By Justin Bossard for GlobalJusticeBlog.com
The image that follows is reasonably familiar to most: a trade show where the latest cutting-edge products of the industry are demonstrated to a highly select group of discerning customers. This show includes information booths, experts, salespeople, hands-on demos, and representatives from some of the largest multinational companies around the world. Yet in this seemingly innocuous environment, the products being traded are not cars, videogames, or trendy electronics, but some of the most lethal devices human innovation has devised, with the sole purpose of ending human life and property. In shows like the recent SOFEX 2014, millions (if not billions) of taxpayer backed funds are spent by states, security organizations, or other parties with the cash to back them up, to purchase such assets. Yet despite all the glitz and glamour of the affair, these weapons have to end up deployed somewhere in the battlefields of the world, and more often than not, in the hands of those who should not have access to them in the first place.
The Arms Market
The global market for small arms and light weapons (“SALW”) is big business. Despite the difficulty of ascertaining accurate numbers, it is estimated that the annual value of the authorized trade of SALW’s exceeds 8.5 billion dollars, this amount expected to keep up with the total value of the global security market spending, which is projected to reach 400 billion dollars as of 2014, with much of this increase fueled by massive defense spending relating to Middle Eastern unrest. Yet despite these impressive numbers, there is another number which although impressive on its own terms, harbors a much darker reality, and that is that 90% of war casualties since World War II can be directly attributed to SALW’s.
Although there is no universally accepted definition of a “small arm” or of a “light weapon”, the United Nations (“UN”) considers the concept of portability as the defining factor in these classes of ordnances. Small arms can then be understood to include: “revolvers and self-loading pistols, rifles and carbines, assault rifles, sub-machine guns and light machine guns”; while in turn, light weapons can comprise: “heavy machine guns, hand-held under-barrel and mounted grenade launchers, portable anti-aircraft guns, portable anti-tank guns, recoilless rifles, portable launchers of anti-tank missile and rocket systems; portable launchers of anti-aircraft missile systems (MANPADS), and mortars of calibers of less than 100 mm”.
Currently, there are three types of markets for SALW’s sales. The first type, the legal or white arms market, refers to the lawful sale of weapons made in accordance to international law. The white arms market also includes the valid transfer of military aid from one state to another. The illegal, or black arms market, is naturally characterized by the covert nature of the transactions taking place around weapon transfers. Finally, and most complex of the three, is the illicit, or gray arms market. Gray arms transactions are characterized by involving deception in weapon deals, as legally purchased arms are shifted into the hands of someone other than the purported recipient. A classic example of this behavior involves the sales of weapons to Country C, which is under an arms embargo. Country A, which wishes to sell arms to Country C, trades its weapons to nonembargo Country B, with the full knowledge that that such armaments will then be sold to Country C, thus bypassing the prohibition.
On paper, the main objective of a UN an arms embargo is to “deny access to the listed individuals and entities to any type of arms and related materiel”, the purpose being to limit the resources an actor has to inflict violence on others. When the UN Security Council adopts an arms embargo, this measure becomes binding upon UN member-states. Unfortunately, the nature of arms trafficking does not lend itself to be subjected to control, even by the most willing of parties. Arms trafficking, especially under its gray market facet, is not as simple as some rogue actor stealing weapons from one country with the intention of selling them to another to make a profit. Instead, “the line between legal and illegal, ‘intended’ destination, intermediary locations, and final destination, involvement of transnational networks, corporations, and states (buyers, sellers, and those that facilitate the movement through a veneer of legitimacy by providing documentation) reveals a complex system of actors and actions.”
Sierra Leone and Liberia
A clear example of the difficulty of confronting illicit arms trafficking, which includes SALW’s, occurred during the civil unrest that affected Sierra Leone and Liberia during the 1980-90’s. Charles Taylor, former President of Liberia (who currently is serving 50 years in prison on charges of war crimes and crimes against humanity) has been identified as the principal facilitator of SALW’s into the civil wars that enveloped both countries, yet he was by no means able to do this without the broad support and actions of other states, corporations, and individuals. Despite the fact that Hollywood has galvanized the image of weapons traffickers such as the notorious Victor Bout (portrayed by Nicolas Cage in the 2005 film Lord of War), and the lesser known Leonid Minin, as roguish desperadoes, these two arms dealers only represent just a small part of the invisible network that supplied these regimes with war materiel. In a trade where the craft of deceit is all but absolute, various intermediaries can be used during the transaction process to provide a coating of legality. For instance, by using diversion states to mask the state of origin and the state of destination, members of the Charles Taylor regime were contracted to deliver SALW’s from Uganda to Slovakia. These weapons were in turn rerouted to a company in Guinea, a front company for the Liberian government, for final delivery into the Liberian forces. On other occasions, shipments of arms from Nigeria regularly made their way to Liberia, under the legal guise of shipping food and non-sanctioned supplies. Finally, the matter became even more complicated when the illegal trade of natural resources and diamonds was added to the mix. African nations such as the Ivory Coast and Burkina Faso were discovered that during the course of the war, they provided “necessary cover story, documentation, and staging ground for the diversion” in the trade for diamonds-for-arms.
Thus the crux of the issue remains on how to deal with the circumvention of arms embargoes, as the proverbial story of the hydra shows, just by cutting one actor or supply route, two new ones will rise to take their place.
The United Nation’s Arms Trade Treaty
The difficulties of addressing gray market transactions are in most part due to the failure of arms producing states to incorporate within their laws viable mechanisms to curb illicit arms sales, plus the reluctance of others to cooperate more closely with international enforcement. This problem is only exacerbated by the apparent compartmentalization of the arms trafficking trade, as in many cases, the idea of plausible deniability is facilitated by the conduct of those who “prefer to ignore the facts by allowing them not to connect the dots” of the entire supply line. This way, even when compromised, an alleged SALW’s provider can always resort to the ignorance of his/her participation based on the murky dealings of the gray market.
For this reason, the adoption on April 2, 2013, of the Arms Trafficking Treaty (“ATT”) is the culmination of a long process that has sought to regulate this seemingly lawless market. The ATT seeks to “reduce human suffering and improve security and stability of States worldwide… the Treaty represents the first global, legally binding agreement to address the insufficiently regulated international trade in conventional weapons, and sets normative criteria for States to apply when making arms transfer decisions.” The main functions of the ATT are to establish common international standards for the trade in conventional weapons that States must incorporate into their national systems; provide oversight for global arms sales by enhancing the transparency of a traditionally murky trade; and create an environment of accountability, where States are responsible for ensuring their arms sales meet global standards and norms. Of special interest is Article 6(3) of the ATT, which explains that “[A] State Party shall not authorize any transfer of conventional arms… if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.” Despite the great challenge of curbing the gray market of SALW’s, the ATT’s addition of a knowledge factor in Article 6 could potentially be the first step to bring states involved in arms transfers to bear a measure of responsibility for the abuses carried out with the weapons they provide to other actors. The distinction should be made though, that Article 6’s direct implication of knowledge is very distinct to just a reason to believe standard, since the former still allows room for signatory countries to conduct business with valid parties around the globe.
Despite some of the animated arguments that preceded the adoption of the ATT, when the ATT enters into force on December 24, 2014, it will perhaps signal the beginning of the end of the vicious circle that has fueled civil wars and internal unrest some of the most disadvantaged countries around the world. As then-United States Ambassador to the United Nations Rosemary A. DiCarlo noted, the ATT “sets a floor — not a ceiling — for responsible national policies and practices for the regulation of international trade in conventional arms.” With this in mind, the next step in combatting the large web of actors, groups, intermediaries, and states involved in the sale and export of weapons, could be the implementation of system criminality measures, such as joint criminal enterprise, that in time could bring the degree of responsibility of arms exporters and end users to a level that can actually be enforced by domestic and international laws.
Justin Bossard is a is a JD Candidate, Class of 2016. Brossard’s entry to the GlobalJusticeBlog is part of an assignment for the course International Criminal Law, taught by Professor Wayne McCormack.
 SOFEX Jordan, http://www.sofexjordan.com/About.sofex.section.shtm (last visited Nov. 1, 2014).
 Weapons and Markets, Small Arms Survey, http://www.smallarmssurvey.org/weapons-and-markets.html (last visited Nov. 1, 2014).
 Shane Smith, SOFEX: The Business of War, VICE News (July 5, 2012), http://www.vice.com/video/sofex-the-business-of-war-full-length; Anup Shah, World Military Spending, Global Issues (June 30, 2013), http://www.globalissues.org/article/75/world-military-spending (this amount is in itself part of total global military expenditures, which in 2012 was calculated to 1.5 trillion dollars in the year 2012, or 2.7% of the world’s GDP).
 Pierre Bienaimé & Armin Rosen, The Most Powerful Army You’ve Never Heard Of, Bus. Insider, (Nov. 6, 2014), available at http://www.businessinsider.com/why-the-uae-is-the-middle-easts-rising-military-power-2014-11.
 Rachel J. Stohl & Colonel Daniel Smith, USA (Ret.), Small Arms in Failed States: A Deadly Combination, Center for Defense Information (Mar. 1, 1999), http://www.comm.ucsb.edu/faculty/mstohl/failed_states/1999/papers/Stohl-Smith.html.
 U.N. G.A. 52nd Sess., U.N. Doc. A/52/298 (Aug. 27, 1997).
 Definitions of Small Arms and Light Weapons, Small Arms Survey, http://www.smallarmssurvey.org/de/weapons-and-markets/definitions.html (last visited Nov. 1, 2014).
 Scott Stewart, Global Arms Markets as Seen through the Syrian Lens, Stratfor Security Weekly (July 25, 2013), available at http://www.stratfor.com/weekly/global-arms-markets-seen-through-syrian-lens#axzz3IdAdOnOj.
 Arms Embargo: Explanation of Terms, Al-Qaida Sanctions Comm., U.N. 68th Sess. (Dec. 30, 2013), available at http://www.un.org/sc/committees/1267/pdf/EOT%20Arms%20embargo_ENGLISH.pdf.
 Ken Epps, International Arms Embargo, Project Ploughshares, Sept. 2, 2002, at 3.
 Dawn L. Rothe & Victoria Collins, An Exploration of Applying System Criminality to Arms Trafficking, 21 Int. Crim. Just. Rev. 22, 24 (2011).
 Marlise Simons & Alan Cowell, 50-Year Sentence Upheld for Ex-President of Liberia, N.Y. Times (Sept. 26, 2013), http://www.nytimes.com/2013/09/27/world/africa/charles-taylor-sierra-leone-war-crimes-case.html?_r=1&
 Rothe & Collins at 28.
 Matthew Brunwasser, Leonid Efimovich Minin: From Ukraine, a New Kind of Arms Trafficker, Frontline (May, 2002), http://www.pbs.org/frontlineworld/stories/sierraleone/minin.html.
 Rothe & Collins at 29.
 The Arms Trade Treaty: Global Controls for a Global Trade, Control Arms (2009), http://controlarms.org/wordpress/wp-content/uploads/2011/02/Global-Principles-for-the-ATT-Global-rules-for-a-global-trade.pdf.
 Jeff Abramson, Arms Trade Treaty Discussion Creeps Forward, Arms Control Association, http://www.armscontrol.org/act/2008_12/armstradetreaty_progress (last visited Nov. 1, 2014).
 Rothe & Collins at 24.
 The Arms Trade Treaty, adopted Apr. 2, 2013 https://unoda-web.s3.amazonaws.com/wp-content/uploads/2013/06/English7.pdf (ratification pending, not entered into force).
 The Arms Trade Treaty, art. 6, see supra note 27 (emphasis added).
 Rothe & Collins at 32.
 Arms Trade Treaty (ATT) Network: Needs Assessment Workshop, Geneva Centre for Security Policy, (Feb. 7, 2014), http://www.genevaforum.ch/Reports/att_network_meeting_report_7_feb_2014.pdf (the issue of what constitutes the knowledge standard in the ATT still remains open for interpretation in some circles, as a recent report noted that: “The notion of ‘knowledge’ in art. 6.3: Should it be taken to mean ‘direct, concrete, or documented knowledge’, or rather ‘reason to believe’? In one view, prevalent interpretation of the term during the negotiations was as ‘concrete, irrefutable, or actual knowledge. In another view, a more viable interpretation of ‘knowledge’ would be as ‘reason to believe’”. It is most likely that as countries begin to implement their own laws in compliance with the ATT, that the knowledge standard applicable to the ATT will be further refined in the courts of law).
 Julian Pecquet, UN Approval of Arms Trade Treaty Sets up Obama, Senate Showdown, The Hill (Apr. 2, 2013), http://thehill.com/policy/international/291401-un-adopts-obama-backed-arms-trade-treaty-opposed-by-the-nra.
 Statement by Ambassador Rosemary A. DiCarlo, U.S. Deputy Permanent Representative to the United Nations, at the U.N. General Assembly Meeting on the Arms Trade Treaty, Department of State – United States Mission to the United Nations (Apr. 2, 2013), available at http://usun.state.gov/briefing/statements/207006.htm.
 See Robert Cryer et al., An Introduction to International Criminal Law and Procedure 304-05 (1st ed. 2007) (this form of liability requires an agreement between two or more parties to commit a crime, regardless of whether such crime is actually committed or not; thus, leaders, organizers, instigators, and compliance in the formulation or execution of a common plan or conspiracy to commit any of the forgoing crimes, are responsible for all acts performed by any persons in execution of such plan).