OUVRAGE : T. Hamilton, Cover The Arms Trade and International Criminal Law. Reframing Accountability for Complicit Weapon Suppliers

Tomas HAMILTON

Despite the establishment of UN embargoes, the Arms Trade Treaty (ATT), and the EU Common Position, arms export regulation suffers from significant legal and practical limitations. This book critically evaluates the existing body of 'Arms Trade Law', highlighting its inadequacies in preventing weapons from reaching perpetrators of mass violence.

Drawing on interviews, participant observation, and empirical research to assess the perspectives of judges and lawyers, it also explores the International Criminal Court's narrow focus on prosecuting political and military leaders. Arguing that institutional attitudes and commitments contribute to a legal culture that obscures the potential for an arms trader case, the book illustrates these dynamics through a case study of the UN Security Council's response to the Second Congo War and the ICC's investigations in the DRC Situation, elucidating missed opportunities to enforce accountability against the entire spectrum of actors responsible for international crimes.

Through detailed examination of the arms trade's complexities, The Arms Trade and International Criminal Law foregrounds the structural causes of atrocity and argues for broader accountability. It investigates how individuals-including corporate executives, state officials, and arms traffickers-can be held directly accountable for atrocities under international law, even when their actions are geographically or causally distant from the violence itself. Furthermore, by advancing a specific interpretation of the actus reus and mens rea elements of accomplice liability under Article 25 of the Rome Statute, this book argues for a robust legal basis upon which the ICC can prosecute arms traders. It therefore underscores how international criminal law can complement existing regulations by leveraging its expressive function to condemn all those who profit from atrocity.

TABLE OF CONTENTS

Copyright Page
Foreword
Series Editors’ Preface
Acknowledgements
Table of Cases
Table of Primary Sources
Abbreviations 

1. Introduction

1.1 Introduction
1.2 Arms Traders as Accomplices
1.3 Unpacking the Global Arms Trade: Items, Actors, Conduct
1.4 The Arms Trade in International Criminal Law Scholarship
1.5 Overview of This Book

2. Complementing Export Regulation with Criminal Accountability

2.1 Introduction
2.2 National Arms Export Regulations
2.3 International Agreements on the Arms Trade
2.4 Conclusion

3. 'Arms Trade Law' and the Potential of International Justice

3.1 Introduction
3.2 Arms Embargoes
3.3 The Plurality of ‘Arms Trade Law’
3.4 A Potential Role for International Criminal Law?
3.5 Conclusion

4. The Actus Reus of a Complicit Arms Transfer

4.1 Introduction
4.2 Complicit Assistance in the Rome Statute
4.3 Preliminary Remarks on Interpretation
4.4 The Quiet Primacy of Article 25(3)(d)(ii) of the Rome Statute
4.5 Basic Requirements of Article 25(3)(d)(ii)
4.6 ‘Significant’ Arms Transfers (Degree of Contribution)
4.7 Causal Relationship with the Arms Transfer
4.8 Remoteness as a Useful Juridical Concept
4.9 The Significance of a Particular Shipment
4.10 Transferring Arms from Outside the Group of Perpetrators
4.11 Conclusion

5. The Mens Rea of a Complicit Arms Transfer

5.1 Introduction
5.2 Article 25(3)(c) Aiding or Abetting
5.3 Contributing to a Group Crime under Article 25(3)(d)
5.4 Specificity of Knowledge: ‘Essential Matters’
5.5 Sources of Knowledge: Awareness of a UN Embargo or Fact-Finding
5.6 Degree of Knowledge: ‘Occurrence in the Ordinary Course of Events’
5.7 Aligning with Arms Trade Law: A Risk-based Approach
5.8 Appropriate Labelling of Arms Transfer Complicity
5.9 Conclusion

6. Observing ICC Legal Culture on the Arms Trade

6.1 Introduction
6.2 The Concept of ‘Legal Culture’
6.3 Frame 1: Obscuring the Arms Trade through an Arms Trade Law Lens
6.4 Frame 2: Excluding the Arms Trade Due to Pragmatic Constraints
6.5 Conclusion

7. Imagining the Arms Trade in ICC Case Selection

7.1 Introduction
7.2 The Indeterminacy of Rules on ICC Case Selection
7.3 Legalism in ICC Case Selection
7.4 Conclusion

8. Investigating the Arms Trade in the Second Congo War

8.1 Introduction
8.2 A Case Study of the Second Congo War
8.3 Analysing Arms Flows in the Second Congo War
8.4 Arms Export Regulation During the Second Congo War
8.5 Arms Embargoes During the Second Congo War
8.6 Politicization Critiques of Arms Embargoes
8.7 The Panel of Experts: Resource Extraction and Arms Trafficking
8.8 Conclusion

9. Overlooking Arms Brokers in the ICC's Situation in the DRC

9.1 Introduction
9.2 Recognizing Potential Arms Trade Cases in the DRC Situation
9.3 Blind Spot 1: Politically Viable Arms Trade Cases
9.4 Blind Spot 2: Pragmatic Arms Trade Prosecutions
9.5 Blind Spot 3: Imagined Victims, Imagined Perpetrators
9.6 Blind Spot 4: Horizontal Selectivity
9.7 Conclusion

10. Conclusion 

Bibliography
Index

Tomas HAMILTON, Cover The Arms Trade and International Criminal Law. Reframing Accountability for Complicit Weapon Suppliers, Oxford, Oxford University Press, 2025 (256 pp.)

Tomas Hamilton is an international lawyer at Guernica 37 Chambers in London and Adjunct Professor at the University of Amsterdam. He specialises in international human rights and criminal law. Tomas holds a BA (Hons) from the University of Oxford, an LLB from the College of Law, an LLM from the University of Cambridge, and a PhD in Law from King's College London. He was called to the Bar of England and Wales in 2011. Tomas has worked as a Human Rights Officer at the UN Fact-Finding Mission on Venezuela, Senior Legal Consultant at the UN Assistance to the Khmer Rouge Trials (UNAKRT) at the Extraordinary Chambers in the Court of Cambodia (ECCC), Associate Legal Officer at the International Criminal Court (ICC) in The Hague, and at a leading criminal law firm in London.