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  This module is a resource for lecturers  

 

International and national responses and approaches to addressing the problem of illicit trafficking and access of firearms

 

Illicit trafficking and diversion of firearms are major transnational threats to human security and development. They require coordinated responses at national, regional and international level. To help guide State responses to the growth in harm caused by firearms trafficking and use, a wide spectrum of key instruments and initiatives on firearms/conventional arms have been adopted over time at international and regional level. These provide a common legal framework for action and international cooperation (see Module 5 for more detail). They usually involve a wide range of actions and measures that States have to implement at local or national levels, such as National Regulations on Firearms ( Module 6) and the Criminal Justice Responses (Module 8), as well as at larger regional or global levels, through International Legal Frameworks (Module 5) and International Cooperation (Module 9). The role of communities and civil society organizations is also explored in Module 12.

 

A global problem: International responses and approaches

At a global level, the international framework is comprised principally of three legally binding treaties and two political instruments, complemented by several resolutions adopted by the respective governing bodies of these instruments, the General assembly and the Security Council:

At the regional level, significant developments have been registered in the Americas, Africa and Europe with the adoption of legally binding regional norms and instruments. Particularly of relevance are:

In Europe, there are the EU Firearms Directive of 1991, amended in 2008, and revised in 2017 after the terrorist attacks in Europe, and the EU Regulation 258 of 2012, on the implementation of Article 10 of the Firearms Protocol. Arrangements in the Arab States include the Resolution (6625) on Arab Coordination for Combating the Illicit Trade in Small Arms and Light Weapons), and the Small Arms Documents adopted by the Organization for Security and Cooperation in Europe (OSCE). Many of these instruments have been adopted to reinforce, tailor, and where possible go beyond the consensus reached by Member States at international level. This will be further explored in Module 5, while this Module will focus solely on the international instruments.

The Organized Crime Convention (UNTOC), its supplementary Firearms Protocol (FP), and the Arms Trade Treaty (ATT) are multilateral treaties adopted by the UN General Assembly. They contain legally binding and mostly mandatory provisions. States accede to these instruments through a formal accession process of ratification, acceptance or approval, following which the States become party to the instruments and commit to comply with the legal obligations under them.

Although adopted by the same body, the UN Programme of Action (PoA) and the International Tracing Instrument (ITI) are not legally binding treaties and do not require a formal accession process. Thus, they do not establish legal obligations, but do require political commitment. The PoA is, as the name suggests, a programme setting out measures that States endeavour to undertake at the national, regional and global levels. Similarly, the ITI may be termed a standard-setting tool to facilitate tracing processes.

Developed at different times and varied thematic contexts, and with different scope, each of these instruments have in common partially overlapping and compatible objectives and purposes, as they all establish common global standards to address aspects of the international trade in conventional arms/firearms and their illicit manufacturing, diversion and trafficking from different but complementary and mutually reinforcing perspectives: Crime Prevention and Criminal Justice, Legal Trade Regulation, and Disarmament and Proliferation (UNODC, 2016).

Fig. 1.11 International Legal Framework on Firearms and other Conventional Arms (UNODC, 2016)

The underlying common approach followed by more or less all of these instruments is that of regulating and controlling legal firearms throughout their lifecycle, with a view to prevent their illicit diversion and trafficking. By providing a clear framework for the legal activities surrounding firearms, it is hoped to better define and detect the activities and actions that divert from the established legal regime to become illicit and thus needing to be combated.

As highlighted in Modules 5, 6, 8 and 9, all of these instruments and documents have in common the fact that they are based on national implementation. This means that their enforcement depends on the transposition of their provisions into domestic legislation by national authorities with measures to be taken at local, national, and to a large extent international level.

This is mainly achieved through three sets of measures. First are preventive and security measures that enable the control and tracing of firearms at any time through: a system of unique marking and record keeping of firearms and their movements; a system of licences and authorizations for the manufacturing, transfer, end-use and final disposal of those arms; and through adequate security and control measures for their storage and transfer. Second are effective criminal justice responses to enforce the regulatory framework through adequate criminalization provisions, seizure, confiscation and destruction of illicit firearms. Third is effective international cooperation and information exchange for the purposes of investigating and prosecuting the international dimension of these offences.

Effective transposition and implementation of the international firearms regime can be challenging and requires broad and comprehensive approaches These include adequate legislative and policy frameworks, comprehensive preventive and security measures to reduce the risks of theft, diversion and trafficking, effective criminal justice responses including international cooperation and information exchange to enforce the normative and regulatory framework, and better understanding and regular analysis and monitoring of the illicit trafficking trends and patterns to support evidence-based policy responses (UNODC, 2018).

Countries often face considerable challenges in countering illicit firearms trafficking and implementing the measures outlined in international instruments. UNODC has adopted an integrated approach to promote the accession and implementation of UNTOC and the Firearms Protocol based on the following five interconnected pillars:

Fig. 1.12 UNODC 's integrated approach on firearms
 

National regulations - Preventive and security measures

As far as the preventive measures are concerned, national regulations are required for a wide range of activities related to the legal manufacturing, acquisition, transfer and use of firearms, their parts and components and ammunition. Illicit manufacturing, acquisition, trafficking and criminal misuse all occur on the soil of a sovereign State. This means that that State must develop regulations and laws designed to prevent or reduce these illicit activities. International instruments help guide State actions, but they will not be successful unless States implement the regulations and policies agreed in the instruments.

In Module 6, a variety of national regulatory responses are considered, all of which are necessary to regulate the entire life-cycle of a firearm at the national level. States have responsibility in areas such as the development of regulations and licensing systems. These include: manufacturing, measures for marking, record keeping, and secure stockpile management; regulations concerning who can legally purchase, possess or carry a particular type of firearm; laws, procedures and conditions regarding their legal transfers and cross-border movements and the legal authorizations of such activities; policies and standards on seizing, collecting, deactivating and destroying firearms.

National implementation practices can differ considerably between one country and another despite the existence of international standards and instruments aimed at harmonizing these approaches.

One key issue for consideration in this University Module Series is the lack of harmonization among national regulations that are addressed further in Module 6. This can make comparative study difficult, and can also have the impact of creating loopholes for those who move firearms across national borders. While many areas are regulated by international instruments, their implementation requires additional technical detail, which is often not provided by these instruments. Moreover, several other important areas remain insufficiently addressed (by being outside the scope or purpose of the respective instrument) and widely left to national implementation. These include the issue of civilian ownership, which is also the field where most differences in approaches can be observed - from countries adopting very restrictive approaches which basically prohibit or limit civilian ownership of most firearms, to more liberal regimes that allow civilians to own a wide range of firearm types and numbers.

Accordingly, weapons that are legal in their country of origin may be illegal in the country that they enter or are trafficked through. The difference in regime can often trigger the illicit demand for arms, their parts and components across jurisdictions. Closing such loopholes is a major endeavour to prevent and reduce the risks of diversion and illicit trafficking. It was also a major focus of the EU Project EFFECT, which reported in 2016 (Bowen and Poole 2016), and Project SAFTE, which reported in 2018 (Duquet and Goris, 2018).

As far as the Firearms Protocol is concerned, a number of helpful tools have been developed and made available to Member States, such as the UNODC Legislative Guide for the Implementation of UNTOC and its Protocols Thereto, the UNODC Ratification Kit for the Firearms Protocol (UNODC, 2012), and the UNODC Model law on Firearms (UNODC, 2014b). There is also tailored legislative and technical assistance and capacity-building support to promote States ' efforts to transpose and implement these international instruments fully. The list of tools and supporting measures and initiatives provided by international and regional organizations, non-governmental organizations, research institutes and academia amongst others, is of course much longer. More on this can be found in Modules 5 and 13.

 

Criminal justice responses - Control measures

Effective criminal justice responses are the natural link in an integrated and comprehensive approach between preventive and control measures. Criminal justice responses encompass a wide range of measures taken at local, national, regional and international level, aimed at ensuring enforcement of the firearms regulatory framework, as well as preventing and combating violation of such firearms control regime. There is an important crime prevention element contained in the firearms control regime, where the ultimate goal is not to prohibit the use and circulation of all firearms, but to prevent their illicit access, trafficking and misuse. The success of such a system depends more than on enforcement by force than on its general acceptance and respect by its citizens and institutions. Such a system includes, of course, the firearms held by police and security forces, and their legitimate use (please also see the E4J University Module Series on Crime Prevention and Criminal Justice, particularly Module 4 on the Use of Force and Firearms).

Effective criminal justice responses also need to establish and enforce laws and regulations that criminalize firearms misuse and then support efforts at all levels in the detection, investigation and prosecution of any individual or group involved in such misuse if there is any reasonable chance of achieving a deterrent effect (UNODC, 2017). Apart from the criminalization of international offences of illicit manufacturing of firearms and their trafficking, other offences subject to criminal, civil or administrative sanction under national laws include, amongst others, the failure to mark and keep records of firearms and their movements/transfers, failure to register and obtain regulatory licence or authorization for brokering, and to illicitly de/reactivate a firearms or convert other weapons into a firearm.

One major objective of the criminal justice response is to disclose the possible illicit origin of firearms used in crime and identify and pursue individuals and groups responsible for their diversion from the legal into the illegal circuit. Tracing of firearms is an important aspect of this work and an essential investigative lead. But it is just the starting point, as much more is required to achieve the ultimate goal of disrupting illicit trafficking flows and bringing perpetrators to justice. As discussed in the Modules mentioned below, States face enormous challenges in tracing and investigating illicit trafficking offences for a variety of reasons, including a weak capacity for criminal justice response by the State. Criminal offences and definitions vary widely between States and regions making international comparisons extremely difficult, an issue explored more fully in Modules 8 and 9 on Criminal Justice Responses and International Cooperation respectively, and in Module 11 on Evidence-Based Research on Firearms.

 

International cooperation

Due to its international nature, tackling illicit trafficking and diversion of firearms requires countries to work in cooperation with one another. This is not an easy matter as countries have varied legal systems, traditions and rules of law. However, the need for international cooperation is increasingly recognized as critical in tackling firearms crime.

Different legal traditions, language barriers, competing jurisdictions, or problems in determining the jurisdiction over crimes, as well as lack of capacity or will to cooperate, are likely to provide an environment conducive for criminal firearms activity. Module 9 on International Cooperation explores a variety of tools that have been developed and implemented to facilitate greater cooperation between States.

There are several ways in which States can cooperate, and the nature of this cooperation is often informed by internationally agreed instruments such as treaties and protocols, bilateral agreements, or by established practices of reciprocity. These are explored further in Module 9, including cooperation on preventive activities, such as information/intelligence sharing and border controls, and investigative/prosecution cooperation. At times, these measures come under the jurisdiction of international law enforcement bodies such as INTERPOL or EUROPOL, and are facilitated by agreements on confiscation and extradition.

 

Community-based responses: The role of civil society

Module 12 examines the importance of community-based approaches and the important role played by civil society in preventing and reducing firearms violence and illicit trafficking. Civil society is sometimes referred to as 'the third sector', that is those entities and organizations that fall outside the public State sector, and the private business sector. Civil society can play an important role both in supporting and complementing State efforts in tackling illicit manufacturing and trafficking in firearms, but they can also become an important pressure group that exercises social control and oversight of the State 's actions or omissions. Module 12 examines the impact that civil society has had on firearms in roles such as advocates, campaigners and lobbyists, and in broader terms, the particular importance and contribution of community-based initiatives in addressing root causes of the problem and in crime prevention. Civil organizations can have a beneficial impact on reducing firearms circulation as they continue to be active in a range of activities related to education, gender, youth, public health and awareness-raising.

 

Closing the circle: Evidence-based research and policy development

Getting a full understanding of the problems and issues related to firearms and their illicit acquisition, trafficking and misuse is an important pre-condition in devising effective response strategies. As highlighted earlier in this Module, the issue of firearms trafficking is still plagued by ambiguity, misconceptions and myths fuelled by the so-called 'gun culture' on the one hand, and the anti-gun activists on the other despite efforts made at all levels to change this.

As explained earlier, part of the reason for this situation is often the lack of available, reliable and comparable data and information on this phenomenon, its transnational dimension, patterns and methods of operation. Firearms-related data are not easily shared among States, and are often considered as classified information. However, many countries also face challenges linked to the lack of capacity, institutional structures and mechanisms to generate, collect and analyze data and information on firearms, their illicit trafficking and their links to other criminal phenomena. Module 13 will address the challenges in firearms-related research and provide some examples of national and international efforts being made to overcome these problems. It will also provide a useful tool to enable students to engage in the same endeavours.

 
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