History of Global Arms Transfer, 8 (2019), pp. 55-66

Preventing Diversion: A Challenge forArms Trade Treaty States Parties
By NICHOLAS MARSH*
This article examines the obligations contained in the Arms Trade Treaty forpreventing diversion, which is defined as the movement from authorized tounauthorized possession or use. It argues that in different places, the treaty covers
both diversions taking place during a transfer and after the transfer has been
completed. The article then considers the different ways that authorization can be
granted; it points out that a diversion can occur if any state involved in a transfer
has not provided authorization. The article then presents three examples ofdiversion in contemporary armed conflicts: the 2011 war in Libya; supplies to
Afghanistan and Iraq between 2003 and 2016; and an export of small arms andammunition from China to Nigeria, which was brokered from the United
Kingdom. In each example, the nature of a diversion is highlighted, as are thespecific issues for implementation of the Arms Trade Treaty. The article
concludes with the observations that states parties need to control the activities ofarms brokers, much more knowledge is needed by states parties to help thempredict when a diversion may occur, and a key priority for international
cooperation and assistance should be to enhance stockpile security andmanagement.
The Arms Trade Treaty (ATT) is the most important international document that governs
the trade of conventional weapons (such as armoured vehicles, aircraft, missiles, smallarms, and light weapons).1 The treaty establishes common international standards forregulating the arms trade with the aim of preventing illicit trafficking and diversion,
reducing human suffering, contributing to peace, security, and stability, promoting
cooperation and transparency, and building confidence.2 In particular, the treaty obliges
states parties to monitor their arms exports and ensure that they are not used in the violationof UN arms embargoes, to commit war crimes, or being used for other human rights
violations, exacerbate conflict, or diverted.3 The treaty was negotiated in 2013 and cameinto force in 2014. The current article first examines the obligations under the treaty
concerning preventing diversion (described in the following paragraphs). Because thetreaty only came into force in 2014, states parties are still establishing what their treaty
obligations actually mean in practice. The present article contributes to these discussions
by examining three high-profile examples of diversion (which mostly took place before thetreaty came into force), highlighting their implications for governments aiming to* Author’s Affiliation: Nicholas Marsh, Research Fellow, Peace Research Institute Oslo (PRIO).
1 The scope of the treaty is defined in Article 3. The phrase ‘conventional weapons’ usually excludes nuclear,chemical, or biological arms.
2 See Article 1 of the treaty.
3 See Articles 6, 7, and 11 of the treaty.

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implement the treaty.

I
Article 11 of the treaty concerns ‘diversion’, and the first paragraph establishes the generalobligation that ‘each State Party involved in the transfer of conventional arms […] shalltake measures to prevent their diversion’.4 Subsequent paragraphs establish the means bywhich a diversion can be prevented, including assessing the risk of the diversion prior toissuing an export licence, establishing mitigation measures, and sharing information.
Despite preventing diversion being a central aim of the ATT, with a specific article
devoted to that objective, diversion is not defined in the treaty, nor is there aninternationally agreed definition elsewhere concerning a diversion in the arms trade.5
Nevertheless, the text of the treaty – and other widely used definitions – can be used toreach an understanding of what is meant by the term.
Some inferences can be made from the remainder of the treaty’s text. The preamble of thetreaty highlights ‘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’. Here, there is an implied definition ofdiversion that can be taken to mean moving arms from licit possession and into illicit
markets, from authorized end use to unauthorized, or from authorized end users tounauthorized end users.6 An ‘end user’ is the ultimate recipient of a weapon after it has
been transferred (i.e., that the weapon will not be retransferred to another party), while ‘end
use’ concerns the ultimate application of the transferred arms (e.g., some exporting statesrequire assurances arms will not be used for certain purposes, such as violations of humanrights).7
Article 11 has an emphasis on a diversion taking place during and after the transfer hastaken place. As mentioned above, paragraph 1 contains a general obligation to prevent adiversion; however, there is a narrower emphasis in paragraphs 2 and 3. Paragraph 2
focuses on the obligations of the exporting party to prevent the diversion of arms beingtransferred (i.e., while the export takes place),8 and paragraph 3 emphasizes the roles takenby the states involved in the import, transiting, and transhipment of arms.9 Paragraphs 4
and 5 have a wider scope and both concern the actions that should be taken if a ‘State Party
detects a diversion of transferred conventional arms’. The use of the past tense suggeststhat the treaty is concerned with a diversion after the arms have been imported and thetransfer has been completed. Paragraph 4 also indicates that state parties should address adiversion via, inter alia, investigation and law enforcement, something that is consistent
with the treaty covering the instances of a diversion taking place within a state’s
jurisdiction. Similarly, paragraph 6 concerns states reporting to each other on the effective
measures of preventing the ‘diversion of transferred’ arms.
4 As defined in Article 2 of the treaty, a ‘transfer’ concerns the activities of international trade that ‘comprise
export, import, transit, trans-shipment, and brokering’.
5 See Parker, ‘Article 11 diversion’, p. 348; Olabuenga and Gramizzi, ‘Article 11 diversion’, pp. 191-3.
6 See Parker, ‘Article 11 diversion’, pp. 348-9; Olabuenga and Gramizzi, ‘Article 11 diversion’, p. 191.
7 Definitions drawn from United Nations Coordinating Action on Small Arms (CASA), Glossary of terms,
definitions and abbreviations, pp. 10-11.
8 See Parker, ‘Article 11 diversion’, p. 351.
9 ‘Transit’ concerns the movement of arms through a state’s territory or waters (e.g., on a cargo ship), and‘transhipment’ concerns moving a cargo from one vehicle to another without the arms having cleared customs
and being formally imported.

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Preventing Diversion: A Challenge for Arms Trade Treaty States Parties
The treaty’s text is in accordance with a widely used definition published by civil society
prior to the treaty being negotiated.10 For Greene and Kirkham:11
Arms diversion is the process by which holdings or transfers of arms that are
authorised by relevant states (and are subject to their legal controls) are delivered tounauthorised end-users, or are put to unauthorised uses by authorised end-users.
By including ‘holdings’, in other words the arms in lawful possession of a state or otherparties, as well as transfers, Greene and Kirkham’s scope includes the diversion of arms
that have been exported, as well as those being transferred. The implication from thedifferent types of language used in the preamble and in paragraphs 1-6 of Article 11 is thatsome parts of the treaty are specifically concerned with a diversion taking place during atransfer (paragraphs 2 and 3 of Article 11), while others have a wider scope and are also
concerned with a diversion that takes place after a transfer (paragraphs 1 and 4-6 of Article
11). In addition to the obligations outlined in Article 11, states parties should also consider
diversion when assessing whether an export would contravene Articles 6 and 7. In
particular, paragraph 3 of Article 6 states that a state party ‘shall not authorize any transfer
of conventional arms […] if it has knowledge at the time of authorization that arms or
items would be used’ in the commission of genocide, crimes against humanity, or other war
crimes. The term ‘would be used’ is not limited to the initial recipient of the weapons. 12This prohibition would also apply to a case in which the exporter knew that the importer
was not the end user of the arms and that the arms would be diverted to another party who
would use them to commit war crimes or other acts covered by Article 6.
Article 7 obliges states parties to conduct a risk assessment before authorizing an export.
According to the article States parties should assess the likelihood that the arms exported
would ‘contribute to or undermine peace and security’ or could be used to commit or
facilitate serious violations of international humanitarian or human rights law; terrorism;
organized crime; or gender-based violence. Exporters are supposed to consider ways tomitigate the risk of such acts. If there remains an ‘overriding risk’ of ‘negative
consequences’, the exporting state should ‘not authorize the export’. As with Article 7, adiversion would pose a risk that should be considered by a state party when considering
granting an export licence – especially the risk that the diverted arms might be used byorganized criminal organizations, terrorist groups, or by any party engaged in committing
or facilitating violations or more generally undermining peace and security.
When one takes into account the implications of Articles 6 and 7 and the language foundin the preamble and Article 11 (paragraphs 1 and 4-6), the scope of a diversion as coveredby the treaty includes a diversion that takes place after an export has been completed, as
well as during that transfer. To recap, the key element of a diversion in the treaty is that
there is a change in possession or use – from authorized to unauthorized.13 The remainderof this section considers what is authorized and unauthorized in an arms transfer.
In many cases, a diversion involves arms being taken out of a state’s control and into thepossession of unauthorized users, such as rebels or organized crime groups. For example,
prior to an arms export, forged documentation is presented by an arms broker, which
10 See Parker, ‘Article 11 diversion’, p. 349.
11 Greene and Kirkham, Preventing diversion, p. 9.
12 da Silva and Neville, ‘Article 6: prohibitions’, pp. 102-3.
13 The emphasis on diversion being a transfer to an unauthorized party can also be found in Schroeder, Close,

and Stevenson, ‘Deadly deception’, p. 114.

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NICHOLAS MARSH
purports that the weapons are to be exported to the ministry of defence of another state.
However, after the export licence has been granted, the weapons were instead shipped to adifferent destination. In this case, the broker would be responsible for the diversion.
Authorization for an arms export will usually be granted by several different governments
or by international organizations. For example, the arms export approval would need to be
granted by each of the states involved in the export, import, transit, brokering, andtranshipment during an international arms transfer. To be properly authorized – and not adiversion – authorization would need to have been granted by all of the relevant
governments. For example, if a transfer was authorized by the ministries of defence of theimporting and exporting states, a diversion would still have occurred if either were thetarget of UN sanctions which prohibited their participation in the arms trade.
Authorization is a part of a complex international system of multi-level governanceconcerning the arms trade,14 so it could be granted by different state agencies and eveninternational organizations. For example, authorization could be granted by the police or
local government concerning civilian possession of firearms; government ministries, suchas defence, foreign affairs, or interior; regional organizations (can authorize arms transfers
in some cases, such via Articles 4, 5, and 6 of the Economic Community of West African
States’ Convention on Small Arms and Light Weapons, Their Ammunition, and Other
Related Materials); and the UN Security Council, which may grant specific exemptions toarms embargoes. This complex web of national and international sources of authorization
can lead to situations in which authorization has been granted by one institution (e.g.,national ministry of defence) but may not have been granted by others (e.g., the exporting
ministry of foreign affairs).
After the transfer has been completed, the importing state usually authorizes parties tohold the weapons – for example, the members of state security services or members of the
public who can lawfully possess a weapon. Post-export commitments concerning the end
user or end use of arms are often made by the importer to the exporter before an export isauthorized. In such a circumstance, export authorization is conditional upon the importer
meeting the terms of the export licence after the transfer has been completed. If thoseconditions were broken, then a diversion would have occurred (unauthorized end use). For
example, consider a scenario where a state authorized the export of submachineguns on thecondition that they would be used by the importing state’s navy for the purposes ofprotecting military bases. Instead, if the guns were transferred from the navy to a special
police unit with a history of extrajudicial killing, then a diversion would have occurred.

II
Preventing human suffering plays a central role in the ATT. The parties involved incommitting violations are frequently non-state groups involved in political violence ororganized crime or are states that are not authorized by exporters or internationalorganizations to receive arms imports. Parties involved in in warfare have significant
logistical requirements,15 and especially in war, there is the need for a constant resupply of
ammunition to keep fighting and for arms to equip new recruits and replace battlefield
losses. For non-state groups, fighting against government forces often requires weaponsthat are not found among the civilian population, such as missiles, rockets, and launchers
14 Greene and Marsh. ‘Governance and small arms and light weapons’, pp. 164-180.
15 On the logistics needs of non-state groups see Hazen, What rebels want.

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and mortars or artillery.16 Diversion from state stocks is a key means by which these groups
can obtain the arms they need.17
The news media tends to exaggerate the size and significance of arms trafficking. Most
arms trafficking is local (occurring within a country or between neighbouring countries or
those countries within a region) and involves small-scale transactions (though many ofthem can add up to significant flows). 18 Diversion from state stocks offers a plentiful
supply of the quantities and types of weapons that are difficult to obtain elsewhere.19
The following sections provide three examples of diversions involving countries involved
in armed conflicts. In addition to illustrating in detail how diversion can occur, theyhighlight complex issues that should be taken into account by ATT states parties when theyattempt to implement the treaty.

III
Taking place during and after the 2011 civil war in Libya, the first example concerns one of
the most dramatic and high-profile cases of diversion to have occurred in recent years.
During the decades prior to 2011, Libya’s president, Muammar Qaddafi, had amassed avast stockpile of arms. The weapons had mostly been supplied by the Soviet Union and its
allies prior to the 1992 UN arms embargo on Libya. After the EU and UN embargoes werelifted in 2003 and 2004 (respectively), there was a rush by European suppliers for renewingarms sales to Libya.20
Libya had relatively small armed forces, but it kept large stocks of arms and ammunition
stored in depots located around the country. The explanation for this apparent mismatch isthat Qaddafi apparently weakened his military (he had come to power via a coup andwanted to prevent anyone else from copying his example), so instead of a strong military,in the event of an invasion, he intended to use a ‘people’s war’ strategy in which arms
would be distributed to militias and the population in general. In 2010, the Libyan armed
forces were estimated to have 76,000 regular personnel in all services (50,000 in the army,
8,000 in the navy, and 18,000 in the air force) which were equipped with 2,205 tanks (halfof which were T54/55 models whose first production dates back to the 1950s and were heldin storage); 1,000 BMP armoured vehicles; 2,421 artillery pieces, and 490 anti-aircraft
cannon.21 It has been estimated that firearms (mostly Kalashnikovs) under government
control at the start of the war numbered between 400,000 and one million.22
The 2011 civil war started in February and ended remarkably quickly in September.
During the initial weeks of the war, arms and ammunition were appropriated fromgovernment depots (particularly in Eastern Libya) and used to equip a rapidly growing
opposition army. After Tripoli, the capital city, fell in late August, further large quantities
of arms were taken from the Qaddafi regime’s stockpiles. Weapons were also supplied to
opposition groups by states intervening in the war. The largest quantity was donated by

16 Marsh, ‘Conflict specific capital’, pp. 60-62.
17 Ibid.; Jackson, ‘From under their noses’, pp. 137-141.
18 Marsh, ‘Firearms seizures and trafficking: A local phenomenon’.
19 Jackson, ‘From under their noses’, pp. 137-145.
20 Hansen and Marsh, ‘Normative power and organized hypocrisy’.
21 IISS, The military balance 2010, pp. 262-3.
22 Marsh, ‘Brothers came back with weapons’, p. 80.

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Qatar,23 and lesser quantities were supplied by France,24 Sudan,25 and the United ArabEmirates,26 and there are credible reports of transfers by Egypt and Italy.27 It is likely thatgiven the large stocks of infantry weapons amassed by the Qaddafi regime, the external
supplies were only a minority of the arms and ammunition circulating in Libya at the endof the 2011 war.
The 2011 civil war in Libya resulted in state military arms depots being opened and theircontents being distributed to armed groups. Alarm was raised during and after the war that
weapons that were poorly secured in depots controlled by armed groups or being openly
taken by members of the public. For example, in 2011, a Human Rights Watch team in
Libya reported that large quantities of weapons were unsecured and available to the general
population:
Among the unsecured weapons storage facilities that Human Rights Watch visited in
the vicinity of a Khamis Brigade base in the Salahadin neighbourhood of Tripoli is afarm compound holding approximately 15,000 antipersonnel mines and 500
antivehicle mines. A nearby storage facility housed more than 100,000 antipersonnel
and antivehicle mines, as well as large stocks of mortars, artillery, and tank shells; andan unfinished schoolbook-printing facility contained large stocks of surface-to-air
missiles (SAMs), antitank guided missiles, mortars, tank shells, artillery shells, andother types of ammunition.28
The arms taken from Qaddafi’s stockpiles were not just used in the Libyan civil war.
Soon after the conflict, they started leaking into Libya’s neighbouring countries, andproliferation of these arms from Libya played an important role in initiating the conflicts in
Mali and Sinai that started in 2012 and 2011, respectively (and continue at the time ofwriting in the spring of 2019).29
The diversion in Libya likely occurred in three different ways. Most dramatically, arms
were diverted when state stocks were distributed among unauthorized groups engaged infighting against the Qaddafi regime. Second, troops loyal to Qaddafi may have engaged inunauthorized use when they used weapons against civilians. In some cases Libya provided
assurances concerning the use of weapons that had been supplied by European statesmonths or a few years before the start of the war.30 However, it is not known whether there
were binding conditions of sale. Third, it is very likely that the arms supplied to antiQaddafi forces during the war were captured or retransferred to other groups in theaftermath of the fighting.
Libya provides some important lessons for ATT states parties. The first is the difficulty inpredicting a war and state collapse, like what took place in Libya in 2011. Arms had beenenthusiastically supplied to Libya between 2004 and 2011, despite the Qaddafi regime
23 Dickinson, ‘The gun smuggler’s lament’; CNN ‘The Emir of Qatar on arming Libyan rebels’.
24 Gélie, ‘La France a parachuté des armes aux rebelles libyens’, Le Figaro, 28 June 2011.
25 de Waal, ‘African roles in the Libyan conflict of 2011’, pp. 375-378.
26 UNSC, S/2013/99, pp. 19-22.
27 Ibid., pp. 21-6; Hooper, ‘Italian government blocks investigation into missing arms cache’, The Guardian(19 July 2011).
28 Human Rights Watch, Libya: secure unguarded arms depots.
29 Marsh ‘Brothers came back with weapons’, pp. 82-87.
30 For example, Libya stated to Belgium that exported FN2000 rifles would be used by the Khamis Brigade to‘escort humanitarian convoys to Darfur’. See Spleeters, D., ‘Tracking Belgian Weapons in Libya’, New YorkTimes, 28 December 2011, https://atwar.blogs.nytimes.com/2011/12/28/tracking-belgian-weapons-in-libya/(accessed 27 April 2019).

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having a dubious track record that included human rights violations, war with neighbouring
states, and violating UN arms embargoes.31 A general presumption against supplying arms
to authoritarian states with similar records may also guard ATT states parties against therisk of a large-scale diversion in the event of a war.
The Libyan example also raises the risks of transferring arms to rebel forces engaged infighting a civil war. These groups clearly did not have the authorization to receive arms
from the Libyan government, so the transfers themselves could be constituted as adiversion. The issue is legally complex considering that the opposition had been
diplomatically recognized by some other states. It is very unlikely that the outside suppliers
could have conducted a proper assessment of whether the anti-Qaddafi forces could have
kept control over the arms they had been supplied. Even if they had, the rapidly changing
situation on the ground would have quickly made it obsolete. In the event, the 2011 civil
war was followed by intermittent violence between rival quasi-governments, warlords, anIslamic state group, and militias. The arms supplied in 2011 have undoubtedly fuelled thecontinuing violence in Libya.
Finally, commitments regarding the end use given by the Libyan government before thewar were easily broken after the war broke out. If a regime is fighting for its survival, thenit may not put much weight on the conditions set by exporters years before. When states
parties agree upon mitigation measures recommended in Article 11 (and in Article 7), theyneed to consider the risks that the importing state will renege on the agreement if theircircumstances change.

IV
The second example involves a high risk of diversion involving the United States andpartner arms supplies to Iraq and Afghanistan.
After the fall of the Taliban in 2001 and the invasion of Iraq in 2003, the United Statesorganized the rebuilding and reequipment of the Afghan and Iraqi security forces. Armed
conflict is ongoing in both countries, which has increased both the need for weapons andthe risks of diversion.
Data released by the United States government provide a picture of the vast numbers ofsmall arms provided to Afghanistan and Iraq. The data reveal that between 1 September
2001 and 1 September 2015, the United States organized the transfer of 1.45 million
firearms to various security forces in both countries. 32 These included over 112,000
machine guns, 978,000 assault rifles, and 266,000 pistols.33 Using alternative trade data
sources, it is possible to account for the transfers of some 446,000 firearms to Iraq, 34
including 126,000 pistols, 206,000 assault rifles, and 60,000 machineguns.35 About 138,000
firearms were reported as having been exported from countries other than the UnitedStates; these included 23,038 assault rifles from the United Kingdom, 9,810 pistols fromthe Czech Republic, and 15,492 machineguns from Serbia.
Export data reveal similar quantities having been reported as having been transferred to
31 Hansen and Marsh, ‘Normative power and organized hypocrisy’.
32 Chivers, C. ‘How many guns did the U.S. lose track of in Iraq and Afghanistan? Hundreds of thousands’,

New York Times Magazine, 24 August 2016.
33 Ibid.
34 Ibid.
35 Calculations by the author from the NISAT database of the small arms trade, nisat.prio.org, accessed 21
April 2019.

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Iraq. Transfer data reveal that some 629,000 firearms were exported to Iraq, 36 including
520,000 from countries other than the United States; these exports included 86,000 assault
rifles from the Czech Republic and 52,000 from Slovakia and 35,000 machineguns from
Ukraine.37
The exports from countries other than the United States raise the possibility that many
more arms could have been provided than the 1.45 million mentioned by U.S. authorities.
The United States preferred supplying Afghanistan and Iraq with Soviet pattern weapons,
which were sourced from abroad, because these arms were familiar to Afghani and Iraqi
personnel, and the guns (especially Kalashnikovs) have a reputation for being more
hardwearing and better able to withstand use in harsher environments. The arms that were
exported could have been paid for by the United States (in which case, they would likely
have appeared among the 1.45 million). But the exports could also have been purchased
directly by the Afghan or Iraqi governments or provided as military aid (e.g., in 2006,
Hungary reported exporting 20,500 AMD-65 assault rifles as ‘government aid’).38 If thearms were not paid for directly by the United States, then they may not have been counted
by the United States government. In addition, the 1.45 million figure probably does notinclude any weapons issued directly by the United States armed forces or captured arms
reissued to Afghan or Iraqi forces.39
The transfers constitute a risk of diversion because the United States has admitted tohaving lost track of about half of the arms it supplied to Afghanistan and Iraq.40 In response
to a 2016 request for data from the New York Times, the U.S. Department of Defense
admitted that it only had records for 48 per cent (or 700,000) of the firearms supplied to
Afghanistan and Iraq.
A declassified 2008 U.S. Department of Defense Inspector General report notes that
Turkish police and military personnel have complained that arms supplied by the UnitedStates to Iraqi security forces had been found in the ‘hands of insurgents, terrorists, andcriminals in Turkey’. 41 It went on to note that U.S. forces did not maintain unbroken
accountability and control over the arms before they were handed over to Iraqi forces. In
particular, the arms were sometimes stored in unsafe areas vulnerable to theft or loss andthat lacked the facilities to process large numbers of items; sometimes, inventories of arms
(including taking down serial numbers) were not recorded before handover.42 Concerning
the Iraqi security forces, the Inspector General report states that they lacked enough skilled
personnel to adequately monitor weapons stocks and that overall, its logistics systems were
‘fragile’.43
Similarly, a 2014 report by the United States Special Inspector General for Afghanistan
Reconstruction outlined deficiencies in the U.S. Department of Defense’s monitoring andaccountability concerning the arms supplied to Afghanistan. 44 In particular, there was
missing or erroneous information in 43 per cent of the records in one logistics database on
474,828 weapons.45
36 Chivers, ‘How many guns did the U.S. lose track of in Iraq and Afghanistan? Hundreds of thousands’.
37 Calculations by the author from the NISAT database of the small arms trade, nisat.prio.org, accessed 21

April 2019. It is likely that there were also significant exports from Bosnia and Herzegovina.
38 Information from the NISAT database of the small arms trade, nisat.prio.org, accessed 21 April 2019.
39 Chivers, ‘How many guns did the U.S. lose track of in Iraq and Afghanistan? Hundreds of thousands’.
40 Ibid.
41 Inspector General United States Department of Defense, Assessment of the accountability, p. 1.
42 Ibid., p. 27-47.
43 Ibid., p. 73-4.
44 Special Inspector General for Afghanistan Reconstruction, Afghan national security forces.
45 Ibid., p. 4.

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Despite attempts by the United States to set up inventory management systems for theAfghan security forces, the Inspector General reported that an Afghan National Army
database was missing data and ‘cannot be relied upon for accurate information’.46 Instead,
units entered weapons inventory data into ledgers (but without recording serial numbers).
The Afghani National Police, meanwhile, had ‘no standardized or automated system toaccount for weapons’.47
Chris Chivers, a New York Times journalist who investigated the transfers to Iraq and
Afghanistan, is unequivocal that ‘one point is inarguable: Many of these weapons did not
remain long in government possession after arriving in their respective countries’.48 He
highlights that in Iraq, the Islamic State captured arms and other equipment meant for
entire Iraqi divisions and goes on to cite equipment of a U.S. origin being offered for sale
online. He states the following:
These spectacular losses were on top of the more gradual drain that many veterans of
the wars watched first-hand — including such scams as Afghan National Armyrecruits showing up for training and disappearing after rifles were issued. They wereleaving, soldiers suspected, to sell their weapons.49
The examples of supplies to Afghanistan and Iraq highlight two risks of diversion. The
first is that poor management of arms could lead to theft or other losses during the transfer– such as during storage in unsafe areas prior to handover. The second is that after thetransfer was completed poor security and management by the Afghan and Iraqi security
forces created risks of large-scale losses from capture or theft or loss by police or military
personnel.
Although the United States has been the focus of this example, arms were also suppliedby ATT states parties (such as Germany, Hungary, or the United Kingdom). A key issue forstates parties is the need to prevent a diversion if they are supplying arms to highly fragile
states involved in warfare (such as Iraq or Afghanistan). If the recipient country lacks thefacilities and infrastructure and personnel trained to use them, then a diversion during or
after a transfer may be likely.

V
The third example of a diversion concerns an export of small arms and ammunition from
China to Nigeria. The transaction had been arranged by a UK-based arms broker who had
not been authorized to do so.
From 2005-7, UK citizen Gary Hyde and German citizen Karl Kleber set up an arms deal
involving the export of 70,000 rifles, 10,000 pistols, and 32 million rounds of ammunition
from China to Nigeria.50 Hyde acted as a broker, in that he was an intermediary who was toreceive a commission for arranging the arms deal, but he or his companies never bought orotherwise took possession of the arms themselves.51 It was a complex deal involving a
Chinese company (Poly Technologies Inc. and previously China Jing An), two companies
46 Special Inspector General for Afghanistan Reconstruction, Afghan national security forces, p. 6.
47 Ibid., p. 6.
48 Chivers, ‘How many guns did the U.S. lose track of in Iraq and Afghanistan? Hundreds of thousands’.
49 Ibid.
50 Royal Courts of Justice, ‘Transcript’.
51 For a definition of brokering, see UNGA, A/62/163, p. 8.

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representing the Nigerian government (called Deftech and Pinimi) and EWH Consultancy
Ltd., which was controlled by Gary Hyde.52 Contractual documents signed by Hyde statethat a commission of USD 1,337,800 was due to be paid out for arranging the deal.53 The
shipment from China to Nigeria took place in November 2007.
The United Kingdom has regulations covering the act of brokering an arms deal (such as
what was undertaken by Hyde). Any person or corporate entity located in the United
Kingdom and wishing to broker an arms transaction must first obtain a trade control licence(which are issued by the Export Control Organization).54 The regulations cover arms beingtransferred from or to any part of the world (so long as at least some of the brokering
activity takes place in the United Kingdom).
Despite being a seasoned arms exporter, Hyde did not obtain a licence – possibly because
armed conflict and human rights violations in Nigeria may have meant that the United
Kingdom would have refused. Instead, Hyde started to broker the transaction and madesure do so from outside the United Kingdom. In particular, he arranged for a payment of
USD 400,000 to be made to a bank account in Liechtenstein.55
Prosecutors were able to prove that in March 2006 and December 2007, Hyde had
worked on renegotiating the transaction while he was located within the UK. After being
sentenced, Hyde was convicted to seven years imprisonment for brokering the deal with
Nigeria without the required licence and for concealing the payment to the Liechtensteinbank account from the UK authorities.
In this example, a diversion occurred because Hyde and his companies did not have thenecessary authorization from the United Kingdom to broker the deal. To recap, Article 11,
paragraph 2 of the treaty obliges states parties to ‘prevent the diversion of the transfer ofconventional arms’, and in Article 2, ‘brokering’ is defined as being one of the activities
that comprise a transfer. Similarly, Greene and Kirkham’s definition (see above) is followedwith the comment that ‘authorisation is required by both the exporting and importing state,
and also by relevant transit and brokering control authorities in other states’.56 Hyde’s caseshows that the transfer was not authorized by all of the states involved, even if China andNigeria had issued the appropriate import and export licences.
The issue for ATT states parties is that a diversion can occur and involve their citizens incontexts far removed from where the arms are actually located. A broker based on adifferent continent from the importing and exporting states can still play a key role in an
unauthorized arms transfer. States parties need to ensure that they have, as set out in Article
10, adequate laws and regulations concerning brokering; they also need to be vigilant anddetect unauthorized brokering activities.

VI
To conclude, diversion has a central place in the ATT, and preventing it is key to attaining
the aims of the ATT to reduce human suffering and contribute to peace, security, andstability. States parties need to fulfil their obligations and take active measures to prevent adiversion, including not allowing exports if the risks are too high and controlling theactivities of arms brokers. Transfers of arms to a non-state proxy at war in another country
52 Royal Courts of Justice, ‘Transcript’.
53 Royal Courts of Justice, ‘Transcript’.
54 See Article 4 of the UK’s Trade in Goods (Control) Order of 2003.
55 Royal Courts of Justice, ‘Transcript’.
56 Greene and Kirkham, Preventing diversion, p. 9.

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Preventing Diversion: A Challenge for Arms Trade Treaty States Parties
would very likely be a case of diversion.
Preventing a diversion is difficult. For an exporter, assessing the long-term risks of adiversion poses many problems; the exporter may lack detailed information on theactivities of his or her own companies or on the ability of the importing state to secure arms
stocks. Even if systemic deficiencies are known, the imperative to support an ally fighting
a war may outweigh the fears that arms supplies could later be diverted. Cataclysmic events
such as a state collapse or civil war are difficult to predict years in advance. Much more
knowledge is needed by states parties to help them predict when a diversion may occur.
Many states, such as Afghanistan, lack the ability to control their arms stockpiles andprevent pilfering. If the importing states lack the ability to monitor their inventories ofarms and ammunition, they may be unaware of the extent – or even existence – of adiversion. A key priority for international cooperation and assistance should be to enhance
stockpile security and management. However, as the Afghanistan example shows, doing so
can be a long process.
References
Cable News Network (CNN), ‘The Emir of Qatar on arming Libyan rebels’ (14 April 2011). Transcript
available from http://cnnpressroom.blogs.cnn.com/2011/04/14/the-emir-of-qatar-talks-to-wolf-blitzerabout-weapons-to-libyan-rebels/ (accessed 27 April 2019).
Chivers, C. ‘How many guns did the U.S. lose track of in Iraq and Afghanistan? Hundreds of thousands’,
New York Times Magazine (24 August 2016).
da Silva, C. and Nevill, P., ‘Article 6: prohibitions’, in C. da Silva and B. Wood, eds., Weapons andinternational law: the arms trade treaty (Brussels, 2015), pp. 88-115.
de Waal, A., ‘African roles in the Libyan conflict of 2011’, International Affairs, 89 (2013), pp. 365-9.
Dickinson, E., ‘The gun smuggler’s lament,’ Foreign Policy (2 October 2015).
Greene, O. and Kirkham, E., Preventing diversion of small arms and light weapons: issues and priorities
for strengthened controls (2009).
Greene, O. and Marsh, N., ‘Governance and small arms and light weapons’ in O. Greene and N. Marsh,eds., Small arms, crime and conflict global governance and the threat of armed violence (2012), pp.
163-82.
Hansen, S. and Marsh, N., ‘Normative power and organized hypocrisy: European Union member states’
arms export to Libya’, European Security, 24 (2015), pp. 264-86.
Hazen, J., What rebels want resources and supply networks in wartime (Ithaca, 2013).
Human Rights Watch, Libya: secure unguarded arms depots, Press Release, September 2011.
Inspector General United States Department of Defense, Assessment of the accountability of arms andammunition provided to the security forces of Iraq. Report No. SPO-2008-001 (2008).
International Institute for Strategic Studies (IISS), The military balance 2010 (Abingdon, 2010), pp. 262-3.
Jackson, T., ‘From under their noses: rebel groups’ arms acquisition and the importance of leakages fromstate stockpiles’, International Studies Perspectives, 11 (2010), pp. 131–47.
Marsh, N., ‘Brothers came back with weapons: the effects of arms proliferation from Libya’, PRISM, 6(2017), pp. 79-96.
Marsh, N., ‘Firearms seizures and trafficking: a local phenomenon’, Strategic Trade Review, 1 (2015), pp.
73-87.
Marsh, N., ‘Conflict specific capital: the role of weapons acquisition in civil war’, International Studies
Perspectives, 8 (2007), pp.54–72.
Olabuenga, P. and Gramizzi, C., ‘Article 11 diversion’, in C. da Silva and B. Wood, eds., Weapons andinternational law: the arms trade treaty (Brussels, 2015), pp. 191-201.
Parker, S., ‘Article 11 diversion’, in S. Casey-Maslen, A. Clapham, G. Giacca, and S. Parker, eds., Thearms trade treaty: a commentary (Oxford, 2016), pp. 342–365.
Royal Courts of Justice, ‘Transcript of the handed down judgment. R. v Gary Hyde’. Case no: 201300289
B2; 201304192 B2 (15 April 2014) https://www.iclr.co.uk/document/2011208328/casereport_58987/html(accessed 22 April 2019).
Schroeder, M., Close, H., and Stevenson, C., ‘Deadly deception: arms transfer diversion’, in E. G. Berman,

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K. Krause, E. LeBrun, and G. McDonald, eds., 2008 small arms survey: risk and resilience (Cambridge,2008), pp. 113-153.
Special Inspector General for Afghanistan Reconstruction, Afghan national security forces: actions needed
to improve weapons accountability (SIGAR 14-84 Audit Report, 2014).
United Nations Coordinating Action on Small Arms (CASA), Glossary of terms, definitions andabbreviations (New York, 2018).
Official Publications
UNGA (United Nations General Assembly), Report of the group of governmental experts establishedpursuant to General Assembly resolution 60/81 to consider further steps to enhance international
cooperation in preventing, combating and eradicating illicit brokering in small arms and light weapons,
UN Document A/62/163.
UNSC (United Nations Security Council), Final report of the panel of experts established pursuant toresolution 1973 (2011) concerning Libya, UN Document S/2013/99.

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