Introduction

"In a technologically underdeveloped society, in the twentieth century, ultimate power resides not in these who control the means of production (as postulated by Marx), but in these who control the means of destruction (captured by the soldier/bandit with an AK47)."¹

The above quotation, written by the noted Kenyan scholar, Ali Mazrui, in 1986 about post-colonial Africa, refers to one of the biggest challenges faced by the developing world in the post-Cold War era: the proliferation of small arms and light weapons. Arms control and disarmament have been part of the diplomatic agenda since the middle of the 19th century,² gaining importance after World War II with the advent of weapons of mass destruction and their hitherto unknown capacity for large-scale devastation. At the height of the Cold War in the 1960s and 1970s, arms control and disarmament became two of the most important issues on the diplomatic agendas of the two superpowers.³ They were also issues of great concern to Europe due to the continent’s vulnerability to weapons of mass destruction. By 1990, when the Cold War came to an end, well-defined agendas, structures and institutions had been developed to negotiate the control over nuclear, chemical, biological and conventional weapons (other than small arms and light weapons) and to ensure compliance with and the enforcement of the large number of negotiated international agreements.⁴ The proliferation of small arms and light weapons, however, poses new challenges to the international system. This category of conventional weapons is generally used by the legitimate security forces of states, and while the control over their legitimate use may be a laudable aim, the major problem relates to the illicit proliferation that takes place external to the state system.

Four issues distinguish the question of the control of small arms and light weapons from other arms control issues, thus complicating their legal regulation:

a lack of institutional mechanisms, while the few existing regimes aimed at control are relatively weak;



the distinction between legitimate users of this category of weapons, the security forces of states, and the illicit proliferation that takes place outside the state system, is a problem that must be addressed; consequently, the solution does not lie in outlawing such arms, as was the case with landmines;⁵



the involvement of non-state or substate actors operating outside the state system in illicit proliferation — ethnic and dissident groups, private commercial concerns, terrorist groups, rebel movements, irregular forces, private security companies and mercenaries — which has seriously undermined the state’s traditional monopoly over the legitimate use of force to provide internal security and defence from external threats; and



the linkage between armed conflict over the control of resources and the trafficking in small arms and light weapons.

In order to conceptualise the role that legal control, both in international and national law, can play in addressing the proliferation of small arms and light weapons, it is necessary to understand the factors contributing to the problem.

Contributing factors leading to arms proliferation

The proliferation of small arms and light weapons is essentially a post-Cold War problem. While large quantities of small arms and light weapons were transferred into the developing world during the Cold War, it is ironic that the problem of proliferation intensified as result of its termination. A number of developments fuelled the problem.

The dissolution of the Warsaw Pact, the weakening and even collapse of state structures in the former Warsaw Pact states, and the resulting lack of control systems in some of these states, created the force of supply. A similar tendency was evident in many post-colonial states in the developing world, as a result of inadequate statebuilding and the failure by many states to build proper security systems and accountable democratic political systems. This has created a vacuum to be filled by new, non-state actors, fomenting and participating especially in intrastate conflicts and creating a demand for small arms and light weapons.

The arms reduction brought about by the implementation of the Conventional Forces in Europe Treaty and the general downscaling of military forces and inventories fuelled the supply forces,⁶ while the proliferation of interstate and especially intrastate conflicts resulting from the termination of the relative global stability of the Cold War era fuelled demand.

The process of globalisation (a post-Cold War phenomenon) also contributed to the proliferation of small arms and light weapons. The advent of the era of global interconnectedness in terms of trade, international finance and commerce, and developments in the aviation and shipping industries have enabled arms dealers to procure and transport small arms and light weapons illicitly across international borders, to weak states with porous borders and weak or absent state control systems. This arms trade is often financed with resources from conflict ridden but resource rich states.

These factors combined to increase the flow of small arms and light weapons significantly to conflict zones in Africa, East Asia and Central America.⁷

Links with other contemporary problems

The UN Panel of Governmental Experts on Small Arms underscored that small arms and light weapons do not cause the conflicts in which they are used. Such conflicts are fuelled by complex political, commercial, socio-economic, cultural and ideological factors. However, the supply of these weapons plays a major role in intensifying and prolonging both interstate and internal conflicts, increasing crime rates, violence and insecurity,⁸ which result in a "vicious circle in which insecurity leads to a higher demand for weapons, which in itself breed still greater insecurity."⁹

Once conflicts have ended, it is extremely difficult for the authorities to regain control over the weapons circulating in society, Mozambique being a case in point.¹⁰ In post-conflict situations, the availability of small arms and light weapons also undermines peacekeeping and peacebuilding operations and the reconstruction of societies torn apart by conflict.

Apart from its direct impact in causing human injury and death and the negative impact on the economic and social development of states and regions, the proliferation of small arms and light weapons is also linked to a number of other issues:

Human rights: Civilian populations are especially at risk from small arms and light weapons. The UN Panel pointed out that irregular forces have little regard for the norms of international law and do not distinguish between combatants and non-combatants, with woman and children, the most vulnerable groups in society, often being the main victims.



Child soldiers: Conflicts fuelled and sustained by small arms and light weapons (easy to use with only the most basic training) are often characterised by the participation of children as soldiers under the age of 16. The UN Panel estimated that, by 1988, as many as 200 000 children were participating as soldiers in conflicts in 25 states throughout the world.¹¹



Refugees and mass migrations: These conflicts often result in crossborder refugee flows and large numbers of people internally displaced.¹² Refugee camps may be used to hide these weapons, while refugees may also want to arm themselves for protection.



Privatisation of security: The re-emergence of the mercenary¹³ and the advent of private security companies operating as legitimate businesses, filled the ‘security gap’ on behalf of governments, as well as non-state actors such as private businesses, rebel movements, warlords and guerrilla and insurgent groups. In recent conflicts, mercenaries have reportedly fought in Sierra Leone, Angola, the Democratic Republic of Congo, Eritrea, Ethiopia, Liberia, Afghanistan, Bosnia-Herzegovina, Chechnya, Colombia, Georgia, Kashmir and Kosovo.¹⁴ While an international legal framework exists to regulate mercenary activities, it is weak and almost unenforceable due to a lack of control measures in the internal legal regimes of states.¹⁵ Both mercenaries and private security companies are dependent upon the regular supply of small arms and light weapons to continue their operations.



Conflict diamonds: The link between the proliferation of small arms and light weapons and resources, particularly conflict diamonds is cause for deep concern.¹⁶

The regulation of small arms and light weapons is therefore an intricate transnational problem and one of the biggest challenges facing the international community at present.

Possible international and national law approaches

In order to address this challenge, international and national law faces a twofold challenge: that of regime creation, and that of the implementation and enforcement of such international and national standards.

At this stage, the process is still largely concerned with creating the regime, which can take place on global, regional, bilateral and national (by means of legislation) levels.

From the available precedents, two possible approaches to regime creation can be identified, the ‘top-down’ and ‘bottom-up’ (building-block) approaches. The approach decided upon will have a definitive impact upon the effectiveness of the process of implementing standards. The Organization of American States (OAS) convention and the Economic Community of West African States (ECOWAS) moratorium are examples of the top-down approach. In contrast, the initiatives of the Southern African Development Community (SADC), the Organisation of African Unity (the Bamako Declaration) and the Nairobi Declaration on the problem in the Great Lakes region and the Horn of Africa, follow the building-block approach.

Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives and Other Related Materials, July 1998

The OAS convention was adopted with commendable speed after its negotiation has been initiated in 1996 by Mexico. It is still the only legally binding regional instrument to control small arms and light weapons.

However, its narrow focus is a considerable drawback. It focuses only on the issues of manufacturing, trafficking and the use as tools of implementation, the existing legislation of states parties and improved import and export procedures. As far as a requirement for new legislation is concerned, this is limited to the adoption of legislation to criminalise illicit manufacturing or trafficking (article IV(1)), the basic minimum standard required for the operation of the agreement. No provision is made for the harmonisation of legislation.

With regard to institutionalisation, the role of the Consultative Committee (article XX) is limited to mere information exchange.

Declaration of a Moratorium on Importation, Exportation and Manufacture of Light Weapons in West Africa, 31 October 1998

This moratorium was agreed to by leaders of member states of the ECOWAS. Analysed from a legal viewpoint, the ECOWAS moratorium is drafted in the weakest possible language. It merely ‘declares’ a moratorium, without focusing on any specific measures of implementation, with more than half of the one page text consisting of the preamble. It therefore merely amounts to a voluntary political decision by heads of state. No provision is made for movement towards implementation of the moratorium in national legislation or for an institution that could monitor and effect implementation. An attempt was made to plug these gaps some time later with the plan of action of the Programme of Coordination and Assistance for Security and Development (PCASED), which refers in non-peremptory and non-specific language to the peremptory review of legislation of the respective states regarding the importation, exportation and manufacture of light weapons.

Significantly, it provides for the harmonisation of the national legislation of states:

This approach, focusing on national legislation as a foundation stone for a regional convention, as well as on the role of institutions, corresponds to the building-block approach followed in the initiatives discussed below. In essence, however, it remains a top-down instrument. The moratorium was renewed for a second three-year term on 1 July 2001.

The SADC Declaration and Protocol

SADC followed a process of building upon non-binding declarations to move towards the ultimate goal of a binding legal instrument.

A SADC Council meeting in August 1999 in Maputo approved the establishment of a regional policy for the control of small arms and light weapons. SADC further indicated that the Southern African Regional Police Chiefs Co-ordinating Organisation (SARPCCO) would be appointed as the implementation agency of a SADC policy on small arms and crossborder crime prevention. The latter was formulated by a working group comprising Mozambique, South Africa, Swaziland, Zambia, Zimbabwe, the SADC Secretariat and SARPCCO. The policy would include a declaration, protocol and implementation programme.

The first step was taken with the signature of the Declaration Concerning Firearms, Ammunition and Other Related Materials in SADC, drawn up by the working group and adopted by the SADC Summit on 9 March 2001 in Windhoek. It is not a legally binding agreement, but a political declaration.

The declaration aims to prevent, combat and eradicate the illicit manufacture, stockpiling, trafficking, possession and use of firearms, ammunition and other related materials. It links these instruments in the preamble, among others, to drug-trafficking, terrorism, transnational organised crime, mercenary activities and violent crime.

The focus of the declaration is the review and, implicitly, the strengthening of national legislation aimed at restricting and regulating the civilian possession of these weapons, the control over the manufacture, import, export, transfer, possession and use of firearms, ammunition and other related materials, the standardisation of marking and identification, and the regulation of brokering. It further provides for the adoption of national legislation to enforce United Nations Security Council arms embargoes in the respective member states’ national jurisdictions. Unlike the OAS convention, it also provides for the destruction of surplus, redundant, obsolete, confiscated or unlicensed firearms.

The declaration, though not legally binding, laid the foundation and set the agenda for the SADC process.

In terms of the mandate received from the Maputo Council of Ministers meeting in August 1999, the SARPCCO Legal Subcommittee developed the SADC Protocol on the Control of Firearms, Ammunition and Other Related Materials. Its aim echoes that of the declaration: to prevent, combat and eradicate the illicit manufacture, excessive and destabilising accumulation, possession and use of firearms, ammunition and other related materials. It was signed at the Blantyre Summit in August 2001. It is a legal instrument containing binding rights and obligations and will enter into force 30 days after the deposit of the instruments of ratification by two-thirds of the member states.

The definition of ‘illicit trafficking’ (article 1(g)) is noteworthy:

"the import, export, acquisition, sale, delivery, movement or transfer of firearms, ammunition and other related materials, from, to or across the territory of one State Party if any of the State Parties concerned does not authorize it."

It follows that all concerned states have agreed that interstate transfers will not be illicit, while all states concerned must approve commercial transactions (between a state and a non-state entity, or between non-state entities).

The focus on state approval means that transactions involving non-state actors — rebel, guerrilla or opposition groups — operating in a state are in effect outlawed, as approval for trade with such groups will never be forthcoming. Article 2, confirming the sovereignty and territorial integrity of SADC states and the principle of non-intervention in their domestic affairs, in effect also recognises the danger of such non-state entities receiving outside support, whether from other states or commercial arms brokers.

The protocol also establishes a link between small arms and light weapons proliferation and, among others, drug-trafficking, terrorism, transnational organised crime and mercenary and violent criminal activities, and makes reference to the effect of proliferation on peace processes and post-conflict situations.

Article 4, providing for the possibility of member states to accede to international instruments controlling small arms and light weapons, illustrates the building-block approach. This is also illustrated by the protocol’s focus on national legislation as the tool to effect implementation. Article 5 provides for the incorporation of the protocol in national jurisdictions and states to criminalise acts contravening the provisions of the protocol (article 5(1)) and acts violating arms embargoes of the UN Security Council (article 5(2)) in their national legislation. Article 5(3) provides in some considerable detail for the adoption of national legislation regulating the civilian possession and use of firearms, marking, identification, importation, exportation, transportation, seizure, confiscation and forfeiture, as well as brokering, a concept that is exhaustively defined.¹⁷

Article 5(3)(f) provides specifically for measures to ensure legal uniformity and minimum standards in the legislation of member states with regard to the manufacture, control, possession, import, export, and transfer of firearms, ammunition and other related materials, while article 5(3)(n) provides for measures to promote legal uniformity in the sphere of sentencing. The protocol further recognises the fact that state-owned firearms sometimes find their way onto the illicit market (article 10(c)), providing for the destruction of surplus, redundant and obsolete stock, as well as for confiscated and unlicensed firearms (article 11).

Providing in some detail for information exchange and co-operation in the legal and law enforcement fields, the protocol proceeds in article 18 to the third stage of the process, namely implementation. Article 18(1) establishes a committee to oversee the implementation of the protocol, among others, through an oversight role over the implementation by member states of the minimum required standards. This role will be filled by SARPCCO in all probability. It further provides (article 18(2)(d)) that the committee will also play an advisory role with regard to policymaking by the Council of Ministers, thereby establishing a direct link between the regional intergovernmental organisation and the level of implementation within national jurisdictions.

It should also be pointed out that the considerable amendments to the national legislation of member states and the adoption of the minimum standards required by article 5(3) will have to be carefully co-ordinated, a task that can only be undertaken by the committee. The provision contained in article 6 regarding operational capacity (obliging member states, among others, to improve the capacity of their police forces, customs services, border guards, the military and the judiciary) also creates an opportunity for the committee to play a regional co-ordination role. This is also the case with article 15, which provides for the establishment of appropriate mechanisms for co-operation among law enforcement agencies.

Article 14 provides in some considerable detail for measures with regard to mutual legal assistance between member states in order to reach the protocol’s goal. In effect, it constitutes a type of mutual legal assistance treaty that will play an important role in ensuring that the protocol’s aims are reached.

The essential elements contained in the declaration are therefore copied in the protocol, now in peremptory language: national legislation complying to minimum standards as the tool to implement obligations undertaken in international law, as well as the addressing of the issues of brokering and destruction.

The building-block approach followed by SADC therefore has the advantage of focusing on both regime creation by means of international law, and implementation in the national jurisdictions of member states.

Apart from the advantages offered by the institutionalisation provided for in article 18, the involvement of structures such as SARPCCO from the start of the process to the implementation plan ensured that international legal regime creation was aligned with the realities and needs of the region, as identified on the ground (which may explain the inclusion of the issues of brokering and destruction).

Bamako Declaration on an African Common Position on the Illicit Proliferation, Circulation and Trafficking of Small Arms and Light Weapons, 1 December 2000

The Bamako declaration explicitly applies the building-block approach, recognising that the problem of the illicit proliferation, circulation and trafficking of small arms should be addressed on local, national, regional, continental and international levels (paragraph 1(vii)). It focuses on legislation on the national level to achieve implementation of its goals: to criminalise the illicit manufacture, traffic, and illegal possession and use of small arms and light weapons (paragraph 3(A)(iii)) and to enforce international arms embargoes (paragraph 3(A)(vi)), while also providing for the destruction of surplus, obsolete, and seized stocks by states (paragraph 3(A)(iv)). On the regional level, it provides for the harmonisation of legislation governing the manufacture, trading, brokering, possession and use of small arms (paragraph 3 (B)(ii)). Significantly, it also focuses on the role of brokers and shipping and transit agents in trafficking, calling for control measures for these agents ((paragraph 3A(vii)) and 4 (iv)) on national, regional and international levels (paragraph 3(A)(vii)), 3(B)(ii) and 4(iv)). It is not a legally binding instrument, but was intended to conceptualise Africa’s position on the issue at the international conference on small arms and light weapons, which took place in New York in July, under the auspices of the UN.

Nairobi Declaration on the Problem of the Proliferation of Illicit Small Arms and Light Weapons in the Great Lakes Region and the Horn of Africa, 15 March 2000

This instrument, aimed at the Great Lakes region and the Horn of Africa, also recognises the importance of adequate national legislation to control the possession and transfer of small arms and light weapons, as well national measures aimed at regulating manufacturers, traders, brokers and transporters and, significantly, also financiers.

Conclusion

What lessons are then offered by field experience when the legal aspects of the national and international control of small arms and light weapons are considered? With regard to legal control on the international level, it has to be conceded that international law is a weak regime. It is generally recognised that, even during a period characterised by the proliferation of international tribunals, international law is still most effectively applied within the national jurisdictions of states by national law enforcement institutions.

The obligations undertaken by states in international legal instruments must therefore be incorporated in national legislation to ensure the effective implementation of the obligations undertaken in international law. It follows logically that, to ensure effective international or regional regimes, such regimes must set minimum standards that can be uniformly applied within the respective national jurisdictions of states parties. The ideal of addressing the small arms and light weapons problem by means of legally binding agreements at bilateral, regional and global level, will be ill-served if effective national measures are lacking. Furthermore, the consensual nature of international law should be kept in mind: states are only bound to international agreements that they have consented to uphold. The SADC process illustrates the importance of a co-ordinating institution that can take the lead in negotiations to ensure sufficient consensus among participating states to reach agreement on international instruments speedily and ensure their quick ratification.

It is also clear that, in an age of globalisation, measures to control the proliferation of small arms and light weapons will be insufficient unless the aspects of brokering and transportation, whether by land, sea or air, as well as financing are addressed and uniform standards are set and implemented with respect to these issues.

From an international legal point of view, the interrelationship of the problem of the proliferation of small arms and light weapons with other issues impacting on human security should not be ignored — the privatisation of security, human rights, child soldiers, mass migrations of affected people and refugees, and resource-driven conflicts. While some of these issues are subject to control in international law, the controls are usually inadequate and difficult to enforce, while others are still to be addressed. The time has come to take an holistic view of all factors impacting on human security and to co-ordinate efforts towards the more adequate regulation of these issues in both international and national law.

Notes

This article is written in the author’s personal capacity and does not necessarily reflect the policy or opinions of the Department of Foreign Affairs or the South African government.