Guy Lamb, Programme Head: Arms Management, ISS Tshwane (Pretoria)

More than a fortnight ago, pirates boarded and took control of the MV Fania, a Ukrainian cargo vessel with 33 battle tanks, other arms and military spare parts that were on route to the port city of Mombasa, Kenya. The pirates initially demanded a US$35 million ransom to release the ship, which was then reduced to US$20 million. Over the weekend the Kenya-based ‘Sunday Nation’ newspaper reported that the pirates had threatened to destroy the ship if the ransom was not paid by the evening of 13 October 2008.

The US Navy, the East African Seafarers Assistance Programme and a number of media (including the BBC, The Economist and some Kenyan newspapers) have indicated that the tanks, arms and military equipment are destined for the governing authority of South Sudan, while both the governments of the Ukraine and Kenya have stated that the Kenyan armed forces are the final recipients. No irrefutable evidence has been publicly offered to support either claim.

This incident has had three key consequences. First, it has accelerated the foreign military repose to piracy off the coast of Somalia, which has become rife over the past nine months. Second, it has refocused public attention on the somewhat veiled dynamics of the global arms trade. Third, it has damaged Kenya’s reputation as a champion of international arms control and disarmament.

At the time of writing the MV Fania was surrounded by six United States warships. On 7 October 2008, the UN Security Council passed a resolution permitting UN member states to employ military force, both maritime and aerial, against pirates off the coastline of Somalia. In addition, the EU, NATO, the Russian government and the Kenyan government have announced that they are sending a naval presence to the Somali coastal area.

There is no legal instrument that governs the international arms trade. Some governments regulate their national arms trade through policy and legislation, and adhere to transparency and honest business practices. Others however do not sufficiently regulate the import and export in arms, which are often clandestine in nature, with arms being transported or diverted to conflict hotspots and territories under arms embargoes. Historically some states have acted as middlemen or conduits in secretly facilitating arms shipments to dubious destinations.

The ambiguity surrounding the captured Ukrainian cargo is indicative of the inconsistent nature of observing of transparency and good business practice in global arms dealings. Both Kenya and the Ukraine participate in the UN Register of Conventional Arms Register process, an instrument designed to encourage transparency and confidence building within the international arms trade. The Ukrainian government, which is often regarded as an arms trade pariah, has submitted relatively detailed reports to the UN Register. Its 2007 report detailed the export of a total of 77 T-72 battle tanks to Kenya. To date Kenya has submitted seven annual reports to the UN Register. None of these reports include information relating to arms exports and imports. The 2007 report makes no reference to the import of battle tanks from the Ukraine.

If the tanks, arms and military spare parts are destined for the governing authority in South Sudan, then this is not entirely problematic as South Sudan is not under a UN Security Council arms embargo, as has been erroneously reported on a number of occasions. In terms of the relevant Security Council resolutions, the arms embargo only applies to actors “operating in the states of North Darfur, South Darfur, and West Darfur”. However, there are two key problems. First, South Sudan does not have adequate arms control systems. Neither does it participate in international arms control processes, such as the UN Register of Conventional Arms. Consequently, the arms may be diverted to other more problematic actors in the Horn of Africa. Second, it appears that both North and South Sudan are engaged in an arms race. Hence, if the Kenyan government (which was central to the mediation efforts that culminated in the Sudan Comprehensive Peace Agreement) is facilitating the supply of tanks and other arms to South Sudan, then it is supporting such an arms race.

Within the UN General Assembly a process is underway to establish an ‘Arms Trade Treaty’ (ATT). Recently, a group of seven governments co-authored a draft ATT resolution for UN General Assembly’s First Committee on Peace and Disarmament, which is meeting throughout October in New York. The draft resolution recommends the establishment of an Open-Ended Working Group to “consider how best to achieve, within the United Nations, the highest international standards for the import, export and transfer of conventional arms”. Ironically, Kenya is one of the co-authors of the ATT draft resolution. Hence, it is crucial that the Kenyan government institute more effective transparency measures in its arms dealings. Otherwise, the MV Fania incident will undermine Kenya’s credibility on the international arms control stage, as well as play into the hands of those states that are in opposition to the ATT.

In terms of countering piracy off the Somali coast, there are no quick fix solutions. The escalation of an international naval presence in the area will certainly contribute to reducing the occurrence of such incidents. However, the only long-term solution is the reconstruction of a legitimate and functioning Somali state.