The Arms Fixers

Chapter 11

An Agenda for Change:

Internationally Harmonized Controls on Arms
Brokering and Transport Agents

If governments want to make good on all the promises they have made in
international agreements, and if they are serious about wanting to tackle illicit and unregulated trafficking in small arms, then they will have to design a legal system that can close the gaps between national systems. The solution is to remove the grey zones that lie outside the reach of today’s national laws. For there to be an effective legal and regulatory system, each government will have to set up a complementary mechanism that covers the arms brokering and trafficking activities of:

• its own nationals and passport-holders, wherever located;
• all foreign nationals who are permanently resident in the country; and;
• all companies which are incorporated or registered in that country.

When arms brokers and transport agents serve illegitimate customers, this usually takes place through third countries. For there to be effective regulation, national
legislation with an extraterritorial dimension cannot be avoided. Without tackling the third (and fourth, and fifth…) country loophole, any attempt to control arms brokers and traffickers is bound to fail.

The Swedish Approach – A First Step

An immediate first step for international agreement could be for each state to adopt a strong version of the Swedish practice. Provisions from similar laws, such as those in Norway and the Netherlands, could be added to strengthen the agreement. This would mean that arms brokers and traffickers domiciled in any of those states party to the agreement would be covered by the national laws and regulations where they pay taxes and where they are resident.

First, they would have to obtain official written permission to operate; then each proposed transaction would be subject to case-by-case consideration before a licence could be granted. The criteria used for considering the registration of bona fide dealers would have to be set at a high level, perhaps using a variation of the Canadian firearms law. The criteria used for considering each transaction would be those contained in the EU Code of Conduct, the EU Joint Action and other relevant international agreements. These criteria would also apply in cases where the proposed brokering and trafficking operations were to be conducted abroad.

The ‘home’ government, the ‘third country’ government and the ‘recipient’ government would need to consult each other about the proposed deal, and issue relevant documents to each other if the deal was approved. Clearly, the more states joining the agreement, the more effective it would be. All the same, unscrupulous brokers and traffickers would still be able to operate out of tax havens and irresponsible states.

Developing the US Approach

A bolder approach would be for all states to adopt a more coherent version of the US law on arms brokers and traffickers (traffickers are included in the US definition of brokers). This law would operate in a similar way to the Swedish one. First, bona fide operators would be registered. Secondly, each transaction would be considered on its merits, on the basis of internationally agreedcriteria. Other governments affected by the proposed deal would be consulted.

This approach would be more consistent and comprehensive, because it would cover the arms brokering and trafficking activities of all citizens at home and abroad,
regardless of their shifting residences or company registrations. Such a law, if accompanied by criminal sanctions, would act as a stronger deterrent to those arms brokers and traffickers who migrate from country to country to escape proper regulation.

Some weaknesses in the US law would, however, need to be addressed:

• exemptions for NATO or other groupings could not apply;
• internationally agreed criteria for properly considering permits and licences would have to be made explicit and binding; and;
• transparent reporting requirements would need to be put in place.

The highest standards available should be used to plug the gaps. Some provisions from the laws and guidelines of other states could help define the criteria and scope of an international agreement based on the US model. Some text consistent with international law from the EU Code and Joint Action, and equivalent language from US arms control legislation,¹ could be used to reach agreement on the best criteria for approving licences. The draft South African provisions to control brokering of firearms and the new law to control the export of military services from South Africa could also provide concepts helpful in defining the scope of the agreement. The success of the agreement would depend not only on design, but on its implementation at the national level and on law enforcement. If loopholes or weaknesses remained at the national level, of course arms brokers and traffickers would exploit them.

Proposals for a Framework Agreement

The following are more detailed measures that could merit inclusion in a framework agreement amongst participating states to control arms brokers and traffickers:

Adopt a Comprehensive List of Activities to be Controlled

• Control the buying, selling, negotiation, promotion, advertising, marketing and transport of all military and paramilitary goods and services.
• Control activities that mediate or facilitate such transfers.
• Include in the scope of these controls all types of major conventional weaponry, all types of small arms and light weapons, law-enforcement weaponry, paramilitary equipment, military and paramilitary training equipment and services, as well as ammunition, spare parts and accessories for the above.

Prohibit brokering and trafficking of military, security and police equipment and services whose sole or primary practical use results in serious violations of
humanitarian or international human rights law.²

• Keep the list of such items and activities under regular international and national review.

Register all Bona Fide Arms Brokering and Transport Agents

• Require (a) any citizen or national (irrespective of where s/he is domiciled), (b) resident for taxpaying purposes, or (c) registered company, to apply for a permit if they wish to act as a broker or trafficker in arms.
• Prohibit more than one country of registration. If an applicant has citizenship and pays taxes in more than one state, registration shall be in the country where the
  applicant normally lives and works and holds citizenship.
• Exclude from the register anyone convicted of serious criminal offences, such as fraud, acts of violence, and possession of prohibited arms, as well as deliberate
  attempts to mislead the registering and licensing authorities dealing with arms control.
• Prohibit offenders convicted of violating these laws and regulations from any further involvement in arms brokering and trafficking, and inform other states party to this agreement, so that offenders do not merely relocate to another jurisdiction.
• Compile and publish a national list of ‘registered’ agents after cross-checking of the persons on the list by the authorities of states participating in the agreement, so as to avoid discrepancies.
• Require all companies, trusts and individuals on the register of arms brokers and traffickers to present detailed audited accounts to their national registration authorities and to publish annual accounts relating to their arms dealings, showing the names of their beneficiaries.

License Each Transaction and Delivery on a Case-by-Case Basis

• Require all registered brokers and traffickers to apply for a licence if they wish to facilitate or arrange an arms transaction or delivery, wherever that may be
  conducted, where they will receive some form of remuneration.
• Ensure that registered arms brokers and traffickers apply for approval from the
  national authorities where they are registered.
• Assess the legitimacy of the intended receiver and sender of the arms in each case to ensure the deal is not likely to contribute to violations of international human rights and humanitarian law, or to contraventions of other international obligations, or be diverted.
• Require all applicants for licences to provide detailed information on the nature and source of the goods and services to be transferred, the end-user, the means and route of transport, all of the sub-contractors involved and the financial/insurance arrangements.
• Require all applicants to submit to their home government authorities the relevant foreign export, import and transit certificates for each transaction or delivery, so that these may be authenticated prior to any decision to issue a licence to the
  broker or trafficker.
• Decide whether a licence should be issued only after all the above steps have been taken, and after consultations with other states directly affected by the proposed transaction and delivery.
• Abolish the system of ‘general’ or ‘open’ licences, especially to an arms broker, and replace it with a more rigorous system of licences specific to each transaction and delivery. Prohibit any re-exporting using the same licence. Standardize
  licences so that each has indelible markings to guard against forgeries.
• Verify the safe and proper arrival of an incoming or outgoing weapons shipment, so as to guard against diversion.

Provide for Criminal Sanctions and Effective Arms Embargoes

• Establish a system of criminal sanctions and prosecute anyone who deliberately engages in brokering or trafficking of arms without first registering and obtaining a licence from their home government.
• Promulgate effective laws and procedures so that arms embargoes determined in the United Nations are promptly and comprehensively incorporated into national law and publicized.
• Provide specific assistance to the United Nations to help monitor the implementation of arms embargoes.
• Establish severe penalties for all nationals, residents and registered companies
  involved in the brokerage or trafficking of arms to an embargoed destination or
  recipient, including where the supply is conducted through third countries.
• Define embargoed recipients carefully, so that if they are not in control of a state’s territory, the exact ports and areas under their control can be embargoed. In such a situation, keep the embargoed ports and areas under frequent review so that loopholes are not created for brokers and traffickers to exploit if the embargoed
  recipients have re-located to different territory.
• Help the United Nations to develop a system of well-targeted transport and
  financial sanctions to reinforce arms embargoes, and ensure that arms brokers and traffickers are included in such sanctions.

Increase the Capacity of Customs and Police to Investigate

• Improve standards for the submission and recording of information on all customs, air traffic and accompanying commercial documentation for easy cross-checking.
• Require traffickers to submit accurate and detailed information describing the cargo, its ownership, who is sending and receiving it, details of the vessel or carrier and its owners and operators, as well as the names and background details of all sub-contracting parties involved in the purchase, storage and delivery, including the sub-leasing of international overflight permissions.
• Provide customs officials, air-traffic controllers and port police with advanced warning of the departure, transit and arrival of arms cargoes, so as to guard against diversion.
• Provide customs and port police with sufficient resources to make routine checks of cargo manifests against actual cargo, as well as flight plans against flight directions, times and registration numbers of carriers.
• Institute a more robust regulatory regime at the airports and ports where arms
  cargoes are known to originate or pass through.
• Empower customs and port police to inspect physical cargoes and to question members of crew. Check information and documentation with that submitted to their home-country authorities.
• Establish an international fund specifically to support the training and equipping of customs officers, air traffic inspectors and port police, for example with x-ray equipment for containers. Consider developing satellite and computer technologies to monitor the movement of such cargoes.

Devise a System of Common End-Use Certificates and Monitoring

• Actively promote the establishment of common end-use certificates with indelible markings to guard against fraud.
• Harmonize requirements for information about end-use so that sufficient information is known about the person or agency intending to receive and use the items.
• Negotiate common procedures for reporting on end uses, and establish a system of inspections.
• Stipulate, in writing on all export licences and end-use certificates, that if the arms supplied are subsequently misused for serious violations of international human rights and humanitarian law, the contract/s will be rendered null and void. In such circumstances, no further deliveries of that type of good or service, or spare parts, maintenance or training, will be permitted until appropriate action has been taken to bring the perpetrators to justice.

Exchange Information on Illicit Arms Brokers and Traffickers

• Improve the sharing of information on illicit arms brokers and traffickers by
  allocating resources to specific projects of Interpol and the World Customs Union.
• Cooperate in information gathering with relevant UN agencies, reputable NGOs and individual researchers who are able to collect field data and anecdotal accounts from local witnesses with credible evidence showing that cargoes could be illicit arms traffic.
• Help fund a pooling arrangement amongst reputable NGOs to establish a central database of illicit transfers to assist in improving independent research, building public awareness and providing crisis early warning.

Encourage Maximum Cooperation by Like-Minded States

• Encourage as many states as possible to support an agreement to regulate arms brokers and traffickers.
• Focus initial efforts on arms exporting states that accept the need for harmonization of standards for conventional arms control, such as those in the European Union, the EU Associated Countries, prospective EU member-states and NATO allies. EU states could adopt a joint action, binding under the Common Foreign and Security Policy.
• Promote the need to control arms brokers and traffickers in all other relevant intergovernmental bodies, including the Wassenaar Arrangement, the Economic Community of West African States, the Southern African Development Community, the Organization of American States, the Organization for Security and Co-operation in Europe, the Association of South East Asian Nations, the Arab League and the Organisation of African Unity. Promote the adoption of harmonized control agreements on arms brokers and shippers in as many states as possible. Raise it in development contexts such as the Lomé negotiation forum.
• Support programmes, not only for the removal of weapons in post-conflict
  situations, but for the destruction of surplus conventional arms, especially small arms, and the decommissioning of redundant production facilities left over from the Cold War.
• Encourage international organizations and associations affected by unregulated arms brokering and trafficking, such as those in the international transport industry and the authorities of tax havens, to formulate proposals for action.
• Ultimately aim to establish an international convention or protocol on the control of arms brokering and transport agents.

__________________

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

Main...

END OF DOCUMENT
25/11/1999 - NISAT