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STRENGTHENING COMPLIANCE WITH UN ARMS EMBARGOES
Brian Wood*
Amnesty International
March 16 2006
Key challenges for monitoring and verification
States have a legal obligation to comply strictly with arms embargoes
imposed by the Security Council under the authority of Chapter VII of
the United Nations Charter. Rigorous design, monitoring and compliance
with the agreed terms of such embargoes can contribute significantly to
the promotion of international peace and security, and to the respect
of a wide range of human rights and fundamental freedoms as required
in international law. The authority of the Security Council and the
United Nations is greatly undermined by persistent violations of UN
embargoes and impunity of the violators.
Verification arrangements for UN arms embargoes must therefore be
capable of providing, in a timely fashion, clear and convincing
evidence of compliance or non-compliance. Continued confirmation of
compliance is an essential ingredient to building and maintaining
confidence among the parties. However, it is clear that some
fundamental elements of the international mechanisms for accurate
and timely verification are missing or not adequately functioning.
*Brian Wood is the manager of research and policy on arms control at
the International Secretariat of Amnesty International in London. He
has been researching and writing for Amnesty International on the
control of conventional arms, especially small arms and light weapons,
and security equipment and services since 1991.
It has become more common practice for the Security Council to impose
arms embargoes on parties (State and non-State) to a conflict as a
response to the existence or impending threat of violent conflict.(1)
There are currently mandatory territorial arms embargoes in force
against the Ivory Coast(2), Liberia(3) and Somalia(4). Non-State
actors are also subject to arms embargoes. Currently, every State
in the international community is prohibited from transferring arms
to groups in the Democratic Republic of Congo (DRC),(5) Liberia,(6)
Rwanda,(7) Sierra Leone(8) and in Sudan,(9) as well as to Al-Qaida
and associated persons.(10)
Verification of illicit traffic in arms in violation of UN Security
Council arms embargoes thus deserves substantive consideration. It
should take into account the inherently clandestine nature of such
traffic and its grave consequences. In particular, the proliferation
and misuse of small arms and light weapons in conflicts and persistent
acts of state repression involving serious human rights violations,
war crimes and crimes against humanity pose major challenges for such
verification for reasons that are set out below.
Lack of UN standards to help ensure reliable state monitoring
1. All UN arms embargoes should be mandatory on Member States - the
notion of a non-mandatory embargo is a recipe to allow embargoed
entities to make arrangements to flout the will of the United
Nations.(11) Under Article 41 of the UN Charter, States have a legal
obligation to abide by embargoes enacted by the Security Council and
a duty to implement measures to ensure that persons within their
jurisdiction also comply with the embargoes.(12) However, it is
reported that many States have not made the violation of a UN arms
embargo a criminal offence under their domestic law.
2. Moreover, the challenges of verifying embargo compliance are
compounded when States, especially traditional suppliers and adjacent
States, do not have an adequate system of national laws and/or
regulations and administrative procedures to exercise effective
control over armaments and the export and import of arms in order
to prevent illicit arms trafficking. This is particularly important
because the UN Sanctions Committees themselves have no operational
verification mechanisms. They have to rely on the efforts of individual
Member States, acting singly or with others. Such cooperation can
take several forms: unilateral, multilateral or the utilization of
regional organizations - and it is reliant on political good will
and commitment to upholding international norms.
The scope and effectiveness of such national laws and regulations is
an indicator of such commitment and these should be broad enough to
cover all types of arms, especially small arms which often circulate
in civil society and are easy to conceal, and to control all actors
involved in arms production, assembly, stockpiles, transfers,
brokering, financing and use. Unfortunately, this is far from the
case and national controls, even in States with great resources.(13)
3. The design of effective legal and regulatory standards and systems
to prevent the wider illegal traffic in arms is essential to prevent
the violation of UN arms embargoes. The wider problem of illegal arms
trafficking is closely related to the illegal possession, transfer and
misuse of arms by non-State actors, especially criminal groups, and
often fuelled by the misuse of arms by state actors. Arms embargoes are
imposed in order to address threats to peace and worsening humanitarian
crises that in many cases are already being fuelled by such illegal
acts. Embargoes are therefore late and often blunt instruments and
therefore cannot be deployed effectively as an instrument by the
United Nations to prevent illicit arms trafficking without better
national controls.
4. Monitoring and compliance with UN arms embargoes would greatly
improve if national arms control systems were more consistent with
existing international law. States would develop greater trust
in supplying information to the UN about diverted arms if they
had more common rules based on shared values. According to the UN
Disarmament Commission Guidelines on International Arms Transfers of
1996, "Limitations on arms transfers can be found in international
treaties, binding decisions adopted by the Security Council under
Chapter VII of the Charter of the United Nations and the principles
and purposes of the Charter."[paragraph 8] Moreover "Illicit arms
trafficking is understood to cover that international trade in
conventional arms, which is contrary to the laws of States and/or
international law." [paragraph 7](14) However, the General Assembly
has not yet agreed on a set of explicit standards that provide clear
and fair criteria for decisions on the international transfer of
conventional arms. Such standards should at least reflect existing
international obligations of States as agreed in paragraphs 8 and 9
of the Guidelines, and provide for the right of self-defence as well
as limit the freedom of States to authorise the transfer of weapons
and munitions, including:
- Rules of State responsibility prohibiting States from aiding
and assisting other States in the commission of an internationally
wrongful act, rules which are now codified in the International Law
Commission's Articles on State Responsibility.(15)
- Rules of international criminal law prohibiting persons from
aiding and abetting in the commission of an international crime. The
"aiding and abetting" provision of the International Criminal Court
Statute establishes criminal responsibility if a person aids, abets
or otherwise assists in the commission or the attempted commission
of a crime, including by providing the means for its commission.(16)
- Positive obligations of States to ensure respect for international
humanitarian law and to cooperate in the protection and fulfilment of
human rights beyond their borders. For example, the imposition of arms
embargoes is another way in which the international community seeks to
prevent breaches of the peace while also giving effect to its common
Article 1 obligation under the Geneva Conventions, Article 1 of the
UN Charter and the International Covenants on human rights.(17)
In this regard, many of the guidelines for international transfers
of conventional arms agreed by the Disarmament Commission in 1996
are abstract and do not provide Member States with specific common
criteria to ensure respect for existing agreed international norms.
These guidelines have since been surpassed in providing such
specificity by many regional agreements on international arms
transfers and, given the gravity of the problem, are in need of urgent
review. The 2001 UN Programme of Action on Small Arms and Light Weapons
(UN PoA)(18) also acknowledges that there is an established body of
international legal rules that will be relevant to the assessment of
applications for export authorizations covering small arms and light
weapons.(19) A growing number of States have expressed their support
for elaborating common criteria based on such rules.(20)
5. Greater openness by States can contribute significantly to
verification of compliance with UN arms embargoes. However, the
provision of objective public information on military matters and
arms transfers is often not made to the maximum degree possible
consistent with national security needs. This can seriously hamper
UN investigations of illicit trafficking because it is harder to
assess arms movements. Some States do not even report all their
relevant transactions in their annual reports to the UN Register of
Conventional Arms and do not report reliable customs data to the
UN statistical services. The agreement in June 2005 to adopt a UN
non-legal instrument on the marking and tracing of small arms and light
weapons is a step forward, but currently this proposed instrument
excludes ammunition and explosives and has an opt out clause for
States to deny information. The vast majority of States favored a
legally binding instrument, but a few States thwarted their efforts
in the negotiations. These shortcomings should be addressed if ongoing
UN investigations of arms embargo violations are to be improved.
6. Another example of the absence of rigorous common standards for
effective national laws that undermines the ability of the United
Nations to ensure compliance with its arms embargoes is the problem
of import licenses or verifiable end-use/end-user certificates for
international arms transfers. All too often, UN investigations show
how such documents are fake, forged or tampered with and issued
by unauthorized persons. The Organization should agree on common
standards for such documents and for verifying their authenticity,
as requested in June 2005 by a number of States during the UN Biennial
Meeting of States on small arms and light weapons. In November 2004,
the Organization for Security and Cooperation in Europe agreed
on standard elements for end use certificates and verification
procedures. These offer a step forward, but could be strengthened
by requiring the specific inclusion of data on whether any brokers
or transport agents were to be used for the arms delivery, and also
for delivery verification procedures. One practical measure is that
the Secretariat could be tasked to maintain a central database of
government officials authorized to sign end-user certificates and to
assist UN investigative panels.
7. A key problem for verification of compliance with UN arms
embargoes is the lack of stringent national controls on the
activities of arms brokers and transport agents who are frequently
found to engage in unauthorized diversion of arms.(21) In 1996 the
Disarmament Commission agreed that: "States should maintain strict
regulations on the activities of private international arms dealers
and cooperate to prevent such dealers from engaging in illicit arms
trafficking."(22) Five years later, in 2001, a UN Group of Experts
reported to the General Assembly on the feasibility of regulating
arms manufacturers and dealers, including brokers and transporters,
to prevent the illicit trafficking of small arms and light weapons.
The delay in addressing this problem can be measured by the fact that
in 1995, it had been shown how such dealers, brokers and transporters
had supplied arms to those who perpetrated the Rwanda genocide in
1994, as well to such actors who violated UN arms embargoes in Angola,
the DRC, Liberia, Sierra Leone and other countries. In 2004, after
some consultations with States and interested groups, the General
Assembly decided to set up another Group of Government Experts after
mid-2006 to examine how to prevent the illegal brokering of small arms
and light weapons.(23) Despite a relatively high level of consensus
by States as to the main forms of control, as reflected in a number
of regional and multilateral agreements, the latest timetable means
that any concerted action by States could take until 2008 or perhaps
2010 - fifteen years after the original expression of concern in the
Disarmament Commission. The Security Council and General Assembly
should be more proactive in addressing this problem by devoting more
urgent time and resources to the development of necessary standards.
8. Often UN investigative problems are compounded by lack of skilled
capacity on the part of State regulators and law enforcement agencies,
for example too few customs officials are adequately trained to
enforce the necessary regulations over the export and import of arms
and to collect reliable data from ports. The Organization should be
more proactive in encouraging bilateral and multilateral technical
assistance programs to build such national capacity in accordance with
high international standards. This is vital because the United Nations
must rely upon Member States to monitor and enforce the implementation
of embargoes in various ways such as through surveillance, data
collection, inspections, and the investigation of allegations of
violations.
9. A related challenge for effective verification is whether States
make sufficient efforts to prevent corruption and bribery in connection
with the transfer of arms. One measure is the extent to which States
implement relevant recommendations of Interpol; another is whether
States actively cooperate at the bilateral and multilateral levels as
appropriate to share relevant customs information on trafficking in
and detection of illicit arms and coordinate intelligence efforts. The
United Nations could do more to encourage States to identify, apprehend
and bring to justice all those involved in illicit arms trafficking.
Design and functioning of UN embargo verification mechanisms
10. All measures of verification depend first and foremost upon the
specific mandate given by the appropriate authority. In the past,
the purpose of UN embargoes was to modify the behaviour of, but
not to punish or exact retribution from, the country or party under
sanctions; to minimize the impact of conflict on vulnerable groups
and neighbouring or other States. In 1991, the UN Sanctions Committee
on the former Yugoslavia, was given a mandate that included the
power to recommend measures in response to violations and to approve
exceptions to the embargo. The UN Committees established since then
(Libyan Arab Jamahiriya, Somalia, Haiti, UNITA in Angola, and Rwanda)
have had similar mandates. More recently, UN embargoes such as those
on Liberia, the DRC and Sudan have included measures to enable the
freezing of assets and travel bans for individuals and entities proven
to have violated the embargoes.
Sanctions Committees may be asked to (a) develop and improve
guidelines for the implementation of measures imposed; b) collect
and examine information submitted by States on actions they have
taken for implementation with a view to making recommendations to
the Council; (c) examine the Secretary-General's progress reports on
implementation and to make appropriate recommendations to the Council;
(d) deal with violations through consideration of information brought
to their attention by States concerning violations, making periodic
reports of violations to the Council (identifying where possible
persons or entities, including vessels, reported to be engaged in
the violations) and recommending appropriate measures in response;
(e) approve of exceptions on application by States to the measures
imposed by the Security Council, for example, on grounds of significant
humanitarian need.
Greater thought needs to be given to the grounding and impounding
of aircraft and other vessels that are repeatedly used to violate
arms embargoes, as well as to the prosecution of well-known arms
embargo violators, and also to the use of "flags of convenience" by
transport companies. As is the case with Interpol, the World Customs
Union and the International Criminal Court prosecutor's office,
the United Nations should seek the advice and active cooperation of
the International Civil Aviation Organization and the International
Maritime Organization on these and similar matters.
11. In accordance with the UN principles for verification, arms
embargo agreements should provide for procedures and mechanisms
for investigation, review and evaluation. Realistic resources and
time-frames for such investigations and reviews should be agreed
in order to evaluate compliance. Panels of Experts with sufficient
skills and capacity should be created whenever an arms embargo and
corresponding Sanctions Committee are established by the Security
Council and not, as sometimes happens, months later(24) or not at
all when the humanitarian and security situation on the ground in the
target country or countries has worsened. The process of setting up
a panel should begin in the same Security Council resolution as that
which imposes an embargo.
12. To be adequate and effective, a verification regime for an
arms embargo agreement must cover all relevant weapons, facilities,
locations, installations and activities. In practice, this is very
difficult and the UN Sanctions Committee and investigative team
leaders must decide what is most relevant within the limited time
and resources available. Increasingly, investigations of alleged
violations of arms embargoes are also carried out by UN field
staff as a form of fact-finding, using liaison officers to maintain
contact with armed forces and groups and develop relationships to
build trust and benefit from improved data collection and freedom of
movement for patrols. The monitoring of ports and border crossings
requires an understanding of customs laws and procedures. This has
been carried out in some cases by UN personnel and in others, under
a UN mandate, by regional organizations or multinational coalitions
that possessed the necessary resources to verify the presence, or
absence, of compliance. Verification methods ranging from mobile
patrols and checkpoints along frontiers and monitors at airports
and seaports to intercepts at sea, the use of maritime and aerial
assets, including satellite surveillance, provided from national,
multilateral and regional resources, has contributed to more effective
implementation of the embargoes. In some instances, such as in Angola
and the DRC, the United Nations has lacked sufficient resources to
cover all airports and landing strips frequently enough. Enhanced
telecommunications and air surveillance could improve the effectiveness
of such monitoring. It is therefore vital that relevant structures
in the United Nations establish coordination procedures and training
for the close linkage between peacekeeping and security operations
and traditional arms control and disarmament verification procedures.
13. The skill and time required for UN panels of experts to carry out
competent investigations needs to be reflected in UN institutional
arrangements. The Security Council should establish such panels for
extensive periods, preferably for at least a year, to allow them to
conduct in-depth, non-discriminatory and comprehensive investigations
both in the field and in those places suspected of being the sources
and routes of illegal arms deliveries. An investigation of a single
illicit deal might have to be conducted in several countries in
different world regions because of the way trafficking networks
operate. Too often panels have been given such short time periods and
have too few personnel that they do not carry out what could become
important investigations. The range of skills required should also
be assessed carefully before panels are appointed. The trend towards
appointing a range of specialists familiar with investigating the
arms trade, transportation, customs and finance to panels appears to
be valuable, as is the use of experienced research consultants, and
there needs to be a good mix of language skills, computer literacy,
impartial legal knowledge and management and negotiating skills
appropriate for the tasks. However, these skills could be wasted and a
panel's work undermined if any persons appointed put their allegiance
or hostility to the interests of their home state or any other state
above that of the United Nations. Recruitment and selection criteria
should be designed to assess this difficulty.
14. The Secretariat has developed databases on illicit arms trafficking
and the violation of UN embargoes to support the work of the Sanctions
Committees and the panels of experts. This should be reviewed and
developed further so that the Organization does not waste valuable
time and resources reconstructing files to investigate possible
violators each time a panel is appointed. Experience has shown that
some of the arms dealers, brokers and transporters named in UN reports
for definite and probable violations of its arms embargoes are also
named in other reliable reports or strongly suspected of violations
on other countries. It would be worthwhile considering the purchase
of certain reliable data or subscribing to key databases collected
by impartial sources so that panels are not dependent on soliciting
voluntary ad hoc contributions.
15. It should be recalled that in 1987, the UN Disarmament Commission
received a number of proposals to improve systems of verification to
achieve compliance with arms limitation and disarmament agreements,
for instance: (a) the establishment of a verification database
within the United Nations; (b) the development of a UN capacity to
provide advice to negotiators respecting verification matters; (c)
research into the process, structures, procedures and techniques
of verification as well as the role of the United Nations,
beginning with a request to the Secretary-General to look into
these and other matters with the assistance of qualified experts;
(d) on a responsive basis, and with the consent of the parties
to an arms limitation and disarmament negotiation or agreement,
potential involvement by the Organization in the formulation and
implementation of verification provisions of specific agreements;
(e) the establishment of an integrated multilateral verification
system within the United Nations; and (f) the setting up, under the
UN aegis, of a mechanism for extensive international verification
of compliance with agreements on reducing international tension
and limiting armaments and on the military situation in conflict
areas. These proposals should be further considered in the light of
current circumstances and their implementation reviewed in order to
improve systems of monitoring compliance with UN arms embargoes. For
example, in post-conflict situations, regional arrangements may be
made by affected States to verify limitations of arms imports into
their border areas, and it would be useful for the United Nations to
be involved in developing model procedures for such purposes.
Methods, Procedures and Techniques
16. The principle that verification arrangements should be implemented
without discrimination can in practice be difficult when there is a
shortage of resources and time to consider all views. On the one hand,
UN investigative teams need to allocate time and resources to act with
strict impartiality according to their mandate, and, on the other hand,
State officials whom they approach for help should be cooperative,
honest and as open as possible. Requests by UN investigative teams for
inspections or information in accordance with the provisions of an arms
embargo agreement should be as systematic and unbiased as possible,
and States should consider such requests as a normal component of the
verification process. If a panel is seen to be not pursuing a possible
violation case and is then accused of political bias, it needs to be
in a position to provide an unbiased answer. Otherwise its credibility
will be undermined. If a government repeatedly refuses to cooperate
with a UN investigative team without a legitimate reason, the Security
Council should impose secondary sanctions on that government.
17. Recent panel reports have been more explicit about the
methodology and rules of evidence to be used in establishing a
violation. The distinction between a possible violation, a probable
violation and a definite violation has been more clearly explained
in reports. While rules to ensure only the use of credible evidence
have been established, there have still been disputes among officials
regarding the nature of evidence and it would be wise to review this
aspect of the work of panels.
18. Improved mechanisms of communication and exchange should be
created between UN investigative teams and the UN Sanctions Committee,
and competent, independent and impartial bodies within civil society
and individuals who have concrete information on possible embargo
violations. Requirements of accuracy, discretion, confidentiality and
witness protection need to be considered. Member States should be made
aware that any attempts by their officials to impede such cooperation
or punish civil society groups or individuals for providing what
they deem to be reliable information will be reported to the Security
Council and invoke counter action.
19. Where UN peacekeeping forces are deployed in a conflict zone
in which the embargoed entity operates, skilled members of that
UN force should be assigned to protect, inspect and record serial
numbers and markings of weapons and the markings of all ammunition
and explosives that are found in the possession of, and seized or
collected from, any person in the embargoed entity. It is distressing
to find that, even sometimes nowadays, UN peacekeeping officials
involved in demobilization, disarmament and re-integration programs
have diligently recorded the serial numbers of weapons retrieved but
have not recorded the corresponding markings, rendering the lists
of serial numbers almost useless. Other times ammunition has been
destroyed before markings are photographed and recorded. It is vital
that reliable records and other observations and reliable reports
on illicit traffic should be communicated without delay to the UN
authorities and to the relevant UN investigative teams for analysis.
20. Stocks of seized illegal weapons and munitions should be safely
destroyed during UN peace processes and embargo enforcement operations,
and this can often be publicized to create public confidence. However,
such destruction should only be carried out after digital photographic
records have been taken of serial numbers and markings of all items
to allow for tracing by the relevant authorities in the United Nations
and Member States.
21. As a necessary precaution, serial numbers and markings of weapons
and markings on ammunition and explosives that are transferred into
a conflict zone to an authorized entity, but where one or more of the
embargoed entities also operates, should routinely be recorded by each
Member State exporting, importing and transiting such items. The UN
peacekeeping monitors and UN investigative teams should be allowed to
conduct spot checks of those records and inventories. All too often,
there is an absence of such records and inventories are kept hidden
from UN investigators in circumstances where confidential access
would pose little or no risk to national security.
22. The analysis of results and review of reported findings
can sometimes involve strong differences of interpretation and
opinion amongst panelists, members of the Sanctions Committee and
UN Secretariat staff. It is vital that these differences are fully
discussed in an impartial manner so that the Sanctions Committee
can reach reasonable editorial solutions before UN investigative
reports are released publicly. Every effort should be made by the
Organization and Member States not to self-censor important facts and
prevent uncomfortable facts being published as this merely encourages
speculation and misunderstanding of the situation in the affected
countries and undermines confidence in UN verification mechanisms.
23. Donor countries should be encouraged to provide financial
and appropriate material resources to ensure that the above needs
are met. The costs of effective verification activities to ensure
compliance with UN arms embargoes are small in relation to the savings
- in public expenditure, development aid and most importantly human
lives - that would be achieved if every embargo were fully respected.
It is doubtful that this list is exhaustive, but hopefully it will
assist discussion in the United Nations to improve the verification of
violations of its arms embargoes, and compliance with such embargoes.
********
(1) Embargoes are also imposed by regional organizations,
most notably by the European Union (EU) and the Organization
for Security and Cooperation in Europe (OSCE). In April 2004,
there were EU arms embargoes against eleven States: Afghanistan,
Bosnia-Herzegovina, Burma (Myanmar), China, Democratic Republic of
Congo, Iraq, Liberia, Sierra Leone, Somalia, Sudan and Zimbabwe. In
1993, the OSCE imposed a politically binding embargo on Armenia and
Azerbaijan, aimed at "all deliveries of weapons and munitions to
forces engaged in combat in the Nagorno-Karabakh area" (Decisions
Based on the Interim Report on Nagorno-Karabakh, available online:
http://projects.sipri.se/expcon/csceazbarm .htm). An important
expression of political will, such embargoes do not carry the weight of
their UN counterpart if only because they are, by their very nature,
regional in scope and can be thus undermined by countries outside
the arrangement that may not subscribe to the same political view.
(2) S/RES/1572, 15 November 2004 (for a period of 12 months);
S/RES/1584, 1 February 2005 (reaffirming the embargo).
(3) S/RES/1521, 22 December 2003 (for a period of 12 months);
S/RES/1579, 21 December 2004 (renewed for a period of 12 months).
(4) S/RES/733, 23 January 1992; most recently reaffirmed in S/RES/1519,
15 December 2003 and S/RES/1558, 17 August 2004.
(5) S/RES/1493, 28 July 2003, targeting "all foreign and Congolese
armed groups and militias operating in the territory of North and
South Kivu and of Ituri, and to groups not party to the Global
and All-inclusive agreement, in the Democratic Republic of Congo"
(for a period of 12 months); S/RES/1552, 27 July 2004 (renewed for
a period of 12 months).
(6) S/RES/1521, 22 December 2003, targeting the LURD and the Movement
for Democracy in Liberia (MODEL), as well as "all former and current
militias and armed groups" (for a period of 12 months); S/RES/1579,
21 December 2004 (renewed for a period of 12 months).
(7) S/RES/1011, 16 August 1995, targeting "non-governmental forces"
inside Rwanda and persons in neighbouring States that intend to use
arms and related materiel in Rwanda.
(8) S/RES/1171, 5 June 1998, targeting "non-governmental forces in
Sierra Leone".
(9) S/RES/1556, 30 July 2004, targeting "all non-governmental entities
and individuals, including the Janjaweed, operating in the States of
North Darfur, South Darfur and West Darfur".
(10) S/RES/1390, 28 January 2002 (for a period of 12 months);
S/RES/1455, 17 January 2003 (decision to improve the implementation
of the measures over a further period of 12 months); S/RES/1526, 30
January 2004 (decision to improve the implementation of the measures
over a further period of 18 months).
(11) In a recent resolution on the situation in Burundi, the Security
Council expressed "its deep concern over the illicit flow of arms
provided to armed groups and movements, in particular those which
are not parties to the peace process under the Arusha Agreement" and
called upon "all States to halt such flow" (S/RES/1545, 21 May 2004,
para. 18).
(12) Article 41 confers upon the Security Council the power to call for
a "complete or partial interruption of economic relations [...] and the
severance of diplomatic relations" in response to a threat to or breach
of the peace or an act of aggression. It is within the discretion of
each State to decide the type of responsibility (administrative offence
v. criminal offence) that attaches to a violation of the embargo by a
private actor. In a resolution on the situation in Africa adopted in
1998, the Security Council encouraged Member States to adopt measures
making the violation of mandatory arms embargoes a criminal offence
(see S/RES/1196, 16 September 1998, para. 2).
(13) See for example, Amnesty International, "Undermining Global
Security: EU arms exports", October 2004, and Control Arms Campaign,
"Arms exports from the G8", June 2005.
(14) Guidelines for international arms transfers in the context
of General Assembly resolution 46/36 H of 6 December 1991', UN
Disarmament Commission, May 1996, Official Records of the General
Assembly, Fifty-first Session, Supplement No. 42 (A/51/42), 22 May 1996
(15) Articles 16 and 41(2). The Articles were commended by the General
Assembly and annexed to resolution 56/83, Responsibility of States for
Internationally Wrongful Acts, UN Doc. A/RES/56/83, 12 December 2001.
(16) Rome Statute, Article 25(3)(c) [emphasis added].
(17) The Question of the Trade, Carrying and Use of Small Arms
and Light Weapons in the Context of Human Rights and Humanitarian
Norms, Working paper submitted by Barbara Frey in accordance with
Sub-Commission decision 2001/120, Economic and Social Council, UN
Doc. E/CN.4/Sub.2/2002/39, 30 May 2002.; also Prevention of human
rights violations committed with small arms and light weapons,
Preliminary report submitted by Barbara Frey, Special Rapporteur,
in accordance with Sub-Commission decision 2002/25, Economic and
Social Council, UN Doc. E/CN.4/Sub.2/2003/29, 25 June 2003.
(18) "Programme of Action to Prevent, Combat and Eradicate the Illicit
Trade in Small Arms and Light Weapons in All of Its Aspects", in
Report of the United Nations Conference on the Illicit Trade in Small
Arms and Light Weapons in All Its Aspects, New York, 9-20 July 2001,
UN Doc. A/CONF.192/15.
(19) UN PoA, section 2, Article 11.
(20) Around 50 States have expressed support for the idea of an
International Arms Trade Treaty based upon international norms, and
many more States have called for international binding instruments
for arms transfers.
(21) Brian Wood and Johan Peleman, in a 1999 study entitled The Arms
Fixers, ( available from www.nisat.org) enumerated many loopholes
in existing national controls: the lack of specific provisions to
regulate the brokering and transportation of arms; lax control on
weapons stocks; acting as an agent between supplier and buyer without
the weapons entering the territory; using barter arrangements and
offshore financing especially in tax havens; easily circumvented
documentation requirements; using circuitous routes to conceal the
true nature of cargoes; exploiting difficulties in enforcing customs
controls, particularly in countries with long borders and limited
resources. See also: Small Arms Survey 2004: Rights at Risk, Oxford,
Oxford University Press, 2004, pp.143-146
(22) UN Guidelines on International Arms Transfers, op cit.
(23) Resolution 59/86, 10 December 2004.
(24) As happened with the embargoes imposed on Rwanda, the Democratic
Republic of the Congo, and Sudan, op cit.
http://www.amnestyusa.org/news/document.do?i d=ENGIOR400052006
Brian Wood*
Amnesty International
March 16 2006
Key challenges for monitoring and verification
States have a legal obligation to comply strictly with arms embargoes
imposed by the Security Council under the authority of Chapter VII of
the United Nations Charter. Rigorous design, monitoring and compliance
with the agreed terms of such embargoes can contribute significantly to
the promotion of international peace and security, and to the respect
of a wide range of human rights and fundamental freedoms as required
in international law. The authority of the Security Council and the
United Nations is greatly undermined by persistent violations of UN
embargoes and impunity of the violators.
Verification arrangements for UN arms embargoes must therefore be
capable of providing, in a timely fashion, clear and convincing
evidence of compliance or non-compliance. Continued confirmation of
compliance is an essential ingredient to building and maintaining
confidence among the parties. However, it is clear that some
fundamental elements of the international mechanisms for accurate
and timely verification are missing or not adequately functioning.
*Brian Wood is the manager of research and policy on arms control at
the International Secretariat of Amnesty International in London. He
has been researching and writing for Amnesty International on the
control of conventional arms, especially small arms and light weapons,
and security equipment and services since 1991.
It has become more common practice for the Security Council to impose
arms embargoes on parties (State and non-State) to a conflict as a
response to the existence or impending threat of violent conflict.(1)
There are currently mandatory territorial arms embargoes in force
against the Ivory Coast(2), Liberia(3) and Somalia(4). Non-State
actors are also subject to arms embargoes. Currently, every State
in the international community is prohibited from transferring arms
to groups in the Democratic Republic of Congo (DRC),(5) Liberia,(6)
Rwanda,(7) Sierra Leone(8) and in Sudan,(9) as well as to Al-Qaida
and associated persons.(10)
Verification of illicit traffic in arms in violation of UN Security
Council arms embargoes thus deserves substantive consideration. It
should take into account the inherently clandestine nature of such
traffic and its grave consequences. In particular, the proliferation
and misuse of small arms and light weapons in conflicts and persistent
acts of state repression involving serious human rights violations,
war crimes and crimes against humanity pose major challenges for such
verification for reasons that are set out below.
Lack of UN standards to help ensure reliable state monitoring
1. All UN arms embargoes should be mandatory on Member States - the
notion of a non-mandatory embargo is a recipe to allow embargoed
entities to make arrangements to flout the will of the United
Nations.(11) Under Article 41 of the UN Charter, States have a legal
obligation to abide by embargoes enacted by the Security Council and
a duty to implement measures to ensure that persons within their
jurisdiction also comply with the embargoes.(12) However, it is
reported that many States have not made the violation of a UN arms
embargo a criminal offence under their domestic law.
2. Moreover, the challenges of verifying embargo compliance are
compounded when States, especially traditional suppliers and adjacent
States, do not have an adequate system of national laws and/or
regulations and administrative procedures to exercise effective
control over armaments and the export and import of arms in order
to prevent illicit arms trafficking. This is particularly important
because the UN Sanctions Committees themselves have no operational
verification mechanisms. They have to rely on the efforts of individual
Member States, acting singly or with others. Such cooperation can
take several forms: unilateral, multilateral or the utilization of
regional organizations - and it is reliant on political good will
and commitment to upholding international norms.
The scope and effectiveness of such national laws and regulations is
an indicator of such commitment and these should be broad enough to
cover all types of arms, especially small arms which often circulate
in civil society and are easy to conceal, and to control all actors
involved in arms production, assembly, stockpiles, transfers,
brokering, financing and use. Unfortunately, this is far from the
case and national controls, even in States with great resources.(13)
3. The design of effective legal and regulatory standards and systems
to prevent the wider illegal traffic in arms is essential to prevent
the violation of UN arms embargoes. The wider problem of illegal arms
trafficking is closely related to the illegal possession, transfer and
misuse of arms by non-State actors, especially criminal groups, and
often fuelled by the misuse of arms by state actors. Arms embargoes are
imposed in order to address threats to peace and worsening humanitarian
crises that in many cases are already being fuelled by such illegal
acts. Embargoes are therefore late and often blunt instruments and
therefore cannot be deployed effectively as an instrument by the
United Nations to prevent illicit arms trafficking without better
national controls.
4. Monitoring and compliance with UN arms embargoes would greatly
improve if national arms control systems were more consistent with
existing international law. States would develop greater trust
in supplying information to the UN about diverted arms if they
had more common rules based on shared values. According to the UN
Disarmament Commission Guidelines on International Arms Transfers of
1996, "Limitations on arms transfers can be found in international
treaties, binding decisions adopted by the Security Council under
Chapter VII of the Charter of the United Nations and the principles
and purposes of the Charter."[paragraph 8] Moreover "Illicit arms
trafficking is understood to cover that international trade in
conventional arms, which is contrary to the laws of States and/or
international law." [paragraph 7](14) However, the General Assembly
has not yet agreed on a set of explicit standards that provide clear
and fair criteria for decisions on the international transfer of
conventional arms. Such standards should at least reflect existing
international obligations of States as agreed in paragraphs 8 and 9
of the Guidelines, and provide for the right of self-defence as well
as limit the freedom of States to authorise the transfer of weapons
and munitions, including:
- Rules of State responsibility prohibiting States from aiding
and assisting other States in the commission of an internationally
wrongful act, rules which are now codified in the International Law
Commission's Articles on State Responsibility.(15)
- Rules of international criminal law prohibiting persons from
aiding and abetting in the commission of an international crime. The
"aiding and abetting" provision of the International Criminal Court
Statute establishes criminal responsibility if a person aids, abets
or otherwise assists in the commission or the attempted commission
of a crime, including by providing the means for its commission.(16)
- Positive obligations of States to ensure respect for international
humanitarian law and to cooperate in the protection and fulfilment of
human rights beyond their borders. For example, the imposition of arms
embargoes is another way in which the international community seeks to
prevent breaches of the peace while also giving effect to its common
Article 1 obligation under the Geneva Conventions, Article 1 of the
UN Charter and the International Covenants on human rights.(17)
In this regard, many of the guidelines for international transfers
of conventional arms agreed by the Disarmament Commission in 1996
are abstract and do not provide Member States with specific common
criteria to ensure respect for existing agreed international norms.
These guidelines have since been surpassed in providing such
specificity by many regional agreements on international arms
transfers and, given the gravity of the problem, are in need of urgent
review. The 2001 UN Programme of Action on Small Arms and Light Weapons
(UN PoA)(18) also acknowledges that there is an established body of
international legal rules that will be relevant to the assessment of
applications for export authorizations covering small arms and light
weapons.(19) A growing number of States have expressed their support
for elaborating common criteria based on such rules.(20)
5. Greater openness by States can contribute significantly to
verification of compliance with UN arms embargoes. However, the
provision of objective public information on military matters and
arms transfers is often not made to the maximum degree possible
consistent with national security needs. This can seriously hamper
UN investigations of illicit trafficking because it is harder to
assess arms movements. Some States do not even report all their
relevant transactions in their annual reports to the UN Register of
Conventional Arms and do not report reliable customs data to the
UN statistical services. The agreement in June 2005 to adopt a UN
non-legal instrument on the marking and tracing of small arms and light
weapons is a step forward, but currently this proposed instrument
excludes ammunition and explosives and has an opt out clause for
States to deny information. The vast majority of States favored a
legally binding instrument, but a few States thwarted their efforts
in the negotiations. These shortcomings should be addressed if ongoing
UN investigations of arms embargo violations are to be improved.
6. Another example of the absence of rigorous common standards for
effective national laws that undermines the ability of the United
Nations to ensure compliance with its arms embargoes is the problem
of import licenses or verifiable end-use/end-user certificates for
international arms transfers. All too often, UN investigations show
how such documents are fake, forged or tampered with and issued
by unauthorized persons. The Organization should agree on common
standards for such documents and for verifying their authenticity,
as requested in June 2005 by a number of States during the UN Biennial
Meeting of States on small arms and light weapons. In November 2004,
the Organization for Security and Cooperation in Europe agreed
on standard elements for end use certificates and verification
procedures. These offer a step forward, but could be strengthened
by requiring the specific inclusion of data on whether any brokers
or transport agents were to be used for the arms delivery, and also
for delivery verification procedures. One practical measure is that
the Secretariat could be tasked to maintain a central database of
government officials authorized to sign end-user certificates and to
assist UN investigative panels.
7. A key problem for verification of compliance with UN arms
embargoes is the lack of stringent national controls on the
activities of arms brokers and transport agents who are frequently
found to engage in unauthorized diversion of arms.(21) In 1996 the
Disarmament Commission agreed that: "States should maintain strict
regulations on the activities of private international arms dealers
and cooperate to prevent such dealers from engaging in illicit arms
trafficking."(22) Five years later, in 2001, a UN Group of Experts
reported to the General Assembly on the feasibility of regulating
arms manufacturers and dealers, including brokers and transporters,
to prevent the illicit trafficking of small arms and light weapons.
The delay in addressing this problem can be measured by the fact that
in 1995, it had been shown how such dealers, brokers and transporters
had supplied arms to those who perpetrated the Rwanda genocide in
1994, as well to such actors who violated UN arms embargoes in Angola,
the DRC, Liberia, Sierra Leone and other countries. In 2004, after
some consultations with States and interested groups, the General
Assembly decided to set up another Group of Government Experts after
mid-2006 to examine how to prevent the illegal brokering of small arms
and light weapons.(23) Despite a relatively high level of consensus
by States as to the main forms of control, as reflected in a number
of regional and multilateral agreements, the latest timetable means
that any concerted action by States could take until 2008 or perhaps
2010 - fifteen years after the original expression of concern in the
Disarmament Commission. The Security Council and General Assembly
should be more proactive in addressing this problem by devoting more
urgent time and resources to the development of necessary standards.
8. Often UN investigative problems are compounded by lack of skilled
capacity on the part of State regulators and law enforcement agencies,
for example too few customs officials are adequately trained to
enforce the necessary regulations over the export and import of arms
and to collect reliable data from ports. The Organization should be
more proactive in encouraging bilateral and multilateral technical
assistance programs to build such national capacity in accordance with
high international standards. This is vital because the United Nations
must rely upon Member States to monitor and enforce the implementation
of embargoes in various ways such as through surveillance, data
collection, inspections, and the investigation of allegations of
violations.
9. A related challenge for effective verification is whether States
make sufficient efforts to prevent corruption and bribery in connection
with the transfer of arms. One measure is the extent to which States
implement relevant recommendations of Interpol; another is whether
States actively cooperate at the bilateral and multilateral levels as
appropriate to share relevant customs information on trafficking in
and detection of illicit arms and coordinate intelligence efforts. The
United Nations could do more to encourage States to identify, apprehend
and bring to justice all those involved in illicit arms trafficking.
Design and functioning of UN embargo verification mechanisms
10. All measures of verification depend first and foremost upon the
specific mandate given by the appropriate authority. In the past,
the purpose of UN embargoes was to modify the behaviour of, but
not to punish or exact retribution from, the country or party under
sanctions; to minimize the impact of conflict on vulnerable groups
and neighbouring or other States. In 1991, the UN Sanctions Committee
on the former Yugoslavia, was given a mandate that included the
power to recommend measures in response to violations and to approve
exceptions to the embargo. The UN Committees established since then
(Libyan Arab Jamahiriya, Somalia, Haiti, UNITA in Angola, and Rwanda)
have had similar mandates. More recently, UN embargoes such as those
on Liberia, the DRC and Sudan have included measures to enable the
freezing of assets and travel bans for individuals and entities proven
to have violated the embargoes.
Sanctions Committees may be asked to (a) develop and improve
guidelines for the implementation of measures imposed; b) collect
and examine information submitted by States on actions they have
taken for implementation with a view to making recommendations to
the Council; (c) examine the Secretary-General's progress reports on
implementation and to make appropriate recommendations to the Council;
(d) deal with violations through consideration of information brought
to their attention by States concerning violations, making periodic
reports of violations to the Council (identifying where possible
persons or entities, including vessels, reported to be engaged in
the violations) and recommending appropriate measures in response;
(e) approve of exceptions on application by States to the measures
imposed by the Security Council, for example, on grounds of significant
humanitarian need.
Greater thought needs to be given to the grounding and impounding
of aircraft and other vessels that are repeatedly used to violate
arms embargoes, as well as to the prosecution of well-known arms
embargo violators, and also to the use of "flags of convenience" by
transport companies. As is the case with Interpol, the World Customs
Union and the International Criminal Court prosecutor's office,
the United Nations should seek the advice and active cooperation of
the International Civil Aviation Organization and the International
Maritime Organization on these and similar matters.
11. In accordance with the UN principles for verification, arms
embargo agreements should provide for procedures and mechanisms
for investigation, review and evaluation. Realistic resources and
time-frames for such investigations and reviews should be agreed
in order to evaluate compliance. Panels of Experts with sufficient
skills and capacity should be created whenever an arms embargo and
corresponding Sanctions Committee are established by the Security
Council and not, as sometimes happens, months later(24) or not at
all when the humanitarian and security situation on the ground in the
target country or countries has worsened. The process of setting up
a panel should begin in the same Security Council resolution as that
which imposes an embargo.
12. To be adequate and effective, a verification regime for an
arms embargo agreement must cover all relevant weapons, facilities,
locations, installations and activities. In practice, this is very
difficult and the UN Sanctions Committee and investigative team
leaders must decide what is most relevant within the limited time
and resources available. Increasingly, investigations of alleged
violations of arms embargoes are also carried out by UN field
staff as a form of fact-finding, using liaison officers to maintain
contact with armed forces and groups and develop relationships to
build trust and benefit from improved data collection and freedom of
movement for patrols. The monitoring of ports and border crossings
requires an understanding of customs laws and procedures. This has
been carried out in some cases by UN personnel and in others, under
a UN mandate, by regional organizations or multinational coalitions
that possessed the necessary resources to verify the presence, or
absence, of compliance. Verification methods ranging from mobile
patrols and checkpoints along frontiers and monitors at airports
and seaports to intercepts at sea, the use of maritime and aerial
assets, including satellite surveillance, provided from national,
multilateral and regional resources, has contributed to more effective
implementation of the embargoes. In some instances, such as in Angola
and the DRC, the United Nations has lacked sufficient resources to
cover all airports and landing strips frequently enough. Enhanced
telecommunications and air surveillance could improve the effectiveness
of such monitoring. It is therefore vital that relevant structures
in the United Nations establish coordination procedures and training
for the close linkage between peacekeeping and security operations
and traditional arms control and disarmament verification procedures.
13. The skill and time required for UN panels of experts to carry out
competent investigations needs to be reflected in UN institutional
arrangements. The Security Council should establish such panels for
extensive periods, preferably for at least a year, to allow them to
conduct in-depth, non-discriminatory and comprehensive investigations
both in the field and in those places suspected of being the sources
and routes of illegal arms deliveries. An investigation of a single
illicit deal might have to be conducted in several countries in
different world regions because of the way trafficking networks
operate. Too often panels have been given such short time periods and
have too few personnel that they do not carry out what could become
important investigations. The range of skills required should also
be assessed carefully before panels are appointed. The trend towards
appointing a range of specialists familiar with investigating the
arms trade, transportation, customs and finance to panels appears to
be valuable, as is the use of experienced research consultants, and
there needs to be a good mix of language skills, computer literacy,
impartial legal knowledge and management and negotiating skills
appropriate for the tasks. However, these skills could be wasted and a
panel's work undermined if any persons appointed put their allegiance
or hostility to the interests of their home state or any other state
above that of the United Nations. Recruitment and selection criteria
should be designed to assess this difficulty.
14. The Secretariat has developed databases on illicit arms trafficking
and the violation of UN embargoes to support the work of the Sanctions
Committees and the panels of experts. This should be reviewed and
developed further so that the Organization does not waste valuable
time and resources reconstructing files to investigate possible
violators each time a panel is appointed. Experience has shown that
some of the arms dealers, brokers and transporters named in UN reports
for definite and probable violations of its arms embargoes are also
named in other reliable reports or strongly suspected of violations
on other countries. It would be worthwhile considering the purchase
of certain reliable data or subscribing to key databases collected
by impartial sources so that panels are not dependent on soliciting
voluntary ad hoc contributions.
15. It should be recalled that in 1987, the UN Disarmament Commission
received a number of proposals to improve systems of verification to
achieve compliance with arms limitation and disarmament agreements,
for instance: (a) the establishment of a verification database
within the United Nations; (b) the development of a UN capacity to
provide advice to negotiators respecting verification matters; (c)
research into the process, structures, procedures and techniques
of verification as well as the role of the United Nations,
beginning with a request to the Secretary-General to look into
these and other matters with the assistance of qualified experts;
(d) on a responsive basis, and with the consent of the parties
to an arms limitation and disarmament negotiation or agreement,
potential involvement by the Organization in the formulation and
implementation of verification provisions of specific agreements;
(e) the establishment of an integrated multilateral verification
system within the United Nations; and (f) the setting up, under the
UN aegis, of a mechanism for extensive international verification
of compliance with agreements on reducing international tension
and limiting armaments and on the military situation in conflict
areas. These proposals should be further considered in the light of
current circumstances and their implementation reviewed in order to
improve systems of monitoring compliance with UN arms embargoes. For
example, in post-conflict situations, regional arrangements may be
made by affected States to verify limitations of arms imports into
their border areas, and it would be useful for the United Nations to
be involved in developing model procedures for such purposes.
Methods, Procedures and Techniques
16. The principle that verification arrangements should be implemented
without discrimination can in practice be difficult when there is a
shortage of resources and time to consider all views. On the one hand,
UN investigative teams need to allocate time and resources to act with
strict impartiality according to their mandate, and, on the other hand,
State officials whom they approach for help should be cooperative,
honest and as open as possible. Requests by UN investigative teams for
inspections or information in accordance with the provisions of an arms
embargo agreement should be as systematic and unbiased as possible,
and States should consider such requests as a normal component of the
verification process. If a panel is seen to be not pursuing a possible
violation case and is then accused of political bias, it needs to be
in a position to provide an unbiased answer. Otherwise its credibility
will be undermined. If a government repeatedly refuses to cooperate
with a UN investigative team without a legitimate reason, the Security
Council should impose secondary sanctions on that government.
17. Recent panel reports have been more explicit about the
methodology and rules of evidence to be used in establishing a
violation. The distinction between a possible violation, a probable
violation and a definite violation has been more clearly explained
in reports. While rules to ensure only the use of credible evidence
have been established, there have still been disputes among officials
regarding the nature of evidence and it would be wise to review this
aspect of the work of panels.
18. Improved mechanisms of communication and exchange should be
created between UN investigative teams and the UN Sanctions Committee,
and competent, independent and impartial bodies within civil society
and individuals who have concrete information on possible embargo
violations. Requirements of accuracy, discretion, confidentiality and
witness protection need to be considered. Member States should be made
aware that any attempts by their officials to impede such cooperation
or punish civil society groups or individuals for providing what
they deem to be reliable information will be reported to the Security
Council and invoke counter action.
19. Where UN peacekeeping forces are deployed in a conflict zone
in which the embargoed entity operates, skilled members of that
UN force should be assigned to protect, inspect and record serial
numbers and markings of weapons and the markings of all ammunition
and explosives that are found in the possession of, and seized or
collected from, any person in the embargoed entity. It is distressing
to find that, even sometimes nowadays, UN peacekeeping officials
involved in demobilization, disarmament and re-integration programs
have diligently recorded the serial numbers of weapons retrieved but
have not recorded the corresponding markings, rendering the lists
of serial numbers almost useless. Other times ammunition has been
destroyed before markings are photographed and recorded. It is vital
that reliable records and other observations and reliable reports
on illicit traffic should be communicated without delay to the UN
authorities and to the relevant UN investigative teams for analysis.
20. Stocks of seized illegal weapons and munitions should be safely
destroyed during UN peace processes and embargo enforcement operations,
and this can often be publicized to create public confidence. However,
such destruction should only be carried out after digital photographic
records have been taken of serial numbers and markings of all items
to allow for tracing by the relevant authorities in the United Nations
and Member States.
21. As a necessary precaution, serial numbers and markings of weapons
and markings on ammunition and explosives that are transferred into
a conflict zone to an authorized entity, but where one or more of the
embargoed entities also operates, should routinely be recorded by each
Member State exporting, importing and transiting such items. The UN
peacekeeping monitors and UN investigative teams should be allowed to
conduct spot checks of those records and inventories. All too often,
there is an absence of such records and inventories are kept hidden
from UN investigators in circumstances where confidential access
would pose little or no risk to national security.
22. The analysis of results and review of reported findings
can sometimes involve strong differences of interpretation and
opinion amongst panelists, members of the Sanctions Committee and
UN Secretariat staff. It is vital that these differences are fully
discussed in an impartial manner so that the Sanctions Committee
can reach reasonable editorial solutions before UN investigative
reports are released publicly. Every effort should be made by the
Organization and Member States not to self-censor important facts and
prevent uncomfortable facts being published as this merely encourages
speculation and misunderstanding of the situation in the affected
countries and undermines confidence in UN verification mechanisms.
23. Donor countries should be encouraged to provide financial
and appropriate material resources to ensure that the above needs
are met. The costs of effective verification activities to ensure
compliance with UN arms embargoes are small in relation to the savings
- in public expenditure, development aid and most importantly human
lives - that would be achieved if every embargo were fully respected.
It is doubtful that this list is exhaustive, but hopefully it will
assist discussion in the United Nations to improve the verification of
violations of its arms embargoes, and compliance with such embargoes.
********
(1) Embargoes are also imposed by regional organizations,
most notably by the European Union (EU) and the Organization
for Security and Cooperation in Europe (OSCE). In April 2004,
there were EU arms embargoes against eleven States: Afghanistan,
Bosnia-Herzegovina, Burma (Myanmar), China, Democratic Republic of
Congo, Iraq, Liberia, Sierra Leone, Somalia, Sudan and Zimbabwe. In
1993, the OSCE imposed a politically binding embargo on Armenia and
Azerbaijan, aimed at "all deliveries of weapons and munitions to
forces engaged in combat in the Nagorno-Karabakh area" (Decisions
Based on the Interim Report on Nagorno-Karabakh, available online:
http://projects.sipri.se/expcon/csceazbarm .htm). An important
expression of political will, such embargoes do not carry the weight of
their UN counterpart if only because they are, by their very nature,
regional in scope and can be thus undermined by countries outside
the arrangement that may not subscribe to the same political view.
(2) S/RES/1572, 15 November 2004 (for a period of 12 months);
S/RES/1584, 1 February 2005 (reaffirming the embargo).
(3) S/RES/1521, 22 December 2003 (for a period of 12 months);
S/RES/1579, 21 December 2004 (renewed for a period of 12 months).
(4) S/RES/733, 23 January 1992; most recently reaffirmed in S/RES/1519,
15 December 2003 and S/RES/1558, 17 August 2004.
(5) S/RES/1493, 28 July 2003, targeting "all foreign and Congolese
armed groups and militias operating in the territory of North and
South Kivu and of Ituri, and to groups not party to the Global
and All-inclusive agreement, in the Democratic Republic of Congo"
(for a period of 12 months); S/RES/1552, 27 July 2004 (renewed for
a period of 12 months).
(6) S/RES/1521, 22 December 2003, targeting the LURD and the Movement
for Democracy in Liberia (MODEL), as well as "all former and current
militias and armed groups" (for a period of 12 months); S/RES/1579,
21 December 2004 (renewed for a period of 12 months).
(7) S/RES/1011, 16 August 1995, targeting "non-governmental forces"
inside Rwanda and persons in neighbouring States that intend to use
arms and related materiel in Rwanda.
(8) S/RES/1171, 5 June 1998, targeting "non-governmental forces in
Sierra Leone".
(9) S/RES/1556, 30 July 2004, targeting "all non-governmental entities
and individuals, including the Janjaweed, operating in the States of
North Darfur, South Darfur and West Darfur".
(10) S/RES/1390, 28 January 2002 (for a period of 12 months);
S/RES/1455, 17 January 2003 (decision to improve the implementation
of the measures over a further period of 12 months); S/RES/1526, 30
January 2004 (decision to improve the implementation of the measures
over a further period of 18 months).
(11) In a recent resolution on the situation in Burundi, the Security
Council expressed "its deep concern over the illicit flow of arms
provided to armed groups and movements, in particular those which
are not parties to the peace process under the Arusha Agreement" and
called upon "all States to halt such flow" (S/RES/1545, 21 May 2004,
para. 18).
(12) Article 41 confers upon the Security Council the power to call for
a "complete or partial interruption of economic relations [...] and the
severance of diplomatic relations" in response to a threat to or breach
of the peace or an act of aggression. It is within the discretion of
each State to decide the type of responsibility (administrative offence
v. criminal offence) that attaches to a violation of the embargo by a
private actor. In a resolution on the situation in Africa adopted in
1998, the Security Council encouraged Member States to adopt measures
making the violation of mandatory arms embargoes a criminal offence
(see S/RES/1196, 16 September 1998, para. 2).
(13) See for example, Amnesty International, "Undermining Global
Security: EU arms exports", October 2004, and Control Arms Campaign,
"Arms exports from the G8", June 2005.
(14) Guidelines for international arms transfers in the context
of General Assembly resolution 46/36 H of 6 December 1991', UN
Disarmament Commission, May 1996, Official Records of the General
Assembly, Fifty-first Session, Supplement No. 42 (A/51/42), 22 May 1996
(15) Articles 16 and 41(2). The Articles were commended by the General
Assembly and annexed to resolution 56/83, Responsibility of States for
Internationally Wrongful Acts, UN Doc. A/RES/56/83, 12 December 2001.
(16) Rome Statute, Article 25(3)(c) [emphasis added].
(17) The Question of the Trade, Carrying and Use of Small Arms
and Light Weapons in the Context of Human Rights and Humanitarian
Norms, Working paper submitted by Barbara Frey in accordance with
Sub-Commission decision 2001/120, Economic and Social Council, UN
Doc. E/CN.4/Sub.2/2002/39, 30 May 2002.; also Prevention of human
rights violations committed with small arms and light weapons,
Preliminary report submitted by Barbara Frey, Special Rapporteur,
in accordance with Sub-Commission decision 2002/25, Economic and
Social Council, UN Doc. E/CN.4/Sub.2/2003/29, 25 June 2003.
(18) "Programme of Action to Prevent, Combat and Eradicate the Illicit
Trade in Small Arms and Light Weapons in All of Its Aspects", in
Report of the United Nations Conference on the Illicit Trade in Small
Arms and Light Weapons in All Its Aspects, New York, 9-20 July 2001,
UN Doc. A/CONF.192/15.
(19) UN PoA, section 2, Article 11.
(20) Around 50 States have expressed support for the idea of an
International Arms Trade Treaty based upon international norms, and
many more States have called for international binding instruments
for arms transfers.
(21) Brian Wood and Johan Peleman, in a 1999 study entitled The Arms
Fixers, ( available from www.nisat.org) enumerated many loopholes
in existing national controls: the lack of specific provisions to
regulate the brokering and transportation of arms; lax control on
weapons stocks; acting as an agent between supplier and buyer without
the weapons entering the territory; using barter arrangements and
offshore financing especially in tax havens; easily circumvented
documentation requirements; using circuitous routes to conceal the
true nature of cargoes; exploiting difficulties in enforcing customs
controls, particularly in countries with long borders and limited
resources. See also: Small Arms Survey 2004: Rights at Risk, Oxford,
Oxford University Press, 2004, pp.143-146
(22) UN Guidelines on International Arms Transfers, op cit.
(23) Resolution 59/86, 10 December 2004.
(24) As happened with the embargoes imposed on Rwanda, the Democratic
Republic of the Congo, and Sudan, op cit.
http://www.amnestyusa.org/news/document.do?i d=ENGIOR400052006