Prosecuting Illicit Arms Brokers: Improving the European Record

During the late 1990s and early 2000s numerous reports by non-governmental organizations (NGOs) and United Nations (UN) agencies highlighted the role of arms brokers in supplying arms to conflict zones in Africa—many of which were subject to UN arms embargoes. The zones in question included Rwanda during the genocide, as well as Angola, Liberia and Sierra Leone during their own violent conflicts. The activities of these brokers involved sourcing weaponry, arranging transportation, and diverting shipments from the licit to the illicit market using forged or recycled documentation.

In many cases, the brokers were European citizens or residents. However, the states involved were often unable—or unwilling—to take legal action. In 2000, the arms broker external pageLeonid Minin was arrested in Italycall_made while overseeing a delivery of arms from Ukraine to Charles Taylor's Liberia, then subject to a UN arms embargo. Minin was charged but the case eventually collapsed because the arms did not pass through Italian territory and so Italian courts lacked the jurisdiction to prosecute. Outside the European Union, numerous citizens and residents of former Warsaw Pact countries were identified as being engaged in illicit arms brokering during this period, but the states involved showed little interest in taking action.

In the years since, European states have developed a range of legally binding instruments and guidelines for controlling arms brokering. In particular, the external page2003 EU Council common positioncall_made on arms brokering and the external page2004 Organization for Security and Cooperation in Europe (OSCE) principlescall_made on the control of brokering in small arms and light weapons (SALW) describe minimum standards for the systems that states should have in place. In addition, successive Security Council and General Assembly resolutions have called on states to enforce stronger national controls on violations of UN arms embargoes. European states have responded by developing improved controls in these areas, as part of a wider expansion of powers in the field of arms transfer controls. However, there is still limited evidence that these powers are being used by European states to prosecute individuals involved in illicit arms transfers.

Convicting illicit arms brokers

In recent years, the United States has convicted a number of renowned arms brokers who were active in the 1990s and early 2000s, including Monzer Al-Kassar, Jacques Monsieur and Viktor Bout. However, aspects of the US prosecutions—particularly the types of sting operations they employed—would be problematic in European courts. US law enforcement agents have wide-ranging powers to entice individuals into breaking its laws and then allows the evidence gathered to be used in a trial. These powers have been used aggressively against illicit arms brokers. In the Al-Kassar and Bout cases, members of the Drug Enforcement Agency (DEA) used undercover agents to convince the brokers that they were external pagesupplying arms to the Revolutionary Armed Forces of Colombia (FARCcall_made)—arms that would be used to kill US citizens. This allowed them to be charged in US courts with conspiring to kill US nationals and providing material support to terrorists.

For the time being at least, European states will probably have to rely on their national controls on arms transfers—particularly those on arms brokering and UN arms embargo violations—to bring illicit brokers to justice. And there are signs that some European states are taking this approach. Since 2007, the United Kingdom has carried out external page15 successful prosecutionscall_made relating to violations of national arms transfer controls, including several involving transfers of SALW. These cases included brokers engaged in arranging the unlicensed transfer of MPT9 sub-machine Guns from Iran to Kuwait, armor-piercing ammunition to Sri Lanka and Israel, and surface-to-air missiles and Beretta pistols to Azerbaijan. A fourth case—involving a shipment of 40,000 AK47 assault rifles, 30,000 other rifles, 10,000 9‑mm pistols and 32 million rounds of ammunition from China to Nigeria—external pagecollapsed in January 2012call_made. At least one other case has been pursued in external pageItalycall_made, but other examples in Europe are hard to find.

The limited number of prosecutions for violating UN arms embargoes is also apparent. The Netherlands came closest of any European state to a successful prosecution with its attempted conviction of Gus Van Kouwenhoven, who was arrested in 2005 and charged with violating the UN arms embargo on Liberia. He was initially found guilty and sentenced to 8 years in prison but was acquitted on appeal in 2008. In 2010 the Dutch Supreme Court external pageoverturned the 2008 rulingcall_made, potentially opening the way for a fresh trial.

Plugging the gaps

Arms trafficking practices have changed since the 1990s and early 2000s. The image of arms being shipped directly from stockpiles in Eastern Europe to warring parties in embargoed African states is less accurate today than it was in the past.external pageCurrent researchcall_made argues that arms used by rebel groups in conflict zones in Africa— external pagesuch as in the Democratic Republic of Congo (DRCcall_made) — are more likely to be sourced domestically or from neighboring states than from outside the continent. While the weapons may have been manufactured outside Africa, they would have first entered the continent as a transfer to a national government not subject to a UN arms embargo. Although the decision of the supplier government to approve the transfer may have been irresponsible, the initial delivery itself would not have been illegal.

Nonetheless, the activity in the British courts and evidence presented during the Bout trial point to the continued existence of European individuals who attempt to broker and transport military equipment to actors subject to UN arms embargoes or who violate national arms transfer controls in other ways. In addition, while US actions have put several arms brokers behind bars, there are many individuals who were directly implicated in illicit arms flows during the 1990s and early 2000s who are still active today. For example, Slobodan Tešic—named by the UN as having violated the Liberia arms embargo— external pagecontinues to live and work in the Western Balkanscall_made.

In certain cases, failure to act can represent a lack of political will or an active desire to protect the individual involved. Arms brokers who have been accused of violating arms embargoes or national arms transfer controls may not be prosecuted due to political sensitivities or because governments wish to use the broker to discreetly engage in grey market activities. In other cases, however, failure to act represents a lack of legal powers.

Ten years after its adoption, six EU member states have external pageyet to fully implement the EU Common Position on arms brokeringcall_made. Among the EU’s neighbors there are more states without effective arms brokering controls in place. Among those states that do have controls in place, there are external pagedifferences in their coveragecall_made, particularly regarding whether individuals are covered by the regulations when operating abroad and which activities are controlled. Differences also exist with regard to how states implement UN arms embargoes at the national level, with many leaving key activities unregulated. For example, UN arms embargoes typically require states to prevent the transfer of arms to the embargoed destination 'using their flag vessels or aircraft'. However, external pageit is unclear how many states enforce these controls in practicecall_made.

States may also be deterred by the complexity of bringing prosecutions in the field of arms transfer controls, a problem that can be compounded by capacity deficits and limited cooperation between governments. Controls on arms brokering are still novel and—in many states—the exact definition of which activities are controlled remains unclear. The collapse of the British case in January partly reflected a lack of clarity over whether the activities involved were subject to control. Moreover, the evidence needed to demonstrate illegal actions is often scattered geographically and needs to be brought together in one place for successful prosecutions to take place. In the case against Van Kouwenhoven, the prosecution external pagerelied heavily on statements from Liberian witnessescall_made and lacked a detailed paper trail. When the initial ruling was appealed, many of these statements were found to be unreliable.

Sharing good practices and building networks

What is needed today is a thorough comparison of how European states regulate arms brokering and arms embargoes at the national level and how they pursue investigations and prosecutions of alleged violations. Such a comparison should cover situations in which states have successfully used powers beyond arms transfer controls to bring illicit arms brokers to justice. For example, in 2004 Belgium used money-laundering charges to external pageprosecute two Lebanese diamond dealerscall_made who were allegedly involved in shipping arms to the Revolutionary United Front (RUF) in Sierra Leone. Controls on money laundering have been significantly strengthened since 2001, increasing the utility of these powers.

Equivalent work on external pagethe enforcement of controls on transfers of 'dual-use' goods and technologiescall_made has demonstrated significant differences between the practices of European states and highlighted areas where improvements could be made. In the field of arms transfer controls, the comparison should focus on developing guidelines for the creation of clear legal frameworks and best practices for pursuing successful cases. Such work can then be used to build and strengthen inter-governmental networks that can be used to ensure that European states play their full part in ensuring that illicit arms brokers are brought to justice.