Illicit arms trafficking within EU and eu member states legal framework

Author:Prof. PhD Esther Hava García
Position:Faculty of Law, University of Cádiz (Spain)
Pages:54-60
 
CONTENT
54 ESTHER HAVA GARCÍA
INTERNATIONAL CRIMINAL LAW
ILLICIT ARMS TRAFFICKING WITHIN EU AND EU MEMBER
STATES LEGAL FRAMEWORK
Prof. PhD Esther Hava GARCÍA
Faculty of Law, University of Cádiz (Spain)
esther.hava@uca.es
On the night of October 1, 2017, between 10:05 and 10:15 p.m., a 64 year old
man fired hundreds of rifle rounds from his suite on the 32nd floor of a hotel on a
crowd of concertgoers at the Route 91 Harvest music festival on the Las Vegas
Strip in Nevada, leaving 58 people dead and other 546 injured. An hour after the
gunman shot himself. His motive is unknown1.
How could this be happening? Probably there’s a main factor: the regulation
on arms in USA is too lax, excessively flexible, which is produced by something we
could name as “arms culture”. In fact, an important sector of the American society
strongly believes that they do have the right to protect themselves, and that the
best way to get it is by using firearms. This would explain sociological phenomena
such as the powerful National Rifle Association, which is the only civil association
from the USA that was invited to the negotiations on the UN Arms Trade Treaty,
the same association that attempted to block that Treaty2.
This “arms culture” is not unique to the USA, because in other countries
(probably the whole European Union) we live under the cultural influence of the
USA. Arms are symbols themselves, fetishes, that come and settle in our human
understanding by prefabricated images that spread through a wide range of
cultural goods: from toy guns to spy novels. It is not by chance that the film that
made more money across the world in 2016 was Captain America: Civil War3.
The worship of certain arms has a presence even in products and objects
whose theme or character should be, at least initially, beyond them: for instance, in
a science fiction film about futurist technology (Ghost in the Shell) there are some
good foregrounds of the Daisuke Aramaki’s weapon, which is the main character’s
elderly tutor and chieftain. That handgun is an Smith & Wesson Model 29, exactly
the same gun that Clint Eastwood made famous in Dirty Harry movies.
1 https://en.wikipedia.org/wiki/2017_Las_Vegas_shooting
2 https://www.theguardian.com/commentisfree/2012/dec/28/nra-block-un-treaty-gun-control
3 http://www.imdb.com/list/ls031261985/
Law Review vol. VII, issue 2, Jul
y
-December 2017, pp. 54-60
Illicit arms trafficking within EU and EU member states legal framework 55
One more example: the flag of Mozambique, adopted in 1983, includes the
image of an assault rifle: the Avtomat Kalashnnikova Model 1947 (so well known as
Kalashnikov or, more simply, as AK-47), which has achieved the first higher
production position in history, the most illegally sold and also the cheapest one:
According to Global Financial Integrity, nowadays it can be purchased for 600
dollars in Afghanistan, 1.200 dollars in Mexico or nearly 1.000 dollars in Belgium4.
Indeed, Belgium seems to be the country where the perpetrators of the terrorist
attack in Paris got their Balkan AK-475. Nowadays, over 30 varieties and copies of
the original Kalashnikov assault rifle are manufacturing in the world6.
The arms culture has also a presence in countries like Romania or Spain. As far
as I know, in our countries we don’t have such a powerful organization as the
National Rifle Association7, but we do have other institutions such as the Asociación
Nacional del Arma8 in Spain, or the Asociatia Nationala a Detinatorilor de Arme din
Romania9. They both uphold the right to carrying a weapon within their statutes.
Knowing the accurate number of weapons within a country is not an easy task,
but there are some figures that allows us to make a comparison, for instance,
between Spain and Romani: According to Gunpolicy.org, the total amount of
weapons in civilian hands in Romania in 2007 was 160.00010, whereas in Spain it
was 4.500.00011 (it means, nearly 30 times more weapons in Spain than in Romania
taking in consideration that the Spanish population was just a little more than the
double of the Romanian one). It is also interesting to highlight their world ranking
position on selling weapons in that year: within 178 countries, Spain was the 18
and Romania was almost the last, being the 123.
It is also remarkable the differences between these two countries regarding to
the homicides that have been perpetrated with a firearm. According to the
information issued by Eurostats, in 2012 Romania had an intentional homicide rate
that was slightly higher than the Spanish one per 100.00 population (1.9 for
Romania and 0,8 for Spain). However, within the sum of the homicides, in
Romania only a 2% were committed using a firearm, whereas in Spain this rate
was a 14% (it means, 7 times higher)12.
4 GLOBAL FINANCIAL INTEGRITY, Transnational Crime and the Developing World, 2017:
http://www.gfintegrity.org/wp-content/uploads/2017/0 3/Transnational_Crime-final.pdf
5 N. MC CARTHY, “The cost of an AK-47 on the black market around the world”, Forbes,
03/30/2017: https://www.forbes.com/sites/niallmccarthy/2017/03/30/the-cost-of-an-ak-47-on-the-
black-market-across-the-world-infographic/#5c211227442b
6 http://www.smallarmssurvey.org/weapons-and-markets/tools/weapons-id-database.html
7 https://home.nra.org/
8 http://www.anarma.org/
9 http://www.anda.com.ro/
10 http://www.gunpolicy.org/firearms/region/romania
11 http://www.gunpolicy.org/firearms/region/spain
12 https://homicide.igarape.org.br/
56 ESTHER HAVA GARCÍA
How could these differences be explained? Maybe is the Spanish passion for
hunting. Because the higher is the hunter’s number, the higher are the hunting
licenses. And in my country, we do have a huge amount of people who are fond of
hunting. Indeed, in 2012, there were more than 2 million legal hunting rifles in
Spain13.
It could also be taken into consideration the hardness of the regulation on the
issue: the harder the regulation is on arm control, the less of firearms presence on
the streets thus the less intentional homicides with firearms would take place. In
fact, Spain has a sever regulation on it, but maybe it could be more lax about the
hunters. Nevertheless, the Romanian regulation on arms possession and use
nowadays is even harder14, up to the point of that it is said to be the hardest within
Europe15.
The apparent hardness on regulating the possession of arms in Spain does not
keep my country from being one of the main characters within the illegal
trafficking on these objects inside Europe: according to the study on firearms made
by the UNODC in 2015, Spain expressed that the 99.45% of the firearms that were
seized in 2013 inside its territory had been made in our country. Next fact is also
very flashy: the 22, 30% of the weapons that were seized in Romania were
manufactured in Spain and the 25, 60% came from Spain16.
Otherwise, Spain is also a leader within the legal arms trade, overall of defence
weapons. According to Stockholm International Peace Research Institute (SIPRI), my
country is the seventh within the list of main great weapons exporting for the last
period that has been analysed (2011-2015)17 and during 2016 Spain beat its own
defence equipment exportation record. So this country earned a total amount of
4.051,8 million euros (that is to say, nearly a 9% more than in 2015)18.
Spain is not an isolated situation within Europe. In fact the European
Parliament recognized in a report from August this year that “international
transfers of major weapons between 2012-2016 reached their highest volume for
any five-year period since the end of the Cold War, and were 8.4 % higher than the
figure for the 2007-2011 period”; and “exports from the EU28 amounted to 26 % of
13 https://elpais.com/elpais/2016/10/14/media/1476445454_561039.html
14 See A. M. MANTA, “Un climat controlat în România, regimul armelor si al munitiilor/A
climate controlled in Romania, the regime of weapons and ammunitions”, Revista de investigare a
criminalitatii; Bucharest Vol. 9, Iss. 1, (2016): 621-631
15 http://www.digi24.ro/stiri/actualitate/evenimente/romania-are-cea-mai-aspra-lege-a-arme
lor-din-europa-477487
16 UNODC, Study on Firearms 2015. A study on the transnational nature of and routes and modus
operandi used in trafficking in firearms, Vienna, United Nations, 2015: http://www.unodc.org/docu
ments/firearms-protocol/UNODC_Study_on_Firearms_WEB.pdf
17 See SIPRI, Yearbook 2016: Armaments, Disarmament and International Security, Oxford University
Press, 2016.
18 http://www.mineco.gob.es/stfls/mineco/prensa/ficheros/noticias/2017/170512_informe_
2016.pdf
Illicit arms trafficking within EU and EU member states legal framework 57
the global total in 2012-2016, which makes the EU28 collectively the second largest
arms supplier in the world after the USA (33 %) and followed by Russia (23 %)…
according to the most recent report by the Working Party on Conventional Arms
Exports (COARM), EU countries were granted arms export licences with a total
value of EUR 94.40 billion in 201419.
I have just mentioned some of the facts that I consider as the most important in
order to evaluate the arms trafficking matter within the European legal framework,
using to do so the comparison between these two European countries: Romania
and Spain. I’m trying to state briefly now, the main rules that deal with the arms
control in Europe. But as a prior step, it is necessary to mention two policy
instruments from United Nations that have so much influence within the
European regulation on firearms.
Until the 21st century, the United Nations had only taken care about military
hardware and especially about weapons of mass destruction (this is, nuclear,
chemical or biological). Moreover, small and light firearms (which are commonly
used to commit homicide) appear as an interesting issue when the United Nations
starts to pay attention to a new problem emerged from the globalization. I am
referring to transnational organized crime, which in the 21st century started to
become a real threat for the stability, sovereignty and independence of the
countries themselves.
That’s the reason why the UN General Assembly approved the Protocol against
the illicit manufacturing of and trafficking in firearms, their parts and components20 in
2001 (although it is in force since 2005). This is a “hard law” instrument21, attached
to the Convention against transnational organised crime22. The Firearms Protocol aims
at promoting and strengthening international cooperation and developing
cohesive mechanisms to prevent, combat and eradicate the illicit manufacturing of
and trafficking in firearms, their parts and components and ammunition
(firearms). By ratifying or acceding to the Firearms Protocol, States make a
commitment to adopt and implement a series of crime-control measures that aim
at: (a) establishing as criminal offence the illicit manufacturing of and trafficking in
firearms in line with the Protocol's requirements and definitions; (b) adopting
effective control and security measures, including the disposal of firearms, in order
to prevent their theft and diversion into the illicit circuit (c) establishing a system of
government authorizations or licensing intending to ensure legitimate
19http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A8-2017
-0264+0+DOC+XML+V0//EN
20 https://www.unodc.org/documents/organized-crime/Firearms/12-56168_Firearm_booklet_
ebook.pdf
21 See K. L. CARLSON, “Fighting Firearms with Fire in the OAS: A Critical Evaluation of the
Inter-American Convention Against the Manufacturing of and Trafficking in Firearms, Ammunition,
and Other Related Materials”: http://www.corteidh.or.cr/tablas/r29320.pdf
22 See R. S. CLARK, "The United Nations Convention Against Transnational Organized
Crime", Wayne L. Rev. 50 (2004): 161.
58 ESTHER HAVA GARCÍA
manufacturing of, and trafficking in, firearms; (d) ensuring adequate marking,
recording and tracing of firearms and effective international cooperation for this
purpose.
The other key instrument from the UN about arms control is the Arms Trade
Treaty23 that was finally approved in 2013 (in force since 2014), despite the
negotiations had begun in the nineties. Some NGOs like Amnesty International or
Intermon Oxfam, certain personalities worldwide (several Nobel Peace Prize people
among other) and some international organizations as the European Union itself,
they all had an important role within this negotiating process. So much so that it
can be said that without their effort, the Arms Trade Treaty could have never been
developed, because there were a lot of pressures from certain civil organizations
(as The National Rifle Association) and of course, from the arms industry, because
all of them thought the treaty would mean a danger to their huge economic
benefits. The section 1 of the treaty specifies that “The object of this Treaty is to: –
Establish the highest possible common international standards for regulating or improving
the regulation of the international trade in conventional arms; – Prevent and eradicate the
illicit trade in conventional arms and prevent their diversion; for the purpose of: –
Contributing to international and regional peace, security and stability; – Reducing human
suffering; – Promoting cooperation, transparency and responsible action by States Parties
in the international trade in conventional arms, thereby building confidence among States
Parties”.
In terms of the European Union, the arms control within its territory has been
a complex issue from its very beginnings and not just because the laws on firearms
from the different countries had (and still have) enormous differences, but overall
because of the economic interests from the countries that focused (and focus) on
manufacturing and exporting military hardware. Thus, article 346 of the Treaty on
the Functioning of the European Union establishes that: “1. The provisions of the
Treaties shall not preclude the application of the following rules: […] b) any Member State
may take such measures as it considers necessary for the protection of the essential interests
of its security which are connected with the production of or trade in arms, munitions and
war material; such measures shall not adversely affect the conditions of competition in the
internal market regarding products which are not intended for specifically military
purposes”. This means that arms manufacturing and trading that could be justified
on the national defence of the different member states it’s out of the European
Union internal market rules.
The situation changed substantially with the Lisbon Treaty, in force since 2009,
which increased significantly the powers of the European Union with reference to
the area of freedom, security and justice. So, according to article 83.1 of the Treaty
on the Functioning of the European Union: “The European Parliament and the Council
may, by means of directives adopted in accordance with the ordinary legislative procedure,
establish minimum rules concerning the definition of criminal offences and sanctions in the
23 https://www.un.org/disarmament/convarms/att/
Illicit arms trafficking within EU and EU member states legal framework 59
areas of particularly serious crime with a cross-border dimension resulting from the nature
or impact of such offences or from a special need to combat them on a common basis. These
areas of crime are the following: terrorism, trafficking in human beings and sexual
exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money
laundering, corruption, counterfeiting of means of payment, computer crime and organised
crime”.
Anyway, it has been a long time until the European Union has begun to use
these new powers. In fact, within the so-called Stockholm programme, which
defines strategic guidelines for legislative and operational planning within the area
of freedom, security and justice for the period 2010-2014, the Council decided to let
out of its priorities the arms illegal trading.
Until this year 2017, the European Union has had little legal instruments in
order to control the arms trading. The most important ones are:
- The Council Directive of 18 June 1991 on control of the acquisition and possession
of weapons24, that was developed as a corrective action on internal trade, with the
aim of combine some freedom of movement for certain firearms within the
Community territory with certain guarantees of security that are necessary to these
objects (firearms). To this end, it established the minimum requirements that the
member states should impose to the acquirement and possession for certain arms
within their territories at the same time the conditions for transferring firearms
among the member states were regulated too. This Directive was changed in 2008
in order to adapt its content to the UN Firearms Protocol.
- 20 years later, the Regulation (EU) nº 258/2012 of the European Parliament and
of the Council implementing Article 10 of the United Nations’ Firearms Protocol, and
establishing export authorisation, and import and transit measures for firearms, their parts
and components and ammunition25 was approved.
A main factor that has caused that in the last few years the European policy on
firearms control has become more active: Terrorist attacks that have taken place in
the European territory since 2015, most of them perpetrated using small firearms
that had been obtained illegally, for example, in Belgium. As a result, two
directives that have changed the picture meaningfully, have been enacted.
In first place the Directive (EU) 2017/541 of the European Parliament and of the
Council of 15 March 2017, on combating terrorism and replacing Council Framework
Decision 2002/475/JHA and amending Council Decision 2005/671/JHA26, which is the
first binding legal act that the European Union has taken according to section 83.1
Treaty on the Functioning of the European Union. This Directive “establishes
minimum rules concerning the definition of criminal offences and sanctions in the area of
terrorist offences, offences related to a terrorist group and offences related to terrorist
activities, as well as measures of protection of, and support and assistance to, victims of
24 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.1991.256.01.0051.01.ENG
25 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32012R0258
26 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32017L0541
60 ESTHER HAVA GARCÍA
terrorism” (article 1). According to this, the member states have an obligation to
punish as terrorist crimes, among others, these behaviours:
1. “Manufacture, possession, acquisition, transport, supply or use of explosives or
weapons, including chemical, biological, radiological or nuclear weapons, as well as
research into, and development of, chemical, biological, radiological or nuclear weapons”,
where committed with one of the aims listed in article 3, paragraph 2: “(a) seriously
intimidating a population; (b) unduly compelling a government or an international
organisation to perform or abstain from performing any act; (c) seriously destabilising or
destroying the fundamental political, constitutional, economic or social structures of a
country or an international organisation”.
2. Providing instruction “on the making or use of explosives, firearms or other
weapons or noxious or hazardous substances, or on other specific methods or techniques”,
with the knowledge of the fact such skills provided are intended to be used for the
purpose of committing or contributing to the commission of one terrorist offences,
or receiving instruction on the same illicit activities, for the same purpose.
Secondly, there is the Directive (EU) 2017/853 of the European Parliament and of
the Council of 17 May 201727, which has changed again the Directive 91/477/EEC. The
changes made affect substantially to prevention and control on arms transferring,
indeed, almost all the drafting of the original precepts from the Directive
91/477/EEC have been modified. That’s why it’s so likely that all the countries
within the EU would have to address again the change of their own national
control systems on weapons before September 2018, because that’s the deadline
given for the transposition of this Directive.
27 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2017.137.01.0022.01.ENG