1
CONTROLLING THE ARMS TRADE: THE WHY AND THE
HOW
PRELIMINARY DRAFT—NOT FOR QUOTING
Comments welcome
Laurence Lustgarten
Centre for Socio-Legal Studies
Oxford University
2
CONTROLLING THE ARMS TRADE: THE WHY AND THE
HOW
Chapter One
Clearing the Ground
Imagine a world in which all transfers of weapons and related
technology across national boundaries was absolutely and effectively
prohibited. In a world of independent states1, what would be the
result?
Unless one or more of those states adopted a policy of complete
renunciation of armed defence—on the historical record, a measure
likely to result in its eventual erasure, and possibly fairly rapidly—
they will be forced to equip themselves with weaponry.2 The obvious
question then becomes, how will they do so? We can reach the
same question by another route: it is a principle of customary
international law that states have the right of self-defence against
aggression, a principle so fundamental that it was enshrined in the
United Nations Charter.3 How, in practice, are they to do so without
resorting to arming themselves, at least to the degree required for
deterrence of possible aggression?
1
An argument could be mounted for the abolition of states, to be replaced by a world government. This
would however not solve the problem of armed conflict, but simply displace it to a different level, that of the
necessity to use force to control ‘internal’ violence.
2
Costa Rica and its armaments,
UN Charter Art. 51, ‘inherent right’ of collective and individual self-defence v. aggression –full and further
quote needed
3
3
In theory, each of the 193 member states of the United Nations
could supply its own needs through home manufacture. To say this
is to expose its unreality, indeed its economic absurdity. Small
nations especially would lack the technical knowledge and skilled
workforce, and for poorer ones, to establish an independent arms
industry would be a gross distortion of limited resources and needs.
Although ‘a traditional dictum of security policy, at least since
Machiavelli, is that no state should rely on others to furnish the
means of its own defence’4, in an age of advanced technology that is
a luxury few can actually maintain. It is in fact to the advantage of
many, perhaps most, states that they are able to acquire their means
of defence from external sources; and although the concept of
‘comparative advantage’ drawn from classical economic theory all
too often serves to justify under-development of the economies of
the Global South, this is one instance in which it does make good
sense. Indeed ‘arms trade’ does not fully describe what may occur,
because the transfer need not involve economic exchange: a
producing state may, for various political reasons, choose to supply
the weapons without cost, as was in fact the practice of the
Superpowers during the first two decades of the Cold War.5 For this
reason, if international regulation in particular is to be effective, it
must apply to all ‘arms transfers’—the language used in the Arms
M. Trebilcock et al, The Regulation of International Trade, 4 ed. (Abingdon: Routledge 2012), p. 575,
citing Machiavelli’s The Prince, chaps. 6-7 (written in 1513).
Ref to Ohlsson; US still does this bigtime, e.g. with Egypt
4
5
th
4
Trade Treaty.6 Nor can it be limited to ‘weapons’ or ‘arms’, but
must encompass surveillance equipment and technology such as the
software used to guide drones. Probably need to say a bit more
here--see my ELAC TALK
If this is correct, then some sort of system of international arms
transfers is both inevitable and, to some extent, even desirable. To
say this does not mean accepting that the present levels of armament
throughout most of the world are either necessary or desirable.
There is no contradiction between the following two ideas: 1)
acceptance that in a world of competing, often hostile states, all will
require armaments and most will rationally choose to import them
and 2) a passionate belief that most states possess arsenals grossly in
excess of what a rational assessment of self-defence requires, and
that in varying degrees national aggrandizement, corruption, the
determination of elites to control their populations by violent
means, and short-term economic calculations have led to bloated
accumulations of weapons at the expense of greater societal needs.
In light of the inevitability of international arms transfers, why then is
the arms trade so much reviled? I suggest that if most transactions
were between two democratic states of reasonably similar levels of
6
Cite to ATT
5
economic development when the recipient was not engaged in
armed conflict—a sale of training helicopters from the UK to, say,
Poland--objections would be few and muted. But most sales do not
fit this pattern, and the economic, political, and humanitarian
objections to them are numerous and powerful. At least five may be
identified. BUT BEFORE THAT I NEED TO SAY
SOMETHIG ABOUT WEAPONS THEMSELVES
Certain types of weapons, known collectively as SALW (Small Arms
and Light Weapons)7 have been the engine of the deaths of literally
millions of people over the last two decades. The vast majority of
the victims have been civilians, predominantly women and children,
largely in Africa. In places like Angola, the Congo (DRC), Liberia,
Sierra Leone, Mali, and Somalia, these have been the weapons of
choice of both official armies and diverse unofficial forces, the latter
variously described as insurgents, militias, private armies, or
resistance fighters, and generically described as non-state actors
(NSAs). They are technologically simple, easily transportable,
readily concealable, and their unit cost is relatively cheap. The
iconic example is the Kalashnikov, (the American M-16 is similar);
but grenades and the so-called MANPAD (man-portable air defence
system) which a small crew can transport and use to take down
aircraft are other much-used deadly items.8
7
8
Quote UN Definition
cite Stohl et al Intro to Small arms
6
Kofi Annan, when UN Secretary General, rightly described SALW
as ‘the real weapons of mass destruction’. 9 Trade in them is often
illegal under various national laws, but ease of concealment among
legitimate ships’ cargoes, and of transport by light aircraft landing in
remote airstrips, makes these laws very hard to enforce. So too does
the use of brokers, front companies and other intermediaries. In
resource-rich areas, payment by the armed groups controlling a
particular area may take the form of access to the raw materials:
hence the term ‘conflict diamonds’ in places like Angola, Sierra
Leone and the DRC.
SALW as instruments of carnage are not limited to areas of overt
political instability. Latin America and several West Indian states
have been subject to organised gun violence, a by-product of the
lucrative market created by the prohibition policies of the USA as
rival criminal gangs fight murderously for control of the drugs and
the supply routes. Mexico has been the most famously afflicted, but
most of Central America has also suffered, as has Jamaica. The
favelas of Brazil have the world’s highest rate of gun deaths, also
arising out of drug trade-related criminality.10 With the partial
exception of Brazil, which has a local gun manufacturing industry,
virtually all the weapons and ammunition used in these killings are
9
quoted in Bourne [or one of Cooper’s pieces]
http://www.latitudenews.com/story/what-the-u-s-obama-can-learn-from-brazils-epidemic-of-gun-violencenewtown/, accessed 14 August 2013. This article reports that Brazil suffered 36,000 gun homicides in 2010,
a rate nearly six times higher than that of the US rate, itself astonishing high by European standards.
10
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imported; their purveyors and their associates truly are ‘merchants
of death’.11 The need for controlling the flow (and flood) of SALW
is thus not restricted to situations of civil war or external war.
Organised domestic criminal violence can be devastating too.12 It
should be noted however, that in certain states, civilian possession of
firearms may be protected by domestic law, most notoriously in the
USA by the Second Amendment of the Constitution, which
establishes ‘the right to bear arms’.13
Internal Repression
Without becoming ensnared in controversy about precise numbers,
it is fair to say that numerous states are either openly undemocratic;
or deny political or personal rights to some or all of those under
their control; or occupy territory whose inhabitants do not wish to
be governed by them and regard them as an alien force; or treat
significant ethnic or religious groups in oppressive or discriminatory
ways. In many situations more than one of these abuses occurs, and
they may all be grouped under the general heading of ‘internal
repression’. A day has seldom passed, and seldom passes, when
examples are not found in the news, drawn from everywhere round
the globe.14 The material means used by secret police and military
11
12
13
14
Origin of the phrase [1934 book]
fn to Garcia 2010??
As interpreted in controversial 5-4 decisions by the US Supreme Court in x and y.
In the past 40 years the major areas of concern have included numerous states in Latin America,
Indonesia, Sri Lanka, Saddam Hussein’s Iraq, Israeli actions in the Occupied Territories, successive regimes
in Egypt, and currently and most savagely, in Syria.
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forces against their own people, or subject people under their direct
control, is almost always imported weaponry, supplemented
increasingly by surveillance technology.
Many citizens of Western supplier countries15 object to their nation’s
industry being used to deny people overseas freedoms they
themselves enjoy, though that is not a unanimous view. In this
instance, a sense of fellow-feeling about the value of democracy or
human rights combines with revulsion at the violence committed.
This position links with the greater salience, increased official
rhetoric, and sporadic practical action that human rights has
achieved on international political and legal agendas in the last two
decades. The link, however, is often not made as tightly as it might
be: restrictions on arms sales on human rights grounds should be
more central to the missions of official human rights agencies and
civil society campaigns than it now is. This is beginning to be
recognised with respect to Responsibility to Protect (R2P), as the
UN has attempted to establish that concept as an international
norm.16 The Secretary General’s Report of 2009 on its
implementation stated that “Particular attention should be paid to
restricting the flow of arms or police equipment, which could be
misused by repressive regimes that are manifestly failing” to meet
15
There seems to be no organised civil society opposition in Russia, and one would not expect public
opposition in China, which in any case has only just begun to be a significant exporter of weaponry.
The key document here is the UN World Summit Outcome of 2005, A/RES/60/1. There is a rapidly
growing scholarly literature on the subject, for, against, and clarificatory.
16
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their R2P obligations.17 One would hope that future R2P initiatives
will go beyond this bare mention.
The role of imported arms in assisting internal repression and
human rights violations has probably been the leading argument put
forward by critics of the arms trade, so that serious debate about
repression as a reason for banning arms sales no longer takes place
openly, at least in Europe. It is one of the primary grounds
identified in the guidelines long operated by the European Union
and now known formally as Criteria, to which approval of arms sales
by national governments is supposed to conform.18 Legally binding
since 2008, the so-called Common Position mandates denial of an
export licence “if there is a clear risk that the military technology or
equipment … might be used for internal repression.”19 Admirable as
this is, (though it is too often ignored in practice) it still does not go
far enough. It misses out entirely the link between repression and
human rights abuses, and the character of a government. Whilst
abuses can occur in democratic countries, particularly where there is
strong ethnic animosity, they are a great deal more likely when an
autocratic state faces dissent. Indeed it is virtually impossible to
name an existing state whose ruler(s) have come to power by
17
“Implementing the responsibility to protect”, Report of the UN Secretary General, A/63/677, 12 January
2009, para. 58.
For a general study of the role and policy of the EU in this sphere, see my article [2013]
Council Common Position 2008/944/CFSP of 8 December 2008, Art. 2, Criterion 2. OJ L 335/99. This
goes well beyond anything found in US arms export control legislation, which requires licensors to consider
only whether the equipment would have certain undesirable international effects. See 22 USC s.2778 (a)(2).
18
19
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undemocratic means which does not deny human rights to those
who seek to establish democracy, or who campaign for equal
treatment of ethnic minorities. Respect for human rights has, as the
reverse side of the coin, existence of democracy. To give real bite to
the internal repression criterion, it should be essential that any
government seeking arms should have come to power by free and
fair elections, as judged by widely-recognised international
standards.20
Reluctance to sell arms to an internationally recognised government
due to its dealings with its own people intrudes on concepts of
sovereignty accepted for centuries as being fundamental to relations
between independent states. When the would-be purchaser is a
former colonial territory, allegations of neo-colonialism are sure to
be heard. So too are allegations of hypocrisy, not only about human
rights violations within the producer state itself, but more tellingly
about ‘discrimination’—inconsistent application of human rights
standards depending on ulterior factors such as trade relations or
wish for political favours or military assistance from particular
would-be purchasers.21 This may be a major stumbling block to
agreement on any form of international regulation agreed by both
20
European states, and the USA, have extensive experience applying these when monitoring elections in
numerous states in the Global South.
Evidence of the reality of discrimination by exporter states is compelling. Summary of conclusions of
Perkins and Neumayer, Geoforum (2010) perhaps also Yanik HRQ, 28[2], 2006, 357-88
21
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exporting and importing states. I shall return to this important issue
later in this chapter.
2. Endemic Corruption
Of all the products of international commerce, the trade in weapons
is undoubtedly the one most deeply immersed in corruption.
Indeed it has been persuasively argued that corruption is actually the
purpose of many transactions: the argument being that most
purchasers do not need the volume or the kind of weapons to
protect themselves from any reasonable possibility of attack. Hence
the price, quantity, or type of equipment (or all three) are inflated, at
times grotesquely, so that officials and influential people in the
purchasing state may receive bribes, commissions, or other benefits
(e.g. funds for political campaigning to retain power).22 A notable
and angry literature documents such abuses in specific cases in
forensic detail.23
Less generally remarked, but insidiously destructive of the practice
of democratic accountability, is the effect of corruption on the
exporting state. Partly due to the insistence of purchasers, but even
more because exports are often encouraged and assisted by
governments for economic and security reasons, their details are
cloaked in secrecy. Bribes paid to purchasers are hidden from civil
22
This argument was put forward persuasively by the late Joe Roeber in Prospect CITE. Roeber, a UK-based
journalist, was prevented from publishing his detailed book-length research by fear of the libel laws then in
force in England.
Feinstein 2011; S Africa particularly, it was to aid ANC although some individuals too.
23
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society and legislative enquiry, so that criminal acts undertaken to
clinch the deal are effectively hidden and thereby absolved.24
Perhaps the most extreme example, from the UK, occurred when
the prosecuting authorities did undertake a detailed investigation of
BAE Systems, the UK’s largest weapons producer, in connection
with the so-called al-Yamanah contracts, a long-term highly lucrative
arms deal with Saudi Arabia—the country which, in terms of the
absolute sums involved, is the most corrupt of all purchasers. The
investigation into corruption surrounding the deal was aborted by
the Director of the Serious Fraud Office under extreme political
pressure. Reversing the ruling of the judges who heard the legal
challenge at first instance, the House of Lords, in a posture which
mixed credulity and complacency in equal proportions, upheld the
termination.25 In many states, the companies engaged in bribery are
at least in part publicly owned and most also receive various forms
of state subsidy, so public funds are being used to commit financial
crime.
The sums involved are enormous. Orders may be worth billions of
dollars over extended periods of time; and the ‘commissions’ are
proportionate.26 This is far removed from the world of SALW and
24
OECD Convention and UK Bribery Act—will they make any difference
Cornerhouse case 2008 UKHL 60. Allegedly the justification was Saudi threat to withdraw assistance in
terrorism cases, but most of our terrorism comes from homegrown stuff, we have other sources of
intelligence and Saudis themselves face an al-Q threat due to infidel presence. US fines hit BAE didn’t they?
Cite to Feinstein for details??
Feinstein; Roeber; size of deals; size of bribes/commissions
25
26
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atrocities in remote poverty-stricken areas. The total value of those
sales is far smaller, so inevitably corruption in relation to them
involves relatively small bribes of airport or customs officials, or of
those who issue import licences without asking questions. The real
money attaches to wholly different forms of weaponry: high tech
aircraft, control systems, defence systems, carriers, battleships and
submarines. The purchasers are governments, not NSAs; those
complicit are high civil servants and military officers, prominent
business executives and, often in the most suspect cases, politicians.
And except in the rarest cases, the weapons are never fired in anger;
when they are, it can become almost comically apparent that the
recipients have no idea how to use them.27 Thus paradoxically the
most expensive and corruption-embedded weapons are those which
have seldom been used directly to commit atrocities or human rights
violations. They may have other evil internal effects, notably by
elevating the status of military and police organisations within
government and enriching civilian and military elites that maintain
effective dictatorship. But they are unnecessary for the suppression
of civilians, which can be done far more simply and cheaply with
machine guns, rifles, and crowd control and torture equipment.
Diversion
27
Classic instance: Saudi in the Gulf War; grit in the aircraft engines, AWACs instructing pilots who never
went beyond Saudi territory.
AIRBORNE WARNING AND CONTROL SYSTEM
14
Embargoes have become an increasingly-invoked measure of
international politics. Though used by NATO states against those in
the Soviet bloc throughout the Cold War28 they were and are
increasingly employed by the United Nations as a form of sanction
short of armed response.29 The USA, EU, and its individual
Member States have also frequently imposed them against both
governments and NSAs in recent decades. All carry with them the
risk that the target entity will seek other sources. They may look to
other states which refuse to join the embargo, but this is difficult
when it is backed by a global consensus as represented by the UN.
A more promising avenue than illegal shipments and perhaps the
most effective--certainly for heavier equipment--is manipulation of
an apparently legitimate sale to one recipient country so that the
weapons reach the target state by a devious route. This is known as
‘diversion’. It is also a means by which shipments of SALW may be
made to NSAs, making use of false end user certificates, assisted by
corrupted or politically-sympathetic officials and politicians in the
purported recipient state. Diversion thus links inseparably with both
large-scale suffering and corruption.30
28
Via a mechanism called COCOM, (Coordinating Committee for Multi-lateral Export Controls). This was
abolished in 1994, and replaced by the so-called Wassenaar Arrangement, an organisation of exporting states
which now includes most of the former Soviet bloc nations.
The SIPRI arms embargo Database listed twelve mandatory UN arms embargoes currently in force:
http://www.sipri.org/databases/embargoes, accessed 22 August 2013.
An evocative description of how this can be done appears in Frederick Forsyth’s novel, The Dogs of War,
first published in 1974, but still accurate.
29
30
15
Equally, states may employ similar means to arm themselves either
when at war or engaged in internal brutality. The example best
known in the UK was the process by which Saddam Hussein
managed to acquire British weaponry via shipments supposedly
purchased by Jordan. This was central to the so-called Arms for Iraq
scandal, which produced a massive report by a senior judge whose
investigative hearings occupied even more massive space in the
media for more than a year, exposed some of the more unsavoury
aspects of the UK arms industry, and eventually led to a modernised
statutory structure of export controls.31
Diversion is not limited to circumstances where a formal embargo
exists, and it is one of the key concerns of major exporting states.
Research prepared for the EU into one year’s licensing decisions by
Member States showed that risk of diversion was the most
commonly-invoked reason for denial of export approval.32 The role
of arms brokers, who often serve to conceal the identity of the
purchasers; the need for a weapons ‘fingerprint’—marking which
enables enforcement officials to trace the movement of contraband
weapons--and regulation of transit and transhipment33 [t & t] of them:
all are vital to combating diversion. Their great importance was
31
Scott citations, EPA 2002; for review see L&L. One key element in the scandal is whether certain UK govt
Ministers knew, expected, or took care not to consider the likelihood, that the weapons would end up in Iraq.
Vrancx, see my fn 80 something. The year studied was 2008
‘Transit’ means the carrying of goods from Country A through one or more states (Countries B-N) to their
eventual destination in Country X. ‘Transhipment’ refers to the physical process of unloading the goods
which arrive, say, by ship in Country B, and re-loading them into lorries for transport through Countries B-N
to the eventual destination.
32
33
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recognised in the Arms Trade Treaty which in addition to a
complex Article covering diversion, also specifically included
provisions on brokering and t&t.34 Also critical to preventing
diversion is so-called ‘capacity building’—assisting customs and other
enforcement officials in both exporting and importing states to gain
expertise in recognising suspicious transactions and investigating
both physical shipments and paper trails. Cultivating higher
standards of integrity among officials and politicians is part of this
process, though if the poor pay of lower-level enforcement officials
is not remedied, this is likely to have limited effect. However, such
efforts will always be permeated with a strong smell of hypocrisy
unless strong measures are taken simultaneously against companies
prepared to offer various forms of inducements to gain sales--and
these are a powerful political presence in states of the North.35
5. Contribution to Aggression
Part of the process of approving a sale of weapons is consideration
of their likely external uses. It may be judged that the purchaser is
not likely to use the weapons for aggressive purposes, or perhaps
more to the point, against states friendly to the seller. But with
delivery comes loss of control. In unexpected circumstances, or in
those whose likelihood has been discounted, a misjudgement may
34
Art. 11 (diversion); Art 10 (brokering); Art. 9 (t&t). Tracing is not specifically addressed, though there are
several articles relating to recordkeeping and information exchange among State Parties which could be
helpful.
Should what is now fn 24 go here instead [or perhaps just a x-ref]??
35
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prove deadly to third parties, or even to allies. The classic instance is
the use by Argentina of French Exocet missiles against UK ships
during the Falklands/Malvinas War. Presumably the French thought
that the intended use, or deterrent effect, was aimed at other South
American states.36
Of the purposes of the United Nations set forth in its Charter, the
very first is ‘to maintain international peace and security’; collective
action under its auspices to prevent threats to peace and to suppress
acts of aggression is supposed to provide the means.37 Thus curbing
availability of the means of aggression should be a primary element
of arms trade policy of exporting states. On paper, this is so. The
EU Common Position, in Criterion 4, requires that ‘Member States
shall deny an export licence if there is a clear risk that the intended
recipient would use th[at] military technology or equipment …
aggressively against another country or to assert by force a territorial
claim’.38
There are two difficulties here: one is that, to adapt and expand a
well-known phrase, one person’s aggression is another’s selfdefence.39 Perhaps even more important, it is often at least arguable
36
Twenty people aboard HMS Sheffield were killed, and even more were wounded. An Exocet was also
fired by the Iraqis in 1987 at an American warship, killing nearly 40 people.
Charter of the United Nations, Art. 1
Council Common Position 2008/944/CFSP of 8 December 2008, Art. 2, Criterion 4. OJ L335/99.
A controversial related issue is the question of justification: if State A is what Bismarck, after he unified
Germany by two successful wars, called a ‘satiated state’—one content with the status quo and seeking only to
maintain it, attempts to alter what other states or those deprived of territory now held by the ‘satiate’ can be
seen as aggression. Yet if the entrenched state is militarily strong and refuses to budge, are those who feel
themselves aggrieved supposed passively to accept the present state of affairs? These are anything but
37
38
39
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that, in the context of particular national rivalries, balance of
armaments can serve as a deterrent to aggression. Yet clearly that is
an argument that can readily be distorted to justify shipments to
one’s friends in almost all circumstances.
Given the importance of the subject, it is not surprising that there
have been several attempts to determine the impact of arms
transfers on aggressiveness of states. Unfortunately they shed little
useful light. For one thing, they all looked at data from the period of
the Cold War, which means that both the transfers and the
responses of the recipient occurred within the particular context of
bi-polar international relations which collapsed more than 20 years
ago. The absence of any more recent studies leaves a major gap in
our understanding. Secondly, even those studies were remarkably
ambiguous in their results. Some purported to show that particular
transfers stimulated ‘co-operative behaviour’ between rivals, whereas
others concluded precisely the opposite: that ‘conflictual behaviour’
was stimulated. At least one concluded that the transfers had no
impact at all in this respect.40 Yet another researcher has argued that
whilst both US and Soviet transfers to three selected sets of rivals
were ‘profoundly destabilising’, sales by China to Pakistan ensured
theoretical questions: India’s role in Kashmir, and that of Israel in the Palestinian Occupied Territories are
both examples, and are among the most dangerous sources of conflict in the contemporary world.
For a review [and summary?] Kinsella, p.558 of the 1994 Article. See his more recent overview in HB on
Pol Economy of War (2011)
40
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military balance between that country and India, and thus
contributed to regional stability.
41
This last finding gives a clue to a fundamental point: a given transfer
may have very different effects, depending on whether it confers a
military advantage on the recipient or whether it equalises the
position of the recipient vis-à-vis its rival, and hence restores a preexisting balance of armaments. And this itself is a different question
from the impact of transfers on aggression: imbalances of armament
do not by themselves cause or produce aggression—they may tend in
that direction but other factors, including the pressure of dominant
powers, especially the supplier state, may push in the opposite
direction42. In other words, a destabilising transfer does not directly
produce aggression, and the extent to which it may have that effect
cannot be determined a priori or abstracted from specific
circumstances. No clear conclusion is supportable, and the simple
thesis that “arms sales cause war between states” is unsustainable.
However the italicised phrase is critical, because the impact on interstate rivalries is likely to be entirely different from the effect of
receiving arms on those NSAs which, as is true in almost all cases,
are already engaged in armed conflict with a state.43
41
Sanjian, ISQ 1999, ABSTRACT, FIND PAGE The author pointed out that his finding upset the
traditional picture of China as an agent of ‘irresponsible’ arms transfer.
The question of influence is itself problematic. One study found, quite counter-intuitively, that ‘increasing
levels of US military aid significantly reduce cooperative foreign policy behavior with the United States’: P.
Sullivan et al (2011) CITE
To say this in no way implies that all NSAs are engaged in morally unjustified armed violence. They may be
fighting against a brutal dictatorship and no other means of effective resistance, and to call this ‘aggression’ is
42
43
20
It is important also to separate the question of aggression, which
relates to initiation of war, and the effect of arms transfers on the
continuation or intensification of an existing one—pouring fuel on
the flames as opposed to starting the fire. A study of African wars
during the 1980s found that arms supplies increased in volume after
wars had begun, and were more often received by defending states.
This enabled war—and therefore casualties—to continue longer than
it likely would have, but also meant that aggression, or at least
initiation of armed conflict, was not rewarded.44
From an Olympian overview of any particular regional or inter-state
rivalry, it seems clear that an embargo of transfers to all sides would
be by far the most rational policy to inhibit conflict. At best,
transfers would merely stimulate further transfers in an attempt at
equalisation, with no gain to anyone—except those far away in the
supplier states who make great profits; and at worst would enhance
the likelihood of pugnacious diplomacy and military aggression. An
unofficial policy of this kind did operate among the USA, the UK,
and France in the early 1950s with respect to the Middle East, but
came apart as the latter two saw their interests as lying with Israel.45
With the capacity to supply arms no longer restricted to a very few
politically loader and tendentious. Obviously, though, their ability to resist does depend on their ability to
acquire arms.
F. Pearson et al, “Arms Transfers: Effects on African Interstate Wars and Interventions, Conflict Q, 9(4),
p.51 (Winter 1989)
Cooper, history. Ironically at this point, during the Eisenhower Administration, the USA was trying to
maintain a balanced stance as between the Arab nations and Israel.
44
45
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states, it is difficult to imagine any such policy operating effectively
today, unless imposed by the UN with the unanimous and
continuing support of the five Permanent Members of the Security
Council. Yet here again there is a problem. Although nothing in the
Charter prevents the UN from imposing an embargo for the
purpose of preventing armed conflict,46 in practice Security Council
embargoes have almost invariably been adopted after the outbreak
of interstate violence, very seldom as an attempt to create a sort of
cordon sanitaire of demilitarisation before violence breaks out.
47
Few clear-cut conclusions about the relationship between arms
transfers and aggression can be presented with confidence. Timing
is critical, particularly in respect of whether a transfer is a response
to a rival or potential enemy’s acquisition of weapons, or is an
attempt to gain a military advantage by upsetting an existing
equipoise. So too is the political context in which the transfer takes
place, including the relationship between the selling and purchasing
governments. A co-ordinated freeze on transfers to particular states
in situations of impending conflict, whether informally or by UN
embargo, would potentially be an effective means of using arms
transfer regulation to maintain international peace and security, but
46
Art. 39 and Art. 41 exposition
It is of course true that most contemporary armed conflicts occur within state borders, not between states.
But when sanctions have been imposed against both sides of an inter-state war, they have occurred after the
outbreak of violence, e.g. between Eritrea and Ethiopia in 1999. And there remain major situations of
ongoing intermittent inter-state violence, notably between India and Pakistan, where embargoes seem not
even to have been mooted. The barrier in instances like these are political, not legal.
47
22
for political reasons is seldom attempted and has become
increasingly difficult to envisage as more states become significant
arms exporters. In its absence, even where transfers simply maintain
equipoise--at the cost of billions--the only gainers are the executives
and shareholders of the manufacturing companies and those who
facilitate the deals.
5a) What may be called a sub-issue straddling both aggression and
diversion is known as ‘blowback’—a term which also has a much
wider use to describe former allies turning against their erstwhile
sponsors (e.g. the Taliban and their American paymasters after
1989).48 In this case the seller may find the weapons turned on its
own troops, as happened in the first Gulf War, when Iraq used
weapons bought from the UK. Blowback or merely unanticipated
use may also be the result of diversion, because the ultimate
recipient is very likely to use the weapons for different purposes and
against different targets than the nominal purchaser. Unlike the case
of SALW and NSAs, diversion in this context involves heavier
weapons in the hands of states.
There is however one mitigating effect to blowback or unexpected
use of weapons. It is that the seller knows how they function, and
can take steps to counter or even neutralise them. This famously
happened during the Falklands/Malvinas War, when Francois
48
A far-seeing and incisive study of this in relation to the USA was written by the late Chalmers Johnson: C.
Johnson, Blowback: The Cost and Consequences of American Empire (2d ed 2004, NY Henry Holt)
23
Mitterand agreed to Mrs Thatcher’s demand that technical
operating information about the French Exocet missiles be given to
the UK military. This made it possible to disable the missiles’
radar.49
Economic and Social Impact
Perhaps the primary reason Western aid NGOs, most notably
Oxfam, became so passionately involved in the campaign for an
international treaty to control the arms trade was their experience of
the devastating effects of political violence on the living standards of
people trapped in so-called ‘conflict zones’. Endemic violence
produces obvious costs in destroyed infrastructure (housing, roads)
and the health and rehabilitation care of victims50; added to these are
the loss of population (particularly the young and educated), and the
impossibility of establishing the secure and relatively settled
environment essential to encourage domestic or foreign investment
in productive industry and development of human capital. The
simple result is a population tightly gripped in poverty.51 Violence
stultifies development. And the use of scarce foreign exchange to
buy weapons by governments that are either dictatorial, aggressive in
relations with other states, or both, has been and remains a great
49
See stuff in Wiki article on Exocet
These costs may extend for decades, for example in the case of crippled child victims of landmines.
A important publication by a consortium of NGOs has estimated that, ‘conservatively’, armed conflict cost
African economies US$284 between 1990 and 2007, and reduces the ‘average’ African economy by 15%
during its duration. The weapons used in this violence are almost all manufactured elsewhere. It is quite likely
that in several countries, armed conflict has reduced already precarious living standards in affected areas. See
IANSA, Oxfam and Safeworld, ‘Africa’s missing billions’, Briefing Paper 107, 11 October 2007.
50
51
24
drain on resources that could be used for education, health care,
transport and other forms of public investment.
The main exporting states, apart from Russia, have purportedly
addressed this problem. American legislation enacted in the 1970s
bars sales of military equipment to “economically less developed
countries” found to be diverting American development assistance
funds, or their own resources, to “unnecessary military
expenditures”52 Another of the Criteria contained in the EU
Common Position53 requires assessment of compatibility of the sale
with the “technical and economic capacity of the recipient country”
so as to make possible “the least diversion of human and economic
resources for armaments” to meet “legitimate” security needs.
Exporters are instructed to consider information from various
international bodies when assessing whether the proposed export
“would seriously hamper the sustainable development of the
recipient country”, in light particularly of its “relative levels of
military and social expenditure, taking into account also any EU or
bilateral aid” [author’s italics].54
There is a vast gap between statute book and reality. The European
Council produces an Annual Report on the work of Member States
implementing the Common Position. It is of enormous length—the
latest is nearly 400 pages long—and consists mostly of Tables
52
53
54
22 USC sec. 2775, part of the Arms Export Control Act of 1976.
See above TAN 18 [p.8 now]
EU CP Cite, Criterion 8.
25
showing exports and refusals of arms from each Member State to
every destination in the world.55 The basis of denials—which are
relatively few in any case—is indicated by reference to the relevant
Criterion. I have not found a single example of invocation of the
sustainable development Criterion for 2011, the last year covered.
Nor is there any evidence that the USA has taken its legislation any
more seriously.
The importance of arms purchases for the economies of developing
nations was highlighted by an authoritative report prepared by the
US Congressional Research Service in August 2012.56 It
demonstrated that developing nations are the primary market for
arms exports; it is no exaggeration to say that the South is supporting
key industries of the North in a major way. This is particularly true
of European exporters, whose domestic demand is too small to
keep their arms manufacturers viable; hence the repeated, almost
frantic efforts of UK Prime Ministers and French Presidents to push
for arms sales as they visit foreign capitals. And the importance of
the Southern markets is ever-increasing. In 2004-2011, the entire
period covered, arms transfer agreements with developing nations
comprised 68.6% of all such agreements globally. That rose to
79.2% in 2008-2011, but for 2011 alone, such agreements
55
Fourteenth Annual Report According to Art. 8(2) of Council Common Position 2008/944/CFSP….OJ C
386/1, 14 December 2012.
R.F. Grimmett and P. Kerr, “Conventional Arms Transfers to Developing Nations, 2004-2011” (CRS, 24
August 2012).
56
26
comprised no less than five out of every six—83.9%. It is true that
not all agreements result eventually in actual deliveries: there is
always a substantial time lag as the weapons are constructed, and
changing political constellations and economic circumstances
(fluctuating exchange rates, oil prices) ensure that some agreements
are either never fulfilled or are re-negotiated. However, the
overwhelming importance of sales outside the developed world is
striking.
“Developing nations” is a term that must be used cautiously,
however. It notably includes Saudi Arabia, which was alone
responsible for just over 20% of all agreements in this period, and in
years of high oil prices is very wealthy indeed. It also includes at
least some of the oil-rich Emirates--as well as India, which has the
largest number of people in poverty on the planet57, but also sustains
a growing minority, equivalent in absolute terms to the combined
population of several of the largest EU States, whose living standards
equal those of the Northern middle classes. There presently exists
no data set showing only sales to, say, the poorest 50 countries.
What we do know is that the cost of arms imports by certain poor
states relative to official development assistance can be enormous.
Two examples, taken from 2006, are Myanmar and Yemen, where
the value of arms imports was almost three-quarters of all assistance
57
See discussion in Vrancx, pp.28-30 for details
27
received.58 These may perhaps be extreme cases, but in any state
suffering widespread poverty, significant diversion of resources to
unnecessary arms purchases can have severe effects. This has been
most thoroughly documented in South Africa, where a substantial
majority of the population lives without basic amenities, and where
millions have desperate medical needs due to widespread AIDS. It
is also a country which faces minimal external threat.
Unlike most states of the South, its population contains a significant
minority of well-informed critical voices. Several books have been
written on what has been called the “poisoned well of South African
politics”—the 1999 purchase of corvettes, submarines, and more
than 80 aircraft, which was infused with such corruption from the
outset that it remains the subject of litigation and formal
investigation even now, despite the criminal conviction of several
prominent persons associated with the ANC.59 Estimates of the total
costs have varied greatly but always in an upward direction, as the
rand’s exchange value reduces and the true cost of interest payments
and servicing the complex machinery has become clearer.60
Uniquely, critics have attempted to quantify with some precision
how even the much lower sum the Government claimed at the time
58
Oxfam Briefing, Armed Robbery (June, 2012), p.5. The exact proportions were 72% for Myanmar and
71%, for Yemen.
See especially P. Holden, The Arms Deal in Your Pocket (2008); A. Feinstein, above n.16, pp. 175-188;
both of these books draw on After the Party (2007) T. Crawford-Browne, Eye on the Diamonds (Where?
Penguin 2013), chs. 1, 7, and 10 [this summarises his more detailed investigation published in South Africa
only-- Eye on the Money (Umuzi Press 2007).
Feinstein, above n. 16, p. 187, puts the total by 2011 at 71 billion rand.
59
60
28
the deal would entail might have been used to immediate benefit of
those in great need. At 1999 prices, that sum might have cleared
over 80 per cent of the country’s housing backlog, or more than
doubled the number of public educators, or increased by more than
eight-fold the number of nurses.61
Restricting a proposed sale on the ground that it would be harmful
to the development of the would-be purchaser, or the more urgent
needs of many if not most of its people, is however highly
controversial. It is sometimes stridently criticised as “neocolonialism”, in that a Western state is in effect telling the
government of a sovereign state-- which in almost all cases was until
fairly recently under the rule of a Western power--that it
understands the economic and social needs of its people better than
their own government.62 Understandably this may grate. But the
charge of neo-colonialism is specious—plausibly attractive but
essentially false. Colonialism, though at times it cloaked itself as a
“civilising mission,” was primarily about economic or strategic gains
for the imperial powers. Refusal to approve arms sales would be of
no economic benefit whatever to the producer state—generally the
reverse—and might also jeopardise achieving certain political goals of
that state. And the claim is even less credible in relation to the
61
Holden, pp.26-31. Obviously such alternate expenditure would have been balanced and spread among the
several competing priorities, but looking at single alternative foci makes the point about the loss involved
particularly graphic.
Something about Indian gov’t’s attitude here??
62
29
many dictatorships, present and past, whose rulers enrich
themselves at the expense of their population and whose arms
purchases have nothing to do with general welfare but rather are
intended to maintain the regime in power and further enrich
themselves.
The sensibilities, genuine or conveniently self-serving, of many
Southern states have been important in blocking the emergence of
development concerns onto the agenda of international arms trade
control. Their influence may have provided convenient cover for
the indifference of the governments of many manufacturing states,
more concerned about keeping open potentially lucrative markets
than about the well-being of distant unknown Africans and Asians,
but who have to contend with the campaigning and lobbying of
some of their own citizens. The result was that even the very
tentative mention of development considerations in the first draft of
the Arms Trade Treaty in July 2012 was removed from the final
version approved by the UN General Assembly in April 2013.63
I have given such emphasis to the arms trade’s impact on poverty
and development for two reasons. First, because it tends to be
overshadowed in media images and public debate by other things:
the arms trade’s connection with visible destruction and death, and
the tropically lush corruption which surrounds it. But secondly,
63
Do I need a fn here at all??
30
what requires particular stress is that a policy which takes the
criterion of development impact seriously is a direct challenge to the
idea, which for centuries underpinned international law, that the
decisions of elected (or at least effective) governments of other states
are entitled to the same respect as our own. This notion has already
been rejected in relation to the protection of human rights, where
international norms are held to be superior to the acts of state
authorities. Their violation in extreme cases has often lead to UNauthorised sanctions and even, as in Libya, armed response. The
emergence, however tentative, of the R2P principle is a further
example. Limiting arms sales takes this approach one step further,
and as many of the purchasers are wealthy and powerful states which
fiercely contest the principle, adoption and consistent
implementation of such a policy will require strong and consistent
political pressure upon the governments of Northern states by
individuals and civil society organisations within them. It will not be
an easy fight to win.
A Brief Glance at an Omission
There is one aspect of weapons acquisition which, despite its great
importance, is outside the scope of this book. This is the acquisition
of various forms of what are called “pariah weapons”—notably CBW
(Chemical and Biological Weapons) and some less well-known ones
31
enumerated in the Convention on Certain Conventional Weapons.64
One essential difference is that these are neither manufactured nor
sold openly. but more complex additional problems are involved.
CBWs in particular are made by compounding a number of
chemicals or other agents which by themselves are not dangerous.
More important, by themselves those agents are often useful in
manufacturing, medicine or other legitimate fields of commerce.
Due to these varying possibilities, they are known as “dual-use
goods”. A Green Paper published by European Commission in
2011 identified an extremely wide range of such products, including
“nuclear, biological, chemical, materials processing equipment,
electronics, computers, telecommunications, encryption, sensors
and lasers, navigation and avionics, marine equipment, and
aerospace and propulsion equipment”. The Paper also estimated
that throughout the Union there are 5,000 companies
manufacturing dual use goods, whose production accounted for “a
non-negligible” percentage of its total exports, possibly as high as
10%.65 Thus the manufacture and marketing of these products are
considered highly desirable, and most sales are for completely
64
This instrument, first agreed in 1980 and extended with several subsequent additional Protocols, has been
signed and ratified by more than 100 states. It prohibits use of devices such as incendiary and blinding laser
weapons. I have not included cluster munitions and land mines in the pariah category because although most
European states have signed the two Conventions banning them, China, Russia, and the USA have not, and
in the case of cluster munitions, 84 states have refused to sign, including India, Pakistan and all the states of
the Middle East. This cannot be regarded as evidence of global consensus.
65
European Commission Green Paper, http://trade.ec.europa.eu/doclib/docs/2011/june/tradoc_148020.pdf
para. 4.1. Title???? [cited in my article]
32
legitimate commercial purposes. This makes controlling abuse even
more difficult than with respect to arms: it requires monitoring and
collating patterns of sales, particularly to companies66 which might be
“fronts” for state military agencies, to determine whether, in
combination, disparate purchases will enable the recipient to
develop CBW capability.67 In relation both to substantive rules, and
to mechanisms and institutions charged with enforcement, they are
therefore subject to completely different regimes of regulation from
“pure” weapons.68 The latter is complicated enough, and the control
of dual use goods requires, and has received, separate study.69
Conclusions
SALW are not pariah weapons. They are not CBWs or blinding
lasers. They are a legitimate and necessary part of any military or
police arsenal. The problem is not the what, but the who—what a
leading campaigner many years ago described as ‘small arms, wrong
hands’.70 Although it is essential to highlight the destruction SALW
bring in order to raise public awareness and sustain campaigns for
controls, the focus of concern must be on the matters canvassed
here: use for internal repression or for aggression; possibility of
66
Which—another important difference--are often the purchasers of these items--unlike weapons, purchased
exclusively by state agencies with some ‘security’ function.
The most topical example in 2013 is Syria, whose development of nerve gas was explored brilliantly in a
New York Times article, ‘With the World Watching, Syria Amassed Nerve Gas’, 7 September 2013 (online
version).
They are for example completely outside the scope of the Arms Trade Treaty, and within the EU are
governed through totally different policies, structures and legal competences.
A. Wetter, who else?
O. Sprague, Small Arms, Wrong Hands (date). The author is now International Arms Programme Director
at Amnesty International
67
68
69
70
33
diversion; corruption; and draining precious resources. In more
general terms, controlling the arms trade means ensuring that
SALW and indeed every kind of weaponry are kept out of the
hands of those known, or likely, to misuse them. It further requires
that the process of acquisition be honest and open to greater public
scrutiny than at present exists anywhere. However, in developing
effective policies and measures of control, it will be essential to
distinguish key characteristics of various weapons and therefore to
approach them differently. In particular, SALW should be
distinguished from advanced high tech weaponry (aircraft, naval
vessels, etc). Their effects and the process of acquisition--the sums
of money involved; the beneficiaries (on both sides of the
transactions) and their political power; the victims; the people
conducting the trade; the methods, and the human impact—are so
different that both the objections to them and the means to combat
and control them need to be different as well.71
A final and crucial point, mentioned briefly earlier, nonetheless
bears repeating and re-emphasis. It is that if efforts at control are
ever to be taken seriously, let alone become effective, the principle
of non-discrimination must be at their heart. This has been
71
In relation to SALW, it should also never be forgotten that, in addition to organized and, in the broadest
sense, politically-related armed conflict, they are in many circumstances an near-existential threat to the lives
and decent existence to millions of people exposed to the violence of criminal gangs. This aspect, though
discussed briefly earlier in this chapter, is largely passed over in the rest of this book, partly because the
weapons are sometimes produced domestically, but primarily because those who use them are subject to
normal criminal justice, however ineffective or corrupt it may be, whilst arms sales to states or politicallyorientated NSAs are matters of high international politics and thus require a very different approach—part,
though only part, of which must involve inter-state agreements and effective international cooperation.
34
recognised in the Arms Trade Treaty, which makes explicit
reference to it in no less than three places.72 The importing states
were insistent on its inclusion, for they are well aware that approval
of arms sales is a lever of power in the hands of exporting states; it is
notable for example that the principle is nowhere mentioned in the
EU Common Position.
Non-discrimination is a well-recognised principle in the law of
international trade. It is designed to prevent giving economic
preferences to one’s own nationals, or granting specially favourable
treatment to one particular state or its nationals for political reasons.
In the present context it has a particular, and explicitly political, edge
to it. It means that, when applying criteria for licence approvals
which are expressed in general or universal terms—e.g. danger of
diversion or use for internal repression—exporting states must apply
them impartially and uniformly. They must not favour their allies,
friends, or those from whom they want economic benefits. Instances
of ignoring this principle are legion: salient topical ones include
sending weapons--directly, covertly or through allies—to Syrian
rebels whilst supporting an embargo on supplies to the Syrian
government, or invoking human rights abuse to deny sales to
Algeria, Chad, or Myanmar whilst approving, indeed actively touting
72
Set them out Arts. X, y, z
35
for, sales to Saudi Arabia, Bahrain, Israel, or Egypt73. Purchasing
governments will never accept the legitimacy of current export
control policies, let alone proposals for international regulation, if
they see them as a means by which Northern states may seek to
exert control over purchasers’ policy or conduct in international
politics, or of rewarding their friends or punishing those who thwart
them. In these circumstances the elementary concept of justice as
even-handed treatment marches in step with hard political realities.
May need to read a bit of Scott on ‘the Machine Tools prosecutions’
just to be clear what these dual use goods are in concrete terms.
A lot of the detail is summarised in https://www.gov.uk/controls-ondual-use-goods
It is usually central to the activities of the figures that grab journalistic
imagination, like Viktor Bout, the prototype for the eponymous
villain in the film Lord of War, although as that film emphasises,
73
These examples are drawn from European and American practice. [SAY SOMETHING ABOUT VERY
DELAYED CHANGE IN APPROVAL POLICY FOR BAHRAIN??] Fairness requires mention of the fact
that Russia makes no pretence of taking into account any of the factors discussed here at all.
36
governments can use such figures for their political convenience
when it suits them.