The Arms Fixers

Chapter 10

What About International Action?

Disparate and inadequate national systems for controlling arms brokers and shipping agents are compounded and encouraged by the relative absence of international agreements and treaties. Intergovernmental discussions on
coordinated measures to restrict and better manage the international transfer of small arms have begun, but proposals to regulate arms brokers have not yet been considered in any detail. There is still a lack of understanding about the extent and nature of the problem, and also a lack of political will.

Identifying Common Underlying Problems

Scope of Controls

Brokers and shipping/forwarding agents do not limit their dealings to one type of military, security or police technology or product. They take advantage of national control lists that exclude items, and control lists that are inconsistent or even contradictory across jurisdictions. Restrictions on arms transfers or exports are often applied less scrupulously when, for example, spare parts, surplus military vehicles or paramilitary and policing items are involved. Unable to ship certain items from one country, a broker may organize the transfer from or to another country where restrictions on the export or import of spare parts or dual-use items are interpreted differently. Often new technologies and paramilitary and police equipment are demanded for
internal security threats where the recipients actually contribute to the outbreak of armed conflict rather than enhancing real security. A better solution would be to apply controls on brokers and shipping agents to a comprehensive list of military, security and police products and technologies that could be harmonized across territories.

Export Licences

There are many reasons why export licences are open to abuse by brokers and others. Not all export licences require written authorizations according to law in some states – as lawyers pointed out in the defence of the UK companies Sandline International and Skyair Cargo, when it was revealed that they had brokered and shipped an arms
delivery to Sierra Leone in apparent violation of the UN arms embargo. UK lawyers for Sandline argued that the UK authority’s verbal approval was sufficient to meet the 1939 law on arms control, and the UK customs authorities decided not to prosecute Sandline or Skyair.

Most European countries have no full-proof system for verifying a delivery of small arms to an authorized client or end-user. In the UK, it is the importing company itself that notifies the arrival of a cargo. A particular weakness is the system of ‘general’
export licences. These may cover many generic products, vaguely defined senders and receivers, and deliveries over a long period of time. Such licences can be ‘adapted’ (i.e. abused) for other purposes while remaining at least formally within the law. No government should ever grant a general export licence to an arms broker. Preferably the system should be replaced with a more rigorous type of licence that would always include details of the intermediaries, transport, banking and insurance involved.
Customs, transport and commercial documentation needs to be synchronized with sufficient detail to enable rigorous checking of all the parties involved in an arms cargo.

Some export licences can be easily forged or handed out by corrupt officials. Many export licences do not include a prohibition or restriction on the re-export of the
articles. They may not be linked to a procedure for verifying delivery and/or for monitoring the end-uses.1 The broker and shipping/forwarding agents do not share
responsibility and could not be held accountable if the cargo is diverted en route or is delivered to an unauthorized end-user, or if the export licence is used for purposes other than intended. These problems will have to be addressed if brokers and shipping agents are to be controlled properly.

Import Licences

Systems for end-use certificates and import licences display similar problems to
export licences. For example, import licences may authorize transactions on the basis of an ‘estimated’ quantity of weapons – which may not always match the ‘actual’ quantity involved in the transaction. This problem is compounded when several separate deliveries may take place on the basis of one single import licence. Very often an import licence remains unused, or only partially used. A brokering company may issue a request for an import licence before signing a contract with a supplying company. Then, if no deal is made, the import licence is often not surrendered or officially withdrawn. This means there is no guarantee that other unauthorized transactions might not be carried out on the basis of the official document.

A particular problem in Belgium, but also other countries, has been the abuse of
officially issued import licences or certificates. For example, a company in Belgium can issue a request for the import of weapons from, say, Chile. The Chilean company obtains an export licence on the basis of the Belgian document. But when the weapons leave the Chilean border they are diverted to another destination for which no end-user certificate has been issued. The client in the recipient state has no authorization for the import of the weaponry, and even the original exporting company in Chile may not be aware that it is cooperating in an unauthorized or sanctions-breaking deal. This situation is possible because there is no efficient control of the end-use certificate by the exporting state (in this case Chile) to verify the actual arrival in the country that authorized the import of the weaponry (Belgium in this case).

Verifying the safe and proper arrival of an incoming weapons shipment is essential. Belgian authorities request exporting companies to provide, within three months after export, a document confirming the arrival of a cargo. Many companies provide only a Bill of Lading, but such a document merely confirms the dates of loading on a
particular plane, train, lorry or ship: it does not guarantee that the cargo was not
diverted to another destination. The use of a Global Positioning System (GPS) tracking mechanism could also be considered, in addition to a generalized system that would require exporting companies to provide an official document of port, airport or customs authorities from the recipient country2.

Transit Documents

Transit documents for the transport of military items or dual use goods on or through the territory of the European Union are not always used. Furthermore, although a standard document is being used, not all member-states apply the same procedures. A transit licence is granted on the basis of a copy of an export licence. Several copies of the same export licence could be used in different EU member-states to obtain several transit licences when only one export transaction is authorized. A dealer or broker can ship the same quantity of a certain type of weapon over and over again, using transit certificates from different member-states obtained through copies of the one export
licence. This seems to be a serious problem, and can be solved only if all the EU
customs services use a centralized database to report the export of a military cargo to a non-EU country.

Transport Documents

More frequent and thorough cross-checking of cargo manifests and air waybills against actual cargo is necessary, as is checking flight plans against flight directions, times and registration numbers. The lack of trained customs officers often makes this impossible. Moreover, the actual documents themselves, if filled out by experienced shipping agents and forwarding agents, are usually inadequate even for trained customs officers, because they contain too little relevant information. More effective management of arms cargoes requires record-keeping to reflect the differentiated roles in today’s complex transport networks. The sub-leasing of international overflight permissions means that one air carrier can use another carrier’s call sign, and this may confused air traffic control in some countries. Computerized tracking of small-arms cargoes using GPS may be expensive, but could prove well worth it – if individual passenger baggage can be tracked globally, surely there is no reason why a similar system could not be devised for arms cargoes.

Owners of an aircraft plead ignorance when their plane is used for illicit arms
deliveries; subcontractors such as aircrew members, charterers, forwarders and sales agents also plead ignorance. If the real title to the arms cargo, as well as the role of all the intermediaries, were recorded properly in the transport documents and cross-referenced in standardized ways to the commercial and customs documents, then
everyone involved in an arms delivery would have to accept written responsibility at the outset. This would make air traffic control and law enforcement officers work
together, and enable them to get much better information.

The IATA Cargo Agency Agreement may have to be modernized, as it assumes that the air cargo agents and forwarders are simply representatives of aircraft owners and operators, rather than independent businesses in their own right. If governments are to enable customs and police to check properly on the activities of shipping ‘agents’ or forwarders and their complex relationships with arms brokers, suppliers and carriers, the documents will have to be upgraded to reflect two distinct legal capacities – one of which is traditional agency, and the other of which is as a principal contractor.3

Surplus Stocks and Production

A new assault rifle can be bought for less than $50, provided one is buying in bulk. The same rifles can sell at as little as $6 apiece in some African countries. This is a
direct result of the end of the Cold War. Many states and manufacturers are eager to empty warehouses and arsenals that have now become superfluous. Nor is this capacity confined to small arms, as this study has shown. These surpluses provide middlemen with the potential to make large profits, provided they can ship the arms to the right place at the right time. It can cost as much to deliver the arms as it does to
purchase them. This means that if the unit cost to the end-users were to increase significantly, then less would be purchased.

Currently, donor governments are giving support only to specific weapons-collection programmes following peace agreements, and have begun to support regional initiatives to curb transfers. One important incentive here is the recently-agreed Moratorium on the Import, Export and Manufacture of Small Arms and Light Weapons of the Economic Community of West African States, which entails a three-year freeze on the import, export and manufacture within West Africa of small arms and light weapons. It is supported by the 33 states belonging to the Wassenaar Arrangement – and these states include most of the world’s major arms exporters.4 Laudable as such initiatives are, however, they will need to be broadened and deepened if they are to affect the
underlying economics of arms surpluses.

Governments must take proactive steps to increase support for programmes – not only for the removal of weapons in post-conflict situations, but for the destruction of
conventional arms, especially small arms, stocks and the decommissioning of production facilities wherever possible. For many less-developed states, and particularly those used during the Cold War for cheap production of small arms, such programmes would require international donor support and regional agreements to curb the inflows of arms.

Arms Embargoes

Arms brokers and shipping agents have been able to penetrate, with relative ease, most mandatory arms embargoes, as well as several voluntary ones, agreed by the UN Security Council. The case of Rwanda in this study shows that the international response to human rights and humanitarian crises has been too slow, and that when arms embargoes have been agreed they lack clarity and ‘teeth’. Monitoring and verification by law enforcers authorized to work in cooperation with relevant UN officials has been very weak. The practical meaning of the scope of Security Council resolutions has not been sufficiently well defined. Embargo decisions have not been translated promptly and clearly into national laws, and criminal sanctions for offenders have been weak or non-existent. The application of embargoes to allies within zones of conflict has not been addressed, and the publication of detailed reports to ensure public awareness and compliance has been all too infrequent.5

Two critical problems require further attention. Sometimes a perceived ‘unfairness’ of an embargo has arisen because both warring factions have committed serious abuses, including war crimes and crimes against humanity, albeit perhaps to different degrees. Modern warfare has usually claimed high civilian casualties. If this is to be countered, and the embargo is to have the moral commitment and legitimacy, an embargo must always be clearly defined in fundamental international humanitarian and human rights law. More work needs to be done by the United Nations and the international financial and transport authorities to define the responsibilities of banks, and of air, sea and road carriers and transport agents. Targeted transport bans and the freezing of bank
accounts are critical to the success of arms embargoes, but their impact on innocent civilians has to be mitigated if it cannot be avoided.

Tax Havens and Front Companies

Many tax havens claim that their financial success depends onprocedures to stamp out illegal money laundering, but arms brokers appear to prize the use of tax havens. A UK government Home Office report in 1988 found that an estimated 90,000 com-
panies were incorporated in UK offshore tax havens, most of them by non-residents.6 They are generally allowed to conduct business in relative secrecy without filing
public accounts, annual reports or publicly revealing the names of their beneficiaries. A particular problem, especially on the Island of Sark, has been the use of ‘nominee directors’ who know little or nothing about the companies they nominally direct. Non-resident companies are formed on the Isle of Man with directors in Sark in order to evade taxes. This system was used in the arms-brokering arrangements to the perpetrators of the Rwandan genocide in 1994, and in many other cases. The Home Office report estimates that such island companies hold around 5% of the global offshore tax-haven funds of $6 trillion – equivalent to just under half the GNP of the United Kingdom. However, UK customers in Jersey, for example, represent only 19% of the total. The corresponding figures for Guernsey are 15%, and 27% for the Isle of Man.

Other offshore tax-havens that have been used by arms brokering, shipping agents and cargo charter companies include the Bahamas, Bermuda, the Cayman Islands, Gibraltar, British Virgin Islands, Hong Kong and Singapore. Bermuda, the Cayman Islands and Hong Kong have much larger insurance and fund management businesses than the UK islands, and the latter have far fewer company registrations than the British Virgin Islands. Territories such as Andorra, Antilles, Cyprus, Ireland, Liberia, Liechtenstein, Luxembourg, Malta, Panama, Switzerland and the Turks and Caicos Islands also
compete for high levels of non-resident business, and have been exploited by brokers and traffickers of arms.

The Home Office reported that the UK offshore tax havens were improving their regulations to combat money laundering and related trafficking crime, but went on to state: ‘The struggle against financial crime, including money laundering, is not yet being convincingly won anywhere. In the UK and the Islands, as in many other jurisdictions, such crime remains too profitable.’7 The main problem in preventing offshore tax havens being used as staging posts in laundering chains, the Home Office argues, lies in the gaps in legislative powers and a lack of law-enforcement capacity that hinder international cooperation.

It might be a mistake to put all the blame on offshore tax havens. As a freelance pilot who lives in the UK Channel Islands and who flew arms to the exiled Rwandan forces and militia in April 1994 put it:

as far as I understand it, the banking laws in this country make it an ideal place for the trade to actually take place without anything physically happening. …The brokerage of these flights, the provision of aircraft for them, and the financial facilitation for them, tends to take place in the UK but the flights themselves do not originate within the UK or for that matter operate through the UK. 8

What About International Law and Standards?

The UN Group of Experts on the Problem of Ammunition and Explosives has argued that: ‘The legitimate trade, by definition, depends upon strict enforcement of existing laws and regulations. The illicit trade is dedicated to circumventing them.’ The Group’s emphasis on better law enforcement is understandable, but too many states have ‘existing laws’ that do not adequately define what is ‘legitimate trade’. Some Western and other governments now realize that national systems of legally controlling international arms transfers need to more consistently incorporate and uphold principles of international law in order to achieve greater harmonization and to reflect global realities. But how will such harmonization affect the control of brokers and shipping agents dealing in arms?

At a practical level, in order to ensure that arms brokers and traffickers do not simply move out of one state and establish themselves in another, less-regulated place, governments will need to press for the introduction of comparable legislation in as many countries as possible. But in order to achieve this, international coordination will have to rest on some common principles and standards.

Two elements are crucial for controlling arms brokering and trafficking agents: they must be required to register, and then they must be required to seek prior written
approval from their home authorities before engaging in any transaction. If the deal they are brokering or sending does not involve bringing the articles into their home territory, they should still be required to present to their home authorities the valid export and import documentation and other essential details of the arrangement, so that the authorities can ensure that it meets the state’s international obligations. This means that both the registration process and the approval of transactions require the use of normative standards. For example, in Canada officials are required to refuse a licence to deal in firearms if the applicant, within the previous five years, has been convicted of a violent crime, a breach of laws regulating the use of firearms and other weapons, or a drug offence, or if he or she has a history of violent behaviour.9 However, as long as a similar standard is not followed internationally, this simply allows dealers who do not meet such basic standards in one country to migrate to another with weaker registration criteria or no registration at all. The net result is to undermine the purpose of the law.

Whether a government authority approves of an international arms transaction or acts to prevent it often requires more complex judgements of an international character. In current discussions it is sometimes assumed that the illegal transfer of arms is
confined to instances where such attempts are carried out without the express approval of the governmental authorities in the territory or jurisdiction where the arms originate. While this is certainly included, the unlawful nature of arms transfers is also
applicable where the intended recipient is known to engage in serious violations of international law pertaining to the use of force, including international human rights and humanitarian law, even if the sending government has authorized the transfer.

Clearly, there is an ever-present risk that easy-to-conceal arms, even when exported to a supposedly legitimate customer, could subsequently be diverted by expert arms dealers and used unlawfully. This risk is greatest when the countries of intended
receipt or transit have weak systems of governance and inadequate or corrupt law enforcement. In such circumstances, the illicit character of the deal could only become manifest after the initial delivery when the authorized recipient on paper turns out to be: (a) a person or group unauthorized to use the arms in the recipient country; (b) a state agency whose very weak systems of control invites the diversion of the arms to users not mentioned on the original end-user certificate or explicitly agreed with the sender; or (c) an agency ‘authorized’ to use the arms, but which does so abusively,
deliberately, and in a manner which violates the basic principals of international law.

In 1996, the UN General Assembly agreed on Guidelines for International Arms Transfers. Through these Guidelines they adopted a definition of illicit arms trafficking to mean: ‘that international trade in conventional arms which is contrary to the laws of States and/or international law’. In cases where international law and the laws of states are inconsistent – for example if a state allows extra-judicial executions or enforced disappearances or rape by its armed forces in a situation of impunity – then it is the core values embodied in international law which take precedence. True, many governments ignore, or only pay lip service to, the latter part of the UN definition
regarding international law – but that is usually due to a general neglect of normative standards regarding the use and transfer of small arms, lack of serious legal work on the issue of small arms, as well as the failure of political leadership.

The International Law Commission, in its commentary on the obligations of states, has concluded that: ‘a State that knowingly supplies arms to another State for the purpose of assisting the latter to act in a manner inconsistent with its international obligations cannot escape responsibility for complicity in such illegal conduct.’10 This international customary law obligation reinforces an important part of international treaty law, such as the Geneva Conventions, where Common Article 1 requires all states to ‘respect and ensure respect’ for international humanitarian law. A state that deliberately permits an arms transfer to a destination, knowing the intended recipient is likely to use the arms for serious war crimes, is itself complicit in such acts.

A list of the most serious international crimes – which are more often than not crimes carried out using armed force – is now contained in the Statute of the International Criminal Court recently agreed in Rome.11 All states must take steps to ensure not only that perpetrators of such serious international crimes are brought to justice, but that each state has in place mechanisms to prevent its citizens from organizing the transfer of arms from its territory that would contribute to such crimes.

The principles agreed in the UN General Assembly regarding conventional arms transfers are important, but they are still too abstract to be used on their own to address the real world of arms dealers.12 A decision about whether an arms transfer is made – even if it is brokered internationally and complex international arrangements are made for its shipping – requires reference to more specific shared normative standards. With the advance of globalization, the need for making such standards more precise will
become greater. Today, however, there is only a limited international framework of agreements to enable consistent decisions based upon respect for international law.

International Negotiations to Limit Small Arms

Within the UN system there have been gradual moves to establish stricter standards for the national regulation of small arms and light weapons. Some governments
traditionally opposed to setting common standards to enhance compliance with international human rights and humanitarian law have slowed down this process. Initially, a Panel of Government Experts on Small Arms was established in April 1996. Its August 1997 report contained some wide-ranging recommendations that were
endorsed by the General Assembly in December 1997, but none were specific to
brokering.13

Without a radical shift in international public opinion, it would probably be more
realistic to expect groupings of like-minded states and intergovernmental bodies to begin the process of tackling the international arms brokering and shipping agents. The governments of Canada and Norway took an important step in this direction in July 1998 when they organized a meeting of like-minded states, but the problem of arms brokers was not specifically discussed.14 A follow-up meeting of such states in Oslo in December 1999 may focus more on this issue.

Also the European Union has been increasingly active. The EU Programme for Preventing and Combating Illicit Trafficking in Conventional Arms, adopted by the EU Council of Ministers in June 1997, requires members to ‘strengthen collective efforts to prevent and combat illicit trafficking’ and to take ‘concerted action to assist other countries’ to ‘strengthen, as appropriate, an adequate body of laws and administrative measures for regulating and monitoring effectively transfers of arms’ and to ‘provide an adequate number of trained police and customs officials’. The EU Joint Action on Small Arms, agreed in December 1998, enables financial and technical assistance to be provided to third countries for projects aimed at combating the spread and accumulation of small arms.15

Neither the EU Programme nor the EU Joint Action contains specific provisions
intended to control international brokering and shipping, although it could be argued that they contain some important provisions that could facilitate concerted action to control brokering activities. In particular, Article 3 (b) of the Joint Action commits EU member-states ‘to supply small arms only to governments (either directly or through duly licensed entities authorized to procure weapons on their behalf) in accordance with appropriate international and regional restrictive arms export criteria, as provided in particular in the EU Code of Conduct.’

The EU Code of Conduct on Arms Exports, agreed in June 1998, is perhaps the only internationally agreed normative framework pertaining to small arms and light
weapons which attempts to incorporate relevant aspects of international law. However, it has several fundamental weaknesses, and is not a legally binding treaty.16 It arose out of three years of lobbying by nongovernmental organizations and several Nobel Peace Laureates led by Dr Oscar Arias, who continue to press for the strengthening of the Code. 17 Nevertheless, the existing EU Code binds (politically) EU member-states to refuse arms export licences in cases where: ‘there is a clear risk that the proposed export might be used for internal repression’; where such exports ‘would prolong armed conflicts or aggravate existing tensions or conflicts in the country of final
destination’; and where the ‘exported goods might be diverted to an undesirable end user’. No mention is made of arms brokers, even though NGOs specifically called for provisions to address the problem. The EU governments will review the implementation of the Code annually, and this might prompt action to tackle arms brokers and trafficking agents.

More states may also commit themselves to implementing the EU Code even though they may not share inside information about export licence ‘denials’ which are notified confidentially amongst EU authorities. The Associated Members of the EU, as well as Canada, have already declared their support for the Code.18 Some of the principles in the Code were previously set out in a 1993 agreement by the Organization for Security and Co-operation in Europe (OSCE). 19 This organization has 54 member-states, most of which export small arms and related equipment. The OSCE could take a major step forward if it committed itself to the criteria for arms exports in the EU Code, and began developing concrete measures to implement its own principles.

Yet another important international agreement is the Wassenaar Arrangement involving all NATO and most ex-Soviet and Warsaw Pact states. Its purpose is to enable the exchange of information to prevent the proliferation of large weapons systems and sensitive technologies used in weapons of mass destruction, but there may be some common interest in addressing key issues relating to small arms, particularly as
regards excessive production and stocks. In December 1998, the Wassenaar Agreement plenary adopted a set of questions to help prevent ‘destabilising accumulations of convention weapons’. Respect for humanitarian law is not specifically mentioned, nor is the problem of third-country arms brokering and trafficking.20

To date, the only international treaty that has been established to control small arms is that of the Organization of American States (OAS). With US support for a Canadian and Mexican initiative, the OAS in November 1997 opened for signature the Inter-American Convention Against the Illicit Manufacturing and Trafficking in Firearms, Ammunition and Explosives and Other Related Materials. The OAS intends to implement the Convention using the Model Regulations agreed by the Inter-American Drug Abuse Control Commission. These measures are aimed at non-state criminals such as drug cartels and terrorists rather than at repressive governments, and their scope
excludes government-to-government transfers and domestic gun sales. However, the definition of small arms and light weapons in the Convention is broad, and all participating states will be required to exchange information on a variety of matters –
including ‘authorized producers, dealers, importers, exporters, and wherever possible, carriers of firearms, ammunition, explosives and related materials.’21

Other states have been studying these American initiatives. Again, however, they do not contain specific regulations for the control of international arms brokering and transport agents via third countries, which will considerably reduce the chances of combating illicit transfers.22

There is a reasonable chance that a provision to control arms brokers will be included in the forthcoming UN negotiations on a binding global treaty to control firearms. In mid-1997, the Commission on Crime Prevention and Criminal Justice of the UN
Economic and Social Council began work on developing a ‘Draft Protocol Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition and Other Related Materials’ (commonly referred to as the Firearms Protocol). It is intended to be supplementary to the UN Convention on Transnational Organized Crime. As a result of lobbying by NGOs, the Draft Protocol now contains a provision for the regulation of arms brokers. Governments are expected to sign the Convention by December 2000.

NGO efforts to get intergovernmental agendas to include specific policy measures to tackle arms brokering and forwarding are also beginning to have an impact. An International NGO Action Network on Small Arms (IANSA) was established in a series of meetings from late 1997, and culminated in a formal launch on 12 May 1999 in The Hague. In its founding policy document, IANSA specifically mentions the need to control arms brokering.23

Such lobbying has had a slight effect on the UN’s humanitarian work on small arms. In September 1999, the successor to the UN Panel, the UN Group of Government
Experts on Small Arms, produced a cautious follow-up report which did, however,
include a recommendation that measures taken by states ‘could [emphasis added]
include the use of authenticated end-user certificates, enhanced legal and enforcement measures as appropriate to control arms brokering activities, requirements to ensure that no re-transfer of small arms and light weapons takes place without prior authorisation of the original supplier state, and co-operation in the exchange of information on suspect financial activities.’24 Further initiatives may be taken in the buildup to the UN global conference on illicit trade in small arms and light weapons ‘in all its
aspects’ expected in year 2001. But there remains a need to focus on a clear set of policies for tackling arms brokering and shipping.

It is pointless to enact better laws and regulations unless governments can help each other to build up the capacity for monitoring and enforcement. Licensing authorities, customs, police and intelligence agencies all need attention. Governments will have to invest far greater resources in building up such capacity. The cost of such investment is likely to be small – in comparison with the loss of resources caused by violent crime and armed conflict, fuelled by the unlawful use of small arms that is made possible by illicit and unregulated arms trafficking.

Experience also shows that any efforts at building such capacity will flounder unless existing international standards for the conduct of law enforcement agencies are fully respected.25 Successful law enforcement requires the cooperation of wider civil society and local communities, especially in poor countries with large and porous borders. Countries with a persistent record of violent conflict and human rights abuse may
require international donor support for ‘security sector reform’ initiatives. If these
initiatives are to succeed, there must be a clear normative framework rooted in respect for human rights and humanitarian law.26

In a strong appeal for an integrated approach to tackling the causes of conflict in
Africa the UN Secretary-General has emphasized:

Identifying the sources of arms flows in Africa is critical to any effort to monitor or regulate this trade. Arms exporting countries have a responsibility to exercise restraint, especially with respect to the export of weapons into zones of conflict or tension in Africa. Particularly close attention needs to be paid to the role of private arms merchants in supplying weapons to areas of actual or potential conflict. The goal of public identification of international arms merchants in and their activities has proved elusive, but perhaps no other single initiative would do more to help combat the flow of illicit arms to Africa – a trade that is made possible largely by the secrecy that surrounds it. The Security Council should address itself to this issue as a matter of urgency.27

 

__________________

1    An ‘end-use certificate’ sets out the use of the items intended for transfer. A ‘end-user certificate’ is used to verify the recipient of a transfer. An ‘international import certificate’ is used to guarantee that the importer does not intend to divert, re-export or trans-ship imported material.
2    Transport companies in the United States rely on global positioning systems (GPS) to monitor munitions deliveries. At any given time, US shippers can determine the precise location of the container anywhere in the world. This system still depends on the integrity of the shippers who can alter the original cargo configuration along the way. But, if internationalized, it could be used in combination with physical checks by customs to create a more full-proof system of transporting legitimate arms cargoes.
3    Bert Rein, ‘Fitting Formats to Function’, Wiley, Rein & Fielding, US law firm, March 1999.
4    Moratorium on the Import, Export and Manufacture of Small Arms and Light Weapons, Economic Community of West African States, adopted 31 October 1998. Members of the Wassenaar Arrangement agreed a Code of Conduct on the implementation of the Moratorium in March 1999.
5    See for example, President of the Security Council, Note on the Work of the Sanctions Committees, 29 January 1999 S/1999/92. The UN Security Council passed a resolution on 16 September 1998 urging member-states to punish those who had sold weapons to countries under UN embargo, especially those in Africa.
6    Andrew Edwards, Review of Financial Regulation in the Crown Dependencies: A Report, Part 1, 24 October 1998.
7    Ibid., page xxviii.
8    Interview conducted for Carlton Television, June 1995. The pilot in this interview claims he was tricked into the flight.
9    Firearms Act, Canada.
10    International Law Commission, Commentary on Article 27 of the Draft Articles on the Origin of State Responsibility, ILC Yearbook 1978, pages 99–105.
11    International Criminal Court, Rome Statute, 1998.
12    UN Disarmament Commission Guidelines for International Transfers, May 1996. The main principles underlying the guidelines for states to control arms transfers are: the right to self defence; the sovereign equality of all states; non-interference in the internal affairs of states; the obligation to refrain from the threat of the use of force against the territorial integrity or political independence of any state; the settlement of disputes by peaceful means; respect for human rights; and the right of self determination of all peoples, taking into account their particular situation under
colonial rule or other forms of alien domination.
13    UN Secretary-General, Report of the Panel of Government Experts on Small Arms, General
Assembly, A/52/298, 27 August 1997.
14    An International Agenda on Small Arms and Light Weapons: Elements of a Common Understanding, the Oslo Meeting on Small Arms, 13-14 July 1998, organized jointly by the Canadian and Norwegian governments.
15    The EU Joint Action is a binding agreement adopted on17 December 1998 by the Council on the basis of Article J-3 of the Treaty on European Union. It applies only to ‘small arms and accessories specially designed for military use’ (not to pistols, revolvers, hunting rifles etc) and to ‘man or crew portable light weapons’. The categories of weapons are contained in the Annex.
16    Six weaknesses in the EU Code are (a) its ambiguous language regarding compliance with international humanitarian law, whereby EU member states merely have to ‘take into account’ breaches of the Geneva Conventions, rather than a stipulation that no arms export licences will be issued where the recipient commits grave breaches; (b) its failure to require EU governments to submit ‘sensitive’ arms export licence applications for parliamentary scrutiny; (c) the lack of a provision in the Code requiring EU governments to report, regularly and comprehensively, to the public on arms export; (d) the failure to include third-country arms brokering in all EU arms export laws; (e) the failure to agree a provision requiring multilateral consultations and cooperation when an arms export licence is denied by one state, in order to ensure that other states do not then approve a similar licence to the same destination (i.e. to stop ‘undercutting’).
17    The 1996 Nobel Peace Laureates’ Code of Conduct on Arms Transfers is more firmly rooted in international law and was inspired by the Code produced by some EU NGOs and a few US counterparts. The campaign to promote the Nobel Code is coordinated by the Arias Foundation in San Jose, Costa Rica. NGOs coordinating action in the EU since 1995 to promote a strict and binding Code of Conduct have included Amnesty International (International Secretariat and
national sections in the EU), the British American Security Information Council, Oxfam, and Saferworld. By 1997, over 1,000 NGOs and parliamentarians had signed up in 1996 to support a stronger EU Code based on international law. This led to the EU governments agreeing to a Code (albeit a weaker one)in June 1998.

18    In March 1999, the International Relations Committee of the US House of Representatives voiced support for a Code of Conduct promoted by Republican Sam Gejdenson that would require the President to begin negotiations with allied states to block weapons exports to governments that are not democratically elected, abuse human rights, are engaged in illegal acts of
aggression or do not participate in the UN Register of Conventional Arms. Republican Representative Cynthia McKinny has promoted a stronger Code stipulating tough unilateral action by the US when recipient governments fail to meet such basic standards.
19    Principles Governing Conventional Arms Transfers, Organization for Security and Co-operation in Europe, 1993.
20    Wassenaar Arrangement, Elements for Objective Analysis and Advice Concerning Potentially Destablising Accumulations of Conventional Weapons, Vienna, 3 December 1998 WA PLM (98) RU 2 Revised. Although this document mentions compliance with ‘internationally-recognised human rights’, it fails to encourage joint action to prevent the proliferation of small arms in the context of gross human rights abuses and violations of humanitarian law.

21    Article 1(1) (b) of the Convention.
22    Susanna Dyer & Geraldine O’Callaghan, ‘One Size Fits All? Prospects for a Global Convention on Illicit Trafficking by 2000’, British American Security Information Council, Research Report 99.2, 1999.
23    Founding Document, The International Action Network on Small Arms, IANSA, The Hague, May 1999.
24    UN Secretary-General, Report of the Group of Governmental Experts on Small Arms, A/54/258, September 1999.
25    The term law enforcement official has not been well understood by those working to control small arms – it includes all officers of the law, whether appointed or elected, who exercise police powers, especially the powers of arrest and detention. In most situations of internal armed conflict, such ‘officials’ would include military and other security personnel where they exercise such powers. There are at least ten UN agreements establishing human rights standards for law enforcement personnel, for example: the UN Code for Law Enforcement Officials, the UN Guidelines for the effective implementation of the Code of Conduct for Law Enforcement Officials, and the UN Principle on the Use of Force and Firearms. The first principle set out in the UN Code is that ‘every law enforcement agency should be representative of and responsive and accountable to the community as a whole.’
26    See, for example, Brian Wood, ‘Security and Policing and the Problem of Small Arms’, in Abdul Musah, ed., Over a Barrel: Light Weapons and Human Rights in the Commonwealth (New Delhi: Commonwealth Human Rights Initiative, 1999).
27    Report of the Secretary General on the Work of the Organization, The Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa, United Nations General Assembly and Security Council, 13 April 1998 S/1998/318. The US government has since made several strong statements of a similar nature: see Statement of the US Secretary of State at UN Security Council Ministerial meeting on Africa, 24 September 1998 – ‘All of us have it in our power to do something…together we should move now to curb arms transfers to zones of conflict in Africa’; and ‘Arms and Conflict in Africa’, US Bureau of Intelligence and Research, Bureau of Public Affairs, July 1999, where the US government took the unprecedented step of naming several East African air-cargo carriers for transporting weapons and military cargo into eastern Congo-Kinshasa, including Sky Air, Air Alexander International, Busy Bee, Planetair and United Airlines. (The latter has no relationship to the US-based airline United Airlines.)

__________________

Preface / Acknowledgments / Introduction / Chapter 1 / Chapter 2 / Chapter 3 / Chapter 4 / Chapter 5 / Chapter 6 / Chapter 7 / Chapter 8 / Chapter 9 / Chapter 10 / Chapter 11

Next...



END OF DOCUMENT
25/11/1999 - NISAT