4. Failures to Control Transit and Trans-shipment

All governments in countries through which arms pass (or transit) need to ensure the security of the arms transferred and whether the transfers meet the international obligations of the state in transit. If secure passage does not exist there are dangers that those licensed arms transfers will be diverted to illegitimate end users who will use these weapons for criminal acts or to commit grave human rights abuses.

Operative Measures to explicitly control trans-shipment are not included in the EU Code, but (as detailed below) research for Amnesty International has shown clear contradictions between certain EU Member States practices with regard to their controls on trans-shipment and their obligations under the EU Code criteria. Certain countries have become key transit or trans-shipment hubs through which commercial and government freight (including arms and security equipment) flow. For such hubs, strict customs and freight control regulations need to be enforced. However, the reality is that in many of these transit hubs, the existing transit controls are very weak or are not adequately enforced. Unscrupulous arms dealers will seek to use the wide "holes" and weaknesses in national and regional controls on trans-shipment.

Amnesty International believes that the issue of transit/trans-shipment controls has not received adequate attention by governments. Two areas are of greatest concern:

· Danger of diversion – in contravention of EU Code Criterion Seven, diversion of arms shipments is facilitated by poor laws and oversight, inadequate customs and transport controls, lack of resources and corruption - allowing criminal gangs, terrorist supplier and, UN sanctions busters to flourish. This is reported principally in some of the new Member States for example Poland, Slovenia and Slovakia.
· Violating EU Code Export Criteria – in contravention of several Criteria of the EU Code, governments may allow arms to transit through their territory to end users to whom EU governments would not normally allow arms to be transferred directly. This has been reported primarily in the Netherlands.

Danger of diversion

Poland:
It has been reported that, amongst arms in transit through countries in the Baltic region, it is not unusual for Polish military equipment to be found in illicit stores and shipments of arms.(81) Whether these arms have been acquired through unauthorised sales, authorised sales that are being transferred without the relevant permits, or stolen from stores is unknown. According to one report, shipments that included advanced weaponry were discovered in Gdansk and Czestochowa in 1997.(82) More recently in 2002, four Arrow anti-aircraft missiles were reported 'missing' from a train travelling from Skarzysko-Kamienna to Gdansk. This shipment was being transported by an intermediary from the manufacturer for export, suggesting that inadequate safeguards were in place.(83)

Slovakia:
Slovakia's intelligence body, the SIS, reported in May 2002 that the country continued to serve as a trans-shipment point for illegal arms flows to areas of violent conflict, noting among other concerns that "Slovakia became, due to imperfect legislation, a transport corridor for illegal deliveries of weapons and a country where illegal deals were legalized."(84)

Under a legal exemption in a 1998 law and still in place following legal revisions in 2002, no license is required for the transit of military equipment through Slovakia if the equipment is on the territory of the Slovak Republic for a period of no longer than seven days. As noted by a licensing official, there would be no reason for any transit across Slovakia to take more than seven days, so this exemption effectively covered all weapons transit.(85) The airport in Bratislava in particular, has been a hub for illegitimate arms shipments. Arms shipments through Slovakia are subject only to civil aviation and customs controls. Customs and airport personnel are not able to check every shipment, and these controls have been insufficient to deter and detect suspicious activity.

Slovakia has been a point of origin or transit for arms deliveries to human rights abusers and countries in violent conflict, as well as to suspected illegal destinations. Slovak transport agents have been involved in arranging some of these deliveries.(86) In March 2000, a plane left Bratislava's airport bound for Harare, Zimbabwe, allegedly carrying a mis-declared weapons cargo for use by Zimbabwean forces in the war in the Democratic Republic of Congo.(87)

According to Human Rights Watch, on the evening of September 29, 2001, an Iranian Ilyushin-76 plane landed at Bratislava airport and offloaded approximately three tons of cargo, which was to be loaded onto a Ukrainian plane for onward shipment to Angola. The Iranian plane departed again before authorities discovered that the contents of the shipment—504 units of anti-tank munitions packed in 84 containers—did not match the accompanying documents.(88) The rocket-propelled grenades bore no markings indicating the producer, but they were evidently new and were most likely manufactured in Iran.(89)

Slovenia:
According to a Saferworld report Slovenia has had problems regulating SALW on its territory, and the number of shipments that have been intercepted and confiscated led to suggestions that "many others have slipped though" and that Slovenian territory is an important transit route for weapons going to and from the former Yugoslavia. (90) However, the number of seizures of illicit SALW on Slovenian territory and at border points does indicate that security and prevention measures are yielding results. In autumn 1999, arms smugglers were caught on the Croatian-Slovenian border with approximately 5,000 handguns.(91) More significantly, in September 2001, Slovenian customs officials in the port of Koper detained an enormous 48-ton batch of smuggled infantry weapons sent from Malaysia, which police believe were destined for Macedonia and Kosovo.(92)

Hungary:
A positive example of transit control in action is that of the Hungarian Border Guard Centre (HOP) which intercepted a shipment of missile parts and military equipment carried by Turkish trucks as they entered Hungary from Romania. (93) In early 2004, the trucks were intercepted because they did not have the correct NATO or Hungarian Military transit documentation. The final destination of the equipment was reported to be a West European military base. The trucks were reported to be stranded on the border at Nagylak and would not be permitted to enter Hungary until the correct transit documentation was presented.

Kaliningrad:
Kaliningrad is an enclave of the Russian Federation bound by Russian Federal laws on arms control and trafficking. The enclave will become "trapped" in the newly expanded EU and could provide a dangerous control "black hole" for unscrupulous arms traffickers to utilise. It has reportedly served, in the past, as a transit point for shipments of military equipment and arms from other parts of Russia, Lithuania and beyond, for illicit end-users. (94)


Violating EU Code Export Criteria

The Netherlands:
To comply with the EU Code, the Dutch government has stated that it prevents the export of equipment which might be used for internal repression or international aggression, or contribute to regional instability.(95) However there is concern that these principles are not extended to the Dutch arms transit policy. For example in 2002 Israel was granted export licences worth 1.46 million euros, approximately half of the licensed Dutch transit trade.(96) The licences were granted for goods under the category A2, which are those connected with armoured vehicles. This is despite the consistent reporting by human rights organisations of the misuse of such equipment by the Israeli security forces.(97)

On 16 May 2002, a Dutch court in The Hague heard summary proceedings filed by twenty-one civil society organizations including Novib (Oxfam Netherlands), to ban all export and transit of military goods to Israel. The Dutch government has so far refused to comply with the demands. The claim was declared inadmissible and the NGOs were advised to turn to a "board of appeal of the business community", which also ruled the case inadmissible.

According to information from Amnesty International (Netherlands) and Novib at least a quarter of all import and export of goods in and from the European Union pass through the Netherlands. (98) They describe the Netherlands as "the distribution country and main port of Europe". Trans-shipment of goods constitutes about 40 percent of all Dutch exports. Now that Europe's internal borders are becoming less important, the Netherlands is an even more attractive location for international business, at the heart of the European distribution network.

Seagoing vessels annually carry tens of millions of tonnes of goods in and out of Rotterdam, one of the largest ports in the world, which handles almost 20,000 containers each day.(99)

Following several publicised cases of arms trafficking,(100) Dutch NGOS and parliamentarians have also raised concerns that their authorities do not have adequate control on the massive flow of cargo through the country. Only three percent of the 20,000 containers that are processed daily in Rotterdam are actually scanned. On 1 January 2002, the Dutch government has established new controls on trans-shipment of arms and security equipment, which are detailed under the Strategic Goods Import and Export Order. These form a relatively complex administrative process of licenses and notifications for some, but not all, types of arms and also depend on the length of time the goods are in transit on Netherlands territory. Generally:

A) For the transit of arms an export license is compulsory, (apart from exceptions covering 'fast transit' between close allies: i.e. temporary storage of shorter than 45 days if transport by sea or 20 days by other transport means and if the goods come from the EU or are going to Australia, Japan, New Zealand, Switzerland or an EU or NATO country.)(101)
B) For small arms and light weapons a notification,(102) including an end use notification, to the Dutch authorities is always compulsory.
C) When the government is suspicious of an individual delivery it can enforce an export license on that particular shipment, this on a so-called ad hoc basis.(103)

In 2003 an independent evaluation report stated that there was not enough knowledge on the volume of so-called "fast transit" and that the control of small and light weapons was more extensive than control of other types of arms.(104) The report states that the transit of "heavy" arms, such as tanks, does not require mandatory notification because such "heavy" arms can be noticed more easily by customs services. When transit appears to be suspicious it is assumed that customs authorities will intervene.

This system means that there is no registration of many of the arms shipments that transit through the Netherlands. The State Secretary of Economic Affairs argued in a letter to the Dutch Parliament on 21 July 2003 that it is "unrealistic to provide a full overview of transit of arms and military goods through Netherlands territory" because this would mean an "administrative burden" on government and business. However, due to the "war on terrorism", checks on trans-shipments to the United States have been extensive. Since 22 August 2002, the Central Service Import and Export received 24 "notifications" to transit small arms and light weapons from Israeli Airways for shipments originating in the United States with destination Israel.

Dutch parliamentarians have called on the government to bring all transit of arms through the Netherlands under Dutch arms export policy. The government, specifically the responsible ministries of Economic Affairs, Foreign Affairs, Justice and Finance, maintains that the Netherlands is a "distribution country" and cannot possibly control every item that is transferred through Dutch territory. It is, according to the government, also impossible to enforce its own policy upon third countries, unless there is reasonable risk. During the last parliamentary debate on arms exports in November 2003, the minister of Foreign Trade stated that she intends to implement a system whereby the Dutch authorities must be notified about transits of all items on the list of military goods, not just small arms and light weapons (as per point B above). Although this might improve transparency, some Dutch parliamentarians and NGOs want compulsory licences for all transits, rather than just notification that they are occurring.


Key lessons to be learned:

An experienced arms trade analyst concluded "that the majority of Member States were unwilling to tighten controls on goods in transit on the grounds that this could threaten the competitive position of Europe's ports."(105) However, the overall economic interests of EU Member States and others will be harmed if the EU fails to prevent diversion, illegal trafficking and the "authorised" transfers of arms to users who commit serious human rights violations, or war crimes.

According to the EU Code's Operative Provision 10, "It is recognised that Member States, where appropriate, may also take into account the effect of proposed exports on their economic, social, commercial and industrial interests, but that these factors will not affect the application of the above Criteria." In the 2002 EU Consolidated Annual Report, it was stated that the Criteria of the EU Code of Conduct should be taken into account when considering transit licence applications.(106) While all EU Member States should apply the Criteria to arms transiting through their country as they would for arms exported directly, this form of words - "take into account" - is generally too weak and open to abuse.

EU States must apply binding Criteria to arms in transit and agree Operative Provisions in the EU Code to adequately control the transit of arms. The success of such controls depends upon harmonising regulations, closing loopholes and co-operation between the transit states and the importing and exporting states. The EU must also prioritise cooperation with the new Member States and Russian Federation on measures to combat illicit trafficking. These should include regular information exchange on export and transit controls and licences.