Challenges and Opportunities
The 2007 UN Group of Governmental Experts on Illicit Arms Brokering defined a broker as a person or entity acting as an intermediary that brings together relevant parties and arranges or facilitates a potential transaction in return for some form of benefit, whether financial or otherwise. Brokering does not necessarily pass through the territory of the country where the brokering activity takes place, nor does the broker necessarily take ownership of the weapons1.
In the motion picture Lord of War, Nicolas Cage plays an unscrupulous arms broker who remarks: “If I do my job right, an arms embargo should be practically impossible to enforce”. The middlemen of the arms trade are able to work almost without consequence – partly because it is hard to monitor their illicit work and primarily because most countries have no laws prohibiting their activity, even if it violates a UN arms embargo. Illicit arms brokering has facilitated the flow of illicit arms to criminal and terrorist networks as well as conflicts in Angola, Afghanistan, Rwanda, Democratic Republic of Congo, Central African Republic, Liberia, Indonesia, Iraq, Sierra Leone, Sudan, Sri Lanka, the Balkans and the Philippines, making ruthless carnage possible on a scale that has stunned the world.
This paper points out the challenges in imposing legal sanctions on those involved in illicit arms transfers and brokering activities. It also looks at international initiatives to address the problem; and what opportunities exist for states to curb illicit brokering in the arms trade.
Unscrupulous arms brokers establish intricate international networks of sub-contractors, front companies, complex transportation routes and fraudulent financial transfers through offshore banking and shell companies2. Such brokers need to find stocks of weapons at the right price to enable a profit or commission fee. Documents may need to be forged, officials bribed, payments laundered and transporters sub-contracted through circuitous clandestine routes. International crime networks carry drugs as well as arms and other prohibited goods. Such networks pose complex challenges to criminal analysis because they are characterised by loose, flexible and intensely entrepreneurial networks with business portfolios spanning both illegal and legal activities. For example, UN sanctions investigations of arms embargo violations relating to Angola3, the Democratic Republic of the Congo4, Rwanda5, Liberia6, Sierra Leone7, and Somalia8, among others have revealed that illicit brokers typically conduct their business by exploiting legal loopholes, evading customs and airport controls, and falsifying documents such as passports, end-user certificates and cargo papers.
Challenges to regulating illicit brokering activities are manifold. Research indicates that at present only about 40 of the 192 UN member states have a national legal framework to regulate illicit brokering9. Of these 40 states, only a few have explicit provisions expanding jurisdiction to cover their nationals, permanent residents and companies when they conduct arms brokering activity abroad. Domestic legislation or administrative procedures often lack clear and enforceable measures to combat illicit brokering. Most national laws do not explicitly define arms brokering and its associated activities such as acting as a dealer or agent, or providing technical assistance, training, transportation, freight forwarding, storage, finance, insurance, maintenance, security, etc. Most national laws do not incorporate UN mandatory arms embargoes, prohibiting citizens both at home and abroad from participating in, assisting or promoting transactions involving arms related technology to embargoed destinations. Absence of legislation in most countries leaves gaping legal loopholes for the illicit trafficking of weapons – weapons that fall into hands that violate human rights and international humanitarian standards.
Consider the recent arrest of alleged veteran Russian arms trafficker Viktor Bout in Thailand on 6 March 2008. Bout is believed to be the model upon whose story the film Lord of War was based. At the request of the US, Thai authorities arrested Bout. Although he was allegedly selling arms in Thailand to support a ‘terrorist organisation’, Bout may not have broken any Thai laws. Thailand is planning to extradite Bout to the US to stand trial for planning to sell 100 Russian Igla surface-to-air missiles (SAMs) to the Colombian Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia: FARC). It is alleged Bout was planning to broker this arms deal for the FARC. The weapons were allegedly to be shipped from Bulgaria and Romania aboard a vessel from Greece, and the deal sealed with a false Nicaraguan end-user certificate10. The weapons would never have entered Thai territory. If extradited to the US, Viktor Bout faces charges of conspiring to provide material support to a foreign terrorist organisation. It may be impossible to indict Bout on illicit arms brokering charges, depending on Thai law. The best option for law enforcement will be to charge him on counterterrorism and trade of narcotics11.
In another case that recently came to light, a Dutch businessman called Guus van Kuwenhoven was convicted of violating the Liberian arms embargo. This story reveals how difficult implementing laws can be, if only a few countries have them. Van Kouwenhoven’s conviction in The Netherlands in 2006 was a landmark case because, although he had brokered the arms transfer in violation of the embargo, the weapons themselves had never entered Dutch territory, nor was he operating from Dutch territory at the time12. Unfortunately the conviction was overturned in 2008 because of unreliable testimony from some of the witnesses. Had countries been more closely cooperating to regulate arms brokering, the case against van Kuwenhoven could have been based on more reliable evidence.
Since the 1990s, a number of discussions within the UN framework have contributed to understanding the scope of brokering activities. In addition, a number of regional and multilateral organisations have created guidelines and recommendations on how to curb illicit brokering in the arms trade13. The Firearms Protocol stands as the only internationally legally binding instrument that covers illicit brokering activities, as well as other illicit activities in the arms trade14. The UNODC, United Nations Office on Drugs and Crime, is currently involved in the development of two useful instruments aimed at facilitating the implementation of the Firearms Protocol, which seeks to combat illicit activities in brokering. The first, Guidelines for the Implementation of the Firearms Protocol, is intended to provide technical assistance to states on how to establish effective export, import and transit licensing systems. The second instrument, a Model Legislation, will include provisions on the criminalization of illicit brokering activities among others.
The Group of Governmental Experts (GGE) established by the UN Secretary-General to consider further steps for the enhancement of international cooperation to combat illicit brokering in small arms and light weapons has recommended increased international cooperation both between states, and between organisations such as Interpol and the Customs Cooperation Council of the World Customs Organisation, the International Civil Aviation Organisation, the International Maritime Organisation, and the International Air Transport Association16.
The GGE also provided a range of suggestions for strengthening national legislation, adopting an inclusive definition of brokering activities, and – perhaps most importantly – capacity building to improve states’ ability to implement their legislation and regulations. States firmly endorsed the recommendations of the GGE during the 2008 UN Biennial Meeting of States on small arms and light weapons, and prioritised brokering regulation as a key method to reduce illicit small arms proliferation17. This offers the international community the opportunity to put these commitments into action, and make it harder for the ‘Lords of War’ to profit from violating arms embargoes and facilitating humanitarian catastrophes.
The United Nations and multilateral organizations hardly have any law enforcement powers. The sanctions committees supervising breaches of arms embargoes cannot subpoena, detain or arrest individuals or governments who violate arms embargoes. National laws and regulations therefore constitute the main source of legislation, and this is normally only applicable if the activities fall within the jurisdiction of the state where the person or entity is prosecuted.
States that have not yet done so should consider establishing a stringent system for regulating the activities of those who engage in illicit brokering activities.18
Valerie Yankey-Wayne is a Research Fellow with the ‘Armed Groups Project’, University of Calgary (Canada) and formerly with the United Nations Institute for Disarmament Research (UNIDIR, Geneva).
Robin Edward Poulton teaches at University of Richmond (Virginia) and the European Peace University (Schlaining, Austria) and is a Senior Research Fellow at UNIDIR.
(1) Report of the Group of Governmental Experts established pursuant to General Assembly resolution 60/81 to consider further steps to enhance international cooperation in preventing, combating and eradicating illicit brokering in small arms and light weapons; http://daccessdds.un.org/doc/UNDOC/GEN/N07/442/32/PDF/N0744232.pdf?OpenElement.
(2) See B Wood & J Peleman, The arms fixers: Controlling the brokers and shipping agents, International Peace Research Institute, Oslo, 1999.
(3) See Security Council resolutions 864 (1993), 1237 (1999), 1295 (2000), 1439 (2002); and documents S/2000/203, S/2000/1225, S/2001/363, S/2001/966, S/2002/486, S/2002/1119 and S/2002/1339.
(4) See Security Council resolutions 1493 (2003), 1533 (2004), 1596 (2005), 1649 (2005); and documents S/2004/551, S/2005/30, S/2005/436, S/2006/53 S/2006/525 and S/2007/40.
(5) Interim Report (17th January 1996) UN Doc. S/1996/67, released 29th January 1996; Second Report (13 March 1996) UN Doc. S/1996/195, released 14 March 1996; Third Report (22 January 1998) UN Doc. S/1998/63, released 26 January 1998; Interim Report (18 August 1998) UN Doc. S/1998/777, released 19 August 1998; Final Report (18 November 1998) UN Doc. S/1998/1096, released 18 November 1998.
(6) See Security Council resolutions 788 (1992), 1343 (2001), 1521 (2003); and documents S/2001/1015, S/2002/1115.
(7) See Security Council resolutions 1132 (1997), 1171 (1998); and document S/2000/1195.
(8) See Security Council resolutions 733 (1992), 751 (1992), 1356 (2001), 1407 (2002), 1425 (2002), 1474 (2003), 1519 (2003), 1558 (2004), 1587 (2005), 1630 (2005), 1676 (2006), 1724 (2006), 1725 (2006), 1744 (2007); and documents S/2003/223, S/2003/1035, S/2004/604, S/2005/153, S/2005/625, S/2006/229 and S/2006/913.
(9) See Anders, Holger and Cattaneo, Silvia. 2005. Regulating Arms Brokering: Taking stock and moving forward the United Nations Process. Brussels: GRIP; Also see Silvia Cattaneo, “National Systems of Licensing and Registration” in Developing a Mechanism to Prevent Illicit Brokering in Small Arms and Light Weapons — Scope and Implications, United Nations Geneva, 2006.
(10) Jane’s Intelligence Review, Lords of war – Running the arms trafficking industry, by Anthony Davis, Date Posted: 18-Apr-2008.
(11) Thailand is the regional transit hub, and it has a long history of being a center of narcotics trade.
(12) See Anders, H and Vines, A, “Sanctions and enforcement” in Developing a mechanism to prevent the illicit brokering in small arms: Scope and Implications, Geneva; United Nations, 2007.
(13) See Yankey-Wayne, V., “Widening our understanding of the brokering issue” in Developing a mechanism to prevent the illicit brokering in small arms: Scope and Implications, Geneva; United Nations, 2007.
(14) The Protocol has yet to come into force. Also, the Protocol has a very specific context – crime – that does not reflect the wide variety of ways that illicit brokering affects society, from systematic violence and terrorism to intra/inter state conflict.
(15) See provisions of legislative guide for the Implementation of the Firearms Protocol http://www.unodc.org/unodc/en/treaties/CTOC/legislative-guide.html#_Full_Version_1
(16) Report of the Group of Governmental Experts established pursuant to General Assembly resolution 60/81 to consider further steps to enhance international cooperation in preventing, combating and eradicating illicit brokering in small arms and light weapons; http://daccessdds.un.org/doc/UNDOC/GEN/N07/442/32/PDF/N0744232.pdf?OpenElement.
(17) See proceedings of the third UN Biennial Meeting of Small Arms and Light Weapons, 2008, http://disarmament.un.org/cab/bms3/1BMS3Pages/1thirdBMS.html.
(18) See provisions of legislative guide for the Implementation of the Firearms Protocol http://www.unodc.org/unodc/en/treaties/CTOC/legislative-guide.html#_Full_Version_1; Also see recommendations from Report of the Group of Governmental Experts established pursuant to General Assembly resolution 60/81 to consider further steps to enhance international cooperation in preventing, combating and eradicating illicit brokering in small arms and light weapons.