The Scope and Implications of a Tracing Mechanism for Small Arms ...

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close enough to provide adequate forensic continuity to prove a connection
between the traffickers and the illicit weapons.
Protecting intelligence sources and intelligence gathering techniques
are critical issues when determining operational objectives for any
investigation into illicit arms trafficking. Where long-term protection cannot
be guaranteed, then alternatives to prosecution may need to be developed
and practical measures, along the lines of upstream disruption, have to be
explored.
Clear lines have to be drawn from the outset in any investigation to
trace weapons as to whether the objective is to proceed to trial in a criminal
Court or provide evidence to satisfy a Commission of Inquiry. Thereafter,
decisions will need to address the long-term protection of witnesses and
intelligence assets (sources), which will involve whether material is collected
for “intelligence purposes only” or as evidence. Courts require a higher
standard of proof, often referred to as “beyond reasonable doubt”, where
witnesses present their evidence in person. However, an Inquiry can often
accept evidence on “balance of probability”, which means that investigators
can give evidence on behalf of intelligence sources without revealing their
identity. This was demonstrated in the recent UN International Commission
of Inquiry into arms trafficking in Rwanda.
Where the objective is to prosecute, then Article 24 of the UN
Transnational Organized Crime Convention (UN TOC) makes it clear that
State parties must set in place “appropriate measures to provide effective
protection from potential retaliation or intimidation for witnesses in
criminal proceedings”. Investigations may not be able to move forwards
unless such guarantees of protection and confidentiality are given. In
criminal cases, countries, such as the UK, can also invoke a procedure
known as Public Interest Immunity to protect covert intelligence gathering
techniques and prevent the identify of protected witnesses from being
revealed in Court. In addition there are witness protection schemes that
provide for the long-term security and safety of witnesses, and a number of
countries have bilateral agreements to relocate protected witnesses.
To underpin such arrangements, Article 18(5) of the UN TOC (Mutual
Legal Assistance) includes a provision requiring countries to comply with a
request to maintain confidentiality. Furthermore, Article 4 of Interpol’s
Rules on International Cooperation makes it clear that “the General