Prevent the illegal arms mediation

The intervention of Holger Anders
Prevent the illegal arms mediation: national and multilateral controls in Europe
Grip - Groupe de Recherche et d'Information sur la Paix et la Sécurité
I. Overview

The arms brokers have long been recognized as key actors in the illicit arms trade. Unscrupulous middlemen organize the supply of lethal weapons and munitions for military forces and rebel groups involved in violations of human rights and of international humanitarian law and which are subject to international sanctions. They act in order to obtain economic benefits, without worrying about the cruel purposes for which buyers utilizzanno weapons. The worst is that, often, arms brokers operating within a legal framework that does not effectively controls their activity.

This presentation sheds light on the current state of "war" on illegal arms trade, particularly in the European context. It is shown that much has been done, but much more remains to be done. There is not yet an international treaty binding on arms control. Many European countries do not yet have adequate legislation on this issue and, often, the controls that operate are not very effective. There is therefore a need to increase efforts at national, regional and international levels, and to punish those arms brokers involved in the illicit trafficking in weapons, either to block their future activities.

II. The mediation of weapons and activities related to it

The arms brokering is defined as the negotiation and organization of the transfer of weapons. The mediator does not need to possess the weapons in this type of transaction. They also include the purchase, sale and transfer mode of weapons that are in the possession of the mediator. Consequently, the activities of those who carry weapons and those that offer financial services or other is not included in the definition. These activities are generally included in the definition of "related activities to mediation."

Often the activities related to the intermediation of weapons are not subject to controls since they are not the main focus of the struggle against the arms trade. In fact, this belief ignores the fact that the business people who provide the airplanes, the money and the necessary documentation for the illegal trade are also involved as well as those who enter into agreements for transfers between real buyers and sellers of weapons

• Transfers to a third country

This is where the control of the broker focuses more weapons are brokering activities involving the arms trade between these countries without entering, transiting or leaving the territory of the State in which the mediator has played Trades (known as "transfers in a third country "). The focus of this issue is justified by the fact that the transfers in which weapons through the territory of the State in which the agent operates, are already controlled by legislation on imports, transit and exports of that country.

The importance of controls on transfers to a third country are made more evident by the example of a mediator who works in Italy and coordinates the transfer of arms to Zimbabwe. Zimbabwe is currently under embargo the European Union (henceforth EU). The mediator of Italian weapons would violate the laws if the transfer of weapons had originated in Italy. Nevertheless, if the mediator does not violate the co-ordinate a transfer to Zimbabwe, however, he left Morocco. This is possible because Italian law does not control arms transfers to a third country.

• Controls extraterritorial

The controls that relate to the movement between two foreign countries are sometimes called "extraterritorial controls of mediation." Confusingly, the extraterritorial controls also include brokering activities by a person or an entity that operate abroad. For example, a citizen or resident to avoid national controls go abroad to arrange a transfer of weapons to foreign countries.

It has often been said that the checks carried out on citizens or residents who work abroad, can not be adequately strengthened and that these controls, therefore, can not justify the administrative burden for those who legally transfer weapons. The problem lies in the fact that the lack of controls, although minimal, leaving open a passage for arms brokers that can evade the controls with ease in their country and they can also continue to organize illicit arms transfers without risking legal penalties.

III. International and regional standards

The Programme of Action of the 2001 United Nations on SALW (Small Arms and Light Weapons) relies on the states to develop legislation that controls the illegal transfer of weapons. The Protocol on Firearms of the United Nations of 2001 encourages states to adopt controls.
In August 2007, a group of UN experts stressed the possibility of an improvement in the promotion of international cooperation to combat the illicit trade. Their analysis urges States to adopt controls against the illicit arms trade at the national level. However, it does not appeal to an international instrument on the mediations of weapons.

Controls on mediations are concluded and encouraged throughout the Americas, Europe and Southern Africa, Western and Eastern Europe. The measures provided for in the instruments of control of mediations have elements in common, such as the rule that brokers must have a license. There are, however, several differences with regard to the purposes of the means of control of the arms trade. In addition, only 40 states have scheduled checks of this kind, and many of these are located in Europe.

• The European Union Common Position on the control of arms brokering

EU Member States have adopted a binding position on the control of arms brokering in June 2003. EU states are obliged to ensure the conformity of their national policies to the requirements of the common positions of the EU under the Treaty of 1992 .
The Common Position on the control of the arms trade requires that States take the marketing authorization of transfers to a third country, and establish sanctions against those who violate the national law on such checks.

The Common Position also requires the adoption of non-binding measures, including one that involves the control by Member States of arms brokers of their nationality resident in their territory but operating from abroad. The common position also encourages the adoption of the requirement of registration by mediators. States that have not yet adopted a common position in accordance with this legislation are European Cyprus, France, Greece, Ireland, Italy, Latvia, Luxembourg and Portugal.

IV. National controls in Europe

Approximately 2/3 of the European states have adopted controls on the arms trade comply with the requirements in the Common Position European Union. Those states have adopted legislation providing that brokers obtain a license to organize and negotiate the transfer of weapons to countries outside the EU's borders. Criminal penalties may be imposed against anyone who has violated this law. Many states are implementing increasingly restrictive controls.

• Control Activities

Transport agents present in Bulgaria or Germany carrying weapons from foreign countries must obtain prior authorization from their respective governments. Persons and entities providing funds and financial services for illicit arms transfers between foreign countries are subject to national jurisdiction in Estonia, Bulgaria and Holland. The United Kingdom has prohibited any activity that includes arms transfers from a foreign country and in violation of an embargo national, EU and UN.

• Registration of arms brokers

The arms brokers must obtain a pre-registration for their activities in Belgium, Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania, Slovakia, Slovenia and Spain.
Only registered brokers may require individual licenses. Registration allows national authorities to examine persons and entities before authorizing them to undertake the arms trade. The recordings are regularly renewable but to mediators who have committed violations of national regulations is prohibited recording.

• Controls extraterritorial

Many states control not only transfers from their territory from foreign countries but also the activities of their fellow citizens and / or residents who work abroad.
The United Kingdom has imposed a broad ban on the involvement of its citizens residing in the UK, with regard to the transfer of weapons by any country against a country embargoed. This prohibition applies equally to situations in which a person acts from the British territory or anywhere else in the world.

The co-nationals or residents who work abroad must obtain a license from their government prior to arrange a transfer from foreign countries in the Czech Republic, Estonia, Finland, Hungary, Lithuania, Poland, Romania and Sweden.
The requirements for obtaining the license for the mediations extraterritorial include the prohibition of arms transfers to an embargoed destination, even if the mediator acts abroad.

V. Remaining weaknesses

There is not a legally binding instrument at the international level requiring states to adopt comprehensive inspections to combat and prevent the mediation of arms, in violation of national and international laws. The current regional standards on checks on mediation are frequently limited in their scope and in their binding nature. The lack of strong regional and international standards contributes to worsen the current situation where only a few states have adopted controls on the activities of mediation.

E 'can still register a progress by some countries towards the adoption of the EU Common Position on arms brokering. It 'also encouraging that some European countries have adopted controls that go beyond the minimum required by this Common Position. This includes the adoption of registration requirements and controls on brokers who act abroad. At the same time, despite the common position was adopted five years ago, many European states have not yet integrated into their systems.

• The Italian situation

The Italian legislation imposes the need to register to get the license for the mediation of weapons that will be exported from Italy. It is not regulated the trade in weapons that are produced and are transported outside of Italy. This device was one of the reasons why a well-known mediator of arms, accused of having traded weapons in violation of a UN embargo, was acquitted by an Italian court in 2002. One of the agreements made by the mediator involving the transfer of 68 tons of weapons from Ukraine to Liberia through Burkina Faso, and subsequently to the rebels in Sierra Leone.
At the time of his arrest in Italy, the mediator was in possession of several documents attesting to his involvement in illicit arms transfers. Nevertheless, the court ruled that it could not prosecute because the weapons in question did not come and did not have transited through Italy.
The gap in the Italian system implies that the Italian legislation is not in conformity with the common position of the European Union.

VI. recommendations

• Strengthen international and regional controls

There is an urgent need to adopt internationally, a treaty on arms transfers that is legally binding. Such a treaty should regulate international transfers of conventional arms and prevent arms transfers which could be used in violation of international standards. Such a treaty would provide a sound legal framework for the development and adoption of global standards and binding on the arms trade and the activities related thereto.

States that have not yet done so should adapt their legislation to the common position of the European Union. This same position should be reinforced by compulsory registration and monitoring activities of extraterritorial mediators. This would make it impossible for brokers to evade the controls on their operating state simply by another State whose controls are less strict.

• Strengthen the Italian legislation

Italy should require obtaining a license to those individuals and organizations who want to organize arms transfers between foreign countries; force registration for brokers that operate transfers to third countries and finally prevent the involvement of their citizens and residents in the illegal transfer of arms to embargoed countries, regardless of where they are produced weapons.
This prohibition should be designed to brokers, shipping agents and lenders of funds, including even those who act from abroad.
Source : http://www.disarmo.org/oa/a/26015.html