BASIC Publications

BASIC RESEARCH REPORT

One Size Fits All?
Prospects for a Global Convention on
Illicit Trafficking by 2000

Chapter 2: A Closer Examination of the OAS Prototype

It is the right time to establish a legal framework at the international level and I can't see the work undertaken in the OAS having anything other then a positive effect on the Firearms Protocol.
Mexican OAS official¹³

The draft Firearms Protocol draws on the corresponding articles of the OAS Convention.¹⁴ Indeed, even before the OAS Convention was signed, champions of this approach to illicit trafficking from Canada, Mexico and the United States endorsed the regional agreement as a potential "template" for a global convention.¹⁵ Speaking at a United Nations seminar, Ambassador Carmen Moreno, Deputy Foreign Minister of Mexico and former chair of the OAS Convention negotiations, observed that, "The Inter-American Convention provides an excellent basis for multilateral negotiation within the United Nations."¹⁶

Over the past eighteen months, countries that have been pushing for a Firearms Protocol modeled after the OAS Convention, such as Canada, Mexico and the United States, have provided little insight into their reasons for promoting the globalization of an approach based on the shared concerns of countries from just one hemisphere. As an INTERPOL representative remarked, "The political agreement should be relevant to all regions. We know that the problem of trafficking in Rio de Janeiro is very different to the challenges posed for the police in Central Africa."¹⁷ The Firearms Protocol should not assimilate the OAS model without considering the varied dynamics at play in different regions of the world.

In addition, no states have made any information available to affirm the effectiveness of the OAS Convention. In part, this is understandable, since the OAS Convention only entered into force in July 1998.¹⁸ Thus it is too early to expect any useful data on its impact. Furthermore, to a large extent, any problems or areas of particular effectiveness are still untested.

Yet despite these considerable limitations a number of governments appear to feel confident enough about this still-untested agreement to forge ahead and use it as a model for a legally binding global agreement. Echoing concerns that this approach might be premature, one US State Department observed that, "If the OAS agreement is not a success, we will lack the moral authority to take this to the United Nations."¹⁹

Emphasizing Common Regional Concerns is Key
Rather than pointing the finger at one particular country and censuring that state for contributing to illicit weapons flows, the OAS linked illicit weapons trafficking to common regional concerns, specifically drugs trafficking and transnational crime.²⁰ As one official explained, "The [OAS] Convention takes a very positive approach to the problem. It focuses on increasing cooperation rather than increasing sanctions."²¹ Whereas previous bilateral efforts to control light weapons had made little headway, this regional approach generated the high level of political will necessary to move forward.

Positive Developments to Date
In a short space of time, the OAS Convention has already generated success stories; in fact, some states are already asserting that it has had a significant impact on trafficking. For example, Mexico claims that the number of confiscated weapons has doubled since the agreement was signed.²² Of all the practical measures being developed in connection with the OAS Convention, officials have consistently emphasized the importance of developing a harmonized system of marking weapons at the point of manufacture and import. As one official remarked, "This is expected to have the greatest long term impact on trafficking in the region."²³ The requirement to mark weapons has acquired this degree of importance because it imposes accountability on manufacturers, exporters, importers and dealers alike. In free ports such as Kingston, Jamaica, easily identifiable and standardized markings combined with harmonized licenses will enable customs officials to identify illegal shipments more readily.²⁴

The agreement also appears to have spurred states to enhance cooperation on a bilateral and sub-regional basis. The United States, for example, has increased the level of cooperation and training undertaken by the Bureau of International Narcotics and Law Enforcement Affairs. As well as systematically providing training for police and customs officials throughout Latin America on weapons tracing and identification, they have responded to requests from individual countries directly affected by illicit trafficking problems. For example, the United States has increased the level of its bilateral cooperation with Mexico in these areas.²⁵

Will the OAS Convention Stem Weapons Trafficking in Colombia?

In Colombia, light weapons are in plentiful supply and can be found in the hands of state security forces, insurgent guerrillas, drug traffickers and private citizens alike. Broadly speaking, different groups possess different types of weapons and have different methods of procuring them, be it through local or external sources and through licit or illicit channels.^a The OAS Convention is designed to stem the illicit weapons trafficking which fuels criminal ventures such as drug trafficking. However, an agreement with narrow scope and limited practical measures will likely not have the power necessary to conquer the longstanding black market in light weapons in Colombia and the surrounding region.

Different Groups, Different Guns, Different Channels
The state security forces in Colombia are highly militarized as the result of long-standing civil war against narcotics traffickers and insurgent guerrilla forces. Large innocent and non-combatant sections of the population have been targeted as part of the countrywide violence.

Of particular concern are paramilitary forces, defined by Human Rights Watch as "armed civilians and civilian groups working for or in partnership with the military." In a study on Colombia's paramilitaries, Human Rights Watch reported that "Over the past two decades, paramilitaries have been tied to thousands of forced disappearances, murders, cases of torture, and death threats. In 1995, almost half of all acts of political violence where a perpetrator was identified were attributed to paramilitaries.^b

The US Department of State's annual report on human rights practices corroborates these claims. Its 1997 Report related that, "Killings by paramilitary groups.increased significantly, many times with the complicity of individual soldiers or military units, or with the knowledge and tacit approval of senior military officials. The number of such killings attributed to paramilitary forces increased significantly (from 751 in 1996 to 752 during the first 9 months of 1997)."^c

The state security forces have obtained weapons from INDUMIL, the state-owned arms producer, and through legal government-to-government transfers from countries such as Israel, France, Russia, Germany and the United States. For example, in 1997, the Colombian police and military forces received a shipment of "emergency" small arms, grenades, ammunition and assault rifles from the United States.^d In 1999, the Clinton Administration is expected to provide Colombia's police and military with weapons and training worth $300 million.^e

The United States justifies these weapons transfers as necessary assistance for fighting the "war on drugs," but appears to be unable to verify that the weapons have been used for such purposes. In at least one case, a military aid agreement left all monitoring to the Colombian Defense Ministry.^f In fact, documents leaked to Amnesty International in November 1995 provided evidence that US-supplied weapons provided for anti-narcotics operations ended up in the hands of Colombian army units responsible for grave human rights violations.^g

In addition to the aforementioned thefts from state security forces, Colombian guerrilla groups have acquired primitive rifles, shotguns and assault rifles through regional arms pipelines. In one 1998 incident, guerrillas used homemade tanks - tractors fitted with US-made M-60 machine-guns and steel sheeting - to attack a police station in the province of Meta.^h Clearly, when measured by international standards, Colombian guerrilla groups do not possess sophisticated weaponry. However, their arsenals are becoming more lethal. In March 1998, the armed forces recovered Galil rifles, AK-47 and R-15 assault rifles and assorted ammunition and grenades in the course of raids on the guerrillas.ⁱ

The extensive influence and immense wealth of the Colombian drug cartels has facilitated extensive purchases of all kinds of weapons. AK-47s and AR-15s are reportedly purchased directly from the United States or indirectly from Panama, often in drugs-for-guns swaps. In one incident, a shipment of Chinese AK-47s and rocket-propelled grenade launchers was allegedly diverted to Colombian narcotics traffickers in exchange for cocaine.^j Weapons are also obtained from INDUMIL through bribery or theft.

Private citizens purchase light weapons legally from INDUMIL or obtain them illegally and then license the weapons with national authorities. While the Presidential Decree 2535 of September 1993 ostensibly established clear legislation governing private ownership of weapons, the licensing process remains weak and licensing records are incomplete. Large numbers of rifles and pistols as well as semi- and fully automatic weapons remain at large amongst the Colombian public.

What the OAS Convention Offers
Once ratified and implemented, the OAS Convention would make it considerably more difficult for groups to acquire weapons though illegal channels and would also hamper their efforts to traffic weapons elsewhere in the Americas. In particular, the OAS Convention would help address the problems of porous borders by instituting a system of export certification, information sharing and careful record keeping. The introduction of harsher and more rigorously enforced punishments for weapons-related offences could also potentially deter traffickers.

It is too early to judge whether these practical measures will have any concrete effect on the level of weapons trafficking in the region. However, it should be emphasized that the OAS Convention has limited objectives and cannot be expected to serve as a stand-alone solution to this complicated problem. In particular, it is critical that states acknowledge the linkages between legal and illegal transfers. Incorporating comprehensive weapons control, collection and destruction measures into anti-drug trafficking campaigns would also advance both the weapons and narcotics control efforts.

^a For historical background on light weapons in Colombia see: Daniel Garcia-Pena Jaramillo, "Light Weapons and Internal Conflict in Colombia," Lethal Commerce: The Global Trade in Small Arms and Light Weapons, eds. J. Boutwell, M.T. Klare, L.W. Reed (Cambridge, MA: American Academy of Arts and Sciences, 1995).

^b "Colombia's Killer Networks: The Military-Paramilitary Partnership and the United States," Human Rights Watch, November 1996, summary.

^c "Colombia Country Report," Human Rights Practices for 1997 Report, Bureau of Democracy, Human Rights, and Labor, US Department of State, January 30 1999.

^d Lora Lumpe, "The Legal Side of a Dirty Business," Washington Post, 24 January 1999, p. B3.

^e Adam Isacson, "US Douses Fire With Gas," Resource Center of the Americas, 1999. Posted on the internet at http://www.americas.org/sitemap_index.htm.

^f "Colombia Human Rights Developments," Human Rights Watch World Report 1998, Human Rights Watch. Posted on the internet at http://www.hrw.org/hrw/worldreport/Americas-02.htm.

^g "Amnesty Documents Misuse of U.S. Arms," Amnesty Action, Winter 1997 posted on the internet at http://www.amnesty-usa.org/feats/colpaps.html.

^h CNN Interactive News, 31 March 1998.

ⁱ El Tiempo, 14 March 1998 and 22 March 1998.

^j Washington Post, 17 February 1998.

Similarly, following the signing of the OAS Convention, Jamaica communicated an urgent need for assistance to strengthen the capacity of customs to combat the problem, citing its serious illicit trafficking and gun violence problems. Jamaica identified the United States as a "key partner" in controlling the problem and claims that since the signing of the agreement, cooperation, information exchange and the levels of training and technical assistance have all increased.²⁶ For many countries, these measures of practical assistance are necessary in order to bridge the gap between their current capabilities and the processes and procedures - both bureaucratic and technical - that they agree to implement in the course of political agreements such as the OAS Convention.

Cooperation at the sub-regional level is also growing. In Central America, states have begun discussing the development of a mini-OAS agreement within the sub-region. Furthermore, in April 1998, the states of the Mercado Commun del Sur (Southern Common Market or MERCOSUR, including Argentina, Brazil, Paraguay, Uruguay, Bolivia and Chile) collectively agreed not only to make their best efforts to ratify the OAS Convention but also to develop a joint registration system for firearms, ammunition, explosives and other related materials based on the principles of the CICAD model regulations.²⁷ (For additional details on weapons trafficking and control efforts in MERCOSUR countries, see text box on "Prospects for Curbing Illicit Weapons Trafficking in the Iguazú Triangle" on pp. 14-15.)

Selling Points
If incorporated into the Firearms Protocol, a number of the principles central to the OAS Convention will provide a powerful foundation for meaningful global controls. Most importantly, the OAS Convention:

is Legally Binding. Unlike political declarations, statements of intent or guiding principles, the OAS states agreed a legally binding convention. It sets out clear responsibilities for states in combating trafficking through the courts, through the police and through legislation. It is currently the only legally binding instrument on light weapons trafficking in existence. This legal requirement ensures that particular measures will be implemented across the whole region. This is a particularly important distinction for measures such as weapons marking at the time of manufacture and import, because it imposes accountability at every link in the chain.
Utilizes a Broad Definition of Firearms and Explosives. Although there is no overall consensus within the international community regarding a definition of small arms and light weapons, the OAS managed to agree a broad definition, thereby ensuring that the agreement covers many categories of small arms and light weapons. The OAS Convention defines firearms as: "a) any barreled weapon which will or is designed to or may be readily converted to expel a bullet or projectile by the action of an explosive, except antique firearms manufactured before the 20th Century or their replicas; or b) any other weapon or destructive device such as any explosive, incendiary or gas bomb, grenade, rocket, rocket launcher, missile, missile system, or mine."²⁸According to the Mexican Deputy Foreign Minister Ambassador Carmen Moreno, this definition will "widen the traditional approach to light weapons." Arguing in favor of this approach, she explained that, "In the Hemisphere, the problem is that there is illicit trafficking in all these weapons. We did not want to leave out of the convention certain types of weapons and thereby give the impression that it would be tolerated if they were traded illegally. We wanted to include everything."²⁹
Encourages Practical Measures. Concurrent to the convention negotiations, the OAS states also formulated a set of model regulations that are suitable to both electronic and paper-based systems. Developed under the auspices of the Inter-American Drug Abuse Control Commission (CICAD), the "Model Regulations for the Control of the International Movement of Firearms, Their Parts and Components and Ammunition" were adopted in Peru in November 1997.³⁰ These model regulations establish a harmonized import/export system by delineating clear and concrete practical measures for domestic legislation controlling imports, exports and in-transit movement of firearms. They also serve as guidelines for minimum standards required for harmonized licensing. In addition, the regulations outline proposals for record keeping and information exchange on imports/exports, including the quantity, type and serial numbers of firearms.

The model regulations augment the Convention with uniform measures for the practical implementation of an agreement that would otherwise be in danger of being solely a political symbol. However, unlike the OAS Convention itself, these model regulations are not legally binding and, to date, the United States is the only member state to have adopted the CICAD regulations.³¹

States Must Consider Conceptual Weaknesses
Although numerous governments, including the G-8, Brazil, Mexico and a number of African countries, are leading the push to replicate the regional OAS Convention at the global level, this process requires both improvements upon the OAS template and effective adaptation of its regional approach to suit global dynamics.³² While political support among OAS states has spurred on this globalization effort, many governments from other regions know little about the details of the OAS Convention and how it works.

With Canada taking the lead, countries leading the drafting process for the Firearms Protocol have facilitated dialogue with other countries beyond the OAS region. There is little indication that key concerns have been widely debated, including: the weaknesses and limitations of the OAS approach; whether this regional template can be successfully applied to other regions of the world; and if in fact this model is feasible at the global level.

Particular areas of weakness in the OAS Convention that must be remedied in the course of the Firearms Protocol negotiations include the following:

Narrow Scope Disregards Government Transfers. The OAS Convention addresses only commercial transactions; it makes no reference to transfers by governments to other states or sub-state parties. Yet there is an urgent need for stricter controls on these weapons transfers. Throughout history, governments have supplied arms to opposition groups in states with which they are in low-level conflict. In addition, these weapons are often diverted as the result of theft, loss and corruption. If the Firearms Protocol follows this same line, all governments will be subject to accusations of hypocrisy: criticisms that they maintain different - and less stringent - standards for their own behavior.
Limited Mandate Preserves Status Quo. Although the simplicity of the OAS Convention is often regarded as its strength, therein also lies its weakness. It maintains a narrow focus emphasizing the enforcement of existing laws and improved implementation of import and export procedures. Although the associated CICAD model regulations offer procedural guidelines, the OAS Convention itself does little to change current policies and inherently maintains the status quo. In part, this limited mandate stems from the United States' campaign to leave domestic legislation untouched, in hopes of lessening controversy at home. While this approach may reduce the political stakes, it hamstrings the agreement's meaningfulness and in fact promotes the weakening of controls to suit the lowest common denominator. At the global level, domestic legislation governing civilian possession of weapons runs from non-existent to extremely stringent; lowering minimum standards will simply prevent much-needed changes from taking place.
Crime Control Focus Fails to Address Conflict. The OAS Convention frames illicit trafficking as an issue of crime control and law enforcement, failing to address the linkage between arms trafficking and conflict. It is the illicit aspect of light weapons trafficking, not the weapons themselves, which are seen as a shared regional problem among OAS states. This approach may serve as a politically convenient avenue for securing broad agreement, but it eliminates consideration of the role that weapons flows play in prolonging conflicts and fostering a culture of violence. With conflict and instability pervasive in regions around the world, measures to address these realities at the global level are urgently needed.³³ (See "Defining crime" on p. 18 and recommendation 2.2 on p. 30.)
Limited Substance Offers Few Practical Measures. While the principles of cooperation are clearly emphasized in the OAS Convention, the text lacks any concrete measures to improve border controls or enforcement. Although the CICAD model regulations address some of the deficiencies in the areas of import, export and transit, they are not contained within the legally binding framework of the OAS Convention itself, thereby severely limiting the power of these provisions.

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