Knowingly communicating information, false thereby endangering safe the navigation Injuring or any killing person in connection with commission the of above the Threatening to commit either the of above offences of thewith purpose intimidating Discharging from afixed platform oil, light natural gas or another hazardous or Using or discharging any explosive, material radioactive weapon or BCN ina manner of aship. following offences: of Unlawful Acts Against Safety the of Maritime Navigation (1988), establishes the of Maritime NavigationConventionthe (2005), modifies which forthe Suppression The ProtocolConvention the to forthe Suppression of Unlawful againstActs the Safety Navigation (2005) Protocol totheConventionforSuppression ofUnlawful ActsagainsttheSafetyofMaritime group. the group’s the to further activity general or criminal with knowledge of intention the of offences; or contributing the commissionto of offences bya group, whether by aiming participating as an accomplice in offences; organising or directing others to commit In addition, Protocol the establishes as offences: attempting to commit offences; offences. abstaining from doing any act. a population or compelling a government or international organisation from doing or from doing or abstaining from doing any act. intimidating apopulation or compelling agovernment or international organisation noxious substance likely to cause death, serious injury or damage, of with purpose the abstaining from doing, any act. population or compelling a government or international organisation from doing, or platform, or discharged from afixed platform, fortheof intimidating purpose a that causes or is likely to cause death, serious injuryor damage, against or on afixed Continentalthe Shelf (1988), establishes following the offences: for Suppression the of Unlawful Acts Against Safety the of Fixed Platforms located on Fixed Platforms located on Continental the Shelfthe (2005), modifies which Protocol The Protocol the to Protocol forthe Suppression of Unlawful Acts Againstthe Safety of Platforms locatedontheContinentalShelf(2005) Protocol totheProtocol fortheSuppression ofUnlawfulActsAgainsttheSafety of Fixed commit offences. offences; threateningor other physicalpersons or legal in order to compelthem to offences: attempting to commit offences;abetting others the in commission of As with many other agreements relating to terrorism, treaty this defines as also att organisation to do, or abstain from doing, any act. of intimidatingpurpose population the or compelling agovernment or international to door abstain from doing any act. intimidating population the or compelling agovernment or international organisation causes, or is likely to cause, death, serious injury or damage, of with purpose the government or international organisation to do, or abstain from doing, any act. injury or damage, of intimidating with purpose the population the or compelling a material weapon or BCN in away that causes or is likely to cause death, serious another to do, or refrain from doing, something.

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and effective measures to prohibit and prevent the manufacture of unmarked of unmarked manufacture the prevent and prohibit to measures effective and of out or into the movement prevent and prohibit to and in their territory, explosives explosives. unmarked theirterritory of to further the group’s general criminal activity or with knowledge of the intention of of the intention of knowledge with criminal or general activity furtherto the group’s the group. Convention on the Marking of Plastic Explosives for the Purpose of Detection (1991) Purposethe for of Detection Plastic Explosives of Marking on the The Convention necessaryto Parties take States requires instead but offences, establish does(1991) not government facility, public transportation, or an infrastructure facility, with the with infrastructure facility, an or transportation, public facility, government such where system, or facility a place, such destruction of extensive cause to intent loss. economic in major result to likely is in or destruction results offences; commit to attempting offences: as establishes the Protocol addition, In to commit others or directing organising in offences; accomplice an as participating aiming by whether group, by a offences of to commission the contributing or offences; explosive or other lethal device in, into, or against a place of public use, a state or or a state use, public of a place against or lethal device other in, into, or explosive the intent with infrastructure facility, an or transportation, public facility, government bodily serious or injury. death cause to or a state use, public of a place against or lethal device other in, into, or explosive Explosives Bombings (1997) of Terrorist InternationalConvention for the Suppression (1997) Bombings Terrorist of Suppression the for Convention International The offences: two establishes participating as an accomplice in offences; organising or directing others to commit to commit others or directing organising in offences; accomplice an as participating aiming by whether group, by a offences of to commission the contributing or offences; of the intention of knowledge with criminal or general activity furtherto the group’s the group. that person has committed an offence and intending to assist that person to to evade person that assist to intending and offence an committed has person that criminal prosecution. offences. theabove of any of commission offences; commit to attempting offences: as establishes the Protocol addition, In equipment, knowing it is intended to be used in a nuclear explosive activity or in any any in or activity explosive be to used a nuclear in intended is it knowing equipment, Energy safeguards. Agency Atomic International of outside activity nuclear other of a or delivery weapon. BCN to design,manufacture the contributes significantly material is intended to cause death, serious injury or damage, for the purpose of for damage, injury or serious death, cause to intended is material organisation international or a government compelling or the population intimidating act. any doing, from abstain or do, to att abstain or do, to organisation international or government a compelling or population act. any doing, from Unlawfully and intentionally delivering, placing, discharging or detonating an an detonating or discharging placing, delivering, intentionally and Unlawfully an detonating or discharging placing, delivering, intentionally and Unlawfully Transporting on a ship any BCN weapon, knowing it to be to a BCN it weapon. knowing BCN weapon, any a ship on Transporting related or material special fissionable material, source any a ship on Transporting Transporting on a ship any explosive or radioactive material, knowing that such such that knowing radioactive material, or explosive any a ship on Transporting Threatening to commit the above offences, with the purpose of intimidating the intimidating purposewiththe of offences, above the commit to Threatening Unlawfully and intentionally transporting another person on board a ship, knowing knowing a ship, board on person another transporting intentionally and Unlawfully the with connection in person killing any or injuring intentionally and Unlawfully Transporting on a ship any equipment, materials, software or related technology that technology that related or software materials, equipment, any a ship on Transporting 2. 1. 8. 9. 7. 7. 6. 11. 12.

10. 30

ATT EXPERT GROUP 2. 1. 2. 1. 2

Intentionally out aviolent carrying attack upon official the theprivatepremises, Intentionally murdering, kidnapping attacking or of otherwise person or the liberty By any means, directly or indirectly, and unlawfully wilfully, providing or collecting By any means, directly or indirectly, and unlawfully wilfully, providing or collecting The annexliststhefollowingninetreaties: theConventionforSuppression ofUnlawfulSeizure ofAircraft (1970); Suppression ofTerrorist Bombings (1997). Conventionforthe Acts againsttheSafety ofFixedPlatformslocatedontheContinental Shelf(1988);andtheInternational Suppression ofUnlawfulActsagainsttheSafetyMaritimeNavigation (1988);theProtocol fortheSuppression ofUnlawful Civil AviationSuppression atAirportsServing International (1988);theConvention forthe ofUnlawfulActsViolence the Taking ofHostages(1979);theConventiononPhysicalProtection ofNuclearMaterial(1980);the Protocol forthe Prevention ProtectedConventionagainst andPunishmentofCrimesagainstInternationally Persons(1973);theInternational the ConventionforSuppression ofUnlawfulActsagainsttheSafety ofCivilAviation (1971);the Conventiononthe when thatwhen is likely act to endanger protected the individual’s person or liberty. accommodation, or means the of transport of an internationally protected person, an internationally protected person. Protected Persons (1973) establishes following the offences: ConventionThe the on Prevention and Punishment of Crimes Against Internationally Persons (1973) Convention onthePreventionProtected andPunishmentofCrimesAgainstInternationally accomplice of anyone commits who or attempts to commit an of act hostage-taking. as offences: attempting to commit an act of hostage-taking; participatingand as an In addition, as with other treaties relating to terrorism, convention the establishes explicit or implicit condition for release the of hostage. the person, inorder to compel to athird do, party or abstain from doing, any as an act seizing or detaining, and threatening injure, to kill, or continue to detain, another offencesingle primary taking the – Conventionof hostageswhichthe – defines as The InternationalConvention Againstthe Taking of Hostages (1979) establishes a ConventionAgainsttheTakingInternational ofHostages(1979) group. the group’s the to further activity general or criminal with knowledge of intention the of offences; or contributing the commissionto of offences bya group, whether by aiming participating as an accomplice in offences; organising or directing others to commit In addition, Convention the establishes as offences: attempting to commit offences; organisation to door to abstain from doing any act. is to intimidatepurpose apopulation or to compel a government or international other person not an hostilities inthe taking activethe in armedwhen part conflict, out any other intended act to cause death injury to or acivilian or serious bodily any funds with intention the or used knowing that be they that are to they carry used to be out an that act is an offence in one treatiesthe of Convention’s listedthe in annex. funds with intention the or used knowing that be they that are to they carry used to be (1999) establishes two offences: The InternationalConvention forthe Suppression the Financingof of Terrorism ConventionfortheSuppression oftheFinancingTerrorismInternational (1999) Other att as an accomplice above inthe offences. offences:threatening or attempting to committhe above offences; and participating In addition, as with other treaties relating to terrorism, Convention the establishes as

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Saferworld

Saferworld is an independent international organisation working to prevent violent conflict and build safer lives. We work with people affected by conflict to improve their safety and sense of security, and conduct wider research and analysis. We use this evidence and learning to improve local, national and international policies and practices that can help build lasting peace. Our priority is people – we believe in a world where everyone can lead peaceful, fulfilling lives, free from fear and insecurity. We are a not-for-profit organisation working in 12 countries and territories across Africa, Asia and the Middle East.

ATT Expert Group

The ATT Expert Group is convened by Saferworld. Its purpose is to help develop common understandings among government and civil society experts from all world regions on issues relevant to ATT implementation, with a view to promoting progressive interpretation of the Treaty’s provisions and the development of a robust ATT regime.

As of April 2021, the ATT Expert Group has met on eight occasions – in London, November 2013; Stockholm, May 2014; Berlin, July 2014; San José, Costa Rica, March 2015; Accra, November 2015; Amsterdam, November 2016; Waterloo, Canada, May 2018; and Dublin, January 2020. This briefing is based upon discussions that took place at these meetings. The views and ideas expressed herein should not be taken as reflecting the official view of those States or individual experts that have participated in this process.

Saferworld The Grayston Centre 28 Charles Square London N1 6HT, UK Phone: +44 (0)20 7324 4646 Email: [email protected] Web: www.saferworld.org.uk www.facebook.com/Saferworld @Saferworld Saferworld

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