I find hope in the work of long-established groups such as the Arms Control Association...[and] I find hope in younger anti-nuclear activists and the movement around the world to formally ban the bomb.

– Vincent Intondi
Author, "African Americans Against the Bomb: Nuclear Weapons, Colonialism, and the Black Freedom Movement
Viktor Bout and the Tools Needed to Fight Arms Trafficking

Arms Control NOW

By Xiaodon Liang

Next week, the world's most notorious arms trafficker, Viktor Bout, will go on trial in New York. Bout's case underscores the urgent need for stronger national and international efforts to curb illicit gun running and conventional arms proliferation.

Viktor Bout walks out of a Thai jail August 2009 after an initial ruling barring his extradition to the United States. Source: Narong Sangnak/EPA

Bout faces four conspiracy charges stemming from a U.S. Department of Justice Drug Enforcement Administration (DEA) sting operation conducted in 2007 and 2008. According to the indictment, Bout agreed to sell surface-to-air missiles, rocket launchers, assault rifles, explosives, and ammunition to DEA agents posing as buyers affiliated with the Fuerzas Armadas Revolucionarias de Colombia (FARC). The U.S. government accuses Bout of conspiring to kill U.S. citizens and government employees or officers, conspiring to acquire anti-aircraft missiles, and conspiring to provide material support to FARC, a designated terrorist organization.

However, Bout—the real-life villain immortalized in the Hollywood thriller "Lord of War"—was responsible for much more than conspiring to arm FARC guerrillas. Bout first became involved in the illicit arms trade at the end of the Cold War, arming warring factions in Mozambique and Angola. Other previous clients have included belligerents in Afghanistan, the Democratic Republic of the Congo, and the horrendous civil wars in Liberia and Sierra Leone.

Amazingly, however, his trial in New York will not involve charges resulting from any of those activities, which violated numerous UN Security Council-imposed arms embargoes. This severely limits the evidence the prosecution can put forward for the jury's consideration. All of his prior illicit dealings, including previous arms transfers to FARC in the late 1990s, will be off limits.

According to a new briefing paper published by Oxfam International, entitled "Beyond Viktor Bout: Why the United States needs an Arms Trade Treaty," the Bout case underscores a broader problem: the absence in many countries of laws regulating those activities and criminalizing unauthorized brokering.

The authors of the Oxfam report base their conclusions on 70 prosecutions pursued by U.S. authorities from January 2007 to June 2011. The Oxfam researchers also cite cases involving Bout, Slobodan Tesic, and other serial embargo-breachers where a lack of jurisdiction meant prosecutions were blocked despite the existence of firm evidence of illicit behavior. These loopholes are a leading reason why U.S. authorities had to rely on a roundabout means to bring Bout to trial.

According to the Oxfam report, United States prosecutors often rely on a 1996 amendment to the Arms Export Control Act that requires U.S. nationals involved in arms brokering, here and abroad, to register with the Department of State. That amendment defines brokering as including "the financing, transportation, freight forwarding, or taking of any other action that facilitates the manufacture, export, or import of a defense article or defense service."

If arms smugglers are not U.S. nationals and do not conduct activities on U.S. soil, they are, in effect, "untouchable," according to Oxfam senior advisor Scott Stedjan and one of the authors of the report. Consequently, U.S. authorities must rely on partner countries to indict and prosecute these alleged criminals. According to Stedjan and his co-author Colby Goodman, many states simply do not have the laws in place to do that.

Drawing on 154 country reports on the implementation of the UN Program of Action on Small Arms and Light Weapons (SALW), the report highlights the fact that only 73 countries have basic regulations on the international transfer of SALW. Only 56 countries have laws criminalizing the illegal transfer of these arms. Only 52 have laws regulating brokering activities. According to Stedjan, only about half of those countries have real criminal penalties, either in the form of imprisonment or fines, associated with those crimes.

Universalizing Standards and Criminalization

The Oxfam researchers argue that the first step towards addressing these gaps is the creation of common sense international standards for regulation of the arms trade. A critical opportunity to establish such standards is the upcoming conference of states next summer that will seek to negotiate a global Arms Trade Treaty (ATT). Without the legally binding commitments that could be established through the ATT, there will be insufficient pressure to enact national legislation to deal with illicit arms trafficking.

A strong ATT would require all states to enact laws regulating the brokering of conventional weapons and criminalizing breaches of those regulations. Ideally, the treaty should address the movement of arms in and out of states-parties as well, so as to create a tougher system of controls that would allow the United States and its partners to more easily pursue arms merchants such as Bout.

An Arms Trade Treaty would lay the groundwork for effective enforcement of a global regime to prevent the transfer of the deadliest weapons to nations mired in conflict, crime, or poverty. As the U.S. authorities prosecuting Victor Bout know, it is impossible to enforce laws and international norms of behavior that simply do not exist.