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

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Secretariat shall take all necessary precautions to protect the safety and
secrecy of police information and to prevent such information from being
illicitly or improperly processed or communicated” and “staff shall be
bound by rules of professional secrecy”.
3.14 LEGAL IMPLICATIONS OF UTILISING POLICE AND MILITARY
TRACING MECHANISMS IN AN ARMS CONTROL CONTEXT
In discussions whilst researching this paper, some argued that law
enforcement agencies should not become engaged in investigations to trace
firearms or military small arms and light weapons unless the weapons are
illicit. However, the proliferation of arms poses the gravest threat in
developing countries where there is almost a complete absence of
appropriate records. Consequently, tracing has to be undertaken as a
matter of course whenever a batch of weapons is recovered just to
determine whether they are potentially licit or illicit. As previously outlined
in this paper one interpretation of “illicit” is that there is no record
authorizing a weapon to be in the country where it is found. Another
indication of what is meant by “illicit” can be found in Article 3(e) 18 of the
UN Firearms Protocol. In recognition that this is very much a condition of
“which came first: the chicken or the egg?” investigations to trace weapons
must be able to proceed on the basis that there are grounds to suspect that
they are illicit rather than denying access to tracing mechanisms until the
“illicit factor” has been proven.
“Tracing” is defined in Article 3(f) of the UN Firearms Protocol 19 and is
broad enough to entitle a competent authority in any State that is a party to
the Protocol to initiate an investigation to trace weapons. However, this
appears to exclude NGOs, as they are not a “competent authority” for the
purposes of the Protocol. This leads on to three important questions:
1. Can access to existing law enforcement mechanisms and agreements
on judicial cooperation be extended to entitle NGOs to utilize them
for their own investigations?
2. Can these tracing mechanisms be utilized to investigate the
destabilising proliferation of weapons in regions of conflict or post
conflict where the margin between licit and illicit is blurred? and,