Huns and Guns: Small arms in South Asia one year after the UN conference
by Tara Ashtakala
Introduction
In the beginning of the 6th century A.D., when the Huns invaded India for a second time, their reputation for brutality had preceded them; as a consequence, they met with little resistance from numerous kings who had heard stories of the massacres of entire towns committed by the invaders 60 years earlier. The raiders were led this time by a man called Mihirakula who had a particular loathing for Buddhism, which most of the kingdoms of the area had embraced at the time. However, one Narasimha Gupta Baladitya, the ruler of the principality of Magadha, refused to submit to the Huns, and repeatedly escaped from their clutches. Mihirakula became so obsessed with trying to kill Baladitya that he personally pursued him into the jungles of Bengal, after entrusting the administration of his newly acquired empire to his brother. Unfortunately for Mihirakula, however, not only was he defeated by Baladitya, but when he came back to his own capital, he was shocked to find that his sibling had usurped his crown. The leader had been so focused on what he perceived to be bigger threats to his kingdom that he failed to see the smaller menace from within that eventually overwhelmed him.
Today, when the international community considers the biggest challenge to peace in South Asia, it immediately thinks of the nuclear rivalry between India and Pakistan. Advocacy and efforts to disarm the subcontinent of nuclear weapons attracts extensive support, both in resource and moral terms, from the rest of the world. Groups fighting to control the other types of military hardware that menace human security, on the other hand, struggle with inadequate funding and governmental suspicion of their activities. This is by no means to say that the nuclear threat is not important: obviously, an atomic holocaust in the world's most populous region would be unspeakably devastating. Similarly, India and Pakistan each claim the other to be the foremost threat to their respective security, given that citizens of both nations have already suffered from conflicts in which conventional arms of incredible destructive force have been deployed. However, the weapons that have killed and maimed the greatest number of people not only in these two countries, but also in the rest of South Asia and the world, are those that have brought firepower to the individual level: These are small arms and light weapons.
Next month, the international community will gather in New York to assess the changes in the small arms situation throughout the world for the first time since they agreed upon a Programme of Action (PoA) in 2001 to combat the proliferation of these armaments. The meeting will review what actions governments have taken to implement the global, regional and national commitments they made two years ago at the UN Small Arms Conference. However, the PoA provides no international mechanism for monitoring compliance, and the UN's role has been limited to compiling information submitted by states on a voluntary basis. For that reason, much of the responsibility for reporting on states' actions or inaction has been taken up by civil society. One NGO that has played a key role in this issue, South Asia Partnership International, headquartered in Colombo and directed by an Indian, Dr. W. James Arputhraj, recently completed a comparative analysis of the national gun-control laws in each of the five South Asian countries, to see where a coordinated approach to dealing with the region-wide small arms menace could be facilitated. The study reveals a situation typical of the commonalities and diversity of the subcontinent; small arms affects each country in a different way, but the whole problem could be dealt with at the regional level if the five mistrustful governments could just find the political will to coordinate and cooperate.
General Nature of Small Arms Problem
Why are small arms such a big problem? In terms of human impact, they are the real weapons of mass destruction, posing a direct threat to the security of individuals and to the development of nations, during times of war and peace:
. There are currently more than 500 million small arms and light weapons in circulation around the globe, approximately one for every 12 people.
. Anyone, regardless of age, gender, status or location, can be harmed by them; and, anyone, even a child, can learn how to use them.
. They are widely available, cheap and re-usable, making them the weapon of choice for non-traditional and non-State combatants who do not have access to larger, conventional weaponry.
. They are used to steal relief supplies away from victims of war and they make it easier to resort to conflict as a means of resolving differences.
. They are often the currency of trafficking in drugs or other illegal goods, and so increase the proliferation of those commodities as well.
. Underdevelopment and poverty make the power and money of criminality, and its accompanying gun culture, particularly appealing to marginalized groups, especially unemployed youth.
. The daily number of deaths around the world caused by criminal use of weapons is inferior only to the quantum of lives lost to vehicle accidents and disease.
South Asian Situation
Throughout South Asia, small arms effect the same consequences as listed above. What varies across the region is what brings them into the hands of those who use them. Apart from the major theatres of conflict, illegal arms and private ownership is widespread in several areas. Non-State actors are getting hold of government weapons and re-exporting them to armed groups fighting in other countries. Even those legally allowed to carry arms, like security guards, are profiting during their off-duty time by renting their weapons to underworld criminals. The possession of small arms by politicians is a growing problem across the subcontinent, whether to intimidate opponents and voters or to protect themselves, and is posing a serious threat to the democratic process itself. Voters, particularly from marginalized groups, including women, are increasingly afraid to exercise their right to vote or express their opinions.
. In Bangladesh, most of the weapons in circulation are those that were not collected after the 1971 independence war. As Bangladesh is a major transit route for drugs from South-East Asia, traffickers have amassed extensive arsenals of firepower to protect their goods: Transit routes have thus now become end-users.
. In India, all possible problems associated with the proliferation of small arms seem to be found: Illegal manufacture, theft of State arsenals, licensing loopholes, lax enforcement, cross-border smuggling, political violence, unregulated private security and even a movie culture that often glorifies firepower and revenge. The result is that the availability of firearms to the largest population in the region is extremely high.
. In Nepal, a history of stringent control of citizens and their activities by both the Government and the Monarchy has resulted in a lesser degree of proliferation in this country compared to its other neighbours on the subcontinent; nevertheless, the Maoist insurgency, organized crime and the political elite are the main source of weapons in the Kingdom.
. It is in Pakistan that the degree of proliferation of small arms is the highest in South Asia. The Soviet invasion of Afghanistan and the US arming of the Mujahedeen brought millions of firearms and light weapons into the entire region. The much smaller amount of in-country movement of arms that comes from the centuries-old indigenous rifle manufacturing cottage industry in the north-west tribal areas of Pakistan is not under the jurisdiction of the Government, and therefore cannot be licensed or taxed.
. The primary source of small arms proliferation in Sri Lanka has been the civil conflict, and even though a ceasefire is now one year on, the circulation of weapons will continue to be a security threat for a while. Meanwhile, it has now become common practice for politicians to raise private armies to literally fight elections for them; and, the generous funding these mercenary armies receive are drawing government soldiers to join their ranks. Finally, all smuggling from outside Sri Lanka comes by sea routes, and coastal patrols are lacking.
The United Nations Conference on Small Arms and the Programme of Action
Recognizing the exponential increase of the adverse humanitarian impacts caused by small arms over the last decade, the United Nations decided to address this problem in the first UN Conference on the Illicit Trade in Small Arms and Light Weapons in all its Aspects, in July 2001. While a legally binding instrument to prevent or control illicit transfers of small arms and light weapons did not emerge from the intense and extended deliberations, the delegations did agree upon a Programme of Action to encourage governments to undertake measures at the national, regional and global levels to regulate the legal commerce of these armaments. The provisions of the Programme that are particularly relevant to South Asia include:
- Ensuring responsibility for all small arms and light weapons held by the State and providing for effective measures to trace such weapons: this can apply to the numerous allegations of groups within one country supplying arms to a group in another country, such as cross-border terrorism by Pakistan in Kashmir or rebels in northeastern India being supported by Bangladesh and Myanmar;
- Effective disarmament, demobilisation and reintegration programmes, including weapons collection, particularly in conflict zones, and which address the special needs of children affected by armed conflict. This would have major implications for countries like Bangladesh, where ams that were not collected after the independence war have proliferated across Bangladeshi society; and in Sri Lanka, where children who were forcibly recruited to fight will get the particular attention they need to be rehabilitated into their communities;
- Establishment of trans-border customs cooperation and information-sharing among law enforcement bodies at the regional level: This will have a major impact on the trafficking occurring across the transit points of Bangladesh and Nepal;
- Nurturing of partnerships among international organizations, inter-governmental groups, NGOs and the international financial institutions, to implement the recommendations of the Programme of Action; this is at least a partial reflection of the cooperative process, started by the land mines campaign (which activists in South Asia were largely unable to cultivate), by which governments and civil society work together on arms control;
- And finally, in countries where great traditions, philosophies and figures have preached the value of non-violence, promotion of a culture of peace by encouraging education and public awareness programmes on the problems caused by the illicit trade in small arms and light weapons in all its aspects.
Measures to implement the Programme of Action have been undertaken in each of the five countries of South Asia, but the lack of coordination in these efforts continues to perpetuate the proliferation of small arms across borders, especially when loopholes in the gun laws in one country draw in arms and activity from the others.
The Legislative Regulation of Small Arms in South Asia
Small arms and light weapons are not in and of themselves illegal under international law. States have a sovereign right under the United Nations Charter to procure arms for their self-defence. Indeed, the primary responsibility for compliance with international human rights standards, international criminal law and the international rules of war are borne by the user of the weapon; however, countries that produce and export arms do have some responsibility for the use made of their products, particularly when those weapons end up in unintended hands. There are an estimated 300 manufacturers in 74 countries producing military-style arms for sale to governments and private purchasers, often with little regard as to where they go after they are bought and how they are used.
In 2001, South Asia Partnership International led a regional initiative to study the proliferation of small arms in the subcontinent, through a series of five seminars. Over the course of these meetings, the national legislation relating to small arms control in each country was reviewed: it soon became clear that a comparative analysis of these laws would be a key component of advocacy efforts across the region, as it would bring attention to those areas where domestic legislation was weak and offer regionally-sensitive models by which to address those lacunae; it would also highlight the strengths of some home-grown measures to curb the problem.
Four of the five countries have a common legislative history arising from colonial rule: The Arms Act of 1878 stipulated the rules for manufacture, conversion, sale, import, export, transport, possession, licensing of and penalties relating to arms, ammunition or military stores throughout the British-ruled subcontinent. Today, Bangladesh, India, Nepal, Pakistan and Sri Lanka have each amended that base legislation to their unique social and cultural evolution. Interesting comparisons among them emerge in each of the main categories of small arms control:
. Export and Import: Each of the national laws contains provisions regulating the issuing of licenses and documentation for the legal export and import of firearms and ammunition. But the scope and stringency of these stipulations varies among the five countries of the region. For example, Bangladesh have not made any amendments to the 1878 Arms Act. Hence the provision permitting the import or export of arms in "reasonable" quantity by anyone possessing a license makes Bangladesh law concerning export/import the weakest in the region. On the other hand, the Sri Lanka Firearms Ordinance has the strictest limitations on export and import in South Asia, requiring an importer to have a valid permit and to bring the weapon through an approved port of entry.
. Domestic Production: Although a license is required to manufacture firearms in each of the five South Asian countries, Bangladesh, India and Pakistan have a growing problem with arms from unregulated cottage industries falling into the hands of non-State actors. Flexibility with regard to the form of the license also encourages illicit manufacturing. For example, in Nepal, the licensing requirement is weakened by allowing manufacturers the option of obtaining the discretionary authority of the Chief District Officer; instead of procuring a license, to produce arms. Sri Lanka has the most rigorous licensing requirements for manufacturers, requiring them to renew their licenses on an annual basis ensuring that the number of manufacturers is kept track of every year.
. Marking: It is only the Indian and Sri Lankan gun laws that require every firearm made to bear the name of the manufacturer, a serial number and the place of production. Detailed marking allows for weapons to be traced back to the individual manufacturer and serial number, serves to check illicit possession and helps to prevent illegal transfers.
. Record-Keeping: All the South Asian countries, except India, make it mandatory for gun-dealers to maintain proper records of the numbers of firearms in their possession or control. These stipulations allow government officers, at least in theory, to ask weapons-dealers to account for the firearms in their inventory at any time.
. Licensing: India's liberal approach of reducing the bureaucratic inconveniences to obtaining gun licenses has singled it out as the only country in the region where a police report is not absolutely necessary for the issuing of a permit to own a locally-manufactured firearm. The Government of Sri Lanka, on the other hand, is planning to put a moratorium on the issuing of licenses for small arms altogether.
. Seizure: All five countries' national legislation provides for the confiscation of illegal arms; however, the trigger for seizure in each of the countries varies: In Bangladesh and Pakistan, it is up to a magistrate to determine if possession is unlawful. In India and Nepal, the Central Government has the discretion to seize arms in order to protect public peace and safety. Once again it is Sri Lanka that has the toughest law; wherein, the threshold for seizure is the lowest, i.e. any authorized officer can confiscate a weapon on the mere suspicion that the holder does not have a license.
. Penalties: Each of the national laws contains penalties for contraventions of restrictions on manufacture, possession and transfer. Punishment ranges from six months' imprisonment to death, and the imposition of a fine, alone or concurrently.
Areas Where National Legislation is Lacking
The purpose of the legislation in each country is to prevent illicit trafficking and use. However, as the comparative analysis has indicated, the existence of laws is not enough; proper implementation of existing regulations and the closing of loopholes are key to reducing the devastation caused by small arms. Areas for improvement include:
- Since proliferation of small arms is a problem common to all the countries in the South Asia region, effective control thus requires consistency and coordination among the nations in monitoring legal trade and in setting penalties for illicit exchanges;
- Such consistency could start with basic definitions. For example, the Sri Lankan legislation, although the most comprehensive and strictest law controlling small arms in the region, does not clearly define what is a firearm;
- Export and import licenses and documentation should be standardized and contain information such as the date of issue, name of country of export and import, description and quantity of firearms, etc. Furthermore, none of the national laws clearly specifies what law applies if a problem occurs at a transit point in the transfer of arms;
- None of the national legislations' addresses the issue of brokering, which is a lucrative part of the illegal trade in the region. Legislation should stipulate registration of brokers, authorization for brokering transactions and penalties for illicit brokering activities within the State's jurisdiction and control;
- The unlicensed cottage arms industries could be strictly regulated and face stiff penalties for selling arms to unauthorized buyers. However, the carrot approach of recognizing the economic reasons why they produce arms and offering them alternative incentives would probably work better than the stick. For example, government manufacturing operations could be dismantled and the domestic producers could be designated the official small arms-makers for the State; or, alternate employment, such as being given the task of collecting and destroying weapons, could be offered to them;
- It would be useful for all the countries of the region to extend mandatory record-keeping rules on small arms manufacturers to Government agencies and their own stockpiles, as well as to individuals holding licenses to possess guns for private use;
- The criminal codes of all the South Asian countries should include the same offences relating to small arms and similar penalties to make deterrence uniform across the region;
- Finally, as Nepal is the only country with legislation explicitly dealing with weapons and elections, the proliferation of political violence across the region would make the Nepali law a good model for replication in the other countries.
Conclusion
One year after the Programme of Action became a reality, civil society organizations throughout South Asia will be watching closely to ensure that its recommendations are followed; their major challenge, however, will be to ensure that this is done in a consistent manner across the region. SASANet, the South Asian regional network of non-governmental organisations coordinated by South Asia Partnership International, which was formally launched after the UN conference, will be a valuable tool in this effort. SASANet is committed to helping the governments of South Asia implement the Programme of Action and will hold them accountable for failing to do so.
It is especially important to expand the breadth of actors involved in combating small arms proliferation because the UN Programme of Action fell short in a number of areas. For example, the document did not address the issue of security sector reform, which South Asian civil society had asked for in particular; furthermore, the Programme looked almost exclusively at the supply side of the issue, yet the high demand of weapon-dependent societies in South Asia continue to fuel the proliferation; finally, although those who supported and pushed for the UN Conference sought to have small arms placed under the same stringent controls that the international community has placed on larger, but no more deadly, conventional weapons, several States ensured that the final outcome refrained from attaching this scrutiny and stigma to arms produced directly by government-owned manufacturers, which constitute a major part of the small arms trade. Unlike the international consensus that has emerged to completely ban anti-personnel land mines, for example, the distinction between legal and illegal small arms and light weapons has not been removed.
While civil society actors dedicated to humanitarian relief and development will continue to work to minimize the impact of small arms and light weapons on South Asian society, the lack of political will to deal with the problem as a matter of full-fledged, regional arms control will no doubt hinder these efforts. It is easy to forget that the intention of the UN Conference was to raise awareness of the human cost of proliferation, rather than to focus on who is transferring weapons to whom. The five governments of the region would do well to remember the lessons of history and the fate of the Hun leader Mihirakula, by realizing that the greater threat, to their own power as well as to the human security of their people, comes not from whichever neighbour has the most hi-tech arsenal, but from the real weapons of mass destruction wielded by their own citizens and the reasons why they have them in the first place.
