Amnesty International wishes to acknowledge the significant background research input to this report from the International Peace Information Service, the Omega Research Foundation and the TransArms Research Centre for the Logistics of Arms Transfers. Amnesty International also wishes to acknowledge the legal analysis carried out for this report by Sir Geoffrey Bindman and Clare da Silva. Amnesty International is responsible for the final text.

1. Introduction

The world is reaching the crossroads where governments must decide which approach to take in order to control the increasingly globalised trade in conventional arms. If the current practice of allowing irresponsible transfers of military and security equipment and related items across borders is allowed to continue, millions more lives and livelihoods will be destroyed and the fundamental human rights of many more people will be seriously violated.

On 6 December 2006 an overwhelming majority of United Nations (UN) Member States voted in the General Assembly to begin work for the elaboration of an agreement on the principle of a legally binding and universal Arms Trade Treaty (ATT). Resolution 61/89, adopted by the UN General Assembly with the support of 153 States and only one State against, is a landmark step towards a more effective regulation of the international arms trade.^¹ The vote is a strong indication that the global political will now exists to address the poorly regulated trade in arms, a trade which as this report shows contributes widely to serious human rights abuses and violations of international humanitarian law (IHL). However, a handful of states are now trying to delay and water down the proposed scope and parameters of such a treaty.

This report describes the irresponsible and poorly regulated trade and shows graphically through several illustrative cases how that trade contributes to serious violations of human rights in different parts of the world. In particular, it seeks to help demonstrate why the establishment of a global ATT is an urgent necessity and how an ATT could work to save lives, preserve livelihoods and enhance respect for human rights. This analysis shows that failure or protracted delay to establish an ATT with provisions requiring respect for human rights will, conversely, have dire consequences for the lives of millions of people in many countries.

The idea of an ATT rooted in universal principles based on international law, especially objective standards drawn from international human rights law and IHL, was initiated by non-governmental organizations (NGOs) and Nobel Peace Laureates, including Amnesty International and Oscar Arias, in the 1990s. Through the efforts of an increasing number of civil society actors and those of a few supportive governments, the idea has gained significant ground in recent years and there is now considerable support amongst UN Member States for a concerted effort to take this important initiative forward. However, there has also been a minority of States strongly sceptical or opposed to an ATT, notably China, Russia, Egypt, Iran, Pakistan and the USA.

The current initiative to establish an ATT is not the first time the international community has sought agreement on a global arms trade treaty. Under the League of Nations the Convention for the Control of the Trade in Arms and Ammunition^²was negotiated in 1919 in response to the excessive accumulation of arms after the First World War.^³The Convention would have required state parties to licence arms exports, publish an annual report detailing the export licences granted as well as quantities and recipients of exported arms and ammunition, and prohibit arms to Africa and the Asian parts of the then Ottoman Empire. Many States signed the Convention but very few ratified it mainly because it would have imposed a ban on sales to non-signatories. In 1925, the League of Nations sought agreement on a new Arms Traffic Convention which would allow exports to non-signatories and loosen the prohibition on granting licences. However, this initiative also failed amidst increasing rivalry between military power blocs as the world moved towards the Second World War.

As illustrated in the examples further below, the arms trade is now much more globalised and States’ legal obligations much more refined and extensive. States may lawfully acquire conventional arms for legitimate self-defence and law-enforcement needs in accordance with international law and standards. General Assembly Resolution 61/89 acknowledges that the authority to do so is also accompanied by responsibilities. An ATT should not minimize or detract from this need of States but must recognize that there are other obligations that States have with respect to their transfers of arms. An ATT should identify core substantive obligations that reflect existing international legal commitments on the part of States to:

Prevent threats to international peace and security;
Ensure respect for IHL; and
Co-operate in the respect, protection and fulfilment of human rights.

Accordingly, this report explains why the use of conventional arms by States must comply with international standards including those set by the UN Charter, IHL and international human rights law. Crucially, these responsibilities also extend to the transfer of conventional weapons and, if it is to be credible, an ATT should fully reflect these obligations.

As a first step towards an ATT, UN Resolution 61/89 requested the UN Secretary-General to “seek the views of Member States on the feasibility, scope and draft parameters for a comprehensive, legally-binding instrument establishing common international standards for the import, export and transfer of conventional arms and to submit a report to the General Assembly at its sixty-second session.” At least 98 Member States submitted their views to the Secretary-General, reflecting a strong consensus that achieving an ATT is an urgent global priority.^⁴

Amnesty International, on behalf of the ATT Steering Committee of NGOs, conducted an analysis of 92 of the submissions available at the time from Member States.^⁵ The submissions show an emerging consensus that an ATT needs to be universally fair and objective, should reflect the existing obligations and commitments of States and must address the realities of globalizing markets and international assistance programs in conventional arms. The UN Secretary General’s Group of Governmental Experts which met during the first half of 2008 agreed there was a need to face up to these new realties: “Experts observed that globalization has changed the dynamics of the international arms trade. They noted that the types of weapon systems, equipment and their components being manufactured in cooperation, under joint ventures and licensing is increasing and that most arms producing States are increasingly relying on technology transfers and upgrades from external sources other than from their own indigenous production.”^⁶

Most States, approximately 81 of the 92 submissions to the UN Secretary General analyzed by Amnesty International, expressed their support for the development of a comprehensive, legally binding instrument aimed at the establishment of common international standards for the export, import and transfer of conventional arms.^⁷

A very large majority - 72 of the 92 submissions reviewed - recognized the key importance of assessing the potential for a transfer to be used for at least certain abuses and violations of human rights law and IHL. The language ranges from ensuring that the criteria take into account “respect for international law including international human rights law and IHL…” to an ATT that will assist in “the prevention of a breach of IHL [and] prevention of abuses of human rights. Language in some submissions by States references the need to assess the potential risk of a transfer on human rights and IHL.

In addition, a majority of States in their submissions believe that respect for IHL is one of the fundamental criteria by which arms transfers decisions must be assessed.^⁸All 194 States party to the Geneva Conventions have already adopted this as Final Goal 2.3 at the 28^th International Conference of the Red Cross and Red Crescent, on 6 December 2003.^⁹

The central role of human rights in the arms transfer licensing process is already clear in a number of existing legal and other instruments jointly agreed by States at the multilateral, regional and sub-regional levels. Through their participation in existing regional and multilateral arms transfer control agreements, 118 States have explicitly recognized that transfers of conventional arms and small arms should be refused where there is a substantial risk that they will contribute to serious human rights abuses or violations of IHL.

Box 1: Examples of international human rights law criteria in existing multilateral and regional instruments

“Transfers of arms, ammunition, explosives and other related material shall not be carried out from or to States which (…) commit and/or sponsor crimes against humanity or human rights violations.”

(Code of Conduct of the Central American States, 2 December 2005)

“A transfer shall not be authorised if the arms are destined to be used: a) for the violation of international humanitarian law or infringement of human and peoples’ rights and freedoms, or for the purpose of oppression.”

(ECOWAS Convention, 14 June 2006)

“Member States will: (a) not issue an export licence if there is a clear risk that the proposed export might be used for internal repression and b) exercise special caution and vigilance in issuing licences, on a case-by-case basis and taking account of the nature of the equipment, to countries where serious violations of human rights have been established by the competent bodies of the UN, the Council of Europe, or by the EU.”

(EU Code of Conduct, 8 June 1998)

“We will not authorise international transfers of SALW (small arms and light weapons) which are likely to be used: (a) to commit grave or persistent violations of human rights or fundamental freedoms.”

(Best Practise Guidelines For Implementation of the Nairobi Protocol, 20-21 June 2005)

“Each participating State will avoid transfers which would be likely to be used for the violation or suppression of human rights and fundamental freedoms.”

(OSCE Principles Governing Conventional Arms Transfers, 25 November 1993)

“Each Participating State will avoid issuing licences for exports of SALW where it deems that there is a clear risk that the small arms in question might (…) be used for the purpose of repression; Be used for violation or suppression of human rights and fundamental freedoms:…”

(Wassenaar Best Practice Guidelines for Exports of Small Arms and Light Weapons, 11-12 December 2002)

An increasing number of national laws and regulations also identify international human rights law as a fundamental criterion when considering the authorization of international arms transfers. Though a variety of language is used, these instruments generally require that States assess the recipient country’s respect for human rights and refuse proposed arms transfers in cases where there is a substantial risk that the proposed transfer of arms is likely to be used for serious human rights violations.

All arms transfer decisions should include a consideration of international human rights law to help ensure that transfers of conventional arms do not contribute to serious violations or abuses of such rights. Specifically, all States should be required by law to refuse authorization of any transfer of conventional arms where there is a substantial risk that they will be used, or are likely to be used, for serious human rights violations or abuses.

Box 2: At what point does a violation become “serious”?^¹⁰

Each situation needs to be assessed objectively on a case-by-case basis and the final assessment must be carried out by the state authorising the transfer. In determining whether human rights abuses are serious, reference should be made to credible evidence and previous findings of serious violations by independent competent bodies, NGOs, UN reports etc. (see below in this report for Sources of Information). Such reports might also establish the occurrence and nature of human rights violations or abuses leading the prospective transferring state to determine for itself that those violations or abuses are serious. Two aspects are helpful for such a determination:

1. Scale and persistency of the violations: Is there conduct that involves a pattern of violations or abuse of that right? Are the violations persistent or affecting many people? Violations that are widespread or systematic are among the most serious.

2. Character and pervasiveness of the violations: Do the violations or abuses apply to a significant spectrum of human rights including civil, cultural, economic, political and social rights? The range and fundamental nature of the rights being violated or abused can also determine the overall severity of the violations.

In order to be effective, a global ATT should reflect the core set of ‘Global Principles for Arms Transfers’ proposed by Amnesty International and its NGO partners.^¹¹ The Principles indicate what many leading NGOs consider to be the best general rules for effective control of international transfers of all conventional arms and ammunition. These Global Principles include obligations based on relevant international law treaties and international customary law, principles recognized by the UN, including international human rights law and IHL, and principles of state responsibility.

There is a positive obligation of all States to cooperate in the protection and fulfilment of human rights within and beyond their borders.^¹²Under Articles 1, 55 and other articles of the UN Charter, all Member States have an obligation to encourage and promote universal respect for, and observance of, human rights and fundamental freedoms. Article 1(3) requires all Member States “to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.” The range of specific human rights obligations of States has been developed since the adoption 60 years ago of the Universal Declaration of Human Rights by the UN General Assembly. Now there are over one hundred international treaties that concern the protection of human rights. (See further below)

A State which transfers weapons or munitions in circumstances where they know the arms are likely to be used to commit serious violations of international human rights and humanitarian law will clearly be failing its obligation to ensure respect for international law including the UN Charter.^¹³Moreover, under international human rights law, States are not only responsible for their own actions and the actions of their agents, but they also have a duty to prevent patterns of grave abuse committed by private persons, whether or not they are acting under the control of the State.^¹⁴

These obligations are especially relevant for the world’s major arms exporters (see the list of major exporters in Appendix 2), but apply to all States that transfer conventional arms, whether through exports, imports, transit or transhipment, or whose nationals and companies are otherwise involved in arms deals and transactions, as explained further below. However, as this report shows, when it comes to the international arms trade, such legal obligations are not being strictly observed by States or properly codified into state practice.

Box 3: Lessons from Ten Years of the EU Code of Conduct

It is now ten years since the European Union (EU) Member States agreed on 8 June 1998 to adopt the EU Code of Conduct on Conventional Arms Transfers (EU Code). The EU Code is the only multilateral regime with procedures to regulate conventional arms exports according to common criteria based on international standards. The Code requires EU Member States to use one or more of eight Criteria to prevent arms transfers from the EU contributing to inter alia human rights abuses or internal repression, undermining international peace and security or sustainable development. It also contains a set of operative provisions intended to assist implementation by Member States, develop co-operation and promote convergence between them. However, the EU Code is not a legally binding instrument and not all Member States have introduced the EU Code or referenced it in their national laws.

Since 2003, the EU has been working to strengthen the EU Code, including by making it a Common Position, which will give it some legal status. Other changes include the introduction of IHL into criterion two, the addition of re-export provisions in criterion seven, and making it clear in operative provision one that licence applications for licensed production overseas, brokering, transhipment, and intangible transfers should be assessed against the EU Code criteria.

In June 2005 the European Council working group on arms (COARM) approved a draft text for a Common Position. However, the adoption of this has been delayed because some Member States, notably France, chose to make the adoption of the Code as a Common Position conditional upon the lifting of the EU arms embargo on China. With a change in government, it is now expected that France will push for the adoption of the EU Code as a Common Position during the French Presidency of the EU (from 1 July until 31 December 2008). This will finally put the EU Code on a common EU legal footing.

This will require EU Member States to comply with and uphold the EU Code. However, it is not entirely clear what immediate effect this change will have on national legislation. Member States have an EU treaty obligation to implement the Common Position through national legislation, however there is no deadline placed on this and no EU enforcement mechanism to ensure that it is carried out.

The effectiveness of the EU Code is dependent not only on making it legal but also on closing the loopholes and attending to its weaknesses in implementation, so as to:

(a) prevent irresponsible arms transfers by strict application of the Code's criteria to both companies and national armed forces;

(b) improve and apply brokering controls, and prevent illegal arms trafficking by air, land and sea;

(d) prevent the selling-off to private dealers of arms collected in the course of European Security and Defence Policy (ESDP) and security sector reform (SSR) operations and other EU initiatives and their subsequent transfer;

(e) include police equipment which falls outside the scope of the EU military list and therefore of the EU Code; and,

(f) improve the transparency and quality of data submitted by Member States in the context of the Annual Report on the Code of Conduct.

Nevertheless, even a stronger legally binding EU Code will not address the arms transfers of non EU States. Only a properly drafted global ATT can overcome the shortcomings of the EU Code.

2. Illustrative cases of irresponsible arms transfers

The following cases illustrate a range of circumstances in which different types of conventional arms are transferred and used for serious human rights violations and abuses. They show why the establishment of a global treaty to control arms transfers with respect to international human rights and humanitarian law is so urgently needed. The case examples demonstrate the inadequacies of many States’ arms trade control practices and how existing international mechanisms, such as mandatory arms embargoes imposed by the UN Security Council, will not be fully implemented unless underpinned by common standards and measures implemented by States agreed in a global ATT.

The illustrative cases have been selected to cover a variety of regions, arms suppliers and institutional circumstances. They describe recent tragic situations involving serious violations and abuses in armed conflict as well as situations where serious human rights violations have been perpetrated with armed force outside armed conflict, sometimes experiencing pre-conflict or post-conflict armed violence. The sources of arms vary from major arms exporters to smaller producers and local supplies from the holdings of import or transit counties. The transfers cross different world regions and also circulate within regions and single countries, carried out by a variety of actors.

Nevertheless, what stands out is the repeated failure of States to properly consider the impact of their arms transfers on fundamental human rights and to take preventive and precautionary action when making decisions to transfer weapons and munitions.

3. Colombia - small arms supplies fuel grave human rights abuses

This case study highlights how small arms in particular are contributing to serious human rights abuses and violations of IHL by all parties to the conflict in Colombia. Supplies of small arms are brought into the country through imports by the government or illicit trafficking by the paramilitaries and guerrilla groups. The lack of a shared global agreement on standards and methodology to consistently and objectively guide States to avoid arms transfers in instances where there is a substantial risk of serious violations or abuses of human rights or serious violations of IHL has made it difficult to know how some exporting governments have assessed that risk in the Colombia case and what legitimate safeguards they require. The problem of illicit supplies is exacerbated by the risk of diversion from authorized supplies and the lack of adequate control by most States over the activities of arms brokers and their associates who seek the weakest links in national arms control systems.

Civilians continue to bear the brunt of Colombia’s long-running internal armed conflict, which has driven the demand for small arms. All parties to the conflict – guerilla groups, paramilitaries and the security forces – continue to commit serious human rights abuses and violations of IHL. At least 1,400 civilians were killed in the context of the conflict in 2007. Hundreds of thousands of people were again displaced by confrontations between the warring parties.^¹⁵The Colombian government has an obligation to rigorously and impartially investigate cases in which there are allegations that civilians were targeted or where the attack was indiscriminate or disproportionate to the military objective, yet this often does not take place.

3.1 Guerrilla groups

The Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia, FARC) and the much-smaller National Liberation Army (Ejército de Liberación Nacional, ELN) guerrilla groups have continued to commit serious and repeated human rights abuses and violations of IHL, including hostage-taking and the killing of civilians.^¹⁶ Some 260 civilians were killed by guerrilla groups in 2007 compared to around 200 in 2006. Four people were killed, reportedly by the ELN, in San Joaquín, Mercaderes Municipality, Cauca Department, on 14 March 2007.

The FARC continued to target elected officials and were also allegedly responsible for most of the 29 killings of candidates in the run-up to the local elections held on 28 October 2007. Amnesty International condemned the killing in uncertain circumstances in June 2007 of 11 of the 12 deputies from Valle del Cauca kidnapped by the FARC in 2002. The FARC claimed they were killed in crossfire during combat with an unidentified group, but the authorities disputed this. On 5 June 2007 in Cumbal, Nariño Department, the FARC allegedly killed eight members of the Indigenous Awá and Pasto communities.^¹⁷On 14 and 15 July 2007, five members of the Awá Indigenous community, including two children, were killed by landmines reportedly laid by the FARC in Ricaurte Municipality, Nariño Department.^¹⁸

Amnesty International reiterates its call on guerrilla groups to immediately and unconditionally release all civilians still detained by them and to ensure that anyone they continue to hold in detention, including captured soldiers, is treated humanely. The Geneva Conventions totally prohibit any party to an armed conflict from taking a person hostage who is not taking an active part in the hostilities.^¹⁹Amnesty International is also concerned about the dispute between the FARC and ELN in Arauca Department, which has resulted in the killing of hundreds of civilians over the last few years, and about the continued use of anti-personnel mines by guerrilla groups resulting in numerous serious casualties, including of civilians.^²⁰

3.2 Paramilitary groups

Amnesty International has expressed concern about the seriously flawed demobilization of paramilitary groups – which for decades have been supported by powerful economic and political interests and by members of the security forces – and has warned that paramilitary groups continue to operate, often in collusion with the security forces, and to violate human rights throughout the country, including in areas in which military units are receiving foreign military aid, despite assurances by the Colombian government that over 31,000 combatants have been demobilized.^²¹

While some paramilitary groups are operating as criminal gangs, and some of the resultant violence is linked to disputes between such groups, there is evidence that paramilitary groups continue to play a counter-insurgency role in coordination with the security forces in many regions. A significant number of Colombian parliamentarians, as well as other politicians and state officials, have also been linked to paramilitary groups. Paramilitaries were responsible for at least 300 killings of civilians in 2007 compared to 240 in 2006 - either acting alone or in conjunction with security forces.^²²

Grave human rights abuses by such groups continue to be reported. For example, on 13 July 2007, a member of the Peace Community of San José de Apartadó, Dairo Torres, was on a bus travelling between the municipal capital of Apartadó and San José de Apartadó, Antioquia Department, that was reportedly stopped by two armed members of a paramilitary group. They forced Torres to get off the bus and killed him there. The killing occurred a short distance from a police checkpoint situated along the same road.^²³

On 23 February 2007, Alba Milena Gomez Quintero and her 18-year-old son Miguel Antonio were killed after being taken from the taxi in which they were travelling by two suspected paramilitaries on the San Juan de Arama-Granada highway, Meta Department, in a spot which lay between two army roadblocks. Alba Milena Gomez had reportedly made an official complaint against the army, which she claimed had falsely accused her of being a guerrilla auxiliary.^²⁴

3.3 Security forces

The increasing reports of extrajudicial executions (EJEs) carried out by the security forces are of particular concern for Amnesty International.^²⁵In 2007, at least 330 people were reported to have been extrajudicially executed by members of the security forces, compared to 220 in 2006. The victims, mostly peasant farmers, were often presented by the security forces as “guerrillas killed in combat”.

Most EJE cases have been referred to the military justice system, despite the 1997 ruling of the Constitutional Court stating that human rights cases implicating the security forces should be handled by the ordinary justice system. The military justice system usually closes such cases without any serious attempt to hold accountable those responsible. Amnesty International is concerned that the government is failing to ensure the complete exclusion of such cases from military courts in line with repeated UN recommendations.^²⁶

On 9 June 2007, Edwin Cubillos Romero was reportedly detained by troops of the 4^th Mobile Brigade in the El Palmar area of Puerto Rico Municipality, Meta Department. According to information received, witnesses reported hearing his screams as he was tortured. He was reportedly dressed in guerrilla uniform and the body taken to the morgue in Granada Municipality. The body was taken by helicopter to Granada and soldiers reportedly made the body wave at witnesses.

On 22 April 2007, soldiers of the army’s XVI Brigade entered the home of Ernesto Cruz Guevara in Aguazul Municipality, Casanare Department. The soldiers interrogated him about guerrilla activities. Before leaving, they told his wife they were taking her husband to the local Office of the Attorney General. Ernesto Cruz’s family later identified his body; the army claimed he was a guerrilla killed in combat. On 15 April 2007 units attached to the Joaquín Paris Battalion reportedly killed Ester Julia Lozada in the Chispas area of Puerto Rico Municipality, Meta Department. She was reportedly dressed in guerrilla uniform and presented to the media as a guerrilla killed in combat.

On 16 March 2007, 16-year-old Roque Julio Torres Torres and Daniel Torres Arciniegas were reportedly killed by troops belonging to the Brigada XVI, (XVI Brigade), in the El Triunfo area of Aguazul Municipality, Casanare Department. The two young victims were reportedly presented as guerrillas killed in combat. Prior to their death the two youths had reportedly been subject to death threats made by the XVI Brigade. Roque Julio Torres Torres had reportedly witnessed the EJE of two people in the area carried out by troops of the XVI Brigade, a case which is reportedly under criminal investigation.

3.4 Importing small arms

Colombia has a profitable self-sufficient military industry organised under the Industria Militar (INDUMIL) that is currently able to produce annually 45,000 Galil rifles^²⁷, 30 million rounds of 5.56mm ammunition^²⁸, and 7,500 revolvers^²⁹. In 2006, INDUMIL was granted the exclusive right to commercialize the Israeli Galil assault rifle.^³⁰Nevertheless, Colombia still relies to a considerable degree on imports.^³¹

According to UN customs data, Comtrade, in 2006, Colombia imported well over US$40 million^³²worth of equipment under the category “military weapons”.^³³The major suppliers were the USA worth US$26,436,462; South Africa worth $10,228,363; Israel worth $8,711,630 and France worth $2,323,161. Colombia also imported large quantities of other types of small arms according to UN customs data: under the category of “revolvers and pistols” a total of US$1.5 million and under the category of “non-military arms” a total of US$4.1 million.^³⁴INDUMIL is the only legal channel through which arms can be imported, exported, manufactured and sold within Colombia.^³⁵

France, South Africa and the US have laws that require the assessment of the impact on human rights in the recipient country from an arms transfer. Israel has recently revised its arms export control legislation, but this has not yet been made public.^³⁶ The formulation of human rights criteria varies between national laws and regional arrangements which means that these governments often apply their obligations under international human rights law inconsistently. Evidenced by the continued supply of small arms, it is not clear how these governments are assessing the risk of an arms transfer contributing to human rights abuses. There is also a risk of diversion to unlawful users or for misuse as described below. Amnesty International has repeatedly argued that the US State Department has not met US congressional human rights criteria for certifying military aid to Colombia.^³⁷

3.5 Illicit small arms supplies

In general, illicit market arms shipments of small arms and light weapons are quite small, but they happen frequently. Illicit supplies of such arms to the paramilitaries and guerilla groups in Colombia come into the country through the neighbouring States. In turn, these arms have mostly been manufactured in and/or shipped from Europe, China, North Korea, USA, and Latin America.^³⁸The table below lists the national origin of some of the small arms and light weapons confiscated by the Colombian authorities between 2005 and 2006 from paramilitaries and rebel groups.

Confiscated small arms and light weapons in Colombia (2005-2006)

Type of Weapon	Country of origin
	Venezuela	Brazil	Russia	USA	Bulgaria	Germany
Assault rifle	535	52	628	1,172	482	1,668
Rifle		1		149
Sub-machine gun	17	2		85
Pistols	120	78	2	2,370
Revolvers	25	117		4,258
Shotguns	23	2		531

Source: Ministry of Defence, Colombia

The risk of diversion from arms exported to countries neighbouring Colombia remains high. This is one of the criteria that States need to consider when deciding whether or not to allow an international transfer of arms or ammunition. However, the risk of diversion should not simply just concern the diversion of arms to an unauthorized user, but also the risk of arms being diverted to another state force and misused.

3.6 Procuring arms through brokering

Both paramilitary and guerrilla groups have also tried to clandestinely procure small arms and light weapons directly on the international market through arms brokering and trafficking networks.^³⁹

To date only about 40 States have enacted laws and regulations for controlling the business of arms brokering – including or excluding related financial and transport services and extra-territorial provisions.^⁴⁰Given this limited geographical coverage and the weak provisions of many these legal controls, arms brokers and dealers are able to move around and operate easily in many jurisdictions, exploiting loopholes in national laws, working from countries that do not have effective arms brokering controls. This is one of the key reasons why a global ATT must include comprehensive controls on arms brokering and related activities.

In August 2007, Russian police arrested the Israeli arms dealer, Yair Klein, in Moscow. The Colombian authorities sentenced him in 2001 for training paramilitary groups and drug traffickers.^⁴¹TheEuropean Human Rights Court has reportedly postponed his extradition to Colombia on the grounds that he would suffer ill-treatment.^⁴²

The following two high profile cases regarding allegations to broker the supply of arms to the FARC involved sting operations conducted by US authorities. These operations reveal the apparent willingness of known international arms brokers to arrange transactions for the illicit supply of arms to the FARC using a complex web of activities and circuitous delivery routes:

On 6 March 2008, one of the world’s most notorious arms dealers, Victor Bout, was arrested in Thailand for allegedly supplying the FARC with arms and explosives.^⁴³ Thai police said that Victor Bout was arrested on a Thai warrant which stemmed from an earlier one issued by the US Attorney for the Southern District of New York at the request of the US Drug Enforcement Administration.^⁴⁴
In June 2007, the Syrian arms dealer Monzer al Kassar was arrested by the Spanish authorities as he was suspected of preparing to finalize a multimillion-dollar transaction of weapons with persons who claimed to represent the FARC, but were in fact confidential sources who were working for the US Drug Enforcement Agency (DEA).^⁴⁵ Two of his suspected accomplices were arrested in Romania. According to the charges brought against them by the US Attorney, they agreed to sell assault rifles, millions of rounds of ammunition, pistols, hand grenades, rocket-propelled grenade launchers, and surface-to-air missiles.^⁴⁶

On 6 January 2003, the General Secretariat of the Organization of American States issued a report documenting the illegal shipment from Nicaragua to the paramilitary group, United Self-Defense Forces of Colombia (Autodefensas Unidas de Colombia, AUC) of 3,000 AK 47s and 2.5 million rounds of ammunition.^⁴⁷The shipment was reportedly unloaded at the port of Turbo, Antioquia Department, by Banadex S.A. then a subsidiary of Chiquita Brands. In March 2007 Chiquita Brands admitted to US judicial authorities that the company had paid US$1.7 million between 1997 and 4 February 2004 to the AUC.^⁴⁸The company reportedly made over 100 payments to the AUC through its Colombian subsidiary Banadex.^⁴⁹Amnesty International considers that the recent admission of making payments to the AUC, taken together with the OAS report regarding an illegal arms deal potentially implicating Banadex S.A. merits full, independent and impartial investigation by Colombian and US judicial authorities to establish the full extent of any criminal liability of Chiquita employees, including executives, with regards to providing material support to a paramilitary group committing serious human rights violations.

While these cases have been investigated, they indicate a deeper problem and illustrate the need for States to enact into national law and procedures the control “elements” and the specific recommendations agreed by the UN Group of Governmental Experts in August 2007^⁵⁰as well as the common standards adopted by relevant regional organizations to prevent illicit arms brokering and closely related illicit activities.^⁵¹Otherwise unscrupulous arms brokers and dealers will continue to take advantage of lax laws and their arms trafficking activities will contribute to serious human rights violations and abuses.

3.7 Lessons from the Colombia case

The case of Colombia shows why it is critical that States agree a comprehensive and effective global ATT. Governments must agree a stringent human rights provision that prohibits the transfer of arms or ammunition to forces where there is a substantial risk that those forces are likely to use the arms or ammunition for serious violations of international human rights and humanitarian law. For example, to reduce such a risk, safeguards to ensure the prompt and rigorous investigations of the serious misuse of arms need to be in place.

This case study also shows why the risk of diversion should be a key consideration in any decision to transfer arms. An ATT should include a provision that requires States to assess the risk of diversion not only to unauthorized users but also to specific state forces or units committing serious abuses of human rights. The duty to prevent diversion is underlined in several agreements including the UN Programme of Action on Small Arms and Light Weapons and the UN Firearms Protocol. It is also a consideration in several regional agreements, but there is no global standard yet which requires States to prohibit a transfer if there is substantial risk that the weapons or ammunition are likely to be diverted from their intended legal recipient or re-transferred contrary to States obligations under international human rights and humanitarian law.

Moreover, a key element in an ATT could be a provision requiring States to establish common standards and specific mechanisms to control arms brokering and closely related activities. Establishing a strict national registration and licensing system as well as information-sharing procedures to control such activities could help better protect human rights, as could the increased interstate judicial cooperation to ensure prompt investigations and prosecutions according to the rule of law.

4. Côte d’Ivoire – a belated UN arms embargo

This case shows how grave human rights abuses and serious violations of IHL, notably violence against women and other abuses perpetrated by all parties to the conflict including the security forces and the armed opposition groups, has been greatly intensified by the proliferation of small arms imports into Côte d’Ivoire. Prior to the belated UN arms embargo, several Eastern European countries supplied large consignments of arms to the Government of Côte d’Ivoire despite its forces’ involvement in serious violations of human rights. Small arms continue to circulate in the country and international arms brokers and traffickers threaten further deliveries of small arms and larger conventional weapons.

In September 2002, following a failed coup attempt, the country was divided de facto in two, with the south controlled by the government and the north held by an armed opposition group, the Côte d’Ivoire Patriotic Movement (Mouvement patriotique de Côte d’Ivoire, MPCI), which later became the New Forces (Forces Nouvelles) after merging with two other armed opposition groups.^⁵²

Even though the two parties were very quickly separated by a buffer zone controlled by international troops, including French soldiers and UN peacekeeping forces, the fighting continued well into 2003. Serious human rights abuses and violations of IHL, including arbitrary detentions, killings and rape of women and girls, were committed throughout the country by all parties to the conflict. The nature of the fighting led to hundreds of thousands of civilians who were internally displaced and refugees who fled to neighbouring countries. Jeanne, a 23-year-old mother of several children, who was assaulted in March 2003, recounted that: "Two of them caught me. I was beaten with Kalashnikov rifle butts. Some of them said ‘Let’s finish her off’. The two who had caught me refused to kill me but they had sex with me. They raped me, one after the other."^⁵³

An AK-47 machine-gun at a makeshift roadblock set up by Forces Nouvelles troops

to stop vehicles near the town of Bouaké, Côte d’Ivoire, July 2005.

A series of agreements were signed to initially impose a ceasefire and then to put an end to the conflict, and pledged to demobilize, disarm and reintegrate all forces.^⁵⁴In March 2007, an agreement was signed in Ouagadougou (Burkina Faso) between President Laurent Gbagbo and the secretary general of the New Forces, Guillaume Soro under which a new power-sharing government was formed and a joint army command set up. This agreement led to a decrease of the tensions and of the number of reported human rights abuses and presidential elections are now scheduled for 30 November 2008, after having been postponed twice. However, despite international pressure, the repeatedly postponed disarmament, demobilization and reintegration (DDR) programme was deadlocked because of disagreement over the timetable.

After the November 2007 agreement,^⁵⁵the demobilization process began moving forward more rapidly even though it encountered several major difficulties. The first was the lack of funding for the regrouping of the New Forces which caused significant delays in the disarmament of the New Forces. The second was the disorder from a number of demonstrations held in 2007 and 2008 by soldiers who had not received payment. Both these factors aggravated the longstanding debate over having elections before disarmament, which eventually ended in another postponement of elections.

Many examples show how grave human rights abuses and serious violations of IHL, notably violence against women and other abuses perpetrated by the security forces and the armed opposition groups including the New Forces, have been greatly intensified by the proliferation of small arms. Acts of sexual violence by combatants constitute a war crime. If sexual violence by combatants is widespread or systematic it may be a crime against humanity. Constance, recounted how she and her sister were abducted from a village in western Côte d’Ivoire and raped by members of an armed group:

“The rebels were already in our village before December 2002. In February 2003, my sister and I were surprised on Castle Road around 1700 hours on our way back from visiting our maternal grandmother. The rebels spoke to us in English and asked us to get in their vehicle. We refused and they became threatening. My sister and I were standing side by side. One of them fired a bullet between us to frighten us and another shot bullets into the air. They threatened to kill us if we refused to get in the vehicle.” ^⁵⁶

Other serious human rights violations and abuses have been committed, notably the extrajudicial execution of dozens of civilians by the security forces after a banned demonstration took place in April 2004. Then again, between 4 and 6 November 2004, the Ivorian armed forces launched several air attacks in the area of Bouaké (the stronghold of the New Forces). These air strikes resulted in the death of a number of civilians and French soldiers of the Force Licorne. After the killing of 9 French soldiers the French forces retaliated by destroying the air assets (Su-25, MiG-23, Mi-8T) of the Ivorian Armed Forces. As a result, huge demonstrations were organized in the following days in Abidjan to protest against the action of the French troops leading to a confrontation between the Ivorian army and population and the French troops.^⁵⁷Eventually, on 15 November 2004, the UN Security Council imposed an arms embargo^⁵⁸ upon Côte d’Ivoire with exceptions for the UN peacekeeping force.

There was another major confrontation in January 2006 between Ivorian civilians, the majority of them unarmed, and a Bangladeshi contingent of the UN peacekeeping forces(the United Nations Operation in Côte d’Ivoire - UNOCI).^⁵⁹While the UNOCI peacekeeping forces claimed to have acted in self-defence and that their use of force was proportionate, political parties and groups professing support for President Gbagbo have, for their part, repeatedly insisted that peacekeeping forces fired live bullets at "unarmed demonstrators".^⁶⁰

4.1 Rearming on all sides before the UN embargo

The UN arms embargo came too late. Despite the signing of the January 2003 Linas-Marcoussis Agreement, that aimed to set forth the conditions for disarmament, the parties to the conflict were already heavily re-arming between January 2003 and September 2003.^⁶¹

In 1998, the Economic Community of West African States (ECOWAS) had declared a voluntary three-year Moratorium on the Importation, Exportation and Manufacture of Small Arms and Light Weapons^⁶²to control the proliferation of such arms in West Africa. The Moratorium was extended in 2001 and again in 2004. As a Member State of ECOWAS, Côte d’Ivoire government should not have carried out these arms imports until it had first notified the ECOWAS secretariat of the imports and obtained an exemption from ECOWAS. Yet, according to the UN Group of Experts^⁶³the majority of these shipments of small arms and light weapons were left unreported to ECOWAS by the government of Côte d’Ivoire.^⁶⁴

Number of air shipments of Small Arms and Light Weapons to Ivory Coast not reported to ECOWAS^⁶⁵

Year	2002	2003	2004
Shipments	29	35	16

Between 2002 and 2004, and prior to the UN arms embargo, several Eastern European countries supplied large consignments of arms to the Government of Côte d’Ivoire. These consignments included heavy equipment, and small arms and light weapons. The UN Group of Experts on Côte d’Ivoire reported 80 shipments of small arms and light weapons between 2002 and 2004. The Group identified some of the companies involved in these transfers: Metalika AB Ltd (Bulgaria), BSVT (Belarus) and Darkwood Logistique^⁶⁶ (Togo).^⁶⁷

Major Arms Exports to Côte d’Ivoire 2003-2004

Year	Exporter	State of Origin	Number of Items	Description	Source
2003	Belarus	Russia	1	BMP-1 armoured combat vehicle	UN Register of Conventional Arms
2003	Belarus	Russia	13	BRDM-2 armoured combatvehicle	UN Register of Conventional Arms
2003	Belarus	Russia	6	BTR-80 armoured combat vehicle	UN Register of Conventional Arms
2003	Belarus	Russia	10	82mm BM-37 mortar	UN Register of Conventional Arms
2003	Belarus	Russia	2	Su-25UB combat aircraft	UN Register of Conventional Arms
2003	Bulgaria		3	120mm mortar	UN Register of Conventional Arms
2003	Bulgaria		2	MiG-23 combat aircraft	UN Register of Conventional Arms
2003	Bulgaria		2	Mi-24 attack helicopter	UN Register of Conventional Arms
2003	Romania		4	IAR 330 Puma attack helicopter	UN Register of Conventional Arms
2003	Ukraine		1	BMP-2 armoured combat vehicle	UN Register of Conventional Arms
2004	Belarus	Russia	2	Su-25 combat aircraft	UN Register of Conventional Arms
2004	Belarus		1	AN-12 transport aircraft	UN Doc. S/2005/699
2004	Belarus		1	Mi-8T + spare parts	UN Doc. S/2005/699

Amnesty International is concerned that these arms supplies continued into Côte d’Ivoire between 2002 and 2004 at a time when serious abuses of human rights and violations of IHL involved the use of small arms and air attacks, and that these arms have also been used for such violations since 2004. If an effective ATT had been in place, with provisions to prohibit the transfer of military and related equipment in circumstances that pose a high risk that the transfers would be used to facilitate serious violations of human rights and IHL, then these arms transfers could have been prevented.

4.2 Shopping lists of arms

Amnesty International has obtained a shopping list of weapons which the Togolese based company, Darkwood, proposed to obtain for the Ivorian government. Information available to Amnesty International indicates that Darkwood delivered some items on that list to Côte d’Ivoire in 2004 before the imposition of the UN arms embargo. The list included 5,000 AK-47 assault rifles, 200 PKM light machine guns, 200 RPG-7 rocket launchers, 100 82mm mortars, 5 million AK-47 ammunition rounds, 2,000 RPG-7 ammunition rounds, 2 Su-25 combat aircraft, 2 Antonov-12 cargo aircraft, 6 BTR-80 armoured vehicles, 13 BRDM-2 armoured vehicles, 6 BM-21 multiple rocket launchers, and 7,000 air to surface missiles.

In 2005, the UN Group of Experts spotted two Mi-8T transport helicopters under repair at the hangar of Darkwood in Lomé.^⁶⁸ Meanwhile foreign nationals – which UN officials claim have been under contract by Darkwood - were maintaining the remaining air assets of the Ivorian armed forces.^⁶⁹ According to the UN Group of Experts, Darkwood is currently under judicial investigation by the Togolese authorities “over allegations of illicit arms brokering and maintaining aircraft that might constitute a violation of Security Council sanctions”.^⁷⁰

Amnesty International is also in the possession of a document which purports to be a €2 million contract^⁷¹between a company with a registration in the Dutch Antilles (but with an administrative address in Belgium) and the Ministry of Defence of Guinea-Bissau. The broker is identified as an Ivorian national who is close to the ruling Ivorian President and is wanted by France for fraud and forgery.^⁷²The contract does not specify a delivery date nor does Amnesty International know if the items were delivered but the contract specifies that the final instalment for payment is due on the 21 March 2009. Relevant officials in Guinea Bissau are still investigating this contract. According to sources in Belgium the equipment would most likely have been procured from a company in Belarus.^⁷³Amnesty International suspects that, taking into account the background of the broker and that the Ivorian government has repeatedly showed continued interest in Mi-24 attack and Mi-8 transport helicopters^⁷⁴, these items were destined for the Government of Côte d’Ivoire.

Arms to be bought supposedly for “Guinea-Bissau”

4.3 Lessons from the Côte d’Ivoire case

If an effective ATT had been in place prior to the UN arms embargo, with provisions to prohibit the transfer of military and related equipment in circumstances which pose a substantial risk that the transfers would be used to facilitate serious violations of human rights and IHL, then the irresponsible re-arming of all sides in Côte d’Ivoire could have been prevented or at least reduced. Moreover, the UN arms embargo could have been better respected if such an ATT had been in place and implemented in most countries.

Moreover, if an ATT included not only provisions to respect human rights, IHL and UN arms embargoes when considering prospective arms transfers, but also robust measures to control intermediaries such as brokers, the above transfers and transactions by private arms dealers would have been properly assessed in advance. If common standards were agreed, the authorities in States where the dealers and brokers reside, operate and hold citizenship, would have a chance to consult the intended receiving States before a brokering transaction was approved, and thus provide another means to help protect human rights in countries such as Côte d’Ivoire.

5. Guatemala - exacerbating violent crime

This case study illustrates the way small arms transfers from several foreign countries exacerbate a pervasive pattern of violent crime in a country with existing high levels of small arms availability. The failure of the Government of Guatemala to exercise due diligence when small arms are being so widely misused by private persons and illegal armed criminal groups, presents a substantial risk that future small arms transfers are likely to exacerbate violent crime in Guatemala.

In common with some other Central American countries, Guatemala experiences high levels of violent crime including gun-related violence.^⁷⁵ State authorities have come under criticism for what many perceive as a failure to control spiralling violence and provide public security. The murder rate for both men and women has continued to rise. Police records indicate that a total of 5,781 people were killed in 2007, 5,885 in 2006, 5,338 in 2005 and 4,346 in 2004. Estimates put Guatemala at approximately an average of 44 killings per 100,000 inhabitants.^⁷⁶ Actual convictions for killings have remained extremely low.

With no visible progress being made in improving the quality of criminal investigations and prosecutions of crimes, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions criticized Guatemala in 2006 for fostering a culture of impunity for killings.^⁷⁷

5.1 A legacy of arms

Guatamala’s 36-year internal armed conflict officially came to an end in 1996 with the signing of peace accords by the guerrilla group, the Guatemalan National Revolutionary Unity (Unidad Revolucionaria Nacional Guatemalteca, URNG), and the government. Over 200,000 people, mainly of Mayan origin, were killed or ‘disappeared’ during the conflict while over one million were forcibly displaced.^⁷⁸The conflict left the country awash with small arms. The estimated 1.8 million firearms in Guatemala, 90 per cent unregistered, contribute to a climate of fear and criminality.^⁷⁹

The only major weapons collection effort was in 1997 when the UN Observer Mission in Guatemala oversaw the disarmament of armed group units which resulted in the surrender of approximately 1,500 weapons and 535,000 rounds of small calibre ammunition and grenades.^⁸⁰ Since then there have been no significant disarmament efforts beyond the regular confiscations by the police. As such, small arms control remains a massive challenge in Guatemala. While these types of weapons are being confiscated and destroyed, by the police, it is only in small numbers.^⁸¹ The Civil National Police seizes annually an average of 3,000 arms, 45 percent of which are pistols and 27% are revolvers.^⁸²

5.2 Failing to protect human rights

Research carried out by the Human Rights Ombudsman’s Office shows that in all murder cases, 80 per cent of men and 69 per cent of women are killed with firearms.^⁸³The lack of investigation into murders and the low rate of convictions have contributed to a culture of impunity for such crimes. The Vice President of Guatemala reported that approximately one percent of all killings resulted in a conviction.^⁸⁴

Violence against women is especially widespread in Guatemala: in 2007, at least 590 women were murdered according to the police and many of the bodies showed signs of sexual violence and other forms of torture.^⁸⁵ The lack of police response to cases of women who disappear as illustrated in the following story raises questions about state acquiescence given the high murder rate of women and the dismal conviction rate.

At approximately 9:30 pm on 27 July 2005, 20-year-old university student Cristina Hernández(1) was forced into a grey car outside her home by four men. Neighbours witnessed the abduction and immediately alerted her father who later related:

I borrowed a car from a neighbour and my son and I tried to chase them in the car. Then I went to San Juan police station and begged the police to try to stop their car. I begged them to put up road blocks to stop them and catch them. Then after two hours of searching everywhere I went back to the police station to see if they had any news…they claimed I hadn’t reported anything and so they’d done nothing. Then my brother-in-law went to the homicide department; and they said nothing could be done. They said many young girls run off with boyfriends; and so they couldn’t start a search for 24 hours.^⁸⁶

The next morning her dead body was found. She had been shot four times and bitten all over her body. Instead of being subjected to a forensic examination, all but one item of clothing she was wearing were returned to the family. When the family presented the clothes to the Public Ministry to assist in the investigation, they were reportedly told to burn them or throw them away. No one has been brought to justice for her killing.

The UN Special Rapporteur on extrajudicial, summary or arbitrary executions issued a report criticizing Guatemala for fostering impunity for killings and noted the involvement of the police and other citizens in killings of gang members, criminal suspects and others.^⁸⁷ In this context of increasing insecurity combined with a failure by the state to undertake efficient and effective investigation and prosecution, more violence has filled the vacuum: agents of the security forces have been accused of carrying out extra-judicial executions and torture.

Reports from local organizations and international bodies contain credible allegations that members of the security forces are implicated in cases of torture and extra-judicial executions of those deemed socially undesirable.^⁸⁸ The victims, including young people, tend to be members or alleged members of street gangs (known as maras). These killings should be immediately and thoroughly investigated by the authorities, although this has not taken place to date.^⁸⁹

The Government of Guatemala has made a welcome step in tackling the problem of criminal networks embedded within state institutions by ratifying the UN-backed International Commission Against Impunity (CICIG).

5.3 Continuing small arms supplies

In spite of the high levels of small arms circulating around the country, Guatemala continues to import large numbers of small arms and ammunition, typically pistols and revolvers.^⁹⁰

Top Five Exporters of “Pistols and Revolvers” to Guatemala between 2004 and 2006 by value^⁹¹

Exporter	Year	Total Value US$	Total (kg)
Czech Republic	2004, 2005	1,480,725	5308
Rep. of Korea	2004, 2005, 2006	1,040,328	8508
Argentina	2004, 2005	818,902	9929
Slovakia	2005	221,711	760
Germany	2004, 2005, 2006,	155,000	800

The above table shows the top five suppliers of “pistols and revolvers” as reported by exporting States to the UN customs database, Comtrade. There is a lack of transparency in the reporting by governments on the types and quantities of weapons delivered to Guatemala, according to the information they supplied to UN Comtrade. However, in the absence of figures on the actual number of weapons delivered, the value in US dollars and weight in kilograms is useful in conveying the amount of arms transferred. Furthermore, no information on the recipient of these weapons shipments is published by the Government of Guatemala or the exporting governments so the designated end-user could be, for example, a registered firearms dealer (since civilians are allowed to carry arms), or military, security or police forces.^⁹² Other arms suppliers to Guatemala include: Israel, Italy, Mexico, Slovakia, Turkey, and the USA.^⁹³