Note d'Analyse

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Date d'insertion : 22/12/2006

griplogo75 (1552 octets)


 

 

Efforts to combat the illicit brokering

in small arms and light weapons: an update

 

by Holger Anders, researcher at GRIP

 

20 December 2006

 

 

This paper provides an update of efforts to combat the illicit brokering in small arms and light weapons (SALW). The first section presents the case of a Dutch arms trafficker who was recently sentenced to imprisonment for the illicit supply of small arms to an embargoed destination in West Africa. The second section reviews standards to combat illicit brokering existing at global and regional levels. The third section considers the scope for action by the current UN Group of Governmental Experts on SALW brokering. The group met recently for the first time to consider further steps to enhance international cooperation in combating illicit SALW brokering. It is argued that the group should consider the feasibility of an international instrument on brokering controls which would also cover those responsible for arranging the financing or transportation of illicit arms transfers and nationals who operate from abroad.

 

 

The case of Guus Van Kouwenhoven

 

In June 2006, the district court of The Hague, Netherlands, sentenced Mr Guus Van Kouwenhoven to eight years imprisonment for arms trafficking offences in 2001-2003 that violated the Dutch legislation imposing an arms embargo on Liberia. Van Kouwenhoven is a Dutch national who had been arrested by Dutch police while on a visit to the Netherlands from his residence abroad three months before. He belonged to the circle of businessmen who operated lucrative concessions for the exploitation of natural resources in Liberia that brought in millions of US dollars in revenue for ex-president Charles Taylor during Liberia’s bloody civil war.[1] Van Kouwenhoven was the president and manager of operations of the Malaysian-based Oriental Timber Company (OTC) and the director of Liberia’s Royal Timber Company during the period in question.

 

The district court judged that Van Kouwenhoven was guilty of having used a ship that was operated by the OTC and transported tropical timber from Liberia for the illicit importation of small arms. The court found that the arms transfers were in direct violation of UN Security Council Resolution 1343 of 7 March 2001 in that the Security Council decided that

 

“all States shall take the necessary measures to prevent the sale or supply to Liberia, by their nationals or from their territories or using their flag vessels or aircraft, of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment and spare parts for the aforementioned, whether or not originating in their territories”.[2]

 

The arms were partially destined for armed forces under the control of Taylor and partially for militias that were managed and paid for by the OTC and other logging firms and that had directly participated in acts amounting to war crimes. Van Kouwenhoven did not provide logistical support for the arms transfers while being in the territory of the Netherlands. The arms were not exported from or transited through the Netherlands.[3]

 

This means that Van Kouwenhoven did not violate the Dutch ‘brokering’ legislation, that is, the law controlling the financial involvement of persons and entities in transfers of strategic goods between two third countries. First, the relevant legislation applies to activities carried out within the territory of the Netherlands but not to extra-territorial activities by nationals.[4] Second, it is not clear whether Van Kouwenhoven’s logistical activities would have been covered by the legislation on ‘financial involvement’ in transfers between two foreign countries. 

 

However, the court found that Van Kouwenhoven’s actions were in violation of the Dutch legislation that had been enacted to implement the UN Security Council embargo on Liberia in national law. The violation of Dutch national law was an essential requirement for the case because alleged UN sanction ‘busters’ can only be prosecuted by national courts if the UN sanctions have been enacted in the legislation of the state in that the case is tried. In addition, the defendant has to fall under the jurisdiction of the state in that the case is tried.

 

Jurisdiction over persons accused of having been involved in illicit arms transfers exists if the person acted within the territory of the prosecuting state or if the victims of a crime are nationals of the prosecuting state. Jurisdiction over arms traffickers who are nationals of the prosecuting state but who conducted their activities abroad only exists if the state has the relevant legal provisions in place. In the Netherlands, the legal provision existed in relation to the Liberia arms embargo and the basis for the prosecution of Van Kouwenhoven was his Dutch nationality.[5] 

 

Lessons from the case of Van Kouwenhoven

 

The conviction of Van Kouwenhoven holds several important lessons for current debates on the combat of the illicit SALW brokering. Adequate national legislation is critical for establishing greater accountability in the arms trade and ensuring that there is a legal basis for the prosecution of those accused of involvement in illicit arms transfers. Further, the case clearly illustrates the function and utility of controls on arms trade activities by nationals even if, as was the case with Van Kouwenhoven, the person operates from abroad and the arms in question did not originate or transit through the prosecuting state. The controls may not always prevent illicit activities but they establish the legal basis to hold to account those who are involved in illicit arms transfers.

 

The legal situation in the Netherlands also demonstrates the viability and limits of the legal principle of ‘restricted extraterritorial’ controls of arms brokering activities. The Netherlands enacted the UN Security Council resolution on Liberia in its national legislation. Dutch legislation therefore covered the trafficking activities by nationals, irrespective of whether or not the activities were carried out in Dutch territory. At the same time, Dutch legislation does not cover the activities of nationals who traffic arms to non-embargoed destinations. That is, Van Kouwenhoven’s extra-territorial activities would not have violated Dutch legislation if he had trafficked the arms to a state in which there exist gross violations of human rights or international humanitarian law but which is not under an embargo.

 

 

Existing standards to combat illicit SALW brokering

 

Arms control advocates have argued for the need to strictly control the activities of persons and entities that deal in SALW or act as middlemen between buyers and sellers of SALW for more than a decade. In the last years, there emerged a substantial body of regional and international standards that encourage or, in some cases oblige, states to regulate certain activities of arms brokers. At the global level, control standards are promoted in the 2001 UN Programme of Action on SALW (UN PoA) and the 2001 UN Firearms Protocol.[6] At regional levels, standards on the control of arms brokering activities are promoted in various instruments that have been adopted by states that are member to the Economic Community of Western African States; the European Union; the Organisation of American States; the Organisation for Security and Co-operation in Europe; the Southern African Development Community; or the Wassenaar Arrangement. Brokering controls are also promoted in the 2004 Nairobi Protocol on SALW in the Great Lakes Region and Horn of Africa.[7]

 

There is a high degree of convergence between the standards on the control of arms brokering activities that are promoted in global and regional instruments. ‘Brokering activities’ are usually defined in these instruments to cover persons and entities that are acting in the national territory of a state and that are involved in the transfer of arms between two foreign countries. Specific activities that are mentioned often include the mediation of contracts between buyers and sellers and the buying and selling of arms in the ownership of the broker and that are transferred between two foreign states. Other standards in the instruments also often include the registration of persons and entities that wish to engage in brokering activities and, in some instrument, the extension of controls to nationals who are operating abroad.[8] 

 

At the same time, there remain significant weaknesses in relation to the global and regional standards on arms brokering. First, most instruments only encourage rather than oblige states to adopt controls on arms brokering activities. Second, clear definitions of arms brokering activities are sometimes not provided in the relevant instruments or they are limited in their scope. For example, the activity of arranging financial or transportation services for illicit arms transfers is rarely included in the scope of controls. A person who organises the transport of an illicit transfer but who is not involved in the contract negotiations or has ownership of the arms is, therefore, not included in the scope of the controls. Third, there are no instruments in the Middle East and Asia that would reinforce and build on the recommended standards contained in the UN PoA and Firearms Protocol.

 

Importantly, there remain significant weaknesses in relation to the national adoption and implementation by states of their international and regional commitments. Only about 40 states are currently known to have in place national legislation that requires brokers to apply for a license before engaging in controlled activities.[9] There remain, therefore, many states from which brokers can facilitate illicit transfers without the risk of legal sanctions by the state from which they operate. In addition, existing national controls often do not cover the activities of those providing financial or logistical support for illicit arms transfers or the activities of nationals who operate from abroad.[10]

 

Arms control advocates also point out that UN arms embargoes are not always fully implemented in national law.[11] This means that those involved in transfers that violate UN embargoes may not be subject to legal sanctions and that unscrupulous brokers can act with impunity. In contrast, the case against Van Kouwenhoven clearly demonstrate that nationally implemented UN arms embargo covering activities by nationals abroad can make a valuable contribution to combating illicit arms brokering.

 

 

Scope for action by the UN group of experts on SALW brokering 

 

In 2004, the UN General Assembly mandated the creation of a Group of Governmental Experts (GGE) to consider further steps to enhance international cooperation in preventing, combating and eradicating illicit SALW brokering. The General Assembly decision followed several years of broad-based consultations that sought to define further practical steps to combat illicit SALW brokering.[12] Several states and arms control advocates had sought to push for a more specific mandate for the GGE during the consultations but opposition by other states limited the mandate to only consider ‘further steps’. The first of three session of the GGE took place in November 2006. The second and third sessions are scheduled for March and June 2007 and the GGE is to present its final report to the UN General Assembly starting in September 2007.

 

The debates at the first GGE session partially reflected the discussions that have already been held in the preceding broad-based consultations at the UN. Some of the states represented in the GGE argued that they do not see a need for national controls on arms brokering because they operate a state monopoly on arms trade activities. They suggested that efforts should rather focus on national export controls and the use of end-user certification as a means to combat illicit arms transfers. Several states questioned the need for an instrument on brokering controls because standards already exist in the various international and regional instruments on SALW control. In addition, some states argued that the adoption of controls on those arranging transportation and financing of arms transfers and on nationals operating abroad would not be feasible because of the difficulties to enforce these controls.[13]

 

Challenges for the UN GGE on brokering

 

A key challenge for the future GGE sessions will be to foster common understandings among the participants on the following issues. There should be a clear definition of what constitutes ‘brokering’ and ‘illicit’ brokering of SALW. Defining brokering only as activities such as contract mediation or buying or selling SALW between two foreign countries would leave a significant loophole in relation to those arranging the transport and financing of arms transfers.

 

There must also be a clear understanding of the implications if states do not adopt controls on brokering activities and/or an international instrument that sets minimum standards for national controls. Unscrupulous brokers frequently benefit from the absence of controls on activities that involve transfers between two foreign countries by being able to arrange illicit transfers without the risk of legal sanctions. Strengthening national export laws would help to make the activities of brokers involved in illicit transfers more difficult, but it would not close the mentioned loophole.

 

Also, common minimum standards on brokering are required in all states to avoid that unscrupulous brokers simply relocate to operate from states with absent or weak controls on arms transfers between two foreign countries. It is hard to see how this can be avoided in the absence of an international instrument because of the slow progress that has been made so far by states. In contrast, a universal and legally binding instrument would represent a significant step towards the creation of national controls that can make an effective contribution to the combat of illicit brokering.  

 

Extra-territorial controls are required because brokers involved in illicit arms transfers are often highly mobile and adept in circumventing controls that may exist in their home state. At a minimum, states should criminalise the involvement of their nationals in the brokering, including the arrangement of transportation and financing, of arms transfers to embargoed destination and irrespective of the place of operation of the broker. The argument that such controls are not feasible fails to acknowledge that states are often under an obligation to adopt relevant controls already under mandatory UN arms embargoes.

 

It is correct that the collection of information about activities by nationals who operated abroad can pose a significant challenge for law enforcement. However, the absence of relevant legislation implies that nationals may be able to operate with impunity by simply stepping outside the boundaries of their home state. Indeed, the case of Van Kouwenhoven demonstrates the function of such a prohibition, that is, it provides a legal basis for prosecution in those cases when there is sufficient evidence for an illicit activity by a national.

 

Another important challenge is to ensure that any process that the GGE may recommend to the UN General Assembly on combating illicit SALW brokering is adequately linked to international and regional partners. For example, Interpol, the World Customs Organisation, the International Civil Aviation Organization, the International Maritime Organization, and industry agencies such as the International Air Transport Association may have a potential role to play in efforts to combat illicit SALW brokering. There remains, however, a limited understanding so far at the international level about the possible synergies and practical co-operation between these organisations and the UN and its member states.   

 

 

Conclusions

 

There emerged a substantial body of international and regional standards to control SALW brokering in recent years, and several states already have in place or are in the process of adopting relevant controls in their national legislation. Nevertheless, the implementation of existing standards remains slow, and loopholes often remain even in those states that adopted brokering controls already. The UN GGE on brokering, therefore, offers an important opportunity to mobilise further support for current efforts to promote practical action to combat illicit SALW brokering.

 

The GGE could make a valuable contribution to these efforts by considering the feasibility of an international, and preferably legally-binding, instrument to combat the illicit brokering of SALW. Such an instrument should include prohibitions of certain activities by nationals abroad and cover the arranging of transportation or finances for arms transfers between foreign countries. Failing such an instrument, there is a high risk that unscrupulous brokers will continue to benefit from the current absence of or weaknesses in nationals controls on SALW brokering.

 

 

[1] See BBC News. 2006. Profile: Liberia's 'Mister Gus'. London: BBC News, June, 7.

http://news.bbc.co.uk/2/hi/africa/5055442.stm

[2] United Nations Security Council. 2001. Resolution 1343 (2001). S/RES/1343 (2001) of 7 March 2001.

[3] See UNIDIR. Developing a Mechanism to Prevent Illicit Brokering in Small Arms and Light Weapons: scope and implications. Geneva: UNIDIR (publication forthcoming), p. 104.

[4] See The Netherlands. Order of 24 October 1996 (Order No. 552 of 1996) on the Regulation of Financial Transactions related to Strategic Goods.

[5] Ibid.

[6] See UNIDIR, op. cit., p. 157ff.

[7] Ibid.

[8] Ibid.

[9] Ibid., p. xv.

[10] Ibid., p. 65ff.

[11] Control Arms. 2006. UN Arms Embargoes: an overview of the last ten years. Control Arms briefing note. London: Control Arms. http://www.controlarms.org/find_out_more/reports/UN-arms-embargoes-final-13306.pdf

[13] Telephone interviews with GGE participants, 4-5 December 2006.

 


 

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