Arms Brokering : Implications and the Need for Better Controls

Over the past decade, the issue of illicit arms brokering has received much attention from both Europe and the international community at large. Arms brokers facilitate and negotiate the international transfer of weapons between vendors, producers, and buyers, among others. Because they arrange these transactions without ever attaining ownership of the weapons themselves, these deal-making intermediaries form a special class of actors within the arms trade industry. What makes arms brokers especially troublesome is the fact that many of the deals that they facilitate begin as legitimate transactions, but ultimately result in the illegal transfer of arms to both rebel groups and governments under international arms embargos. Consequently, the illicit activity of brokers aides the proliferation of small arms and light weapons (SALW) to conflict zones and regions of instability within Africa where other illegal activities such as natural resource looting are also prevalent. Brokering intensifies the internal and regional conflicts by providing arms to forces on both sides of a conflict, significantly prolonging an end to human suffering. Therefore, there is an imperative need to control illicit arms brokering.

 

Arms brokers are able to successfully operate and deliver arms to embargoed areas because of their ability to manipulate the loopholes within both the national and international legal systems that govern such activity. There are some key loopholes which make it difficult to prosecute and punish arms brokers, simultaneously enabling their illicit trade even further.

 

First of all, given their lack of actual ownership or physical possession of the arms, brokers are facilitating arms deals from one third party to another third party. The intermediary nature of arms brokering means that it is a cross-border transaction in which brokers are not actually active in the country where the transfer of goods takes place, further complicating control mechanisms with the involvement of at least three or four different countries. In 1999, infamous arms broker Leonid Minin, an Israeli citizen who was born in Ukraine, facilitated the legitimate sale of SALW from Ukraine to Burkina Faso using forged paperwork, British aircrafts, and a Hungarian bank account. Next, the weapons were illicitly sent to Liberia, who was under an international arms embargo at the time of Charles Taylor’s government. Finally, the arms were sent to the Taylor-backed RUF of Sierra Leone who was engaged in a devastating civil war and also under an arms embargo. Arrested in Italy, Minin was ultimately able to flout the embargos and escape prosecution because it’s currently unclear who is obligated to monitor and which jurisdiction(s) can prosecute a given transaction, domestically and/or internationally.

 

A second loophole for impunity is that there are no internationally-accepted definitions of the activities that constitute arms brokering, of who is identifiable as a broker, or which commodities should be included. Since brokers are in a separate class of the arms industry, laws regarding the import, export, or transit of arms are not applicable; brokering requires its own set of legislation. There are a few legally- and/or politically-binding agreements for controlling illicit arms trafficking such as the Firearms Protocol (2001), United Nations Security Council (UNSC) Resolution 1540 (2004), the Wassenaar Arrangement (2002-3), and the European Union’s (EU) Code of Conduct 2003/468 on Arms Brokering. However, there is a serious lack of international legislative cohesion which has obstructed the process of controlling the illegal brokering. Without consensus on definitions, which regulations should be applied, and when, it is not possible to issue sanctions or criminally prosecute illicit arms brokers.

 

A final major hurdle to controlling illicit arms brokering is enforcement. In spite of all the existing agreements, brokers are still able to facilitate deals without impunity because the laws are rarely enforced and they do not suffer the consequences for their criminal actions. Further compounding this issue is that the signatories to such international and supranational agreements have not harmonized their national laws and rules of enforcement. For example, the UNSC Resolution 1540 is binding on all UN member nations, but its implementation depends upon the goodwill and cooperation of the members for compliance and, more importantly, the Resolution lacks a sanctioning mechanism in cases of non-compliance. One of the first countries to support the Common Position on arms brokering in 2003, Belgium has yet to incorporate its terms domestically. An artificial division of exports, imports, and transit of arms has allowed brokering to fall into the cracks of Belgium’s national and intra-state legislation, as it has yet to adopt the Common Position’s standards for regionally cohesive standards, definitions, and the utilization of controlling tools such as the official registration of active brokers. Taken together, these three conditions enable brokers to engage in illicit activity and simultaneously reinforce their activities given the lack of national and international cohesion, or enforcement.

 

And so, the question remains: how can the brokering of illicit arms become effectively controlled? The Flemish Peace Institute gives several recommendations for the effective control of illicit arms transfers. First of all, it is important to apply international law to illicit arms brokering given the multinational scope of the transactions. However, effective controls cannot be implemented without the elimination of gaps within national systems. For example, arms brokers should be subject to the same national control policies and agencies which regulate the arms trade so that they cannot circumvent the law because of domestic disunity. Secondly, intense collaboration and cooperation is needed at both the national and international levels. There must be sincere engagement from all relevant parties and concrete consensus on any international framework that monitors arms brokering in order for it to be not only binding, but also consistently effective. There should be consistency and agreement on key issues such as how to define and identify brokers, as well as a uniform list of proscribed arms and a clear jurisdictional scope. Lastly, there must be more proactive enforcement. Given the cross-boundary nature of arms brokering, domestic and international intelligence, customs, and policing agents should collaborate and exchange information in order to form a better approach to catching illicit arms brokers.

 

To this extent, the European Union is becoming adamant about the importance of controlling illicit brokering activities. In 2010, after significant pressure from both EU officials and civil society, the sale of small arms to the Libyan government from the Belgian company FN Herstal was blocked and the company’s licenses were suspended. Although the regional government of Wallonia had approved the legitimate sale, the deal to Libya had great potential to result as an illicit brokering deal because the weapons could easily be transferred for use in conflict zones such as Chad or for internal repression. Ominously, a similar deal between Libya and FN Herstal, which did go through in 2009, could not produce an end-user-certificate to confirm a legal transfer.

 

Such proactive engagement demonstrates that the international community is recognizing the need to control illicit arms deals which prolong the cycle of conflict and are so destructive in nature. In the end though, efforts to effectively and consistently control illicit arms brokering must begin with domestic and international cohesion, collaboration, and enforcement of a clear and well-defined framework.

 

By Hierete Desta

AEFJN Intern