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Brokering Paper Duncan New Draft Beyond the reach of state monopoly controls: A comparative overview of Russian controls on arms brokering Duncan Hiscock Introduction Arms control plays a fundamental role in the maintenance of international peace and security. Unless national, regional and international arms control regimes are effective in preventing lethal weaponry from falling into the wrong hands, uncontrolled weapons will continue to catalyse and fuel conflicts, organised crime and terrorism around the globe. Although the threat of a major attack by terrorist organisations or ‘rogue states’ using chemical, biological, radiological or nuclear (CBRN) weapons inevitably remains the greatest security concern for many states around the world (and their publics), it is increasingly recognised by governments, international organisations, and security analysts that the control of conventional weapons is just as important. In recent times, considerable efforts have been made to strengthen both national arms control legislation and regional and multilateral regimes, since it is recognised that the global nature of arms trafficking and the ease with which weapons can be transported mean that illegal arms proliferation can only be prevented through international cooperation. Efforts to strengthen international co-operation to tackle arms proliferation have had some success, but they have also demonstrated how complicated it is to regulate arms and how many ‘grey’ areas and legal loopholes remain. One of the largest ‘grey’ areas concerns arms brokering. Arms brokering covers a wide range of activities that facilitate the transfer of weapons from seller to buyer (see below for a more precise definition), in many cases without the broker ever seeing the weapons in question. By 2005, approximately 40 states had some national controls on arms brokering.1 Nonetheless, by exploiting weaknesses in national legislation and differences between legal jurisdiction in different countries, arms brokers can organise the transfer of weapons to destinations of concern (including countries under international embargo) without being liable for prosecution under any national laws. There is therefore a need for increased global cooperation on the issue of arms brokering, in order to ensure that it is no longer possible for irresponsible and unscrupulous actors to play the system by manipulating the differences between various national control regimes. To do so will involve greater harmonisation of national legislation at the regional and international levels, increased information exchange and cooperation between states, and the strengthening of national controls to remove loopholes and ‘grey’ areas. Such measures must be backed up with policy-oriented research analysing existing controls over arms brokering at both the international and national level, drawing attention to problems and highlighting examples of best practice. At the moment, many of the issues surrounding arms 1 Dead on Time – Arms Transportation, Brokering, and the Threat to Human Rights, London: Amnesty International, 2006, p.4 1 brokering are approached differently by different states, in everything from threat perceptions and definitions of brokering through to proposals for how to strengthen international controls. This short paper therefore aims to contribute to this dialogue. It presents current international thinking on controls over arms brokering to a Russian audience, comparing and contrasting the way in which brokering is controlled in Russia with similar efforts in other countries. In so doing, it seeks to promote debate within Russia and internationally about how Russia can work with other states to strengthen controls over arms brokering. The paper is divided into two sections. Section A puts the topic of arms brokering control in an appropriate context. It starts by defining the key terms relating to arms brokering, explaining how they are understood internationally and why they are important. It then describes the major regional and international initiatives on brokering controls that are relevant to Russia. Lastly, it briefly outlines the aspects of arms brokering that require national and international control, presenting current thinking on best practice with regard to each issue. Section B focuses specifically on Russia. It begins by sketching the background to Russia’s current system and the way in which arms brokering controls have developed since the end of the Soviet Union. It then provides a comparative analysis of current Russian legislation and practice against the examples of best practice outlined in Section A, identifying the strengths and weaknesses of Russia’s existing control system. A case study is also provided of one of the most notorious international arms brokers, Viktor Bout, who is a Russian citizen and is believed to be living in Russia. Lastly, the conclusion summarises the findings of this comparative analysis, and where appropriate makes recommendations about measures the Russian government could undertake to further strengthen controls over arms brokers. It is expected that this paper will be of particular interest to government officials, industry representatives, academics and independent researchers within Russia, and to international organisations and non-governmental representatives who are seeking to promote stronger international brokering controls and wish to learn more about Russia’s current legislation and practice. Section A: International perspectives on control over arms brokering Arms brokering and arms brokers: Definitions There are no internationally agreed definitions of the terms ‘arms brokering’ or ‘arms broker’. Nonetheless, there is an element of consensus at the international level as to how these terms should be understood, as the result of studies both by independent researchers and by governmental experts working on national and regional measures to strengthen brokering controls.2 These studies have considered both the legal and illegal arms trade in all forms of conventional weapons, and distinguish between ‘core’ and ‘associated’ brokering activities. This paper follows this broad approach, since more limited definitions allow many of the problematic ‘grey’ areas of brokering controls to slip through the net.3 2 The section on international initiatives below gives more details about some of the regional and international measures that relate to arms brokering. Two of the most significant independent research papers of recent years are Anders H and Cattaneo S, Regulating Arms Brokering: Taking Stock and Moving Forward the United Nations Process, Brussels: GRIP, 2005, and Dead on Time – Arms Transportation, Brokering, and the Threat to Human Rights, London: Amnesty International, 2006. 3 The definitions for ‘arms brokering’ and ‘arms broker’ draw heavily on Anders & Cattaneo (ibid.) and the OSCE Best Practice Guide on National Control of Brokering Activities. 2 Arms brokering is defined in this paper as any activity intended to facilitate a deal between buyer and seller to supply any conventional weapons. This is principally a matter of mediation and does not require the actual acquisition of weapons by the broker, though such activity is also considered as arms brokering. Arms brokering is usually undertaken in return for some form of compensation, though this need not be financial (for example, brokering may be undertaken to satisfy political or personal goals). Arms brokers are individuals or entities that facilitate such deals. They are thus ‘middlemen who organise arms transfers between two or more parties. Essentially, they bring together buyers, sellers, transporters, financiers and insurers to make a deal’.4 A distinction is often made by analysts and in national legislation between ‘core’ brokering activities and ‘associated’ activities. Essentially, core brokering activities are those that are directly related to the conclusion of an arms deal, whereas associated activities involve the organisation of supporting services to ensure the smooth transfer of the weapons. Core brokering activities include: • Mediation between sellers and buyers of weapons to facilitate the transfer of these weapons from one country to another; • Acquisition of weapons in one country for the purpose of transfer to another country; • Identification of potential buyers or sellers, the indication to them of opportunities to undertake an arms transfer, and the provision of relevant technical advice; • Acquirement of the necessary documentation, such as end-user certificates and import and export authorisations. Associated brokering activities include the organisation of: • Transportation, freight forwarding and charter services; • Technical services (e.g. assistance relating to the maintenance and usage of specific weapons, including instruction and consultation services); • Financial services; • Insurance services. According to the OSCE Best Practice Guide on National Control of Brokering Activities, only the organisation of these services can be considered as brokering, whereas the actual provision of such services falls outside this definition.5 In part, this distinction is made to clarify the difference between a broker facilitating an arms deal with deliberate intent and an agent that provides associated services without necessarily being fully aware of the nature of the deal to which these services relate. It also reflects the difficulty of separating out such services as they relate to arms deals from the same services provided for any other legitimate
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