INTERNATIONAL CRIMINAL LAW

AND
INTERNATIONAL CRIMINAL COURT
Assignment

“WEAPONS TRAFFICKING”

Submitted by –
Shubhrajit Saha
BA LLB (H)
Batch – 2015-20
Enrolment no. - 90811115045
 ACKNOWLEDGEMENT

First of all, I would like to thank our subject teacher Ms. Shresi Sinha who has
assigned me this wonderful topic to work upon and while doing this assignment,
I have really been able to enhance our knowledge regarding this subject. I
would also like to thank all my friends and acquaintances without whose help it
would not have been possible to complete this assignment within such a short
span of time.

INTRODUCTION-
The unchecked flow of weapons to perpetrators of mass atrocity was a persistent feature of
the twentieth century, and the situation remains much the same today. Individuals who
commit international crimes can readily obtain arms and ammunition, in spite of various
international and domestic regulatory mechanisms aimed at restricting the trade.

Several regional agreements, some of a legally binding nature, reflect the commitment of
States to reducing the risk that arms transfers will contribute to an international crime. These
instruments are often accompanied by guidance for domestic regulation and statements of
best practice. The most far-reaching regional agreements have been those coordinated by the
EU1, while other notable initiatives have been developed by the Organization of American
States (OAS), the Wassenaar Group, the African Union, the Organization for Security and
Co-operation in Europe, the North Atlantic Treaty Organization (NATO), the Regional
Cooperation Council, the Southern African Development Community, Central American
initiatives, and the Economic Community of West African States. The first regional
agreement of note appears to be the Ayacucho Declaration of 1974, a communal commitment
of several South American States not to purchase large weapons systems.

Regional initiatives have, in general, been limited by their lack of legal force, as well as a
lack of provision for enforcement mechanisms. The development of regional political
commitments to arms trading was an important step in bringing States towards agreement of
the ATT, and had a positive impact in developing civil society support for this treaty, but in
themselves, the politically-binding regional initiatives outlined above, appear to have had
little tangible effect on the most egregious forms of arms trading, including Third State
Brokering.

Prior to the ATT’s entry into force on December 2014, there existed no multi-lateral treaty,
with consensual international membership, aimed at reducing, inter alia, international crime
by regulating the arms trade. Although the ATT is limited in a number of important ways, in
particular that “the substantive obligations the treaty imposes are often drafted in an
imprecise or ambiguous way”, and may be further limited depending on how it is
implemented by States, it nonetheless represents a significant development in international
legal regulation of the arms trade, especially since it received the consensual support of
States.

VALUE IN THE GLOBAL MARKET -

1
At least until the development of the ATT, the EU’s initiatives were the most significant form of international
cooperation on the arms trade. As discussed in Sibylle Bauer and Mark Bromley, The European Union Code of
Conduct on Arms Exports: Improving the Annual Report, SIPRI Policy Paper No. 8, November 2004, at 4. See
the EU Code of Conduct on Arms Exports of 1998; the EU Common Military List; the Joint Action of 17
December 1998 adopted by the Council on the basis of Article J.3 of the Treaty on European Union on the
European Union’s Contribution To Combating The Destabilising Accumulation and Spread Of Small Arms And
Light Weapons, 1999/34/CFS1998; the Common Position on the Control of Arms Brokering of 2003; and the
EU Common Position Defining Common Rules Governing Control Of Exports Of Military Technology And
Equipment of 2008.
The total value of the global arms market is estimated around $60 billion a year, with around
$8 billion attributed to pistols, rifles, machine guns, and bullets.2
Due to a lack of legal transparency, estimating the market value of the arms trafficking
industry is sometimes difficult. In 2001 alone, the value of legal Small Arms and Light
Weapons exports was US$2.4 Billion. After being processed by customs, that number
increases to somewhere between US$5–7 Billion, according to Small Arms and Light
Weapons (1994-2001)3. An additional 10-20% (US$1 Billion) are suspected to be added to
that number from black market transactions. 4 The Kalashnikov AK-47 is the most appealing
weapon to the illegal weapons trade due to its low cost. With a surplus of AK-47s flooding
the market from post-cold war armies, the prices of this firearm sunk as low as US$15 in
20005. Trends have shown that the price of the AK-47 have stayed constant in countries with
current civil wars, while stable countries prices for the AK-47 have been on the rise. Even
biker gangs have gotten in on profitable arms trafficking. United States Law enforcement
agencies started investigating bike gangs in the late 90s, and started classifying them as
organized criminal organizations. This was mainly due to the fact that they were able to get
control of the prostitution market and the smuggling of stolen goods such as weapons,
motorcycles, and car parts.6

INTERNATIONAL AGREEMENTS –
Two major United Nations treaties govern illicit arms trade and trafficking since the early
twenty-first century. The Protocol against the Illicit Manufacturing of and Trafficking in
Firearms, Their Parts and Components and Ammunition {generally known as the Firearms
Protocol (FP)}, adopted by the United Nations General Assembly in May 2001,
supplementing its parent instrument, the United Nations Convention against Transnational
Organized Crime (UNTOC), which entered into force in July 2005. Over a decade later, the
second instrument, the Arms Trade Treaty (ATT), was opened for signature in June 2013, and
entered into force in December 2014.
Both instruments promote international cooperation to tackle the challenges posed by the
illicit trafficking of weapons and its negative consequences on peace, security and
socioeconomic development. The UNTOC and the Firearms Protocol aim to promote
cooperation to combat as well as prevent transnational organized crime more effectively,
while the ATT is of broader scope, as it specifically refers to international humanitarian law,
reduction in armaments, as well as human rights considerations.
The ATT covers eight categories, whereas the FP covers just one—firearms, their parts,
components and ammunition. Despite such differences, there is a marked degree of
complementarity between the two instruments, which clearly reinforce each other. In fact, the
ATT was drafted so as to strengthen and enforce the FP.

2
Whitney, Craig R. (December 2012). "Ruling Arms"
3
Brauer, Jurgen (2007), "Chapter 30 Arms Industries, Arms Trade, and Developing Countries"
4
Costa, Antonio Maria (2010). "The economics of crime: A discipline to be invented and a Nobel Prize to be awarded".
5
Brauer, Jurgen (2007), "Chapter 30 Arms Industries, Arms Trade, and Developing Countries"
6
Piano, Ennio E. (2018-08-01). "Outlaw and economics: Biker gangs and club goods"
A number of countries are parties to both instruments, which reiterates the need for
complementary and harmonized implementation of both instruments at the national level. The
ATT and the UNTOC appear to have adopted a similar, if not identical, institutional
framework. The main difference may well be that the United Nations is empowered to act as
secretariat for the FP and its parent convention, while a non-United Nations body will act as a
secretariat for the ATT; better implementation of both frameworks will require meticulous
coordination of action between the United Nations and non-United Nations entities.
The First Conference of States Parties on the ATT, held in Cancún, Mexico, in August 2015,
decided to establish a Provisional Secretariat outside the United Nations System to carry out
the duties and responsibilities states have under article 18 of the Treaty. Thus, the locus of
implementation is as yet evolving, and neither the United Nations Office on Disarmament
Affairs (UNODA) nor the United Nations Office on Drugs and Crime (UNODC) have direct
oversight with regard to the treaties within their aegis. However, the secretariats of the two
legal frameworks may, with the consent of the parties concerned, coordinate their efforts to
further implementation.

 Introduction
The Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and
Components and Ammunition (Firearms Protocol), supplementing the United Nations
Convention against Transnational Organized Crime (UNTOC) was adopted by the United
Nations General Assembly in May 2001; the United Nations Arms Trade Treaty (ATT) was
endorsed 12 years later, in April 2013. The Protocol entered into force on 3 July 2005, and
was signed by 52 parties and ratified/acceded to by 114 parties. The ATT, on the other hand,
has been (as of January 2016) signed and ratified by 130 and 78 States respectively, and
entered into force on 24 December 2014.
The Firearms Protocol (FP) was mainly a response to the problem of illicit manufacturing and
trafficking in firearms, their parts and components and ammunition, and to their negative
impact on socioeconomic development, security and well-being of people, countries and
regions7. The parent Convention, and the Firearms Protocol, aim to promote cooperation to
prevent and combat transnational organized crime more effectively 8. In contrast, the ATT
recalls, inter alia, the need to “promote the establishment and maintenance of international
peace and security with the least diversion for armaments of the world’s human and
economic resources”9. It also refers to security, development and human rights as pillars of
the United Nations collective security framework10. This appears to suggest that the Firearms
Protocol covers organized crime prevention and illicit activities, while the ATT’s objectives
are broader than these, as they take into consideration the reduction of armaments, as well as
human rights aspects.
Nonetheless, the ATT, in language similar to the Firearms Protocol, underlines:

7
Preamble, para. 1
8
Art. 1, UNTOC; Art. 2, FP
9
Preamble, para. 1
10
Preamble, para. 6
“the need to prevent and eradicate the illicit trade in conventional arms and to prevent their
diversion to the illicit market, or for unauthorized end use and end users, including in the
commission of terrorist acts”11.
Both legal frameworks also refer to similar, although not necessarily identical, principles of
international law. The Firearms Protocol makes general references to “equal rights of States
and the right to self-determination of peoples”, to the United Nations Charter and the 1970
resolution of the General Assembly on friendly relations between States. The UNTOC refers
to the principles “of sovereign equality and territorial integrity” or non-intervention, and
expressly refers to the prohibition of exercising jurisdiction in the territory of another State12.
The ATT enshrined and expanded these fundamental principles by referring to the right of
States to defend themselves, to import, export and acquire conventional weapons for their
lawful needs. However, the ATT has also recognized the principle of “Respecting and
ensuring respect for international humanitarian law” and international human rights and
freedoms, among other principles, which is not the case either in the Protocol or the UNTOC.
What is common across both instruments is that promoting international (or regional)
cooperation to tackle the challenges posed by the illicit trafficking of weapons and its
negative consequences is considered the primary means through which the commitments are
to be implemented, irrespective of the aforementioned differences.

 Scope
The Firearms Protocol regulates firearms, their parts and components and ammunition 13; the
ATT applies “to all conventional arms within the following categories: (a) battle tanks; (b)
armoured combat vehicles; (c) large calibre artillery systems; (d) combat aircraft; (e) attack
helicopters; (f) warships; (g) missiles and missile launchers; and (h) small arms and light
weapons.”
The ATT covers eight categories, whereas the Firearms Protocol covers only one. The
overlap between the two instruments is only over one category of weapons: firearms in the
Firearms Protocol, and respectively, small arms and light weapons (SALW) in the ATT. It
has to be stressed that firearms are often considered synonymous to small arms but not to
light weapons. However, both the ATT and the Firearms Protocol cover parts, components
and ammunition; here again the scope of the ATT is broader, as it covers not only parts,
components and ammunition for SALW, but also for all categories of conventional
weapons14, whereas the Firearms Protocol covers parts, components and ammunition only for
firearms.
The Firearms Protocol excludes State-to-State transactions, provided that they are justified on
national security grounds and are subject to the principles of the United Nations Charter,
whereas the ATT only excludes “the international movement of conventional arms by, or on
behalf of, a State Party for its use provided that the conventional arms remain under that State

11
Preamble, para. 2
12
Article 4 0f the Firearms Protocol(FP)
13
Article 4
14
Article 3 & 4 of ATT
Party’s ownership”15. It is of note that while the Firearms Protocol has defined the weapons
covered and other related terms, the ATT refers vaguely to most terms and weapon
categories, but specifically refers to existing definitions and categories contained in the
United Nations Register of Conventional Arms.

 State Duties under the Firearms Protocol and the Arms Trade Treaty
The main approaches to the prevention of firearms trafficking are detailed in the Firearms
Protocol. The Protocol, in article 3, defines illicit trafficking as “the import, export,
acquisition, sale, delivery, movement or transfer of firearms, their parts and components and
ammunition from or across the territory of one State Party to that of another State Party if any
one of the States Parties concerned does not authorize it in accordance with the terms of this
Protocol or if the firearms are not marked in accordance with article 8 of this Protocol”. It
also identifies several measures that can be taken to prevent firearms trafficking, including
border control, information exchange between jurisdictions, measures to ensure the security
and control of documents, and public awareness programmes. The effective regulation of
international arms transfers, as was made obvious in the preceding discussion, is also
essential to the effective prevention of firearms trafficking.
Consistent with the duties provided for in the UNTOC, the Firearms Protocol requires States
parties to: criminalize illicit manufacturing, trafficking and falsifying or altering marking of a
firearm16; confiscation, seizure and disposal17; to keep records on the marking of illicitly
manufactured and trafficked firearms and all international transactions of firearms, for up to
10 years; to mark firearms for purposes of their effective tracing and identification; and to
certify deactivated firearms18. Moreover, as part of the duty and strategy to prevent illicit
activities, the Protocol obliges States parties to “establish or maintain an effective system of
export and import licensing or authorization, as well as of measures on international transit,
for the transfer of firearms, their parts and components and ammunition”19.
The ATT does not regulate manufacturing and manufacturers unless they are engaged in
import, export and transfer activities. The ATT does not also explicitly speak about
criminalizing violations of the Treaty. This may well lead to the conclusion that the Firearms
Protocol and the ATT are divergent. Yet, article 11 of the ATT provides that “Each State
Party involved in the transfer of conventional arms covered under Article 2 (1) shall take
measures to prevent their diversion”. The obligation includes the taking of “all measures” to
prevent diversion. As per subparagraph (4) of article 11, a State party:
“shall take appropriate measures, pursuant to its national laws and in accordance with
international law, to address such diversion. Such measures may include alerting potentially
affected States Parties, examining diverted shipments of such conventional arms covered
under Article 2 (1), and taking follow-up measures through investigation and law
enforcement.”

15
Article 2(3) of ATT
16
Article 5 of FP
17
Article 6 of FP
18
Article 7-9
19
Article 10
This suggests that the drafters envisaged domestic measures including criminal law (which
involves the police, prosecution and other law enforcement agencies), as a tool to implement
the Treaty.
Nonetheless, the ATT is silent on marking and deactivation, but legislated in article 12 that:
“Each State Party shall maintain national records, pursuant to its national laws and
regulations, of its issuance of export authorizations or its actual exports of the conventional
arms”.
Yet States are only encouraged (but not obliged) to record their imports, transit shipments
and “the quantity, value, model/type, authorized international transfers of conventional
arms”20.
The ATT reinforces the Firearms Protocol requirements to regulate exports by stating that:
“Each importing State Party shall take measures that will allow it to regulate … imports
under its jurisdiction of conventional arms … Such measures may include import systems”21.
Article 5(2) of the ATT also provides that “Each State Party shall establish and maintain a
national control system, including a national control list, in order to implement the provisions
of this Treaty”. It can be presumed that States parties to the ATT will be required to establish
an arms export system, although the obligation to do so is not as explicit as the Firearms
Protocol on this subject.
Nonetheless, differing from the Firearms Protocol, the ATT imposes a ban on imports,
exports and transfers: (a) in violation of mandatory Security Council arms embargoes; (b) if a
State has:
“knowledge at the time of authorization that the arms or items would be used in the
commission of genocide, crimes against humanity, grave breaches of the Geneva
Conventions of 1949, attacks directed against civilian objects or civilians protected as such,
or other war crimes as defined by international agreements to which it is a Party”22;
and (c) the ATT also envisages a duty for a State to refrain from engaging in arms transfers:
“if the transfer would violate its relevant international obligations under international
agreements to which it is a Party, in particular those relating to the transfer of, or illicit
trafficking in, conventional arms”23.
These three contexts constitute an unconditional ban on arms transactions.
The ATT also requires States parties to carry out “import and export risk assessment”
concerning:
“the potential that the conventional arms or items:
(a) would contribute to or undermine peace and security;
(b) could be used to:
20
Article 12(3) of ATT
21
Article 8(2) of ATT
22
Article 6(3) of ATT
23
Article 6 (2) of ATT
(i) commit or facilitate a serious violation of international humanitarian law;
(ii) commit or facilitate a serious violation of international human rights law;
(iii) commit or facilitate an act constituting an offence under international conventions or
protocols relating to terrorism to which the exporting State is a Party; or
(iv) commit or facilitate an act constituting an offence under international conventions or
protocols relating to transnational organized crime to which the exporting State is a Party”24.
Here, the UNTOC and its Firearms Protocol (Articles 5 and 10 in particular) and the ATT
appear to expressly complement each other; criminal offences under the Protocol (Art. 5)
have been referred to in the ATT as provided for in article 6 (2) and article 7(b)(iv), as
grounds for the duty to assess risks of arms transactions. What this means is that if a given
transfer risks a violation of article 5 (including illicit manufacturing and trafficking and
falsifying marking of firearms) a State must refrain from authorizing exports25.

 Implementation
Both the Firearms Protocol (and its parent Convention) and the ATT are primarily subject to
national implementation. The duty to criminalize firearms-related offences (art. 5 of the
Firearms Protocol), confiscate, seize and dispose of illicit firearms and related components
(art. 6); the duty to keep records (art. 7), mark (art. 8) and ban or certify deactivated firearms
(art. 9); the duty to “establish and maintain an effective system” of authorization, licensing
and international transactions (art. 10); and the duty to take security measures to prevent
“theft, loss or diversion” of firearms (art. 11) are all evidence of such an approach.
In accordance with article 3 of the UNTOC, article 4 of the Firearms Protocol articulates the
scope of implementation of the instrument as follows:
“This Protocol shall apply, except as otherwise stated herein, to the prevention of illicit
manufacturing of and trafficking in firearms, their parts and components and ammunition and
to the investigation and prosecution of offences established in accordance with article 5 of
this Protocol where those offences are transnational in nature and involve an organized
criminal group”26.
States are thus required to take legislative, law enforcement, criminal justice and
administrative measures to implement their commitments under the Protocol. States must
prevent and criminalize the activities, referred to in article 4, of organized transnational
criminal groups.
The scope of the Firearms Protocol must be read in conjunction with the statement of purpose
of the UNTOC. Article 1 of the instrument aims to “promote cooperation to prevent and
combat transnational crime more effectively”. The Convention’s Legislative Guide reminds
legislators and policymakers of States parties “to consider how the Convention interacts with
other key international obligations”, in particular the duty of States “under the Charter of the
United Nations to cooperate with one another in the promotion and observance of human
24
Article 7 of ATT
25
Article 7 (3) of ATT
26
Article 4 of FP
rights and fundamental freedoms”. The Guide also reminds States of “the need to pay
attention” to “obligations arising from international human rights law”27.
Though the scope of implementation of the ATT differs from the Firearms Protocol (and the
parent Convention), as the latter focuses on illicit issues while the former is broader than the
notion of illicit, their main mode of implementation is similar. Domestic law policy and
actions are considered primary, if not exclusive methods of implementation by both
instruments. The ATT, under the title “General Implementation” states that:
“Each State Party shall take measures necessary to implement the provisions of this Treaty
and shall designate competent national authorities in order to have an effective and
transparent national control system regulating the transfer of conventional arms covered
under Article 2 (1) and of items covered under Article 3 and Article 4”28.
Nonetheless, article 11 of the ATT, as indicated above, suggests not only the duty to prevent
diversion but also the duty to undertake investigation and law enforcement measures relating
to diversion of conventional weapons.
As with the UNTOC, but more comprehensively, the ATT refers to several international
obligations of States parties including obligations stemming from the Charter of the United
Nations, the Geneva Conventions of 1949, and the Universal Declaration of Human Rights,
194829. Thus, implementing the ATT at the domestic level requires compliance with other
international obligations of States.
The challenge of unregulated and illicit firearms and other conventional weapons is,
nonetheless, global or transnational in nature and thus national implementation alone cannot
provide an effective regulatory framework. That is why international cooperation serves as
one of the cardinal principles or approaches of both instruments, the Firearms Protocol and
the ATT. Article 2 of the Firearms Protocol submits that:
“The purpose of this Protocol is to promote, facilitate and strengthen cooperation among
States Parties in order to prevent combat and eradicate the illicit manufacturing of and
trafficking in firearms, their parts and components and ammunition.”
The Protocol, in articles 12-14, spells out the details of the duty to cooperate on matters of
information exchange concerning those involved in the firearms business, organized
criminals, scientific and technological information, and the notion of cooperating at all levels.
These provisions must also be read in conjunction with the overall content of its parent
Convention, the UNTOC, whose backbone is precisely the promotion and facilitation of
international cooperation.
There is also an element of training and technical assistance as part of the cooperation
endeavor to fight illicit activity involving firearms.
One of the objectives of the ATT, furthermore, is:

27
Para 19 of the Legislative Guides for the implementation of the United Nations Convention Against
Transnational Organized Crimes and the Protocol thereto, 2004
28
Article 5(5) of the ATT
29
ATT Principles
“Promoting cooperation transparency and responsible action by States Parties in the
international trade in conventional arms, thereby building confidence among States Parties”30.
The ATT also includes in article 11 the duty of States parties to take all necessary measures
to avoid diversion. Article 11 (5) of the ATT says that:
“States Parties are encouraged to share relevant information with one another on effective
measures to address diversion. Such information may include information on illicit activities
including corruption, international trafficking routes, illicit brokers, sources of illicit supply,
methods of concealment, common points of dispatch, or destinations used by organized
groups engaged in diversion.”
As diversion is an illegal activity, which fuels illicit trafficking in weapons, the ATT
reinforces the firearms implementation regime by setting out measures to prevent diversion,
and by encouraging States to strengthen their cooperation to combat diversion.
Both frameworks also adopt a similar approach to furnishing global institutional mechanisms
which are vital to foster cooperation, and review progress. As far as the Firearms Protocol
and the UNTOC are concerned, the United Nations Secretary-General designated the Centre
for International Crime Prevention and Criminal Justice (CCPCJ) of the United Nations
Office for Drug Control and Crime Prevention (today the United Nations Office on Drugs
and Crime or UNODC) to serve as the secretariat of the Conference of the Parties, which is in
line with article 33 of the UNTOC. Its role is to assist, convene and facilitate the smooth
running of the Conference of the Parties to the United Nations Convention against
Transnational Organized Crime (CTOC-COP), which serves as the main follow-up,
cooperation and review mechanism under the Convention. The main purpose of the review
conference is “to facilitate the exchange of information”, identify trends and good practices
and strengthen cooperation with international and regional organizations and NGOs on
combating transitional organized crimes (art. 32). The Protocol does not refer to any global
institution or to the review Conference, although reference has been made to the inevitability
of working with international organizations and NGOs.
Article 18 of the ATT, on the other hand, envisages the establishment of a secretariat “within
a minimized structure” which shall:
“undertake the following responsibilities:
(a) Receive, make available and distribute the reports as mandated by this Treaty;
(b) Maintain and make available to States Parties the list of national points of contact;
(c) Facilitate the matching of offers of and requests for assistance for Treaty implementation
and promote international cooperation as requested;
(d) Facilitate the work of the Conference of States Parties, including making arrangements
and providing the necessary services for meetings under this Treaty; and
(e) Perform other duties as decided by the Conferences of States Parties.”
The First Conference of States Parties on the ATT (COSP-ATT), held in ancún, Mexico,
from 24 to 27 August 2015, decided to establish a Provisional Secretariat outside the United
30
Article 1 of ATT
Nations System to carry out the duties and responsibilities States have under Article 18 of the
Treaty. The ATT and the UNTOC appear to have adopted a similar, if not identical,
institutional framework. The main difference may well be that the United Nations has been
empowered to act as secretariat for the Firearms Protocol and its parent Convention, while a
non-United Nations body will act as a secretariat for the ATT; better implementation of both
frameworks will require serious coordination of action between the United Nations and non-
United Nations organs.
It remains to be seen whether the ATT secretariat will be better resourced and effective
compared with other governing bodies such as the secretariat to the UNTOC Conference of
the Parties (TCOC-COP), as the ATT emphasized the need for a “minimum structure”. While
the role and functions of the two secretariats remain different and separate, the ATT
secretariat may find it useful to draw on important lessons learned from the TCOC-COP
experience as well as from the work of the Biennial Meeting of States (BMS). It is of note
that neither the United Nations Office for Disarmament Affairs (UNODA) nor the United
Nations Office on Drugs and Crime (UNODC) have been given a role in the effective
implementation of the ATT.
What is clear is that neither the UNTOC nor the ATT secretariat have the power to oversee
compliance with their respective conventions. They are meant to facilitate cooperation and
technical assistance, and organization of the Conference of the Parties, as stipulated in the
Convention and evidenced by the practices of UNODC. On the basis of the requests made by
the Conference and under the auspices of UNODC, a Legislative Guide, a Model Law on
Firearms and training materials have been developed, and a global data collection initiative
on seized firearms launched, leading to the development of the first UNODC Study on
Firearms, among other things.
What is slightly different in the ATT’s institutional framework is that the ATT secretariat is
mandated to receive and process reports from States parties concerning general measures
taken by States, and their arms transactions31. States are also encouraged to report on matters
of diversion of weapons to other states through the secretariat. Both the Conference of the
ATT and the COP to the UNTOC also have the powers to establish additional bodies when
necessary, such as the open ended intergovernmental working group on firearms, established
by the COP in 2010.

Position in India
* India is a signatory to the Firearms Protocol but it has not signed the Arms Trade Treaty as
of now. Given below is India’s stand regarding the Arms Trade Treaty :-

 India’s stand in ATT

India's official explanation of vote was provided by Ambassador Sujata Mehta, India’s lead
negotiator for the treaty. There were two key issues at the heart of India’s concerns: a) The
skewed approach of the treaty b) its failure to include non-state actors in its purview.
31
Required under art. 13 of the ATT
According to the Stockholm International Peace Research Institute (SIPRI), India is the
world’s largest arms importer, accounting for around 13% of total global arms import
between 2012 and 2016. As an importing state, it expected that the treaty would ensure a
“balance of obligations” between exporting and importing states. However, India was
disappointed with the outcome text which was allegedly tilted in favour of the exporting
states. It argued, along with a number of others, that the treaty was designed in a way that it
could be easily exploited as a justification to unilaterally deny arms to an importing country.
This would threaten India’s national security imperatives.
India is also a state plagued by terrorism, and therefore one of its major expectations from the
treaty was that it would be tough on terrorism. However, the treaty does not include non-state
actors in its purview, and therefore does not address the pressing concern of illicit trafficking
and use of conventional arms by non-state actors. This is a major lacuna which may serve to
make the treaty ineffective.
Objections of India
India's argument that the Arms Trade Treaty was skewed in favour of exporting states had
many takers in the international community. There are multiple clauses in the Treaty and
aspects related to Treaty negotiations with biased implications, examined below.

1. Article 7 and Discretionary Power Given to the Exporting State

Article 7 gives exporting State parties the discretionary power to question the motives of a
sovereign arms- importing state. If, in the subjective judgment of the exporting state, the
importer is likely to undermine international peace and security or violate international law,
the exporter is directed to deny authorization to export. The exporter must decide whether
there is “overriding risk” of any violation by the importing state – the definition and
parameters of overriding risk are left to the exporter to decide. This clause can potentially be
used as a justification to deny importing states arms. Such discretion is unchallenged and is
liable to be a geopolitical call. There is a normative imperative to question such a bias
inherent in the treaty – it is an underlying feature of international law that a sovereign state
has the prerogative to defend itself by any means. It is also entirely conceivable that it would
leave importing states like India in a rather vulnerable position.
2. The Question of Equal Treatment
While the treaty addresses the possibility of importing states using arms to violate
international humanitarian law by targeting civilians or using arms for illicit purposes, it fails
to even consider the possibility that exporting states may do the same. Article 7 directs the
exporting state to consider “confidence-building measures and jointly developed programs”
to mitigate risks of arms sales. However, this may quickly translate into political intervention
in the importing state’s territory as leverage lies completely with the exporting state.

3. Discriminatory Approach to Level the Playing Field

In this context, it is important to note that the Arms Trade Treaty has been critiqued for being
an instrument to level the playing field for Western arms suppliers and block competition
from countries like Russia and China to protect their own industry.
Also, among India’s foremost security concerns is the issue of terrorism, which is
inextricably linked with possession of illicit arms by non-state actors. It is therefore a
considerably important aberration in India’s assessment that the ATT fails to address the
issue of transfer of arms to non-state actors. This concern was voiced strongly by countries
like Russia as well. According to Indian lead negotiator Sujata Mehta, this lacuna in the
treaty would mean that the “ATT would lower the bar on obligations of all states not to
support terrorist acts.”

4. Article 11: Overlooking Exporting State Responsibility

Article 11 addresses diversion of arms. The exporting state can take appropriate measures in
case of detection of diversion of arms. However, in cases where the exporting state has prior
knowledge of diversion of arms or is complicit in the diversion, the treaty does not impress
any responsibility upon the exporting state. Therefore, rampant violations by exporting states
can be overlooked.

Potential Gains from this Treaty

The Arms Trade Treaty was the first of its kind and a landmark achievement of the
international community. There is tremendous pressure on India to join the Treaty and India
is committed to undertaking a thorough assessment of the treaty’s progress and keeps it under
review.
An intrinsic benefit of joining the treaty would be to give it more teeth. Implementation of the
treaty comprehensively may help defence cooperation, technology development and assist
development. Countries would be able to spend more on welfare rather than defense. India
recognises the tremendous human and economic costs countries (especially those in Africa)
are bearing due to illicit arms trade. Only a universal ATT including as many countries as
possible would be an effective tool to stop the suffering and implement the UN MDG’s as it
would plug vulnerable points in the global arms control system, which often become the
focus of diversion.
Therefore, perhaps the single most significant benefit of India joining the Treaty would be
reputational dividend. India values the ethical core of its foreign policy and endorses the
objective of ATT - the prevention of crimes against humanity. Some of India’s partners in
forums such as BRICS and the NAM voted in favour of the ATT, discomfiting India
considerably. Kanwal Sibal laments in an article that since ATT passed with a considerable
majority, India’s abstention fuels critique that India is ill-prepared to shoulder the
responsibility of a UNSC permanent seat as it is unable to put the needs of the international
community above its own. By joining the ATT, India would silence its critics and
demonstrate moral initiative in line with its percepts.
Potential Dangers from this Treaty

India is the largest arms importer in the world, and the Arms Trade Treaty is skewed in
favour of exporting states. India’s expenditure on importing arms is likely to be about USD
100 billion, over the next decade. India does not have indigenous arms manufacturing
capacity currently and is therefore completely dependent on import. Therefore, India risks
being vulnerable and subject to “unilateral force majeure measures” by exporting states.
There is a real risk that India may be denied arms transfers by states, using the ATT as a
justification.

 Important Provisions of the Arms Act, 1959

The Arms Act of 1959 is the most significant law in India when it comes to regulating the
arms and ammunition. There is no such provision in this particular legislation dealing
specifically with the illicit trafficking of weapons but there are many provisions which can be
very well used to curb the problem of illicit trafficking of firearms which have been
mentioned below :

 Section 3 - License for acquisition and possession of firearms and ammunition

1. No person shall acquire, have in his possession, or carry any firearm or ammunition unless
he holds in this behalf a license issued in accordance with the provisions of this Act and the
rules made thereunder: Provided that a person may, without himself holding a license, carry
any firearms or ammunition in the presence, or under the written authority, of the holder of
the license for repair or for renewal of the license or for use by such holder.

 Section 5 - License for manufacture, sale, etc., of arms and ammunition

(1) No person shall—
(a) use, manufacture, sell, transfer, convert, repair, test or prove, or
(b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion,
repair, test or proof, any firearms or any other arms of such class or description as may be
prescribed or any ammunition unless he holds in this behalf a license issued in accordance
with the provisions of this Act and the rules made thereunder.
 Section 7 - Prohibition of acquisition or possession, or of manufacture or sale, of
prohibited arms or prohibited ammunition
No person shall—
(a) acquire, have in his possession or carry; or
(b) use, manufacture, sell, transfer, convert, repair, test or prove; or
(c) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion,
repair, test or proof, any prohibited arms or prohibited ammunition unless he has been
specially authorised by the Central Government in this behalf.

 Section 10 - License for import and export of arms, etc.

(1) No person shall bring into, or take out of, India by sea, land or air any arms or
ammunition unless he holds in this behalf a license issued in accordance with the provisions
of this Act and the rules made thereunder.

 Section 11 - Power to prohibit import or export of arms, etc.

The Central Government may, by notification in the Official Gazette, prohibit the bringing
into, or the taking out of, India, arms or ammunition of such classes and descriptions as may
be specified in the notification.

 Section 12 - Power to restrict or prohibit transport of arms

(1) The Central Government may, by notification in the Official Gazette,—
(a) direct that no person shall transport over India or any part thereof arms or
ammunition of such classes and descriptions as may be specified in the notification
unless he holds in this behalf a license issued in accordance with provisions of this
Act and the rules made thereunder; or
(b) prohibit such transport altogether.
(2) Arms or ammunition trans-shipped at a seaport or an airport in India are transported
within the meaning of this section.

 Section 21 - Deposit of arms, etc., on possession ceasing to be lawful

(1) Any person having in his possession any arms or ammunition the possession whereof has,
in consequence of the expiration of the duration of a license or of the suspension or
revocation of a license or by the issue of a notification under section 4 or by any reason
whatever, ceased to be lawful, shall without unnecessary delay deposit the same either with
the officer in-charge of the nearest police station or subject to such conditions as may be
prescribed, with a licensed dealer or where such person is a member of the armed forces of
the Union, in a unit armoury.
Explanation.—In this sub-section “unit armoury” includes an armoury in a ship or
establishment of the Indian Navy.

 Section 23 - Search of vessels, vehicles for arms, etc.

Any magistrate, any police officer or any other officer specially empowered in this behalf by
the Central Government, may for the purpose of ascertaining whether any contravention of
this Act or the rules made thereunder is being or is likely to be committed, stop and search
any vessel, vehicle or other means of conveyance and seize any arms or ammunition that may
be found therein along with such vessel, vehicle or other means of conveyance.

 Section 24 - Seizure and detention under orders of the Central Government

The Central Government may at any time order the seizure of any arms or ammunition in the
possession of any person, notwithstanding that such person is entitled by virtue of this Act or
any other law for the time being in force to have the same in his possession, and may detain
the same for such period as it thinks necessary for the public peace and safety.

 Section 24A. Prohibition as to possession of notified arms in disturbed areas, etc.—

(1) Where the Central Government is satisfied that there is extensive disturbance of public
peace and tranquillity or imminent danger of such disturbance in any area and that for the
prevention of offences involving the use of arms in such area, it is necessary or expedient so
to do, it may by notification in the Official Gazette—
(a) specify the limits of such area;
(b) direct that before the commencement of the period specified in the notification
(which period shall be a period commencing from a date not earlier than the fourth
day after the date of publication of the notification in the Official Gazette), every
person having in his possession in such area any arms of such description as may be
specified in the notification (the arms so specified being hereafter in this section
referred to as notified arms), shall deposit the same before such commencement in
accordance with the provisions of section 21 and for this purpose the possession by
such person of any notified arms shall, notwithstanding anything contained in any
other provision of this Act (except section 41) or in any other law for the time being
in force, as from the date of publication of such notification in the Official Gazette be
deemed to have ceased to be lawful;
(c) declare that as from the commencement of, and until the expiry of, the period
specified in the notification, it shall not be lawful for any person to have in his
possession in such area any notified arms;
(d) authorise any such officer subordinate to the Central Government or a State
Government as may be specified in the notification,—
(i) to search at any time during the period specified in the notification any
person in, or passing through, or any premises in, or any animal or vessel or vehicle or
other conveyance of whatever nature in or passing through, or any receptacle or other
container of whatever nature in, such area if such officer has reason to believe that
any notified arms are secreted by such person or in such premises or on such animal
or in such vessel, vehicle or other conveyance or in such receptacle or other container;
(ii) to seize at any time during the period specified in the notification any
notified arms in the possession of any person in such area or discovered through a
 search under sub-clause (i), and detain the same during the period specified in the
notification.

 Section 27 - Punishment for using arms, etc.

(1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable
with imprisonment for a term which shall not be less than three years but which may extend
to seven years and shall also be liable to fine.
(2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7
shall be punishable with imprisonment for a term which shall not be less than seven years but
which may extend to imprisonment for life and shall also be liable to fine.
(3) Whoever uses any prohibited arms or prohibited ammunition or does any act in
contravention of section 7 and such use or act results in the death of any other person, shall
be punishable with death.

 The Arms (Amendment) Act, 2019: Key Features32

• It amends the Arms Act, 1959, to reduce the number of licensed firearms allowed per
person and increase punishment for certain offences under the Act. The bill also introduces
new categories of offences.

• Under the Arms Act, 1959, a license is required to acquire, possess, or carry any firearm.
The act allowed a person to obtain a license for up to three firearms. The amendment reduces
the number of allowed firearms from three to one.

• The amendment provides one year's time to deposit extra firearms with the officer-in-charge
at the nearest police station or with a licensed arms dealer. In case the owner of the excess
firearm is an armed forces member, he can deposit it with the unit armoury. The extra firearm
will be delicensed within 90 days from the expiry of the one-year period.

• Further, the amendment increases the duration of the validity of a firearm license from three
years to five years.

• Besides, the Arms Act bans use, transfer, conversion, testing, proofing, manufacture or sale
of firearms without a licence and prohibits the shortening of firearm barrel or conversion of

32
imitation firearms into firearms without a license. The amendment additionally bans the
procurement of un-licensed firearms and the conversion of one category of firearms to
another without a license.

• The amendment, however, accords special status to a sportsperson who need firearms and
ammunition for practice and participating in tournaments. It allows members of rifle clubs or
associations to use any firearm for target practice instead of only point 22 bore rifles or air
rifles.

Penalty

• The new amendment has increased the punishment specified under the Arms Act, 1959 for
the below offences to a jail term of either seven 7 years or life imprisonment along with a
fine.

(i) Dealing in un-licensed firearms, including their manufacture, procurement, sale, transfer
and conversion.

(ii) Shortening or conversion of a firearm without a licence.

(iii) Import or export of banned firearms.

• The Arms act proposed jail term between 5-10 years and a fine for acquisition, possession
or carrying of prohibited ammunition without a license. The amendment has increased the
punishment to 7-14 years of jail term and fine. However, any court can impose a punishment
of less than seven years for the above offences with recorded reasons.

• Further, the arms act proposes minimum punishment of 7 years of jail term and maximum
punishment of life imprisonment along with fine for dealing with prohibited firearms
including their manufacture, sale and repair without a license. The amendment has increased
the minimum punishment to 10 years.

• The amendment has also revised the punishment accorded for cases in which the usage of
prohibited arms results in the death of a person from the existing punishment of death to
death or life imprisonment, with fine.
• The amendment has added new offences that have been made punishable with jail term and
fine. These offences include:

(i) Forcefully taking a firearm from police or armed forces. The bill proposes imprisonment
between 10 years and life imprisonment for the offence along with a fine.

(ii) Using firearms in celebratory gunfire in public gatherings such as religious places,
marriages or other functions, which endangers human life or personal safety of others. The
bill has made the offence punishable with imprisonment up to two years or fine of up to
rupees one lakh or both.

• It also amends Section 25 (1AA) of the Arms Act and proposes minimum punishment of 14
years and maximum punishment of life imprisonment for those who snatch or loot arms and
ammunition from police or defence forces. Under the current act, the offence invites
imprisonment of not less than seven years and maximum punishment of life imprisonment,
mostly up to 14 years.

CONCLUSION [ICL’S POTENTIAL TO DEAL WITH WEAPONS TRAFFICKING]

The ICC has not yet tried a case based on arms trading and there have been only a small
number of ICL prosecutions involving arms trading. In addition to the post-Second World
War cases referred to above, the main examples at the domestic level are the recent
prosecutions of arms traders in the Dutch courts.33 Nonetheless, several features of ICL make
it an area of law suited to regulation of individual arms trading. Most clearly, ICL is the basis
for the direct criminal responsibility of individuals under international law, so it offers the
33
The Netherlands has spearheaded the use of ICL as a novel form of arms trading conduct regulation. In the Van Anraat
case, a Dutch businessman sold a chemical called TDG to the regime of Saddam Hussein. The TDG was subsequently used
to produce mustard gas in order to attack Kurdish villages in northern Iraq as part of the al-Anfal campaign, as well as
villages in Iran. Van Anraat was acquitted of aiding and abetting genocide but convicted as an accessory to war crimes
based on breaches of prohibitions on the use of chemical weapons. See Harmen van der Wilt, “Genocide v. War Crimes in the Van
Anraat Appeal”, Journal of International Criminal Justice, 6 (2009): 239, at 240. Another Dutch prosecution was brought against
the arms trader Guus van Kouwenhoven, who had been involved in supplying arms to Charles Taylor in Liberia.
possibility of holding individuals to account, irrespective of whether their personal decision-
making takes place within the structures of a State, corporation or other organizational
framework.
The ICC has been suggested as a forum for prosecuting arms trading on previous occasions 34,
reflecting similar calls for ICC action against other transnational phenomena including drug
trafficking and human trafficking. Yet amongst the potential applications of ICL, arms
trading stands out as a realistic and important prospect because of the pivotal role that the
arms trade frequently plays in the commission of international crimes. The ICC has the power
to prosecute arms trading that takes place in a large part of the world, notwithstanding the
Court’s lack of universal jurisdiction. One hundred and twenty-three States party to the Rome
Statute are subject to the ICC’s territorial jurisdiction; all of South America, most of Europe,
approximately half of Africa, and parts of Asia. 35 Territorial jurisdiction may also come into
being temporarily when a State accepts the ICC’s jurisdiction, further extending the areas of
the world potentially reached by the Court.36 In addition, the ICC has jurisdiction where
individual arms trading is carried out by a national of any of the aforementioned States,
whether it is a State Party or a State temporarily accepting jurisdiction 37. The potential reach
of the ICC is extended again by the fact that is has jurisdiction when the UNSC refers a
situation to the Court, irrespective of the nationality of the accused or the location of the
crime.38 The territorial jurisdiction of the ICC, therefore, creates a large potential territory in
which individual arms trading could be regulated where domestic regulations are deficient.
The geographical reach of the ICC also bolsters the argument that ICL offers an avenue for
addressing the problem of Third State Brokering, identified above, for which existing forms
of arms trading regulation are limited in their ability to curb. In many instances, the ICC
would have jurisdiction over a situation involving Third State Brokering, even where the
courts of the State of residence of the broker do not. In this regard, action by the ICC or
simply the ICC’s existence, hold the potential to induce States to address these problems
themselves, through the ICC’s “positive complementarity” function, by which State’s own
investigations and prosecutions at the domestic level are encouraged by the potentiality of an
ICC case.39
The ICC may be well suited to tackling international crimes collectively at the international
level when States struggle to act alone, perhaps because they lack sufficient domestic
capacity to enable investigation and prosecution of crimes. The complementary jurisdiction
of the ICC offers potential to act in cases where States themselves are unwilling or unable to
address arms trading.40 Complementarity is of particular relevance where a State’s officials
are involved in the perpetration of an international crime, leaving the State unwilling to
34
See for instance Claudette Torbey, “The Most Egregious Arms Broker: Prosecuting Arms Embargo Violators in
the International Criminal Court”, Wisconsin International Law Journal, 25 (2007): 335; Leigh Rome, “The Case
for Prosecuting Arms Traffickers in the International Criminal Court”, Cardozo Law Review, 36 (2015): 1149.
35
Rome Statute, Article 12(2)(a). 123 States have ratified the Rome Statute as of 16 April 2015. This number is
likely to increase in the future, with several States having signed but not yet ratified the Rome Statute, or, like
El Salvador, having indicated their intention to join.
36
Rome Statute, Article 12(3)
37
Rome Statute, Article 12(2)(b).
38
Rome Statute, Article 13(b).
39
Sarah M.H. Nouwen, Complementarity in the line of fire: the catalysing effect of the International Criminal
Court in Uganda and Sudan, 2013, Cambridge University Press.
40
Rome Statute, Article 17.
prosecute due to political considerations. Domestic political considerations may be less
influential on the ICC’s work – its cases can be triggered by a referral from a State Party, by
the will of the ICC Prosecutor, or by a referral from the UNSC – and to varying extents, all of
the routes to triggering a case mean that the ICC functions with a degree of political
independence which may not be available to the prosecutors of the States who have primary
jurisdiction over the crimes committed.41
A more prosaic advantage of ICL is that there is an existing judicial fora, in the shape of the
ICC, which is immediately empowered to act, and which may be currently underused. Some
forms of regulation, notably UNSC arms embargoes, have proven to lack necessary
enforcement mechanisms, whilst others, such as the ATT, may not lead to improvements in
enforcement at the domestic level in the immediate future, since domestic implementation of
States’ obligations under the ATT may take several years to materialise. Furthermore, the
ICC is able to consider arms trading occurring any time after 1 July 2002, while other legal
mechanisms which are continuing to develop, such as the ATT, are not yet in force.42
A final feature of ICL lies in its core principles, which imply that the ICL ‘project’ is aimed
at pursuing all individuals involved in international crimes, regardless of their status as a
State official, corporate officer or arms trafficker. Addressing the arms trade would reinforce
the declaratory nature of ICL, as an expression of the international community’s disapproval
of arms trading that facilitates mass atrocity. It would also enhance the credibility of
institutions like the ICC, which would be seen as having the power, institutional fearlessness
and political independence to tackle a diversity of cases.
ICL certainly holds some potential to contribute to the regulatory environment of individual
arms trading, to impact on the individual behaviour of State officials, corporate officers, sole
traders and others individuals working in the trade. Moreover, it may do so in ways that
current regulation fails to achieve. Careful examination of the limitations of State complicity,
domestic regulations, international and regional agreements, the ATT, and arms embargoes,
will help to identify impunity gaps where ICL may create liability. Central to this problem
will be the analysis of how the relevant modes of liability in ICL apply to individual arms
trading.

41
Furthermore the apparatus of the ICC should grant it a degree of independence from domestic political
forces. The ICC has an independent Prosecutor who to a certain extent is empowered to trigger cases,
providing the blessing of a Pre-Trial Chamber of the Court can be obtained. Rome Statute, Article 15. See
William A. Schabas, An Introduction To The International Criminal Court, 2011, Cambridge University Press.
42
The ICC Statute entered into force on 1st July 2002, the date from which the ICC may have jurisdiction over
crimes under the Statute. Rome Statute, Article 11.