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Small Arms Transfer Control Measures and the Arms Trade Treaty

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A Project of the Graduate Institute of International and Development Studies, Geneva Small Arms Transfer Control Measures and the Arms Trade Treaty A Small Arms Survey Review (2007–10) Small Arms Transfer Control Measures and the Arms Trade Treaty A Small Arms Survey Review (2007–10) About the Small Arms Survey The Small Arms Survey is an independent research project located at the Graduate Institute of International and Develop- ment Studies in Geneva, Switzerland. It serves as the principal source of public information on all aspects of small arms and armed violence and as a resource centre for governments, policy-makers, researchers, and activists. The project has an international staff with expertise in security studies, political science, law, economics, development studies, sociology, and criminology, and collaborates with a network of partners in more than 50 countries. Small Arms Survey Graduate Institute of International and Development Studies 47 Avenue Blanc 1202 Geneva Switzerland t +41 22 908 5777 f +41 22 732 2738 e [email protected] w www.smallarmssurvey.org Cover photograph: Alexandre Meneghini/AP Small Arms Transfer Control Measures and the Arms Trade Treaty A Small Arms Survey Review (2007–10) Back to Basics: Transfer Controls in Global Perspective (from Small Arms Survey 2007: Guns and the City, Chapter 4: pp. 116–43) .............................................................................................. 5 Arsenals Adrift: Arms and Ammunition Diversion (from Small Arms Survey 2008: Risk and Resilience, Chapter 2: pp. 41–75) ............................................................................................. 33 Who’s Buying? End-user Certification (from Small Arms Survey 2008: Risk and Resilience, Chapter 5: pp. 154–81) .......................................................................................... 67 Devils in Diversity: Export Controls for Military Small Arms (from Small Arms Survey 2009: Shadows of War, Chapter 2: pp. 60–105) .................................................................................................. 95 Controlling Air Transport: Practice, Options, and Challenges (from Small Arms Survey 2010: Gangs, Groups, and Guns, Chapter 2: pp. 40–67) ......................................................................... 141 COPYRIGHT Published in Switzerland by the Small Arms Survey © Small Arms Survey, Graduate Institute of International and Development Studies, Geneva 2012 First published in February 2012 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of the Small Arms Survey, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Publications Manager, Small Arms Survey, at the address below. Small Arms Survey Graduate Institute of International and Development Studies 47 Avenue Blanc 1202 Geneva Switzerland Copyedited by Tania Inowlocki, Michael James, and Alex Potter Proofread by Donald Strachan Cartography by Jillian Luff, MAPgrafix Typeset by Richard Jones ([email protected]), Exile: Design & Editorial Services Printed by Total Concept Graphics in New York ISBN 978-2-9700771-4-5 PREFACE In July 2012, UN member states will meet to negotiate a legally binding international instrument governing the transfer of conventional arms: the Arms Trade Treaty (ATT). The ATT initiative represents an important and timely step in the global struggle against illicit arms transfers and signifies that the issue of arms transfer controls has risen to the top of the UN agenda. The Small Arms Survey has conducted extensive research and analysis of international transfer controls governing the export, import, transit, and transshipment of small arms, light weapons, and their ammunition from, to, or across national territory. As a contribution to the ATT discussions, this volume compiles several chapters from the Small Arms Survey’s flagship publication—the annual Small Arms Survey—that explore international transfer controls and diver- sion issues. These include: • Back to Basics: Transfer Controls in Global Perspective (from Small Arms Survey 2007: Guns and the City, Chapter 4) • Arsenals Adrift: Arms and Ammunition Diversion (from Small Arms Survey 2008: Risk and Resilience, Chapter 2) • Who’s Buying? End-user Certification (from Small Arms Survey 2008: Risk and Resilience, Chapter 5) • Devils in Diversity: Export Controls for Military Small Arms (from Small Arms Survey 2009: Shadows of War, Chapter 2) • Controlling Air Transport: Practice, Options, and Challenges (from Small Arms Survey 2010: Gangs, Groups, and Guns, Chapter 2) This compilation is intended to help inform the ATT discussions by illustrating some of the strengths and weak- nesses in the current export control regime, as well as to highlight some options for improvement. In brief, the Survey’s findings are that small arms control is often weakest where the jurisdiction of one state ends and that of another begins. Weapons shipments can be diverted to unauthorized recipients while en route to a declared destina- tion, or even after they reach the intended end user. Diversion is one problem, irresponsible export practices another. Transparency, which can help bolster confidence in national transfer policies, remains patchy worldwide despite some improvements. Measures serving to prevent and detect the diversion of small arms shipments include end-user certification and verification as well as post-shipment controls designed to assess compliance with export licence conditions. Other elements of effective and responsible transfer control systems include transparent licensing criteria reflecting the state’s international obligations and commitments, the sharing of licensing decisions across government agencies, cooperation among the countries of export, import, and transit, and effective national mechanisms for the investigation, prosecution, and punishment of transfer control violations. The ATT presents an opportunity to establish clearer guidance on arms export licensing and post-shipment follow- up as well as to improve transparency with respect to export licensing decisions. It is hoped that this volume will serve to help inform the deliberations on this complex issue. —Keith Krause, Programme Director 4 SMALL ARMS TRANSFER CONTROL MEASURES AND THE ARMS TRADE TREATY Child's drawing with Arabic script: ‘Janjaweed and soldiers in West Sudan and other areas.’ © Human Rights Watch From Small Arms Survey 2007: Guns and the City, Chapter 4: pp. 116–43 Back to Basics 1 TRANSFER CONTROLS IN GLOBAL PERSPECTIVE INTRODUCTION In December 2006 a large majority of UN member states voted to begin a process that could lead to the adoption of a legally binding Arms Trade Treaty (ATT). This capped a year marked by other important achievements, notably the adoption of The Geneva Declaration on Armed Violence and Development (Geneva Declaration, 2006), and a major disappointment, the 2006 UN Programme of Action Review Conference (Review Conference).1 Although their focus has narrowed following the failure of the Review Conference to reach a substantive outcome, UN member states are now attending to fundamentals. Much of the illicit small arms trade depends, in fact, on the control—or lack of control—of legal transfers. As they grapple with the specifics of the transfer controls issue, states are moving towards a clearer understanding of their core commitments within the UN small arms framework. Key challenges include clarifying existing responsibilities, deciding whether and how to address the question of transfers to non-state actors, and developing means of effec- tively implementing transfer licensing criteria. This chapter takes stock of the latest developments in the global small arms process, with a specific focus on new initiatives and continuing debates relating to transfer controls. Its principal conclusions include the following: • The failure of the Review Conference to reach a substantive outcome derived from a broad range of factors, notably the inability of the UN small arms process to accommodate aspects of the issue falling outside of the traditional arms control/disarmament paradigm. • The global small arms process is fragmenting. While not a problem as such, this does pose certain risks, such as inconsistency among measures and the possible neglect of the universal framework provided by the UN. • States’ existing obligations in relation to small arms transfers are extensive. Relevant, binding legal norms include direct limitations on certain transfers, as well as the rule holding states ‘complicit’ in violations of international law committed with arms that they transfer notwithstanding a known (or knowable) risk of misuse. • While the question of banning arms transfers to non-state actors (NSAs) remains controversial, only NSAs that are not authorized to import arms by the state where they are located are, in fact, a major concern. • Guidelines identifying factors to be considered as part of arms transfer licensing decisions can help states ensure that these are systematic, rigorous, and objective. The chapter is divided into two parts. The first provides an overview of recent activity at the global level—in particular the 2006 Review Conference—while the second focuses on the issue of transfer controls. The transfer con trol
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