Presentation to the Consultative Committee on the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials

Washington, May 3, 2002

Tamar Gabelnick
Director, Arms Sales Monitoring Project, Federation of American Scientists

I’d like to thank the President of the Consultative Committee for inviting non-governmental organizations to present their views and information in this forum.  I will be talking about some of the ways that governments can build on the UN Conference Program of Action and the Inter-American Convention on Illicit Trafficking of Firearms to further reduce the illegal sales of small arms.  As a representative of an American NGO, I will also briefly discuss what I know about U.S. government efforts to implement the Program of Action and Inter-American Convention.

The UN Program of Action and the Inter-American Convention provide a number of ways to reduce the illicit movement of arms from state to state, and if they were fully implemented, this would surely be a great step toward taking small arms out of the hands of criminals, terrorists, and insurgents.  My primary concern about the documents is that they tend to treat the illicit trade as if it existed in a vacuum, when in reality, there is often a short link between government-authorized sales and the illicit trade.  Small arms exported to states with weak border controls, poor stockpile security, or even corrupt government agents can quickly end up in the black market.  Most of the illicit trade starts in the legal market, and governments concerned with reducing illicit sales also need to consider the sales they approve as risks for eventual diversion, theft, or misuse. 

Take a recently exposed story of 3,000 AK-47s that made their way from Nicaragua to armed insurgents in Colombia.  According to press reports, the Nicaraguan police made a sale to Guatemalan-based Israeli businessmen claiming to represent the government of Panama. Instead, they diverted the weapons to Colombia, where they armed terrorist organizations. Nicaraguan authorities were making what they thought was a legal sale, but the link between the government-authorized sale and the black market was a short one.  Colombian rebels are also receiving shipments of weapons left over from the Central American wars of the 1980s supplied by the United States and Soviet Union.  Again, if governments are interested in preventing the acquisition of small arms by groups that endanger their security or the lives of their citizens, they need to place additional controls of the sale of weapons today, such as ensuring that brokers fall under the same rules as other traders and developing a comprehensive marking and tracing regime that could help states trace the movement of arms all the way back to their source.

In addition, if governments want to address all dimensions of the illegal small arms trade, they need to look even further outside the box.  The UN Disarmament Commission defines the illicit trade in weapons as:  “That trade in conventional arms which is contrary to the laws of states and/or international law.”  This means that even some government-authorized transfers have to be considered illegal if they violate international law.  The most obvious example is state-approved arms sales to countries or non-state actors subject to a UN arms embargo. But there are other cases, which I will say more about later.

Finally, the Program of Action also falls short in a way the Inter-American Convention does not in that it simply lays out suggested actions for governments without creating a mandate for negotiation of a legally binding treaty.  While I don’t doubt states’ good intentions about following up on the Program of Action, without a legal commitment to undertake specific actions, there is a great risk that the goodwill effort made in New York will not develop into concrete behavioral changes.  Already, it is clear that now that the momentum leading up the UN Conference passed, and new priorities have come along, there seems to be a lot less attention being paid to the issue.  At least speaking for the United States, the war against terrorism appears to have replaced much of the work previously done on small arms. 

So what are we suggesting to supplement the Inter-American Convention and UN Program of Action?  As a member of the International Action Network on Small Arms, a network of over 300 NGOs worldwide interested in stemming the proliferation and misuse of small arms and light weapons, the Federation of American Scientists joins with them in advocating for the adoption of three new international conventions: marking/tracing, brokering, and criteria for international arms transfers.

Marking and Tracing Convention

The Firearms Protocol to the UN Convention on Transnational Organized Crime, along with the OAS Convention on the Illicit Trade in Small Arms focus largely on marking and tracing.  But they stop short of creating a system that would allow states to effectively and consistently trace the movement of weapons from use in crime or conflict all the way back to their original sale.  The conventions would therefore be much more effective if supplemented by another convention establishing a marking and tracing regime.  This is an initiative originally advocated by the French and Swiss governments and is now being promoted by a Belgian NGO called GRIP, or the Research Group for International Peace and Security.  In order to make sure that all weapons legally produced are adequately marked and to ensure the capacity for governments to trace seized weapons, a convention would need to require:

-        a universal system for permanently marking weapons at time of manufacture (preferably also including both the manufacturer and the importer’s identification and including a second marking with a simpler code laser-marked on an essential, hard to access piece of the weapon)

-        an international register including the item description, marked number, manufacturer, and complete data on each and every transfer of small arms (the goal is to allow governments to determine more easily when illicitly traded weapons moved into the black market, help determine the routes being used by traffickers, discourage the illicit trade, and to provide early warning about potential conflicts based on weapons build-ups)

-        creation of an international body, preferably under the UN, that would maintain the register, verify markings of newly manufactured weapons, check on national stocks to ensure compliance, initiate inquiries in case of transgressions.

The convention would apply to all small arms/light weapons and ammunition, both military and civilian, and to all parts of the trade – commercial and government-to-government.

Brokering Convention

As must be clear to everyone in the room, the problem of arms traders acting outside government control is a problem for both governments and civil society alike.  Arms brokers facilitate the movement from government-authorized sales to illicit markets, often buying up weapons from past conflicts – weapons that usually were supplied by governments to state or non-state actors – and moving them to wherever the latest conflict is raging, from Colombia to the Congo. Brokers also play a crucial role in helping countries under UN arms embargoes receive weapons from careless or unscrupulous governments. Creating a regime that would place uniform rules on the operations of brokers would therefore help governments interested in fighting illicit small arms sales.  And because it’s so easy for brokers to move their business from one location to another, a universal system of controls is critical. Only 12 countries have controls over the activities of brokers, and even among these states, these provisions range in scope and enforceability.

We therefore support a model convention developed by the Fund for Peace that would create these global rules under which brokers would have to operate.  The convention would require states to license brokers and provide licenses for each transaction.  It would provide incentives for compliance, criminal penalties for offenders, and mechanisms for improved international cooperation. It also enlists the help of market forces, specifically the banking, insurance and manufacturing industries, into the fight against illicit trafficking in arms.

Many governments have expressed support for this idea, and in September 2001, the EU Parliament called on member states to promote the adoption of a convention on brokering.

Framework Convention on International Arms Transfers

Earlier I mentioned that some government-authorized sales should be considered illegal because they violate international law.  I mentioned the case of state-approved arms sales to countries under UN arms embargoes.  Likewise, small arms exports that violate states’ obligations under other international treaties - such as the Convention on Certain Conventional Weapons or the Landmines Treaty - are also obviously illegal.

Beyond these express limitations on states’ freedom to transfer small arms and light weapons, there are also indirect limits on exports based on the use of the weapons.  According to the International Law Commission’s Draft Articles on State Responsibility, a state that aids another state to commit an international crime is internationally responsible for that action.  If I were to hand a gun to someone about to commit murder, I could be considered an accomplice to that crime.  And so it is with international weapons transfers.  If a state sells weapons where it is clear – from the state’s past behaviour or the present political situation – that the weapons could be used to violate the UN’s rules on non-aggression or non-intervention; the Human Rights Covenants, or the Geneva Conventions on the laws of war, then the exporting state shares the responsibility for the misuse of those weapons.        

Article 1 of the Geneva Conventions on the laws of war – which requires states to “respect and ensure respect” for its provisions – reinforces the notion that states must not sell arms that would be used to violate the Conventions. The norm of state responsibility for the use of its exported weapons has also been enshrined in many states’ national laws and has been included in regional agreements such as the EU Code of Conduct and the OSCE Document on Small Arms.  Paragraph 11 of the UN Program of Action on Small Arms also calls on States “to assess applications for export authorisations according to strict national regulations and procedures that cover all small arms and light weapons and are consistent with States' existing responsibilities under relevant international law.”

A group of NGOs, led by the Arias Foundation for Peace and Human Progress in Costa Rica, are promoting a draft convention that would codify these principles of state responsibility for arms transfers.  This Framework Convention on International Arms Transfers would:

-        recall states’ obligations to respect clear commitments not to transfer arms in violation of UN embargoes, the Convention on Certain Conventional Weapons, the Landmines Treaty, or any other convention to which states are parties that clearly prohibit certain weapons transfers

-        prohibit the transfers of weapons where there is a clear risk that the weapons would be used to commit serious abuses of human rights; serious violations of humanitarian law; acts of genocide or crimes against humanity; threats to, or breaches of, the peace; or interference in the internal affairs of another state.

_-         it would also encourage (though not require) states to avoid arms transfers where the weapons could lead to high levels of crime, regional instability, or diversion of scarce resources from development needs

If it’s helpful to have a specific situation in mind, think of the arms sales that former Peruvian President Alberto Fujimori was accused of making to rebels in Colombia.  Such sales clearly violate the UN’s prohibition on interference in the internal affairs of another state, and would therefore have been considered illegal under such a framework.  The arms transfers would have also been prohibited under this type of convention because of the clear risk that the rebels would use the weapons to violate human rights and humanitarian law.

In September, 2001, the EU Parliament called on Member States to:  “Promote the adoption of strict legally binding criteria, based on States’ existing commitments under international human rights standards and international humanitarian law, on arms transfers, in the form of a Framework Convention on International Arms Transfers.”

We call on this body to begin thinking about the definition of what is legal and illegal in international arms sales and to consider adopting a similar call to adopt an international convention along these lines.

U.S. Government Activities

CICAD/Inter-American Convention

While almost all of the CICAD Model Regulations have been implemented and U.S. laws and practice complies for the most part with the Inter-American Convention, the U.S. has still not ratified the Convention nor fully complied with the Model Regulations.  On the Model Regulations, the main lapse is that the U.S. is not maintaining a record of the exact imports and exports of small arms that would facilitate the tracing of weapons.  As for the Inter-American Convention, as of last summer, the Bush administration’s list of conventions for Senate action did not place high priority on ratification of the Inter-American Convention.  The Federation of American Scientists is working on a report that demonstrates how simple it would be for the U.S. to ratify, given the few changes it would result in for U.S. laws and practices, and yet how crucial it is for the hemisphere to have that level of U.S. commitment to the Convention.

Implementation of UN Program of Action

The news is not much better in terms of implementation of the UN Program of Action.  While the administration pledged its intention to honor the political agreement as if it were legally binding, the tragic events of September 11^th seem to have sapped the energy from any plans to actively follow through.  It is difficult for us in the NGO community to know about developments, however, because the lines of communication that were fairly wide open in the lead up to the UN Conference have now stopped.  From what we hear, there has only been one meeting of the inter-agency committee that would coordinate work on small arms within the U.S. government, and that was in April  It appears the administration is placing the emphasis on destruction of small arms in post-conflict sites.  Though at the same time the U.S. is providing new supplies of small arms into conflict areas – Georgia, the Philippines, Colombia – that will also need to be mopped up after the fighting.  A bill introduced by Senator Feinstein would encourage the administration to follow through with the commitments undertaken in New York.