Select Committee on Trade and Industry Minutes of Evidence


Memorandum submitted by TAPOL: The Indonesia Human Rights Campaign


  1.  These comments are provided by TAPOL, the Indonesia Human Rights Campaign, which campaigns for the realisation of human rights throughout Indonesia and East Timor. For many years TAPOL has been concerned that military equipment exported from Britain has been directly involved in violations of human rights and has strengthened a military regime engaged in international aggression against East Timor. TAPOL has called for, and continues to call for, a complete ban on all arms exports to Indonesia.

  2.  The present licensing system is weighted heavily in favour of the defence industry, whose lobby is extremely powerful both inside and outside government. The anti-arms lobby, which represents widespread public concern, is allowed little influence over policy and decision-making. As Sir Richard Scott correctly pointed out, in his Report on exports to Iraq, export controls are weighted in favour of granting licences. Significantly, the Foreign Secretary opened his statement on the new export licensing criteria announced in July 1997 not with a reference to human rights, but with a commitment to a strong defence industry.

  3.  As long as the Government remains so committed to arms exports, changes of the sort proposed by the White Paper will amount to little more than window-dressing. Substantive change will not be achieved until the Government accepts that arms exports are detrimental to human rights, security and the economy and that they should be reduced and eventually eliminated. The disclosure that the British taxpayer will have to foot part of the £500 million bill for Hawk aircraft exported to Indonesia because of the debt crisis is evidence of the heavy subsidy paid by the taxpayer to maintain the defence industry. According to Campaign Against Arms Trade, government support for military exports represents a subsisy of £12,500 a year for every remaining job.

  4.  While TAPOL recognises that the British Government is not presently minded to make the necessary policy changes, it believes that the export licensing regime must be strengthened considerably to provide far greater transparency and parliamentary and public scrutiny of individual decisions. The steps proposed in the White Paper fail to meet these basic requirements of democratic governance and fail to challenge the overwhelming influence of the defence industry.

  5.  There is considerable evidence of the failure of the present licensing regime to protect the human rights of the people of Indonesia and East Timor. Hawk aircraft, Land Rovers and small arms have been used to bolster Indonesia's brutal military occupation of East Timor. In April 1996, British-made armoured vehicles were used in a violent assault on a university campus, which resulted in many injuries and three student deaths. Since then, British-made water cannon and armoured vehicles have been used on numerous occasions to prevent peaceful demonstrations. In May of this year, the British public had to endure the sight on their televison screens of British water cannon and armoured vehicles being used to put down the student protests which eventually led to the downfall of the repressive regime of President Suharto. The practice of using water cannon has continued under the Government of President Habibie. In mid-September, they were again used against a peaceful student demonstration.

  6.  The licensing system has failed the people of Indonesia and East Timor under successive British Governments. Despite widespread parliamentary and public concern and evidence that previously-exported equipment has been used for repressive purposes, there has been no apparent slowdown in the rate of licences granted to Indonesia under the present Government. Between 1 May 1997 and 10 May 1998, 67 licences were issued and only six were refused. TAPOL is unable to comment further on the equipment covered by these licences since details of the specific nature of the equipment are kept secret under the present system.

  7.  With these points in mind, the following comments focus on those aspects of the White Paper which are of greatest concern to TAPOL.


Parliamentary and public scrutiny

  8.  TAPOL notes the Government's decision to introduce new primary legislation, which will provide for parliamentary scrutiny of Export of Goods Control Orders made under it. It is disingenuous of the Government to claim that this improves accountability since it will not allow parliamentary, let alone public, scrutiny of individual licence applications. The publication of a retrospective annual report on strategic exports does not address the need to ensure that individual licences are not granted in breach of the purposes of export control.

  9.  The decision not to allow scrutiny of individual licences will lead to less transparency and accountability. The previous Conservative administration adopted a practice of announcing, through parliamentary written answers, details of certain sensitive licences. In December 1996, for example, the President of the Board of Trade announced that he had granted two licences for the export of armoured vehicles and water cannon to Indonesia (although the full details of the equipment covered by one of the licences was revealed only in response to a subsequent written question). No similar announcements have been made under the present administration and it appears they are unlikely in view of the policy set out in the White Paper. The information about the 67 licences referred to above was obtained only as a result of persistent parliamentary questioning and was not volunteered by the Government.

  10.  TAPOL urges the Government to look at this issue again and to introduce procedures for parliamentary and public inspection of licence applications in advance of the application being considered to allow adequate time for comment and debate. TAPOL notes that nearly half of the responses to the initial consultative document on "Strategic Export Controls" ("the consultative document" came from NGOs, church representatives and private individuals, reflecting the widespread public concern about the issue. It is wrong to deprive this constituency of any possible involvement in the export licensing process, especially as past experience has shown that unscrutinised licensing decisions may be made for reasons of political or commercial expediency.

  11.  TAPOL understands that satisfactory procedures for advance notification of strategic exports are currently employed in the USA and Sweden.

Purposes of strategic export controls

  12.  TAPOL notes the Government's decision to set out the purposes of strategic export control in secondary legislation. TAPOL is, however, concerned to note that the proposed purposes include "to avoid contributing to internal repression", but do not include "to avoid contributing to human rights abuses", which was identified as one of the current purposes in the consultative document. It is essential that this purpose is retained.

  13.  Alternatively, the secondary legislation should include a definition of internal repression which refers to human rights violations without qualification (the Government's current definition of internal repression, contained in the export licensing criteria announced in July 1997, refers to a major violation of human rights and fundamental freedoms). Strategic exports should not contribute to any degree of human rights violation.

  14.  The secondary legislation should make it clear that the purposes it sets out are the only purposes that can be taken into account. They should not, for example, be overridden by wider considerations relating to general foreign policy.

  15.  Even if these points are addressed, TAPOL doubts whether much will change. Considerable latitude is allowed to officials and ministers in interpreting the criteria used to determine whether a particular export breaches the purposes of export control. The guidelines relating to "internal repression" are hedged with so many qualifications as to ensure that almost any export can be allowed (as indeed they are in the case of Indonesia). Export licences will not be issued only "if there is a clearly identifiable risk that the proposed export might be used for internal repression". This includes "Equipment where there is clear evidence of the recent use of similar equipment for internal repression" and "Equipment which has obvious application for internal repression, in cases where the recipient country has a significant and continuing record of such repression". [All emphasis added.] In a clincher for the defence industry, the criteria allow exports to a country with a record of repression if "the end-use of the equipment is judged to be legitimate, such as the protection of members of security forces from violence".


  16.  The White Paper states that none of the proposals concerning export licensing procedures "would affect the right to seek judicial review of export licensing decisions, including decisions on appeal". In practice, unless the above proposals concerning the notification of licence applications are adopted, the option of judicial review still will be available only to an exporter who has been denied a licence. NGOs and private individuals who have sufficient legal interest (in the sense of representing public concern and, for example, the potential victims of human rights abuses) will be denied their legitimate right to judicially challenge a decision to issue a licence. This right is fundamental to democratic and open government. It is intolerable that it will not be available to third parties.

  17.  The opinion of judicial review is necessary, but not sufficient on its own, since the courts are reluctant to interfere with ministerial decisions. The Government proposes to allow licence applicants to appeal against a decision to refuse a licence within 28 days, but it does not propose to grant third parties the right of appeal against a licence being granted. TAPOL urges the Government to reconsider this point. There is no obvious reason why third parties should not be allowed to appeal provided they are able to establish sufficient interest and time limits are imposed. A right of appeal would be dependent on the notification of licence applications and must not preclude the right to seek judicial review.


Categorisation of equipment

  18.  For the reasons stated, TAPOL believes that parliamentary and public scrutiny of individual licence applications is vital to improved transparency and accountability. However, if the Government persists in its decision not to allow such scrutiny, it should at the very least address the problems caused by the practice of aggregating a range of equipment within a single export-control category (rating). This is clearly designed to cause confusion about the type of equipment covered by a particular licence. For example, category PL5001 (security and para-military police equipment) covers equipment ranging from water cannon to electric-shock batons to anti-riot shields and helmets. It is in the Government's interest to disaggregate equipment within licence categories to facilitate transparency and to aid the identification of equipment which might contribute to human rights abuses. TAPOL understands that the US has undertaken to resolve a similar problem by separately identifying individual items.

End-use monitoring

  19.  TAPOL is extremely concerned that the Government has not yet devised detailed proposals for end-use monitoring. In the case of Indonesia, there has been no attempt to monitor the use of equipment despite clear breaches of assurances by the Indonesian Government that equipment would not be used for internal repression. Monitoring is vital both to prevent previously-exported equipment contributing to human rights violations and to ensure that the Government is properly informed as to the possible use of equipment which is the subject of a licence application.

  20.  At present, the onus is on the victims of human rights violations to obtain evidence of the misuse of equipment, often at great risk to themselves. The burden of proof has been made impossible to meet by Foreign Office insistence that evidence must establish not only misuse of equipment, but also that it was not being used to protect security forces.

  21.  The Government has abdicated virtually all responsibility in this area. On one occasion, the Foreign Office responded to clear video evidence of the misuse of water cannon in Indonesia by referring to the evidence as "allegations", which would be "considered if we receive any application in future for export of similar equipment" [letter to TAPOL from private secretary to Foreign Secretary, 29 August 1997]. Credible evidence of the misuse of equipment should be investigated immediately, and a finding of misuse should result in the Government refusing to issue further licences to the country concerned. Delaying an investigation until a future application is received is, for obvious reasons, unacceptable.

  22.  TAPOL endorses the suggestions concerning end-use monitoring made by Campaign against Arms Trade in its response to the White Paper.

Location of export licensing authority

  23.  TAPOL regrets that the Government has failed to address the conflict of interest inherent in the dual role of the DTI in both promoting and licensing strategic exports. This means that export controls are weighted in favour of granting licences. This bias is increased by the rights of exporters to appeal and to seek judicial review, which are denied to other interested parties under current proposals (see above). TAPOL callsupon the Government to establish an independent licensing authority with responsibility for applications and the enforcement of export control legislation. All export licence applications should be circulated to the FCO, DTI and MoD, with a more active role in considering applications being played by the Human Rights Policy Department of the FCO.

September 1998

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