‘Another way to deal with mass atrocities’ – one lawyer’s role in the Arms Trade Treaty

December 23, 2014

‘Another way to deal with mass atrocities’ – one lawyer’s role in the Arms Trade Treaty

With the global Arms Trade Treaty (ATT) entering into force this week, Amnesty International spoke to Clare da Silva, a lawyer who assisted the organization with legal and policy advice over many years through to the treaty negotiations at the United Nations.


What particularly inspired you to work on the ATT? 

My family had come to Canada as refugees from Uganda during the time of Idi Amin. Growing up, my brothers and I often heard stories about the terrible things that happened under Idi Amin’s rule and how so many lives were destroyed. I think I grew up perhaps more aware than some other kids in Canada of what can happen, how others’ lives are and how important it is to work towards change in the world. 


Also I worked as a defence lawyer in Sierra Leone for four years at the Special Court that was trying individuals for crimes against humanity and war crimes committed during the Civil War. Every day it was story after story of all these unimaginable things that happened to people during the war, often with weapons. That experience really reinforced the need for an ATT – that there needed to be another way to deal with mass atrocities than just retrospective mechanisms like criminal tribunals. I felt the ATT could in some way help to ensure the conventional arms trade does not contribute to international crimes, like what happened in Sierra Leone. 


When did you start working on the treaty? 

As a lawyer with a university degree in international development studies, I initially worked on legal rights issues in Southern and East Africa. 


Then I joined the Lauterpacht Centre for International Law at the University of Cambridge, as a Research Fellow working with the Director of the Centre, Daniel Bethlehem. And that is how I first met Brian Wood, an expert on arms control and human rights at Amnesty International. Daniel had been providing legal advice to Brian and others who had initially conceived of the idea of a treaty to regulate the international arms trade and a framework treaty was sketched out, which formed the basis of the subsequent years of advocacy. My pro bono legal advice to Brian and other NGOs eventually grew into a much larger role, working very closely with Amnesty International through to the adoption of the treaty.   


What were the stand-out moments of the ATT negotiation process for you? 

There were many moments of elation. Every time the words that we had been advocating for appeared in a draft text felt like a small victory. When Amnesty International language appeared in the final text, for example in Article 7 where an export is to be assessed for the risk that it might “commit or facilitate a serious violation of international human rights law”, that was a triumph for the many, many years of work by all the committed Amnesty International staff and supporters. 


Of course there were setbacks too. The most disappointing time was when we reached the end of the first negotiation conference [held at the United Nations in June 2012] and there was no agreement. I remember going back to the Amnesty International office and the researcher on arms control at the time, Helen Hughes, gave me a very sympathetic look as I walked in the door and I burst into tears – from exhaustion and disappointment that all of our hard work over the years had not resulted in a treaty. But in retrospect of course it was the best outcome because we ended up with a much stronger and more rigorous treaty by the end of the second negotiation conference in 2013. 


What got you through the often tense UN treaty negotiation process? 

Being surrounded by committed people from around the Amnesty International movement, like Brian, Seydi Gassame, Irma Pérez-Gil, Frank Johansson, Alberto Estévez and many others definitely was what carried me through that whole process. There were some very tense times in the room, and tense moments amongst ourselves as well as quite a bit of exhaustion. But being with people who were so committed and focused on achieving the ATT and who had no other agenda other than that was very energizing.   


In UN terms and international law terms though I thought that the process of achieving the ATT was fast when compared to other processes like the Rome Statute [to establish the International Criminal Court] that moved at glacial speed. I was very lucky to be a part of a UN treaty from very early on in its development to its completion. 


Can you describe some of the spoilers involved in the process?

I am still not sure why certain States wanted to actively obstruct the process; perhaps it was to try and get concessions out of States for things they wanted in other UN forums. In the end though who voted against adopting the treaty speaks for itself: Iran, North Korea and Syria


How did you feel on 2 April 2013 when the treaty was finally adopted by a majority vote in the UN General Assembly? 

Very happy and very proud to have been able to contribute in some way to the text. It was elation watching the numbers lighting up on the board during the voting in the General Assembly to adopt the treaty. 


What impact do you hope the ATT will have in its first year as a legally binding treaty?

The impact of the ATT has to be measured beyond just the numbers game of racing to achieve more ratifications. For me, the measure of success will be the extent to which ratification means something, that national legislation and regulations are changed as a result of the ATT, and how clearly the prohibitions and the risk assessment obligations are translated into law and subsequent practice. There are always going to be issues that transcend the ATT – politics, foreign policy etc. – but if the ATT can infuse a level of restraint on the conventional arms trade then it will have been successful.  


I also think that the first Conference of States Parties will be an important moment in 2015 because that it has the potential to be a forum to hold States Parties to account for their behaviour in the conventional arms trade.