Dominika Iwan-Sojka
Faculty of Law and Administration, University of Silesia, Katowice, Poland
dominika.iwan@us.edu.pl

On 30 July 2025, the International Bar Association’s War Crimes Committee held a webinar as part of its ‘War crimes and justice: a monthly webinar series’. The webinar was titled ‘Focus on the arms trade: state responsibility, accountability and private actor compliance’.

Following welcoming remarks by Sara Elizabeth Dill, the Vice-Chair for the IBA’s War Crimes Committee, Eva Khair, Director of the Sudan Transnational Consortium and founder of the Women for Sudan campaign, provided a powerful update on Sudan’s worsening humanitarian crisis amidst an intensifying conflict fuelled by arms transfers from external actors. Since April 2023, the conflict between the Sudanese Armed Forces (SAF) and the Rapid Support Forces (RSF) has triggered one of the world’s largest displacement, hunger, and protection crises. Over 30 million people, including 14 million children, are in urgent need of humanitarian aid. Khair emphasised that this is not a civil war, but a war on civilians that is marked by widespread atrocities, including war crimes and crimes against humanity. Sexual violence has been weaponised, especially in RSF-controlled areas and displacement camps. A UN Human Rights Council report^[1] noted, from 2023 to 2024, a 288 per cent rise in people seeking services which support victims of sexual violence. Civilians, hospitals, markets, and homes are being deliberately targeted. Khair stressed that these atrocities demand a united global response, accountability and justice to ensure any sustainable peace. She noted that peace without justice is an illusion and called for international protection, access to monitors, and enforcement of arms embargoes.

Following this powerful scene setting for the discussion, Jeff Abramson, a senior non-resident fellow at the Center for International Policy^[2] and the Director of the Forum on the Arms Trade,^[3] opened with remarks drawing on his own experience, particularly his involvement in the concluding of negotiations of the Arms Trade Treaty (ATT).^[4] Abramson noted that the United States remains the largest arms exporter globally, and highlighted that the geopolitical environment at the time of the ATT negotiations in 2011–2012 was significantly different than it is today. Prior to the ATT, certain weapons were subject to restrictions, but no comprehensive framework existed to cover the full spectrum of conventional weapons being transferred to conflict zones. The ATT introduced obligations regarding arms brokering, transhipment, national implementation and export control. It also required states to conduct assessments before authorising exports, including consideration of whether the weapons might be used to commit or facilitate serious violations of International Humanitarian Law (IHL) or human rights laws. If there was an ‘overriding risk’ of such outcomes, transfers were to be prohibited. Additionally, despite its international scope, the ATT relies entirely on national level implementation, with no referral mechanism to international bodies or courts.

Daniel Moegster, a human rights officer in the Rule of Law and Democracy section at the Office of the UN High Commissioner for Human Rights (OHCHR), outlined OHCHR’s broad mandate to promote and protect the enjoyment of human rights, including monitoring the impact of arms transfers. Moegster outlined the relevant ATT provisions, including prohibitions (Article 6) and export assessment requirements (Article 7) that states must follow to avoid contributing to violations of international human rights and humanitarian laws. Moegster emphasised the continued importance of other bodies of international law, both to interpret and complement the ATT and also as sources of obligations for states that were not parties to the Treaty. He highlighted IHL rules, particularly the obligation outlined in Common Article 1 of the 1949 Geneva Conventions and customary IHL wherein states are required to refrain from contributing to IHL violations and to induce compliance with IHL. He also highlighted the 1948 Genocide Convention,^[5] which obliges all states parties to the Convention to prevent genocide when there is a serious risk that genocide will be committed and to employ all lawful means reasonably available to prevent genocide. The International Court of Justice (ICJ) confirmed that this obligation applies from the moment a state becomes – or should become – aware of such a risk. Moegster then referenced customary international law as a basis for holding states responsible for aiding or assisting violations of international law, and as a source of obligations for states to bring to an end serious violations of peremptory norms of international law. Finally, he pointed out that arms transfers may breach UN Charter principles of non-interference and the prohibition on the use of force, as reaffirmed by the ICJ in its 1986 judgment in the Military and Paramilitary Activities in and against Nicaragua case.^[6]

Following Moegster’s intervention, Florence Foster, a Senior Project Manager at the Geneva Academy of International Humanitarian Law and Human Rights, addressed the role of corporate responsibility in the arms trade, including arms manufacturers, shippers, financiers, and investors. She framed her remarks around the UN Guiding Principles on Business and Human Rights (UNGPs)^[7] which establish that businesses have responsibilities to respect human rights, and are derived from states’ obligations under international law. Foster explained that these principles call for companies to carry out human rights due diligence to identify and address the foreseeable risks connected to their operations, products, services, and partners on an ongoing basis. The due-diligence obligation therefore extends beyond the simple compliance and licensing procedures. Foster proposed that due diligence should include proactive risk assessment, mitigation, and ending business relationships that cannot be made responsible where necessary; these responsibilities are independent of states' abilities or willingness to fulfil their own human rights obligations. She highlighted that in conflict-affected areas or situations of wide-spread violence, businesses are expected to carry out ‘heightened’ due diligence proportional to the potential harm, a position reinforced by the UN Working Group on Business and Human Rights.^[8] Foster concluded by asserting that corporate responsibility stands independently of state licensing or treaty ratification like the ATT. She suggested that while international legal tools for states and business standards already exist, their application is lacking, often at the behest of geopolitical and economic interests.

Tomas Hamilton, barrister at G37 Chambers in London and adjunct Senior Legal Consultant at Human Rights Watch^[9] discussed how international criminal law (ICL) can provide a legal framework for holding arms traders accountable when their actions contribute to international crimes. Hamilton questioned whether individuals – both within the lawful and illicit arms trade – could be prosecuted under the Rome Statute of the International Criminal Court (ICC)^[10] or through universal jurisdiction by states. He focused on Articles 25(3)(c) and 25(3)(d) of the Rome Statute, which establish responsibility for aiding and abetting or contributing to a common plan, including providing material assistance for the purpose of facilitating a crime. Hamilton argued that Article 25(3)(d) of the Rome Statute requires that the contribution be ‘significant’ as opposed to ‘essential’ to the principal’s crime, and that the individual has knowledge of the criminal context. This, in turn, has an impact on mens rea by lowering the threshold for complicity in atrocity crimes, potentially allowing for individual liability for illicit arms traders, corporate officials, and national authorities, even in cases where arms transfers are officially licensed by states. The lower threshold means that the requirements for mens rea are reduced to the contributor’s knowledge of the perpetrator’s intentions to commit a crime and of the essential matters of the crime. Therefore, the arms traders do not need to know every detail of the primary offence but the essential matters of the crime and that the supply of weapons, in the ordinary course of events, would lead to the commission of the crime. State-issued licences, while legal under domestic law, may not absolve companies or individuals of responsibility under international law, particularly if they fail to conduct adequate human rights due diligence. Hamilton concluded that ICL offers a legal basis for prosecutions but questioned why the ICC and other institutions have yet to pursue such cases, despite growing evidence of complicity in these crimes.

Sarah Leah Whitson, Executive Director of Democracy for the Arab World Now (DAWN), provided an overview of relevant US laws regulating arms transfers, including the Foreign Assistance Act (FAA),^[11] which prohibits arms transfers to human rights-violating states. Despite strong legal wording, enforcement of that provision has been minimal. Whitson pointed to an amendment to the FAA (Leahy Law)^[12] that requires the US State Department to restrict arms transfers to military units of foreign governments that have been found to commit gross violations of human rights. DAWN filed a lawsuit in 2023 against the US State Department, accusing it of violating the Leahy Law by failing to designate any Israeli military units as ineligible for US security assistance, despite well-documented gross human rights violations, including the deaths of numerous American citizens. In 2025, the US Government filed a motion to dismiss, invoking the political question doctrine and challenging the plaintiffs’ standing. Whitson expressed optimism that the court would reject these arguments and allow the case to proceed to discovery, which could reveal a long-standing pattern of non-enforcement by the US State Department with respect to Israel. DAWN has also submitted a legal brief to the ICC, accusing former senior US officials of aiding and abetting war crimes, genocide, and crimes against humanity in Gaza by providing military hardware and political protection (via vetoes at the UN Security Council), to Israel. Whitson further noted the chilling effect of sanctions imposed by the Trump administration on ICC officials, judges, legal professionals and personnel. These sanctions have hindered engagement with the ICC, particularly for US-based organisations, raising concerns about freedom of expression and international justice.

Dill discussed the United Kingdom litigation concerning arms transfers to Israel, particularly the case brought by Al-Haq, supported by GLAN,^[13] which challenged UK export licences based on potential breaches of the Genocide Convention, the ATT, and UK Export Control Act 2002. In September 2024, the UK Government suspended 30 export licences to Israel due to concerns about serious IHL violations. However, it allowed the transfer of F-35 fighter jet components. The UK High Court dismissed the case on all 13 grounds, relying on the separation of powers and the view that arms export decisions fall under the executive’s discretion, not judicial oversight, ultimately deferring to ministerial judgment, despite evidence that ministers were aware of the risks.^[14] The ruling also showed the court’s reluctance to apply international law domestically, particularly the ATT and the Genocide Convention. Nonetheless, Dill noted that forcing the government to disclose internal documents and risk assessments was a significant outcome, exposing political pressures that influenced decisions to continue business as usual.

In a Q&A discussion, Moegster emphasised the critical role of courts in overseeing executive power, especially in relation to arms export decisions. Drawing from past Office of the UN High Commissioner for Human Rights (OHCHR) reporting (A/HRC/58/41)^[15] and taking into account the UK’s recent experience, he highlighted several barriers to justice, including lack of transparency, particularly regarding approved licences and actual arms exports. Another challenge concerned strict legal standing requirements, such as proving harm or the potential for redress, which posed difficulties for claimants. Lastly, he noted that the broad application of the political question doctrines in some jurisdictions has led to the dismissal of claims, and that domestic courts have applied broad margins of executive discretion on arms transfer decision-making where cases were heard on the merits. This could result in domestic courts finding in favour of the state even where the arms transfer decision was contrary to international law. Moegster highlighted that the severity of these challenges was compounded by the executive practice in several states. Many states have adopted domestic laws that diverge from international prohibitions, sometimes exempting certain transfers from export assessments to promote trade or defence cooperation. He also highlighted the use of open export licences without mandatory reassessments, which could remain valid for years despite changing conflict conditions. Moegster further noted that litigation has revealed examples where political considerations trumped legal standards with human rights or humanitarian laws either not taken into account or narrowly interpreted to allow transfers. He concluded that domestic oversight mechanisms must be improved to ensure that executive decisions comply with both domestic and international law.

Hamilton offered remarks on both national litigation and broader international legal frameworks, focusing first on the UK High Court’s decision regarding F-35 component exports. Citing a report from Action on Armed Violence,^[16] Hamilton noted that the UK RAF had conducted over 500 aerial surveillance flights over Gaza, allegedly to locate British hostages. He questioned whether such supply of surveillance might also facilitate military operations that violate IHL. Hamilton underscored that ICL is not confined to categories of weapons or export licences. Instead, ICL focuses on whether material assistance meets certain thresholds of contribution to crimes, coupled with relevant mental elements.

Hamilton also pointed to the growing momentum for domestic prosecutions under universal jurisdiction principles related to the arms trade. These include the ongoing Swedish trial concerning arms-related complicity in war crimes in Sudan between 1997 and early 2000, the Lafarge case in France concerning corporate complicity with ISIS, and two Dutch prosecutions of individuals who supplied arms components used in atrocities in Liberia and Iraq. He also highlighted the role of UN fact-finding missions and noted the ICC's current limited attention to corporate accountability, despite historical precedents such as the Nuremberg trials, where industrialists were prosecuted for their role in arming the Nazis.

Foster reconnected the discussion to the business and human rights (BHR) framework, noting that it originated in response to corporate involvement in conflicts and that it is not limited by weapon types or treaty ratification status. Rather, it can help delineate responsibilities throughout corporate value chains, independent of domestic licensing regimes or treaty participation. She also warned that new technologies such as artificial intelligence are blurring the lines between civilian and military applications, particularly for companies with products liable to be used in high risk settings or value-chains. She noted that investors are increasingly aware of this trend, especially as companies like Microsoft become involved in defence contracts, raising new human rights and IHL concerns. Foster asserted that while the ATT should integrate and apply the UNGPs where relevant in its own work streams, the ATT should not itself set new or indeed different business standards for the arms trade. She emphasised that more can be done through international human rights mechanisms to highlight corporate responsibility in conflict -affected settings. Beyond OHCHR’s own reporting, this includes mechanisms such as the Working Group on Business and Human Rights, the UN Fact-Finding Mission on Myanmar (that was one of the first to highlight corporate responsibility in conflict-affected settings) and the recent Special Rapporteur’s report on the Occupied Palestinian Territories,^[17] amongst others. Foster warned against national and regional legal carve-outs that exempt financial or defence industries from human rights responsibilities and advocated in favour of clarifying the legal landscape and creating consistent and predictable standards to benefit both affected civilians and businesses.

In closing the session, Dill noted that the decision to begin the series with a focus on the arms trade was deliberate, given the essential and foundational role of the arms trade in armed conflict. Dill emphasised that, although legal frameworks exist to minimise civilian harm and prevent violations of IHL and international human rights law, the enforcement of these norms has become politically sensitive. The hope was expressed that the insights shared in this session would serve as a catalyst for ongoing collaboration across legal and policy communities and in further War Crimes Committee webinars, including those held on 10 September 2025 and 8 October 2025. More details can be found on the IBA’s events webpage.^[18]

Notes

^[1] See www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/sessions-regular/session57/A-HRC-57-CRP-6-en.pdf.

^[2] https://internationalpolicy.org.

^[3] See https://internationalpolicy.org.

^[4] ‘Promoting responsibility in international transfers of conventional arms’ (ATT) at https://thearmstradetreaty.org.

^[5] See Convention on the Prevention and Punishment of the Crime of Genocide at www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf.

^[6] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) at www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf.

^[7] www.ohchr.org/sites/default/files/documents/publications/guidingprinciplesbusinesshr_en.pdf (UN, 2011).

^[8] www.ohchr.org/en/special-procedures/wg-business.

^[9] www.hrw.org.

^[10] See www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf (ICC, 2021).

^[11] See www.govinfo.gov/content/pkg/COMPS-1071/pdf/COMPS-1071.pdf.

^[12] US Dept of State: www.state.gov/bureau-of-democracy-human-rights-and-labor/releases/2025/01/leahy-law-fact-sheet.

^[13] Global Legal Action Network: ‘Accountability for atrocity crimes’ https://glanlaw.org/news/uk-government-in-high-court-over-continued-arms-exports-to-israel-amid-its-starvation-of-gaza.

^[14] See www.alhaq.org/advocacy/22794.html (Al Haq, February 2024).

^[15] See https://docs.un.org/en/A/HRC/58/41.

^[16] See https://aoav.org.uk/2025/britain-sent-over-500-spy-flights-to-gaza-aoav-study-reveals-the-scale-of-british-intelligence-gathering-above-gaza-raising-fears-of-complicity-in-israeli-war-crimes (AVV, March 2025).

^[17] See A/HRC/59/23 at www.ohchr.org/en/documents/country-reports/ahrc5923-economy-occupation-economy-genocide-report-special-rapporteur (UN, July 2025).

^[18] At www.ibanet.org/conferences.