APPENDIX 6
Memorandum submitted by the Campaign Against
Arms Trade
SUBMISSION IN
RESPONSE TO
THE GOVERNMENT'S
WHITE PAPER
ON STRATEGIC
EXPORT CONTROLS
1. The Campaign Against Arms Trade (CAAT)
is opposed to all military exports, but recognises that, despite
their negative effects on human rights, security and the economy,
the trade in them will not end overnight. As an interim measure,
therefore, CAAT is seeking an export licensing policy with an
emphasis on restraint, reinforced by transparency, and far greater
opportunities for public debate. It is against this background
that CAAT responded, in October 1996, to the Department of Trade
and Industry (DTI) Consultative Document on "Strategic Export
Controls", and is making this submission in response to the
White Paper of the same name published on 1 July 1998. The submission
does not cover every issue raised by the White Paper, but focuses
on those of greatest concern to CAAT.
SECTION A—COMMENTS
ON PROPOSALS
MADE IN
THE WHITE
PAPER
Transparency
2. CAAT is profoundly disappointed that
the Government has decided not to allow parliamentary scrutiny
of individual export licence applications, before (or, indeed,
even after) the decision on whether to grant a licence has been
taken. (Clause 2.1.7 refers)
3. Transparency is an essential feature
of democracy, and citizens are entitled to know about the decisions
the Government is taking on their behalf. This is especially the
case on matters of ethical and economic concern such as arms exports.
Information is a prerequisite for informed debate, and its release
should take precedence over commercial confidentially, or the
military security interests of overseas governments. The Government's
lack of willingness to be open on this issue leaves a strong impression
that it has something to hide, that it is embarrassed about at
least some of its export licensing decisions, and unwilling to
defend them to the public.
4. CAAT would urge the Government to think
again and make all applications for military equipment export
licences available for public inspection 10 working days in advance
of the licence application being considered, in order to allow
adequate time for comment and, if necessary, debate. Copies of
the register should be lodged in the House of Commons' Library,
in the Export Market Information Centre, on an appropriate part
of the Internet, and other suitable places for public inspection.
5. A long debate on each of the thousands
of licence applications made annually would not be anticipated,
so CAAT does not believe that publicising individual export licence
applications would "inevitably slow down significantly the
process of decision-making". A register of applications,
such as the one suggested in point 4 above, would, however, provide
an opportunity for concerns to be raised about a particular sale
before the licence was granted. It would also allow those with
expert knowledge to question a series of seemingly innocuous exports
that might, for example, indicate missile proliferation. This
could complement the Government's own intelligence.
6. The publication by the Foreign and Commonwealth
Office (FCO) of an annual report on strategic exports is not an
alternative to an export licence applications register as it will
not ensure that individual licences are not granted in breach
of the purposes of export control.
Purposes of strategic export controls
7. CAAT welcomes the decision to set out
the purposes of export controls in legislation (Section 2.2 refers).
However, it should be made clear that these are the only purposes
that will be taken into account, and that they cannot be disregarded
by a Secretary of State for Trade and Industry who might feel
it politically expedient to so do.
8. The real test of the value of setting
out the purposes of strategic export controls in legislation will
be whether the Government adheres to them. This can only be seen
over time, and only then if measures to introduce transparency
with regard to individual licence applications, such as those
proposed by CAAT, are introduced. Without such detail, neither
parliamentarians nor the public will be able to consider whether,
for instance, a particular export might damage regional stability.
All consideration of, and debate about, the matter would remain
with Ministers and civil servants. This would, essentially, be
the same situation as at present, and the same as prevailed when
the decisions over sales to Iraq, as described in Sir Richard
Scott's Report, were made.
9. Assuming that details of individual export
licence applications and decisions do become public knowledge,
putting the relevant policy criteria into legislation as proposed
would allow the judicial challenge of a decision by the Secretary
of State for Trade and Industry. This would be welcome. A provision
should be made in the secondary legislation and/or guidance material
that would specifically allow third parties to challenge decisions.
"Catch all"
10. CAAT believes it is essential that some
form of military end-use, or "catch all", control be
introduced (Clause 5.1.2 refers), and is disappointed that
it should be seen merely as a possibility. All goods being transferred
from the UK to overseas military, security or police forces or
armaments-manufacturing bodies should be made subject to export
licensing controls. This would include goods being transferred
under Government-to-Government deals (which would thus receive
the extra scrutiny of the licensing process), or by the Crown
Agents, and of surplus stock.
The goods would include, not exclusively:
— arms, ammunition, implements or munitions
of war, any article deemed capable of being converted thereinto
or having a strategic or tactical value or nature;
— materials, equipment and technologies
which are designed or used for the development, production or
utilisation of arms, ammunition or implements of war;
— materials and equipment incorporating
technology, the acquisition of which would give assistance to
the development and production of arms, ammunition and implements
of war and their means of utilisation or delivery;
— materials equipment and technologies
which may be used for the production of arms, ammunition or the
implements of war or their means of utilisation or delivery;
— items to be produced under licence
in the purchasing country.
Where there is any doubt, or dispute, as to
whether or not goods being purchased would be going to a military,
security or police force or armaments manufacturing body, an export
licence should be required.
Intangibles
11. CAAT is pleased that the issue of the
export of intangibles, that is passing information about weapons'
designs to third parties overseas, has been addressed (Section
3.2 refers). It is, however, disappointed that the Government
proposes to limit the controls on this, for the time being, to
tecnhnology related to weapons of mass destruction and long-range
missiles.
12. It is important that controls should
be extended to all goods with a military end-user, for instance
as defined in point 10 above, as soon as possible. If this cannot
be done immediately for practical reasons, then a definite timetable
should be agreed now.
Trafficking and brokering
13. CAAT is also pleased that controls are
to be introduced on brokering (Section 3.3 refers), but
does not agree that they should be more limited, either in terms
of goods or of destination, than those on actual physical exports.
14. The Government appears somewhat naive
in its reliance on the export controls of overseas countries to
complement its own, as brokers can deliberately choose routes
through the countries with the weakest laws. This was illustrated
in the "Dispatches" television programme in March 1996
which showed an UK businessman offering to arrange the supply
of electro-shock weapons to Zaire. The equipment was to be made
in, and shipped from, Mexico. The owner of the factory there said
he could export to anywhere he chose, and that the Mexican government
presented no problem.
15. CAAT would also have liked to have seen
a register of brokers proposed, with failure to register such
activities made an offence under UK law. The registration documents
should be open to public and parliamentary scrutiny.
16. Certainly, the enforcement of controls
on trafficking and brokering is less straightforward than the
enforcement of controls on exports from the UK (Clause 3.3.3 refers).
This should not, however, rule out the imposition of controls,
and the investigation of the infringement of them when this is
brought to the notice of the appropriate authorities.
End-use controls
17. CAAT is dismayed that the Government
has made no concrete proposals with regard to End-use monitoring
(Section 5.2 refers), especially as many responding to the Green
Paper (including CAAT), had made detailed suggestions on this.
It is vital that the Government publishes its End-use proposals
without further delay to enable them to be considered alongside
the matters covered by the White Paper.
18. The following are the suggestions CAAT
made when responding to the Green Paper, and would still advocate
today.
(a) Applications for export permits should
not be approved in the absence of an End-User Certificate (EUC)
issued by the relevant government authority in the importing country,
and obtained by the export licensing authority in the UK. It should
indicate clearly the identity of the issuing authority, the name
and designation of the signatory, the specifications, serial numbers
and quantity of the armaments under consideration, and contain
a commitment not to resell or transfer the armaments without the
express permission of the UK export licensing authority.
(b) The terms for the licensed equipment
should be "cost, insurance and freight", ensuring that
the selling company is responsible for getting the equipment to
the port of discharge, and thus lowering the risk of diversion.
(c) The supplier should be required to obtain
a Delivery Verification Certificate (DVC) and to submit this document
within a prescribed period to the export licensing authority.
The DVC should be issued by the customs authority in the importing
country as proof that the goods have arrived in the designated
port of discharge and been collected by the designated purchaser.
(d) Customs and Excise should actively follow
up all intelligence concerning licensing violations, and also
do spot checks. These latter should be initiated, without prior
warning, on a random sample of licences granted to confirm that
the user of the equipment exported, and the use to which the latter
is put, is as stated on the export licence. Such a right of inspection
should form part of the export licence. Where abuse is discovered,
the Government should not issue new licences for the export of
military equipment to the country concerned. A refusal on the
part of the prospective importing state or party to permit verification
of end-use should be considered prima facie evidence of undesirable
practices and should preclude export.
(e) The management and directors of any company
found to be violating export licence regulations should be made
personally liable under criminal law for such infringements. The
company itself could be fined, have its goods seized or assets
sequestrated.
(f) The Government should refuse entry into
the UK to anyone proved to be concerned with miliary procurement
for countries subject to an arms embargo, and expel those already
operating here to a destination where their safety is ensured.
(g) Police and customs officials should give
priority to ensuring that the UK is not used as a centre for the
illegal supply of weaponry to countries against which an embargo
has been imposed by the United Nations or the European Union.
(h) The Government should use the appropriate
international fora to arrange co-operation between customs and
law-enforcement agencies to combat the illegal trafficking of
military equipment.
19. In the interim, CAAT would suggest that
all licences issued by the Export Control Organisation contain
re-export conditions. It is understood, from a DTI letter dated
9 July 1998 about exports to Chile, that such conditions are currently
the exception rather than the rule.
Location of export licensing work
20. CAAT is relieved that the Government
has rejected the suggestion by Sir Richard Scott to locate export
licensing within the Ministry of Defence (Section 5.3 refers).
CAAT would, however, have preferred the responsibility to have
gone to the FCO or, failing this, an independent licensing authority.
21. The announcement, by the Foreign Secretary
in May 1997, of a foreign policy with human rights at its heart,
gave hope that, under the incoming Labour Government, there might
be a change in direction from the promotion of arms exports, to
the reduction and eventual elimination of them. To facilitate
this, CAAT would have liked to have seen the appointment of a
Minister of State, within the FCO, with specific responsibility
for, and committed to, controlling and phasing out military exports.
22. As this change in direction by the Government
has not occurred, CAAT would urge that an independent licensing
authority be established. The DTI has trade promotion as one of
its major responsibilities. Keeping the export licensing function
within its remit would leave the DTI subject to conflicting pressures.
Similar pressures within the MoD were revealed in detail by Sir
Richard Scott. Then, the cautious line taken by Lieutenant Colonel
Richard Glazebrook, the MoD official responsible for assessing
the security implications of exports, was overridden by that of
the, more numerous, officials within the same department charged
with promoting arms sales. CAAT fears that the views of officials
from the relatively small export licensing department would be
equally disregarded in the DTI.
SECTION B—COMMENTS
ON OMISSIONS
FROM THE
WHITE PAPER
23. CAAT is disappointed that the White
Paper does not address either training, or the provision of mercenaries,
by the UK companies, government or citizens. It also fails to
cover production under licence. It hopes that Government will
address these omissions in the near future.
Training
24. The provision of training is as much
part of the arms trade as the provision of hardware, but at present
there appear to be even fewer controls over training.
25. A list of countries whose military or
security personnel are being trained by the UK Armed Forces or
in Ministry of Defence (MoD) establishments will, at present,
be given in answer to a parliamentary question. In the last few
months (see, for instance, Hansard, 22.7.98), in a departure from
former practice, additional information, for instance the numbers
of personnel being trained, and the name of the establishment,
has also been given.
26. CAAT welcomes this additional information,
but it is still insufficient to allow informed debate before the
training starts.
27. When it responded to the Green Paper,
CAAT made the following suggestions. It would still suggest that
in cases of training of overseas military, security or police
personnel by members of the UK Armed Forces or in Ministry of
Defence establishments, details should be available for public
inspection. The details should be lodged, one month in advance
of the confirmation of an offer of training, in the Library of
the House of Commons and in a suitable public place. The details
given should include the:
(a) country from which the prospective trainee
comes and military or other unit in which s/he is serving;
(b) name(s) of trainee(s);
(e) place/establishment of training.
28. Though information about training by
the UK Armed Forces and in MoD establishments is sparse, details
of training by private companies is virtually non-existent. Such
training is very occasionally reported by the media, usually when
it forms part of an equipment package.
Training of overseas military, security or police
personnel by private companies in the UK or by the company's personnel
overseas should be subject to licence, either
(a) as part of a licence for the supply of
military equipment when training is in the use of equipment made
by the company supplying the equipment; or
(b) through a specific licence for training
when this is not part of an equipment package.
A detailed prospectus of training should be
published in advance of the granting of such a licence.
Mercenaries
29. The provision of mercenaries to fight
overseas wars, both between countries and within countries, is
of concern to many. In December 1989, the United Nations General
Assembly unanimously adopted an International Convention against
the Recruitment, Use, Financing and Training of Mercenaries.
30. When it responded to the Green Paper,
CAAT urged the Government to sign and ratify immediately the UN
Convention on Mercenaries, and to introduce legislation to bring
UK law in line with it. FCO Minister, Tony Lloyd, in a letter
dated 6th July 1998, said that the UK had "not become party
to the Convention because we doubt it is legally enforceable.
The Convention's definition of a mercenary would make it difficult
to secure a conviction in an English court".
31. Earlier, in answer to a parliamentary
question on 30th June 1998, in the House of Lord, Mr Lloyd's then
colleague, Baroness Symons, said that: "We are examining
a number of options for national domestic regulation of so-called
private military companies operating out of the United Kingdom.
As part of this process, the Foreign and Commonwealth Office is
currently looking at measures taken by other governments, including
recent South African legislation."
32. Whether as part of these changes being
made to strategic export licensing, or separately, CAAT believes
that it is essential that mercenary activities are made illegal
without delay.
Licensed production, international companies,
and collaborative projects
33. Military production is becoming increasingly
internationalised. The White Paper does not consider how this
change can be reflected in export controls, but CAAT believes
this issue should be addressed without delay.
34. If a UK company licences the manufacture
overseas of military equipment, as defined in point 10 above,
the agreement should require an export licence even if no equipment
actually originates in the UK.
35. When military equipment is made by a
UK company in collaboration with an overseas company, by an overseas
subsidiary of a UK company or by an overseas company in which
a UK company has a participating interest of at least 20 per cent,
such goods would require a UK export licence before they could
be exported from the overseas country to a third country.
36. The management and directors of any
company found to be violating this regulation should be made personally
liable under criminal law for such an infringement. The UK company
itself could face prosecution under UK law, be fined, have its
goods seized or assets sequestrated.
CONCLUSION
37. The DTI's proposals in the White Paper
are not sufficient to fully assist in the implementation of a
UK foreign policy which puts human rights at its heart, and it
is important that amendments are made so that they do so. In particular,
it is vital that full information about export licence applications
is made public to enable a proper debate about an ethical issue
of widespread concern.
September 1998
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