Published in The Ploughshares Monitor Volume 43 Issue 2 Summer 2022
The eighth Conference of States Parties to the Arms Trade Treaty (CSP8) will be held this August. The theme chosen by conference president Germany is post-shipment controls and on-site verification. These instruments provide innovative ways to protect against the diversion of exported weapons systems once they leave the exporter’s hands.
Canadian officials are currently assessing options on how to integrate post-shipment controls into Canada’s regulatory regime. Such controls would be welcome, especially in light of recent evidence that Canadian arms are being diverted.
DIVERSION AND ITS CONTROLS DEFINED
Prior to the transfer of a weapon system, a party seeking to import arms is required to first provide the exporting state with the identity of the authorized user (“end-user”) of those weapons, and the use to which these weapons will be put (“end-use”). Diversion occurs when those weapons come to be used by a different, unauthorized end-user, or for a use that was not declared before the transfer occurred. Diversion can happen at any point in the transfer cycle of a weapon system, and can be deliberate (e.g., illicit resale) or unintended (e.g., theft or loss in combat).
According to Article 11 (1) of the Arms Trade Treaty (ATT), “Each State Party involved in the transfer of conventional arms covered under Article 2 (1) shall take measures to prevent their diversion.” Even though the majority of the world’s nations are now States Parties to the ATT, the diversion of conventional weapons systems remains a major threat to peace and stability in many parts of the world.
Post-shipment controls are employed by an exporting state after weapons have been delivered to the authorized user. The intent is to detect and disrupt potential diversion. Such controls increase transparency and reinforce the accountability of the importing party or state. They also serve to build trust between exporters and importers, and should not be seen only as a tool to root out those intentionally abusing end-use assurances.
While standards and best practices for implementing post-shipment controls are increasingly recognized in the arms control community, measures differ from state to state.
Post-shipment controls can include a number of tools, including additional assurances such as post-delivery verifications that confirm that weapons have been received by legitimate end-users. A particularly useful measure of post-shipment controls is that of on-site verification, when officials from the exporting state physically check on arms transfers to ensure that diversion has not taken place.
While the ATT does not explicitly mention or require post-shipment controls, they are an effective way to satisfy the treaty’s overall objectives.
THE DIVERSION OF CANADIAN ARMS
As Canada’s arms exports have grown in recent years, so have instances of diversion of those weapons.
Since the beginning of the war in Yemen, Saudi Arabia has become the second largest customer for Canadian arms, second only to the United States. And since the beginning of that war, Saudi Arabia has diverted Canadian-made light armoured vehicles to Yemeni forces active in the conflict. Although Canadian civil society, academics, and media have consistently drawn attention to these instances of diversion, there has been little public response from the Canadian government.
Canadian-made sniper rifles have also been diverted to groups engaged in the Yemen war, apparently both deliberately and as the result of battlefield capture.
Turkey has diverted Canadian-made uncrewed aerial vehicle (UAV) targeting and surveillance technology to conflict zones in Libya and Azerbaijan, and likely to a number of other countries. The Turkish government has diverted weapons quite openly, showing little initial concern for Canadian intervention.
Kurdish groups have also diverted some of the Canadian-made carbines supplied to them as partners in anti-ISIS operations to the black market in Iraq. From there these weapons have spread across the region.
These instances have come to light, but there are almost certainly other cases that are not yet generally known. The systematic application of post-shipment control measures can reduce instances of diversion, if the political will exists to implement them.
While standards and best practices for implementing post-shipment controls are increasingly recognized in the arms control community, measures differ from state to state. ATT States Parties Switzerland and Germany are generally seen to have the most comprehensive practices. According to a 2020 study by the Stockholm International Peace Research Institute, a number of other European states have either implemented some post-shipment control measures or are in the process of doing so.
Under the Arms Export Control Act, the United States has a longstanding program of on-site inspections to verify how U.S. defence materials are being used by foreign actors. The Blue Lantern program controls commercial transactions, while the Golden Sentry program monitors government-to-government transfers, also known as military aid.
Canada has not yet systematically implemented post-shipment control measures. Allegations of diversion seem to generate reactive and ad hoc responses. Current measures include consultations with the recipient country, with relevant Canadian diplomatic staff, and with officials from the Department of National Defence. In some instances the manufacturer of the goods in question may also be consulted. Global Affairs Canada reports that it has also utilized delivery verification certificates.
Although some of these measures can in part be defined as post-shipment controls, there is no clearly established trigger point or process. Instead, they largely rely on an informal buy-in from a range of actors.
In late 2020 and 2021, the parliamentary Standing Committee on Foreign Affairs and International Development (FAAE) investigated the diversion of Canadian-made UAV sensor technology from Turkey to its ally Azerbaijan, which then used this technology in the 2020 conflict in Nagorno-Karabakh. The FAAE’s culminating study, released in June 2021, recommended, inter alia, that the Canadian government “explore options for an effective and feasible post-shipment verification system,” echoing recommendations from representatives of civil society organizations, including Project Ploughshares, who testified during the investigation.
In the spring of 2021, the Canadian government disseminated a questionnaire to ATT States Parties and other stakeholders to gather information on best practices for post-shipment controls that would later be presented in a working paper. This past April, Germany became a collaborator on the working paper, which has been described as “a toolbox for the implementation of post-shipment controls.”
HURDLES TO EFFECTIVE IMPLEMENTATION
Exercising post-shipment controls can be a politically and diplomatically sensitive venture. For a variety of reasons, including national security, importing states might not be willing, initially, to allow on-site inspections by foreign officials. These barriers to effective post-shipment controls must be acknowledged.
Post-shipment controls have typically focused on monitoring the end-use compliance of full systems, such as firearms, rather than parts and components. Both Germany and Switzerland impose post-shipment controls only on full systems. Canada, however, exports large numbers of components and subcomponents. It is not yet entirely clear how to apply post-shipment controls in such cases.
Finally, there are also legislative constraints to such controls. For instance, Canada’s Export and Import Permits Act (EIPA) does not currently authorize Canadian officials to undertake on-site post-shipment verification, which is an extra-territorial practice.
Canada will need to amend the EIPA to allow for post-shipment controls. Spain has recently made similar changes to its national controls and can serve as a model.
Moving forward, the Canadian government should ensure that Canadian export permits all include a post-shipment control clause. If and when diversion is suspected, Canadian officials would reserve the right to determine the veracity of such claims in a systematic process that could include on-site verification. If an investigation determines that diversion has taken place, the offending state becomes ineligible for further export authorizations until the risk of subsequent diversion is mitigated. If mitigation is not possible, then exports to that country must cease.
Canadian officials should use all channels of information to learn about the potential diversion of weapons systems, including reporting from civil society organizations and media.
Data resulting from the operation of post-shipment controls, including on-site visits, should be publicly reported in Canada’s annual Report on Military Exports. This information will not only build transparency, but will also serve as an example to other ATT States Parties currently in the process of implementing such post-shipment controls.
All instances of diversion should also be fed into the Diversion Information Exchange Forum, which is scheduled to hold its inaugural meeting this August during CSP8.
GETTING OFF THE FLOOR
The ATT sets out basic obligations for States Parties and then encourages them to exceed those obligations. The treaty is to be seen as a floor, not a ceiling. Post-shipment controls are a step off the floor.
Canada would do well to systematically integrate post-shipment controls into its national export regime. This would not only decrease the likelihood that further Canadian arms will be diverted abroad, but also serve as a positive example to other States Parties to the treaty.