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The arms trade and international criminal law

Student thesis: Doctoral ThesisDoctor of Philosophy

This thesis is concerned with how international criminal law (‘ICL’) applies to the arms trade. It argues that under the ICL doctrines of complicity, individuals may be held responsible for knowingly supplying weapons to the perpetrators of international crimes, whether they work in arms manufacturing corporations, transnational organised crime groups, as smaller-scale intermediaries, or within state authorities. The thesis argues that the International Criminal Court (‘ICC’) holds a potential to investigate and prosecute arms traders, a potential the ICC Prosecutor recognised in 2003 in relation to the Democratic Republic of Congo.

The thesis examines ICL in the context of transnational arms regulation (‘TAR’). It finds that existing rules of TAR prohibit certain arms transfers based on unacceptable risks of international crimes. However, TAR’s primary sources –UN Security Council arms embargoes, domestic arms export regimes, and international agreements including the Arms Trade Treaty and the EU Common Position– often suffer from a pre-emptive nature, limited legal substance, and ineffective enforcement. The thesis argues that the potential of the ICC to investigate and prosecute arms traders therefore lies in complementing the existing system of TAR, providing a judicial mechanism for ex post facto criminal accountability that would draw on the legal and factual precedents of TAR.

The thesis then explores why the ICC’s potential to investigate and prosecute arms traders has not yet materialised. Adopting an inter-disciplinary perspective, it argues that the reluctance of the ICC to pursue arms traders cannot be explained solely by legal and political factors, but is also determined by the ICC’s institutional culture. Through empirical research inside the ICC, and a detailed case study of the Second Congo War from 1998 to 2003, the thesis analyses the individual beliefs of ICC judges and lawyers about the arms trade, and argues that these beliefs matter. The decision-making of the ICC is shown to be shaped by a legal culture that aspires to hold certain types of perpetrator accountable, prioritising them over arms traders. The thesis thus reveals that ICL’s doctrines of complicity are being narrowly applied in practice, and that the development of ICL is contingent on assumptions about who should, or should not, be held responsible for international crimes.
Original languageEnglish
Awarding Institution
Supervisors/Advisors
Award date1 Oct 2020

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