ISSUES ARISING FROM THE DTI WHITE PAPER ON STRATEGIC EXPORT CONTROLS

Annual report

  AIUK welcomes the establishment of an Annual Report on strategic export controls and their application. AIUK recommends that the Trade and Industry Select Committee should press for this report to be fully comprehensive covering all military, security and police equipment and technology. AIUK recommends that the Annual Report includes:

—  a record of export licences granted and refused;

—  a dis-aggregated list of military, security and police equipment;

—  the amounts sold; to whom; and when the transfers took place;

—  human rights situation of all countries to which export licences were granted/applied for; and

—  recommendations for further improvements in the control regime.

  AIUK has sought clarification from the DTI as to whether the Annual Report will include information on:

—  Government to Government deals;

—  Government departments and agencies with exemption from export licence requirement;

—  MSP technologies or services that are exempt from export licence requirement; and

—  MSP transfers enabled under Open General Export Licences.

  AIUK believes that for an Annual Report to be adequately comprehensive it should contain the above information. AIUK recommends that the Trade and Industry Select Committee press for such information disclosure.

Prior parliamentary and public scrutiny

  An annual report—no matter how transparent and comprehensive—can never be a substitute for prior parliamentary and/or public scrutiny of individual MSP licence applications. AIUK believes that such prior scrutiny is vital to ensure that UK MSP transfers do not result in human rights violations in the recipient country. We are therefore very concerned and disappointed by the Government's decision not to allow such prior parliamentary/public scrutiny. AIUK recommends that the Trade and Industry Select Committee press for prior parliamentary scrutiny of licence applications.

Transfer of technology by intangible means

  AIUK believes that there is a strong case for the UK government extending the scope of intangible technology transfer control to that of technology specifically used for torture or cruel, inhuman and degrading treatment (CID). Furthermore the intangible transfer of other technology/equipment banned under UK, international human rights or humanitarian law, eg dum dum bullets, landmines, laser blinding weapons should similarly be controlled. AIUK recommends that the coverage of such controls should also extend to oral and practical demonstrations. For example training in the techniques of torture or cruel, inhuman or degrading treatment should be prohibited.

Trafficking and brokering

  AIUK recommends that all proposed transactions of military, security, police and dual-use equipment—including brokering and trafficking—should be subjected to the licensed approval of the government. An important first step would be the establishment of a register of arms brokers.

  AIUK strongly welcomes the DTI White Paper recommendations to prevent any person in the UK or UK citizen overseas from trafficking/brokering torture equipment. AIUK believes this prohibition should also cover death penalty technology and equipment which causes cruel, inhuman and degrading treatment. These proposals should also include the terms "promotion" and advertising of all such equipment, as UK companies and nationals have been found to advertise internationally the availability of such equipment, while at the same time denying they will sell it. The ban should also cover the "design" and "installation" of such equipment.

Time limits for processing licence applications

  AIUK strongly supports the Government's decision to reject licensing by default. If a default system of licence approval were introduced there is a very grave danger, due to time/resource constraints, that licences could be granted by default for MSP equipment which could result in human rights violations in the recipient country.

Appeals

  AIUK is concerned at the decision to deny third parties the right to appeal against the granting of specific licences, especially when coupled with the lack of any adequate prior parliamentary or public scrutiny on individual licences. Without adequate external monitoring of the export control system from parliamentarians, NGOs or the public, and the ability of informed third parties to intervene and bring to light new information—important checks and balances to the system will be lacking and the danger of licence approvals for MSP transfers which could result in human rights violations, is thereby increased.

End-use monitoring

  The end-use monitoring system requires major procedural improvements to ensure that it operates effectively—with much tighter sets of monitoring and audit procedures enforced. Export licences should have legally binding human rights/non-diversion agreements in them which if broken lead to immediate revocation. Such systems need to be fully integrated with our EU partners. AIUK recommends that the Trade and Industry Select Committee request that the DTI brings forward proposals for improving end-use monitoring as a matter of urgency.

Location of the export licensing authority

  AIUK recommends the establishment of a single, independent authority with responsibility for both export licence applications and enforcement of export control legislation. This approach avoids conflict of interests—the MOD, FCO, DTI, and intelligence agencies would be consulted, circulated information and given opportunities to input, but prime responsibility for overall control and enforcement would be located in one independent authority which would not have a contradictory promotion role. This option would also help to alleviate the information delays between the export licence process and the export control enforcement process as identified in the Scott Report. One possibility would be to locate the new single, independent export control authority within HM Customs and Excise.

Additional concerns not directly addressed in the DTI White Paper

Overseas Licensed Production

  Amnesty International strongly recommends that all overseas MSP licence production deals should be treated as are standard MSP equipment transfers and require an export licence. The UK should not allow the licensed production of MSP equipment where there is a risk that it will be transferred to sensitive or proscribed destinations. Also no licensed production deals should be allowed to countries which have been documented as committing gross human rights violations using the class of equipment which is the subject of the licensed production deal. The export control legislation should also contain appropriate powers to enable the government to revoke a licensed production agreement if the equipment licensed is subsequently shown to have been used to commit gross human rights violations.

Control of mercenaries and military consultants

  AIUK believes that military consultants and companies providing MSP personnel and mercenaries should be strictly regulated. Such companies should be registered and all MSP transfers of equipment, technology, training or personnel they provide should require the licensed approval of parliament.

 SECTION 1: INTRODUCTION

  Amnesty International United Kingdom (AIUK) welcomes the opportunity to present evidence to the Trade and Industry Select Committee on the UK strategic export control process and its application.

  This paper is based upon Amnesty International's policies on the transfer of military, security and police (MSP)[1] goods and services, and the widespread concern amongst AIUK's membership and the UK public about the potential use of such goods or services exported from the UK, by governments which have committed grave human rights violations.

  Amnesty International takes no position on the use or otherwise of arms embargoes, boycotts and other sanctions, or the arms trade per se. Amnesty International is however opposed to military, security and police transfers which contribute to human rights violations such as extra-judicial executions, "disappearances", indiscriminate killings in armed conflict, arbitrary detention of political opponents, the imprisonment of prisoners of conscience, the death penalty, torture or other cruel treatment of prisoners or detainees. In our opinion, governments have a responsibility to ensure that such MSP transfers do not contribute to grave and serious human rights violations either by governments or by armed opposition groups.

  AIUK believes the UK export control procedure must cover the full range of military, security and police (MSP) technology, equipment, training and personnel transfers, as well as direct logistical or financial support for such transfers.

  Export should be prohibited in the following circumstances:

(i)  the sole or primary practical use for the transfer is to commit human rights violations (eg torture, cruel, inhuman or degrading treatment, the death panalty and extra-judicial execution);

(ii)  the transfer of the type/class of equipment has been shown in practice to contribute to such violations in the receiving country;

(iii)  the transfers support those specific military, paramilitary or security units which are significantly responsible for such violations;

(iv)  the transfers could (or have been shown in the past to) contribute to indiscriminate killings.

  Throughout this paper, all numbering refers to specific sections and paragraph clauses in the DTI White Paper. Extracts taken from the White Paper are in italicised text.

SECTION 2: ACCOUNTABILITY IN STRATEGIC EXPORT CONTROLS

2.1  Parliamentary scrutiny

  2.1.8. . . . the Government is committed to greater transparency in the field of strategic exports and will report annually on the state of strategic export controls and their application. This is consistent with the Government's proposals for a Freedom of Information Act. It is likely that various Select Committees will wish to examine the annual report which, in turn, may lead to a parliamentary debate on it. In addition, in July 1997, we announced, and have made widely available, new criteria for use in considering individual applications for licences to export conventional arms and dual-use goods where there are grounds for believing that the end-user would be the armed forces or internal security forces of the recipient country.

  AIUK welcomes the Government's commitment to publish "an Annual Report on strategic exports". Such proposals reinforce the Foreign Secretary's policy statement of 28th July 1997:

"The Scott Report on the supply of arms equipment to Iraq revealed the dangers of such decisions being taken in secret. In order that parliament and public can observe that the new policy is being enforced, I am today committing the Government to an annual report on the application of arms exports. An informed public debate is the best guarantee of responsible regulation of the arms trade.".

  AIUK fully endorses the Foreign Secretary's statement on the need for both parliamentary and public scrutiny of the arms trade. Proposals for an Annual Report are an important contribution to such scrutiny and informed debate. However an Annual Report, in itself, is not sufficient. It must be augmented by a strong Freedom of Information Act and mechanisms for prior parliamentary and public scrutiny of individual MSP licence applications (discussed below).

  Whilst welcoming the establishment of an Annual Report, AIUK believes that such a report must be fully comprehensive to enable effective parliamentary scrutiny. AIUK recommends that the Trade and Industry Select Committee should press for this report to be fully comprehensive covering all military, security and police equipment and technology. AIUK recommends that the annual report includes:

—  a record of export licences granted and refused;

—  a dis-aggregated list of military, security and police equipment;

—  the amounts sold; to whom; and when the transfers took place;

—  the human rights situation of all the countries to which export licences were granted or applied for; and

—  recommendations for further improvements in the control regime.

  It is worth emphasising that information contained in the proposed Annual Report should be dis-aggregated into meaningful categories so that specific classes of military, security and police transfer can be easily identified. Such a system would be similar to the level of detail incorporated into the superseded COCOM dual-use regulations. For example, a typical current category of MSP equipment that is of great concern to Amnesty International is identified by the Export of Goods (Control) regulations 1995 as "PL5001". This is an aggregate category which includes the following equipment, namely:

  "Security and para-military police equipment, the following:

(a)  Acoustic devices represented by the manufacturers or suppliers thereof as suitable for riot control purposes, and specialised components therefor;

(b)  Anti-riot shields and components therefor;

(c)  Leg Irons, shackles (excluding handcuffs) and gangchains, specially designed for restraining human beings;

(d)  Portable anti-riot devices for administering an electric shock or an incapacitating substance, and specialised components therefor;

(e)  Water cannon and components therefor;

(f)  Riot control vehicles which have been specially designed or modified to be electrified to repel boarders."

  It is impossible on the basis of currently supplied information covering this category to ascertain whether a particular transaction is for a quantity of electro-shock weapons or a shipment of shields. A similar dilemma previously emerged in the United States and was resolved by a provisional commitment by the US Government to dis-aggregate this classification of equipment.

  Similar problems arise with the ML10 category which covers both parachutes and combat aircraft, and ML6 which includes armoured personnel carriers and bullet proof tyres. The UK Government should dis-aggregate such categories of equipment since this is vital to facilitate transparency, and enable effective parliamentary and public scrutiny. The annual report and the Freedom of Information Act will not be credible unless the data released is accurate, comprehensive and presented in a meaningful form.

  It should be noted that such a meaningful breakdown of information would limit those occasions where the Government is unfairly criticised for granting licences for sensitive MSP equipment to human rights abusing countries, when in fact the licences granted were for innocuous equipment classified under the same military list category.

  In this regard we note the positive statement published in the Foreign and Commonwealth Office (FCO) daily briefing of 24 June 1998: "The Government recognises that the categories in the Military List are broad and that wrong conclusions can be drawn about the details of licences which have been granted. That is why it is committed to publishing an open and transparent Annual Report on Strategic Export Controls to allow public scrutiny of the application of its export licencing policy. The report will make clear what military equipment has been licensed for export on a country by country basis."

  Furthermore, on 14 July 1998, Foreign Office Minister, Tony Lloyd stated that the report: "will list by country of destination the numbers of export licences issued in each equipment category and give details of the military equipment for which licences have been granted; and will set out the value of defence exports to each country."

  The provision of such information could be achieved at little cost if current data on military, security and police transfers held by HM Customs computers was placed in the public domain.

  This data currently has the status of "suppressed data". Such data merely provides details of country, value, weight, per year/code but not the exporting Company's name and address and therefore there should be no suggestion that such information provision breaches any considerations of "commercial confidentiality".

  It is currently understood that the Annual Report will contain information on the number and categories of Export licences granted and refused for each country and that limited information will be provided concerning the type and amount of equipment covered within the licences granted. Also that in addition, certain information on the Open Individual Export Licences will be included.

  However, AIUK has concerns that the Annual Report may not provide the Select Committees, Parliament, and therefore the public, with a comprehensive and accurate statement of the extent and nature of MSP transfers from the UK. AIUK has sought clarification from the DTI as to whether the Annual Report will include information relating to the following types of MSP transfer:

  1.  Government to Government deals.

  MSP transfers from such Government-to-Government deals as the £20 billion Al Yamamah deal between the Saudi Arabian and UK governments are understood to be exempt from Export Licence requirements. The secrecy surrounding such deals, as signalled by the still as yet unpublished National Audit Office report into the Al Yamamah deal, raises concerns that such MSP transfers will not be included in the Annual Report.[2]

  2.  Government departments, agencies and organisations with exemption from export licence requirement.

  Government should identify how it will report MSP transfers by Government agencies that are exempt from export licence requirement. The Department of Trade & Industry (DTI) should also identify those agencies that are exempt from export licence requirement by means of `crown immunity', such as possibly DESO, the Disposal Sales Agency (DSA) and the Crown Agents and clarify how any MSP transfers by such agencies will be reported to Parliament.

  3.  MSP technologies or services that are exempt from Export Licence requirement.

  The Government should identify the range of technologies and services that do not require an export licence if transferred to a `police' end user but which would require a licence if destined for `military' end use.[3]

  4.  Open General Export Licences.

  A wide range of MSP transfers are `licenced' by the Department of Trade & Industry under the aegis of Open General Export Licences (OGELs). Such licences permit the export of a wide range of MSP equipment and technologies to a wide range of countries. However, the OGEL does not require a company to apply for an export licence from the DTI. The company does have an obligation to notify the DTI that such transfers have taken place within 30 days of shipment.

  Recent Parliamentary Answers have identified that MSP equipment may have been transferred to a number of destinations, under OGELs, but that the DTI have been unable or unwilling to supply detailed data.[4]

  Whilst the companies should supply the Department of Trade and Industry with details of MSP transfers within 30 days of shipment, this information has not been provided in response to Parliamentary Questions and it would appear that such information is not being recorded on the ECLIPS computer system. AIUK strongly recommends that the Annual Report should contain information on MSP transfers permitted under the Open General Export Licences and the OGEL Transhipment Licences.

  AIUK believes that for an Annual Report to be adequately comprehensive it should contain the above information. AIUK recommends that the Trade and Industry Select Committee press for such information to be disclosed, so that it can effectively monitor government policy in this area.

  AIUK also has concerns regarding the differing requirements for retention of information relating to OGELs between government departments and private sector companies. It is currently understood that information relating to Export Licence applications held by government departments is not currently being destroyed. [5]This retention of information requirement contrasts sharply with that required of private companies who can currently destroy such records three years after the year of shipment.

  Given that many human rights violations are not investigated for many years, if not decades, Amnesty International is concerned that the destruction of such records may prevent the investigation of British companies that may have had complicity in supplying MSP equipment to countries that have committed serious human rights violations.

  The above is taken from a reply to the following question by Ann Clwyd MP. To ask the President of the Board of Trade if she will provide details of the export licences (a) granted since 1988 and (b) pending for the export of tear gas and plastic baton rounds to Kenya. 18th December 1997.

  2.1.6/2.1.7  The Government does not consider that there should be parliamentary scrutiny of individual applications either before or after the decision on whether to grant a licence has been taken. Parliamentary scrutiny before licence decisions are taken would inevitably slow down significantly the process of decision-making on those licence applications. Furthermore, any process involving publication of individual applications, whether before or after decisions have been taken would mean identifying companies and the nature of thier planned or actual export business which would be likely to harm their competitive position. Overseas Governments would also have a legitimate concern about the details of their purchases of defence-related equipment being made known to, for example, neighbouring countries. There would be a danger that they would seek in future to buy equipment from countries which would not disclose details of individual contracts.

  An annual report—no matter how transparent and comprehensive—can never be a substitute for prior parliamentary and/or public scrutiny of individual MSP licence applications. AIUK believes that such prior scrutiny is vital to ensure that UK MSP transfers do not result in human rights violations in the recipient country. We are therefore very concerned and disappointed by the above proposals. AIUK recommends that the Trade and Industry Select Committee press for prior parliamentary scrutiny of licence applications.

  Because of the potentially grave consequences of MSP equipment exported from the UK facilitating human rights violations in the recipient countries, AIUK believes that in this instance, commercial confidentiality cannot be given absolute protection. The subjugation of commercial confidentiality to other factors, particularly the public interest, is already recognised by the Government in a variety of ways[6].

  AIUK recommends that a register should be established for all licence applications involving MSP transfers which will be open for public and parliamentary inspection in advance of the licence application being considered, to allow adequate time for comment, debate and proper consideration of any human rights implications. The register should include disaggregated data (as recommended for the annual report). The company details need not be included.

  Such data could be placed as a matter of course on the DTI web page. This would entail little expense in time or resources. If such data is placed in the public domain at an early stage in the licence determination process, and with a strict deadline, then no delays in licence processing need result.

  It is not anticipated that such provisions will lead to a comprehensive debate on each of the thousands of licence applications received each year, but a small number which raise potential human rights concerns, could thereby be identified at an early stage by human rights watchdogs—be they NGOs or MPs.

  Other successful arms exporting nations have structures for parliamentary scrutiny. In Sweden for example, a parliamentary select committee vets sensitive licence applications. The US administration has a legal requirement of prior and public disclosure. Any US company which seeks to export arms valued in excess of $14 million must give 14 days advance notice to Congress. Such a legal requirement for disclosure does not seem to have damaged US companies' ability to compete in the world arms market.

  It is also useful to consider who is being protected by the use of "commercial confidentiality". The arms industry is well served with a host of public information sources such as Jane's Defence Weekly, Military Technology, etc and a number of private industry newsletters, plus an extended "contract" grapevine. The industry itself and national governments are usually well aware of which companies have obtained specific deals—even when they are supposedly confidential. It is merely parliamentarians and the public who are "protected" from information as a result of such "commercial confidentiality" clauses.

  In this respect it is worth considering the Report by the Parliamentary Commissioner for Administration to: The Rt Hon Andrew Smith MP of his investigation into a complaint made by Mr Hugh Warwick, 6th February 1998:

  "In the Report of his Inquiry Sir Richard Scott explored the three main points underpinning the thinking behind the policy `not to make public details of export licence applications' (Vol I, D1.29, D2.432) in the context of exports to Iran and Iraq. First, it was the Government's duty to maintain commercial confidentiality by not disclosing details of individual ELA's. Secondly, to publish details would expose the Government to pressure at home and abroad. Finally, details from ELA's could be misleading because not all goods licensed were actually exported. Sir Richard Scott concluded (Vol I D2.434) that the first and third grounds were "insubstantial". He maintained that it should be possible to release some information without giving actual details (while accepting elsewhere that commercial confidentiality might constitute a reasonable defence). He also dismissed the second ground, which he suspected of being the main reason behind the refusal to disclose information. At home, the avoidance of criticism was not an acceptable reason to withhold information from Parliament, and therefore the public, about the activities of Government. [p 5/6]

  [p 10] It may be that those exemptions could and should apply to some information contained in some ELAs; but the Code requires that each case should be examined on its own merits. It does not convince me that DTI should pray in aid of a blanket policy of non-disclosure when information of the type Mr Warwick sought was already in the public domain . . . "

2.2  Purposes of strategic export controls

  2.2.2  The Government considers that it is right that the purposes of strategic export controls should be set out in legislation. This will contribute to greater transparency of export licensing policy . . . Orders introducing or amending the purposes should come into force with immediate effect, but require approval by Parliament within a set timescale in order to remain in force.

  2.2.3  We propose that secondary legislation should provide that the purposes of strategic export controls are: . . .

". . . to avoid contributing to internal repression"

  Amnesty International welcomes the Government's decision to set out the purposes of strategic export controls in legislation, with any subsequent amendments needing approval from Parliament. Amnesty International would however recommend that there is a reference to human rights in the primary legislation—thereby setting concern for human rights at the heart of its policies on strategic export controls. This should then be coupled with more detailed criteria set out in the secondary legislation.

  AIUK has previously welcomed the publication of the human rights criteria to be used to decide whether a country will receive equipment, which were announced by Foreign Secretary Robin Cook in July 1997. The publication of such criteria is an important step towards an accountable export control system and a break from the practices of previous UK administrations, whether Labour or Conservative. The guidelines themselves are also a marked improvement on what went before. However the criteria are still vague and problematic in many areas and open to subjective interpretation.

  A major area of concern is the use of the term "internal repression". This phrase is ambiguous and not adequately comprehensive. It is not used in international human rights or humanitarian law. Its use as part of the export control criteria introduces a loophole which potentially could allow MSP transfers of concern to AIUK.

  Under this wording, the UK control system could allow the UK to issue licences for MSP transfers to recipient forces even if they are likely to commit breaches of humanitarian law in the context of an internal armed conflict. This wording may allow MSP transfers to those forces even if they are likely to be used to abuse human rights and violate humanitarian law outside their own borders, for example, when serving in other countries or during cross border attacks on their own nationals who have fled internal fighting. So arms authorised, for example, to Turkey could be used against the Kurds in Northern Iraq. Since many of the worst atrocities and repressive acts are committed in the context of armed conflict, these are serious flaws in the control system.

  AIUK strongly believes that the Government should clarify that the term "internal repression" will mean violations of international human rights standards and/or humanitarian law.

  A further area of concern is a loophole in the human rights criteria whereby licences will not be granted for the export of equipment with obvious application for internal repression where the recipient has "a significant and continuing record of such repression unless the end-use of the equipment is judged to be legitimate, such as protection of members of the security forces from violence." Such a loophole could allow repressive states to receive a wide range of MSP equipment "for their own protection". During the EU Code of Conduct negotiations a similar loophole was deleted from the text and does not appear in the final Code wording. At present both the UK and EU sets of criteria are working simultaneously, an ambiguous and potentially dangerous situation which would be remedied if the above-italicised clause were deleted from the UK criteria.

  AIUK note's that the DTI White Paper declares that a further purpose of the strategic export controls is:

"to adhere to the United Kingdom's international obligations and commitments, including international arms embargoes and international control regimes"

  UK governments have ratified a number of international instruments, including the International Covenant on Civil and Political Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Convention against Torture and other Cruel, Inhuman and Degrading Treatment.

  Furthermore under Article 1 of the Geneva Conventions, states have a responsibility to "respect and ensure respect" for international humanitarian law—which has been primarily designed to protect those not actively participating in hostilities during both international and non-international conflicts. AIUK believes that the right to transfer arms cannot take precedence over the duty to ensure respect for such law, and this obligation should be explicitly recognised.

  It is the responsibility of Government and in particular the DTI, MOD, DIFID, Customs and Excise and the FCO to ensure that the UK's international human rights and humanitarian law obligations, as well as its ethical foreign policy, are not undermined by inadequate control of UK MSP transfers. AIUK therefore welcomes the inclusion of the adherence of the UK's "international obligations and commitments" in the purposes of the export controls.

SECTION 3: POSSIBLE EXTENSIONS OF SCOPE OF EXPORT LICENSING POWERS

3.2  Transfer of technology by intangible means

  To introduce a new power to control transfer of technology by intangible means eg via fax or e-mail.

  3.21 . . . While this power would enable the Government, if need arose, to introduce the same controls on other types of technology, we propose for the time being, to limit this wider offence to technology related to weapons of mass destruction and long-range missiles. The Government considers that it is right that controls on the transfer of information orally or through personal demonstration should be limited to the areas of greatest concern, in view of the difficulties of licensing such transfers, both for applicants and for the licensing authority, and given also that there are sensitivities in relation to free speech and academic freedom.

  AIUK believes that there is a strong case for the UK government extending the scope of intangible technology transfer control to that of technology specifically used for torture or cruel, inhuman and degrading treatment (CID). Furthermore the intangible transfer of other technology/equipment banned under UK, international human rights or humanitarian law. Eg dum dum bullets, landmines, laser blinding weapons should similarly be controlled. AIUK recommends that the coverage of such controls should also extend to oral and practical demonstrations. For example training in the techniques of torture or cruel, inhuman or degrading treatment should be prohibited.

  The position of death penalty technology needs clarification, as such equipment was not specifically in the Foreign Secretary's statement detailing prohibited exports, which he made in July 1997. AIUK strongly believes that the manufacture, trade, brokerage and technology transfer (whether tangible or intangible) of such equipment should also be banned absolutely. Such a position would be in line with the recent UK abolition of the death penalty for peacetime offences.

3.3  Trafficking and brokering

  3.3.1/3.3.2/3.3.3  The 1939 Act gives the Government power only to control the physical exports from and imports to the UK. As such, it does not allow the Government to impose controls on the involvement of persons in the UK or UK persons abroad in trafficking in goods between overseas countries or in brokering such deals . . . However the Government does have the powers to control trafficking and brokering under the United Nations Act 1946 where this is necessary to implement a binding United Nations decision.

  The Government believes that it would be right in principle to control the involvement of persons in the UK or UK persons abroad in trafficking and brokering in controlled goods to countries that are the subject of other types of embargo, whether as a result of non-binding decisions of the UN or decisions of the EU, OSCE or the UK Government.

  Amnesty International is very concerned at the existing loophole in the UK export control, which allows the virtually uncontrolled brokerage and trafficking of MSP equipment by UK companies.

  There are reported to be over 300 arms dealers and brokers active in London alone. In the past such brokers have arranged arms sales which contributed to the genocide in Rwanda[7], others have been caught on film, trying to arrange deals for the trade in electroshock batons[8]. The most recent example of brokerage has been the arms to Sierra Leone affair[9].

  On 27 July 1998, in response to the Legg Report, Robin Cook announced that:

"The Legg Report finds that there was not `a sufficiently high priority' for the enforcement of sanctions. There was a dedicated sanctions enforcement desk in the Foreign Office but the previous Government abolished it in 1996. I can tell the House that I have instructed that such a central unit shall be restored. It will be led by an official whose sole function is to make sure that the enforcement of sanctions receives the full priority that they deserve."

  This statement on sanctions enforcement together with the above proposals of 3.3.1-3.3.3 are welcomed by AIUK. However they will only deal with part of the problem—the control of brokering and trafficking when embargoes are in place. AIUK recommends that all proposed transactions of military, security, police and dual-use equipment—including brokering and trafficking—should be subjected to the licensed approval of the government. An important first step would be the establishment of a register of arms brokers. Controls on brokers are already in place in a number of countries such as Germany.

  3.3.1/3.3.2  To introduce a new power to control trafficking and brokering. It is proposed that this should be used to prevent any person in the UK or UK citizen overseas from trafficking/brokering arms to embargoed destinations or trafficking (brokering) in goods of a type for which there is evidence of their use in torture.

  These recommendations are very strongly welcomed by AIUK. They are a major step forward to ensuring that UK companies will not in future trade in the weapons of torture. The failings of the present system to stop this trade and the vital need to bring these measures into force as swiftly as possible has been underlined by a recent article in the Evening Standard (Tuesday 23 June 1998): Yard exposes loophole in "tools of torture" ban. The report highlights the 18 month police investigation into the activities of a London businessman, David Knights, after he admitted selling a consignment of 200 electro-shock batons to the Cyprus police. Evidence of electro-shock torture by the Cyprus police has been documented by the Council of Europe's Committee for the Prevention of Torture (ECPT) and sightings of police officers carrying such batons in riot control situations were reported in 1996. It was reported, in the Evening Standard, that the Crown Prosecution Service has ruled that Mr Knights cannot be charged with any offence because the weapons were bought in the US and were not imported through Britain, even though the deal was brokered here. The CPS has now raised the issue with the Home Office. Although brokering torture equipment is not covered under the existing Firearms Act it may well be covered by other legislation. [10]

 The proposals outlined in 3.3.1-3.3.2 to ban future trafficking and brokering of such equipment should also cover death penalty technology and equipment which causes cruel, inhuman and degrading treatment[11]. These proposals should also include the terms "promotion" and advertising of all such equipment, as UK companies and nationals have been found to advertise internationally the availability of such equipment, while at the same time denying they will sell it. The ban should also cover the "design" and "installation" of such equipment. Again for such measures to be effective they need the full support of all relevant Government departments, law enforcement agencies and related bodies. All loopholes and inconsistencies must be removed. For example, the registration by the UK authorities of patent applications of "intellectual property" rights for equipment that has been shown to facilitate torture[12] must be halted immediately and existing patents revoked. This registration has occurred despite the powers of the Comptroller of the Patent Service to deny patents on the following grounds: "565 (e) that [it] is socially objectionable, or 566 (a) for an invention . . . which would generally be expected to encourage offensive, immoral or anti-social behaviour" [Halsbury's]

3.4  Enforcement

  3.4.1  To assist in the enforcement of the expanded offences relating to weapons of mass destruction as well as on intangible transfers and trafficking and brokering, the Government proposes that new legislation should give HM Customs and Excise (HMC&E) the powers to require the production of records in respect of such transfers. The Government also considers there would be a case for giving HMC&E the power to require provision of information about supplies on the lines of the powers contained within the Sanctions Orders made under the United Nations Act 1946.

  Amnesty International notes the enhanced enforcement powers of Customs and Excise to demand records relating to trafficking and brokering, etc. AIUK believes such powers should be extended to cover brokering/trafficking of all MSP transfers and all intangible transfers of torture, CID and death penalty technology and training. AIUK recommends that Custom and Excise and the other law enforcement agencies involved in the control of MSP transfers should be adequately resourced to enable them to handle the extensions in their working remits.

 SECTION 4: EXPORT LICENSING PROCEDURES

4.4  Time limits for processing licence applications

  4.4.1  Sir Richard Scott recommended that export licence applications should be deemed granted unless refused within a prescribed time limit|The Government|has concluded that licensing by default should not be adopted as it would introduce a risk of licences being granted that were contrary to the UK's international obligations or the Government's own policy.

  AIUK strongly supports the Government's decision. If a default system of licence approval were introduced there is a very grave danger, due to time/resource constraints, that licences could be granted by default for MSP equipment which could result in human rights violations in the recipient country.

4.6  Appeals

  4.6.3  The Government does not propose to grant third parties the right to appeal against a licence being granted.

  AIUK is concerned at this decision especially when coupled with the lack of any adequate prior parliamentary or public scrutiny on individual licences. Without adequate external monitoring of the export control system from parliamentarians, NGOs or the public, and the ability of informed third parties to intervene and bring to light new information—important checks and balances to a system will be lacking. This increases the danger that an overstretched and under-resourced system may result in licence approvals for MSP transfers which could facilitate human rights violations.

  On 28 July 1997 the Foreign Secretary Robin Cook announced: `The Scott Report on the supply of arms equipment to Iraq revealed the dangers of such decisions being taken in secret. In order that parliament and public can observe that the new policy is being enforced, I am today committing the Government to an annual report on the application of arms exports. An informed public debate is the best guarantee of responsible regulation of the arms trade.'

  Although the importance of such public debate in terms of the annual report should not be underestimated, the most important time to have such discussions are when decisions on licences are being made. Academics, journalists, non-governmental organisations such as Amnesty International and country experts can all have an important role in this debate, helping to ensure that MSP transfers are not allowed to countries where they could facilitate human rights violations.

SECTION 5: OTHER ISSUES NOT REQUIRING PRIMARY LEGISLATION

5.1  Coverage of controls

  5.1.1  The 1996 consultation exercise sought views on the technical detail of the goods subject to export control as listed in the Export of Goods (Control) Order 1994 and the Annex to Council Decision 94/942/CFSP on the control of exports of dual-use goods. Attention was drawn in particular to the difficulties associated with interpretation of the phrase "specially designed". In the light of the results of the consultation and Sir Richard Scott's comments, the Government is developing proposals for defining the terms "specially designed" and "specially designed for military use" as used in the EGCO and the Dual-Use and Related Goods (Export Control) Regulations. It is hoped that consulting in Europe and more widely will lead to their adoption internationally.

  5.1.2  The Government is also looking at the possibility of introducing some form of military end-use or "catch-all" control. In parallel, the European Commission has also made proposals for a military end-use control on exports of dual-use goods to UN-embargoed destinations.

  Amnesty International would strongly support the introduction of a military end-use control. Amnesty International believes that this should be extended to become a military, security or police "catch all" control.

  Much of what Amnesty International would argue needs to come under the scope of strategic export controls is dual use or multi use equipment, or equipment which comes under the ambiguous definition of "internal security equipment". The Scott Report recognised this problem when it pointed out that:

"It should be borne in mind that `defence equipment and defence related' equipment may include items licensable under the Industrial List, as well as items licensable under the Military List. `Dual use' items are capable of being put to a military or a civilian use . . .This point, obvious though it may seem, is worth making, particularly because in a memorandum dated 23 November 1992 to the Secretary of State for Defence, Mr Allan Thomas, the current Head of DESO (HDES), said (inter alia) that `British guidelines referred only to defence equipment not to dual use goods . . .". The Scott Report said this statement was significant because "it reveals an important misunderstanding of the breadth of the meaning to be attributed to the expression `defence equipment' . . ." [Scott D1.2]

  This confusion of meanings is at the heart of Amnesty International's concerns. A technology considered to be appropriate for modern law enforcement in one state, can become an advanced political control system in a country where human rights are not respected and can itself facilitate human rights violations. AIUK is concerned that such technology transfer is not adequately controlled. The present ambiguities in the control procedures for such equipment can be seen with respect to the transfer of firearms training systems. [13]

  Internal security technology which might fall within this category does not just cover public order equipment: area denial technologies such as electroshock fences can be used to seal off no-go areas; data processing and Command, Control, Communication and Information (C31) technologies can facilitate the tracking of political dissenters; prison and restraining technology, particularly if it incorporates maiming and execution functions, can be used directly to violate human rights, as can the range of so called "less-lethal weapons" eg CS gas, and plastic bullets, which Amnesty International research shows have been used to punish civilians indiscriminately. More-lethal weapons, discreet order and internal security vehicles, and specialised ammunition such as dum-dums, can facilitate indiscriminate killing, "disappearances" or extra-judicial executions.

  Security-related technology is continually being updated and the associated training packages offered by certain companies can lend such technologies to new means of violating human rights. Even apparently innocuous technologies such as traffic control camera systems have been used in the mass capture of students participating in pro-democracy protests (for example Tiananmen Square, China). A similar system has been installed in Lhasa (Tibet Autonomous Region of China) even though the capital has no real traffic congestion problem. UK companies also, in the past, supplied the computers to automate the pass laws in South Africa. Likewise modern digital telephone systems are being produced with an in-built hard-wired capacity to turn any phone on the system into a "bug", whereby room conversations can be recorded and monitored by a central control room. If such systems are licensed for transfer from the UK to a country such as China or Indonesia they may be used to facilitate human rights violations.

5.2  End-use monitoring

  In February 1997, Labour committed itself, if elected, to strengthen monitoriing of the end-use of defence exports to prevent diversion to third countries and to ensure that exported equipment is used only on the conditions under which the export licence has been granted. . . The Government is currently reviewing the options.

  AIUK is concerned that after a year and a half in office, the Government has done nothing to tighten up the presently woefully inadequate UK procedures for establishing and monitoring the end-use of MSP equipment. Without proper monitoring, the whole arms control system will be called into question. AIUK recommends that the Trade and Industry Select Committee request that the DTI bring forward proposals for improving end use monitoring as a matter of urgency.

  The Scott Report revealed in great detail the extent to which the various bodies involved within the export licensing application system allowed lethal and non-lethal MSP transfers to a number of countries that were known to be diversionary routes to Iraq. These countries have included: Jordan; Egypt; UAE, Saudi Arabia; Portugal and Austria.

  In addition the Government has acknowledged that it did not always insist that companies selling arms-related equipment to Iraq and Iran in the 1980s supply Whitehall with end-user certificates specifying the precise destination (see Guardian, 8 June 1996—parliamentary answer to Stephen Byers MP).

  A number of countries are well known as transhipment points for both legal and illegal arms transfers. (Hong Kong and Singapore are reckoned to be easy trans-shipment points in Asia; Brazil and Bolivia lead the way in Latin America; Jordan, Lebanon, Malta and Cyprus serve the same role in the Middle East; Bulgaria used to be one of the main routes for weapons into Africa and the Middle East. [Source: Economist 12/2/94, The Covert Arms Trade].) Some of these same countries—Hong Kong, Singapore, Cyprus were identified by the Government as not requiring end-use certificates for military list equipment between 1984 and August 1990.

  The end-use system requires major procedural improvements to ensure that this part of the export control system operates effectively—with much tighter sets of monitoring and audit procedures enforced. Export licences should have legally binding human rights/non-diversion agreements in them which if broken lead to immediate revocation. Such systems need to be fully intergrated with our EU partners.

5.3  Location of the export licencing authority

  A majority of those responding to the consultation favoured Government responsibility for licencing remaining with DTI. This is the Government's View.

  AIUK is disappointed with this decision.

  The Scott report drew attention to the DTI holding responsibility for both promoting and restricting exports, a dual-role which brings into question the extent to which the balance of current export controls are weighted in favour of granting licences.

"The DTIs main departmental brief is the promotion of British business, trade and employment prospects. . . Export controls are unquestionably an obstacle standing in the way of exporters. Export controls may, and do, serve a variety of purposes of importance to the FCO or to the MoD or, indeed, to the government as a whole. But the controls will inevitably run counter to the main departmental interests of the DTI. It is to be expected, therefore, that, in individual cases, DTI officials will tend to be in favour of the grant of licences and will leave any opposition to be formulated by other government departments" [Scott C2.18]

  However, a DTI consultation paper on the Scott Report highlights the fact that:

  Both the FCO and the MoD have potential conflicts within their own departments"

  Indeed in 1994 the Defence Export Services Organisation (DESO), the MoD body responsible for promoting UK defence exports, operated on a budget of £44 million. DESO is the lead UK agency responsible for administering all government to government MSP sales, taking the lead on negotiating sales and related contracts. DESO is involved in marketing and promoting UK MSP transfers through its worldwide network of offices and promotional activities at specialist MSP exhibitions. This could create an even greater conflict of interest that may currently arise from the DTIs general trade promotion function.

  A further example of such conflict was demonstrated by a report in the Independent on Sunday (26 July 1998) of leaked cabinet papers (from September 1997) which showed that the Ministry of Defence had argued for Britain to export six armoured Land Rovers to the Indonesian Special Forces, Kopassus.

  In a letter to the Foreign Secretary, the Defence Secretary George Robertson wrote: "The head of Kopassus is General Prabowo, the son-in-law of President Suharto. The General is recognised as an enlightened officer, keen to increase professionalism with the armed forces and to educate them in areas such as human rights".

  Amnesty International takes a less sanguine view of General Prabowo's Kopassus special forces. They have been implicated in numerous human rights violations in Indonesia and East Timor: ill-treatment, torture, extra-judicial execution and "disappearances". In July 1998, no longer able to resist the pressure and the weight of evidence the Commander of the Indonesian Armed Forces (ABRI) General Wiranto admitted that several military personnel were involved in the kidnapping and "disappearance" of activists. Eleven members of Kopassus have since been questioned in connection with the "disappearances" and some have been arrested.

  Though the licence application was refused, this case illustrates the conflict of interest that arises within departments and within government.

  To overcome these concerns, AIUK recommends the establishment of:

A single, independent authority with responsibility for both export licence applications and enforcement of export control legislation be established. This approach avoids conflict of interests—the MOD, FCO, DTI, and intelligence agencies would be consulted, circulated information and given opportunities to input, but prime responsibility for overall control and enforcement would be located in one independent authority which would not have a contradictory promotion role. This option would also help to alleviate the information delays between the export licence process and the export control enforcement process as identified in the Scott Report. One possibility would be to locate the new single, independent export control authority within HM Customs and Excise.

ADDITIONAL CONCERNS: ISSUES NOT DIRECTLY ADDRESSED IN THE WHITE PAPERA.  OVERSEAS LICENSED PRODUCTION

  Another gaping loophole in the UK system is that of overseas licensed production where one MSP manufacturer enables another company to manufacture its product under licence in a second country. Such agreements are increasingly supplementing, or even taking the place of exports of MSP equipment. However no export licences are needed for such deals. If machine tools, technology or components are shipped as part of the deal, they may require a licence. But only if such components, machine tools or other technology is solely for the production of controlled goods. Multi-purpose equipment does not require an export licence.

  A current UK licensed production deal to Turkey illustrates the dangers of this, as yet, unregulated practice.

  The human rights situation in Turkey has been a concern to Amnesty International for many years. The 1998 AI Annual Report entry on Turkey records that "hundreds of people were detained because of their non-violent political activities. Torture continued to be widespread and systematic in police stations and gendarmeries. There were at least six reported deaths in custody. At least nine people reportedly "disappeared" in security force custody and at least 20 people were killed in circumstances which suggested they had been extrajudicially executed." In June 1995 AI issued a call on governments to halt the transfers to Turkey of a range of MSP equipment which could be used to commit human rights violations. This included: submachine guns, light weapons, attack helicopters, surveillance equipment and armoured vehicles.

  Since 1987 a Turkish company called Otobus Karoseri Sonayi AS ("Otokar") has assembled Land Rovers under licence for sale to military and civilian markets in Turkey. In 1994 production began in Turkey of a new type of Land Rover, a light reconnaissance armoured vehicle with machine gun mount using imported automotive parts, and designed for transporting troops for counter-insurgency and light attack. The deal involves the export of 80 per cent of the vehicle component parts from the UK, which are listed as civilian transfer, and therefore not requiring an export licence. The parts are then assembled at the Otokar factory and machine guns added. They are formidable weapons. AI has documented cases where this type of vehicle has been used in committing human rights violations.

  A further grave concern is that these vehicles produced in Turkey under licence are now being exported to countries that would not currently be granted an export licence, if the vehicle was directly exported from the UK. In fact Otokar vehicles have been exported from Turkey to Algeria and Pakistan, both countries which are of concern to AI.

  A second, more recent example is that of the licenced production of small arms. In January 1998 defence industry publications, Janes Defence Weekly and Defence Weekly News reported that Heckler and Koch UK Nottingham, a subsidiary of British Aerospace Plc had won an $18 million contract to transfer technology for the local production of 200,000 5.56 mm infantry rifles for the Turkish Army. The rifles will be manufactured during the next 10 years at a plant operated near Ankara by Turkey's state run artillery, small arms and ammunition maker Maki na ve Kimya Endustrisi Kurumu (MKEK). They will replace the Army's 7.62 mm infantry rifles, designed and made by the same company.

  There have been recent reports from the Turkish news agency Anadolu that MKEK will now be exporting 500 MP5 Heckler and Koch machine guns to Indonesia this year. Officials told the Anadolu correspondent that the weapons will be exported to the Indonesian Police Department, adding that they intend to promote the weapons worldwide. Previously MKEK have exported arms to Jordan and Northern Cyprus, both notorious trans-shipment centres.

  Under the present export control system, once a UK company has agreed a licenced production deal, the UK government relinquishes all control of where the products end up. Amnesty International strongly recommends that all such overseas licence production deals should be treated as are standard MSP equipment transfers and require an export licence. The UK should not allow the licensed production of MSP equipment where there is a risk that it will be transferred to sensitive or proscribed destinations. Also no licenced production deals should be allowed to countries which have been documented as committing gross human rights violations using the class of equipment which is the subject of the licenced production deal. The export control legislation should also contain appropriate powers to enable the government to revoke a licenced production agreement if the equipment licenced is subsequently shown to have been used to commit gross human rights violations.

 B.  EXPORT CONTROL LICENCE INFORMATION PROCESSING SYSTEM (ECLIPS)

  The failings and loopholes of the present system are compounded by the malfunctioning of the computer system used to record licence data. The scale of this was highlighted in the DTI statement of 30 October 1997, in response to a Parliamentary Question. As a result of this breakdown, all information requested on export licences, must be followed with the following caveat:

"This information is based on data retrieved from computer databases that have been found not to be fully comprehensive. It should therefore be treated as indicative only. For any single application involving a range of goods, all of the entries in the legislation under which all of these goods were controlled may not have been recorded. Additionally, there may have been errors or omissions in re-coding some information. The information could only be verified by undertaking a complete search of all paper records, which would entail excessive cost."

  From this statement it is apparent that the present government cannot give full details of the licences granted and denied by itself or the previous administration. This situation needs to be rectified at the earliest opportunity. AIUK believes that such an unsatisfactory system of information retrieval prevents adequate parliamentary and public scrutiny of the export licence determination process, as has been shown with the export of riot control equipment to Kenya[14].

C.  EXEMPTIONS FROM STANDARD LICENCE CONTROL PROCEDURE

  Amnesty International seeks a comprehensive export control system. In this context we note that the Scott Inquiry only focused on the existing system of export licence controls, although a number of agencies and organisations are exempt from the requirement to apply for an export licence and thus are totally outside the scope of existing export controls. These exemptions are detailed in a list held by the Non Proliferation Department within the DTI.

  In addition, certain other UK agencies and specific categories of transaction lie outside the scope of existing arms export licencing controls. These include government-to-government deals and the transfer of surplus stocks.

  There is also doubt concerning the export licence requirements and reporting procedures for government agencies (and former government agencies) responsible for the transfer of UK MSP equipment for example the Crown Agents and the Disposal Sales Agency.

  All the exceptions, anomalies, exclusions and other mechanisms that avoid export control legislation weaken the effectiveness of the Strategic Export Controls.

D.  CONTROL OF MSP EXHIBITIONS

  Numerous exhibitions of military, security and police equipment, organised by UK companies, are held every year all over the world. Several are held in the UK, including the annual Covert and Operational Procurement Exhibition (COPEX) and the biennial Royal Navy and British Army Equipment Exhibition (RN&BAEE). The 1995 RN&BAEE was attended by official delegations from countries where security forces are known to have committed persistent human rights violations, including Angola, Chile, Indonesia, Kenya, Mexico and Sri Lanka.

  On 12 June 1997 in response to a Parliamentary Question from Ann Clwyd about which Indonesian officers would be invited to attend RNBAEE 97 a government minister replied that General Tanjung (then Commander in Chief, Indonesian Armed Forces); General Wiranto (then Chief of Staff Army); Admiral Kushariadi (then Chief of Staff Navy) would attend. The Indonesian security forces have had a poor record in responding to civil disturbances often resorting to excessive and sometimes lethal force. In January 1998, in the build up to the disturbances and demonstrations which would eventually remove President Suharto, General Tanjung threatened to "cut to pieces" all anti-government groups. "We will strike down and out manoeuvre any group, from left to right, who dares to stand against the government".

  Amnesty International believes that representatives of security forces which are known to carry out human rights violations should not be invited to attend UK exhibitions that promote the sale of security equipment and technology. Moreover, the names of official guests and companies exhibiting, the products and services exhibited, and any proposed sale or transfer arising from such exhibitions should be made public.

E.  FREEDOM OF INFORMATION/WHISTLEBLOWING

Public Interest Disclosure Bill

  AIUK notes and welcomes the Government's "support [of] a Private Members Bill . . . (the Public Interest Disclosure Bill), concerned with protecting the rights of employees in certain specific situations where an unauthorised disclosure is seen by the employee as the only means of bringing to external attention an abuse or problem within an organisation (commonly known as "whistle blowing")."[15] The Public Interest Disclosure Bill has now received Royal Assent, and the Public Interest Disclosure Act is likely to come into force at the beginning of 1999. This is another vital cog in a comprehensive export control mechanism. Amnesty International and other human rights organisations rely on the reports and vigilance of concerned individuals including journalists, academics and trade unionists to bring to light the potential or actual transfer of MSP equipment, training or personnel to countries where it could result in human rights violations.

Freedom of Information Act

  The Arms to Iraq Scandal and the following Inquiry by Lord Justice Scott were instrumental in highlighting the failings of the UK export control system and of publicising the issue. The Scott Report raised important concerns about Ministerial accountability and the provision of information to enable effective Parliamentary and public scrutiny of strategic export controls and showed how the UK practice could be better characterised as a policy of deliberate obfuscation than one of openness. Indeed Scott states: "Without the provision of full information it is not possible for Parliament, or for that matter the public, to assess what consequences, in the form of attribution of responsibility or blame, ought to follow. A denial of informaton to the public denies the public the ability to make an informed judgement on the Government's record. A failure by Ministers to meet the obligations of Ministerial accountability by providing information on their departments undermines, in my opinion, the democratic process." [Scott K8.3]

  In the consultation paper for a Freedom of Information Act, the Government acknowledges that "unnecessary secrecy in government leads to arrogance in governance and defective decision-making. The perception of excessive secrecy has become a corrosive influence in the decline of public confidence in government. Moreover, the climate of public opinion has changed: people expect much greater openness and accountability from government than they used to." An opinion poll survey, conducted in May 1998 on behalf of AIUK and other NGOs, shows that when it comes to the arms and repression trade that is indeed what the UK public think. [16]

  Amnesty International believes that a powerful tool for ensuring a more transparent and accountable export control system would be a comprehensive Freedom of Information Act. In our submission to the Freedom of Information Consultation Paper, Amnesty International has pressed for an FOI Act which would cover all information relating to the export of MSP equipment, technology, training and personnel and to the running of UK government military and police training schemes and assistance programmes[17].

F.  TRAINING

UK Government Sponsored Military, Security and Police Training Programmes

  The UK regularly provides military and police training to personnel from many countries, including some which have displayed systematic patterns of human rights abuse. Amnesty International believes that all such training should include a human rights component involving practical exercises. Candidates should only be selected from security forces which are subject to an effective system of accountability for human rights. A number of governments, for example the US with the Leahy Amendment, have controls which prohibit the government transfer of MSP training or equipment to security forces that have poor human rights records. In early 1997, a UK Auditor General's report found that the UK police training for the Indonesian police, agreed by the previous Conservative Government, had not included any human rights training.

  Between 1991 and 1995 the UK provided training for police forces of 64 countries. On 26 November 1997, Foreign Office Minister Derek Fatchett stated that in the present financial year the FCO/DIFID were funding police training for 56 countries. These included: Colombia, Indonesia, India, Kenya, Pakistan, Philippines, Romania, Russia, Rwanda, Sri Lanka, Uganda. Amnesty International has documented numerous cases where human rights violations have been carried by the security forces in these countries.

  In 1995, the last time figures are available, the UK Government provided military training for the forces of some 106 countries, including Colombia, Guatemala, India, Indonesia, Kenya, Morocco, Philippines, Rwanda, South Korea, Turkey and Zambia. There has been concern that such training could contribute to human rights violations in the recipient country.

  In June 1991, for example, the UK Government finally admitted that it had provided secret military training to two Cambodian opposition groups, an allegation it had repeatedly denied before. British army teams (allegedly from the SAS) ran intensive courses in sabotage and mine laying for the Cambodian guerilla groups in the 1980s. According to the UK Mines Advisory Group which interviewed a number of participants, the trainers taught the Cambodians how to place anti-personnel mines in unmarked wells, water sources and track junctions, as well as to use booby-traps with mines. Refugees and the internally displaced were thereby targeted.

  Under the previous government, the records of such training programmes were never made available to the public and their elected representatives. Without transparency and effective parliamentary and public scrutiny the danger of UK assistance and training programmes contributing to human rights violations will continue.

  In this regard we welcome the statement of 27 February 1998, by Defence Minister, Dr Reid:

"The public interest would be served by greater disclosure of the details of military and related police assistance provided to foreign governments. In future, details of the amount of assistance provided by our Armed Forces will be produced annually and published in my Department's Performance Report, starting with that to be produced following the end of this financial year. These details will include the numbers of overseas personnel trained, by country, the numbers of United Kingdom personnel involved in providing training or assistance overseas, again by country, and levels of any subsidies provided by my Department. My hon. friend will publish details of the training subsidy programme funded by the Foreign and Commonwealth Office. This information will also be made available to the public on request.

All other requests for information in relation to training and assistance provided will, with immediate effect, be considered on their individual merits, but with a presumption towards disclosure unless this would be against the public interest as governed by the Code of Practice on Access to Government Information. In practice it is possible that information may need to be withheld where foreign countries have legitimate security concerns, where our bilateral relations might be damaged or significantly weakened by disclosure, or where disclosure would harm our own national security. We would also not normally intend to make available personal details of students or training personnel, for reasons of personal privacy, or provide information which might threaten the safety of individuals. Where specific harm could be demonstrated by a contractor to his sales prospects as a result of releasing information on military assistance, this would be weighed against the public interest in deciding to what extend disclosure should proceed. But the amount of information withheld will be kept to the minimum."

  However these commitments are not in themselves sufficient for the Select Committees, Parliament, NGOs and the public to adequately monitor the UK military and police training programmes. Information on such training must be covered by a strong and effective Freedom of Information Act.

  Although figures are not yet available for the foreign military training programmes provided since Labour came to power, we welcome the FCO's announcement in February this year, of the redirection of some resources from the former military training programme to establish a Human Rights Project Fund. "In the financial year 1998-99, FCO is setting aside for the first time a dedicated fund for human rights projects around the world. The £5 million Human Rights Project Fund will give a major boost to the work of FCO missions overseas in promoting human rights. Priority will be given to projects on children's rights; media; rule of law, including prison reform; and the development of civil society."

Non-Government Training Programmes

  On 26 November 1997 the Foreign Office Minister Derek Fatchett stated: "Individual serving police officers from foreign forces may currently be undertaking academic studies sponsored by this department or DIFID, or receiving training funded from other public or private sector sources, but it would involve disproportionate cost to try to establish a record of additional training."

  In May 1998, reports emerged that seven members of Indonesia's special forces, Kopassus, along with three members of the regular Indonesian army, were attending a one year MA course in Security Studies at Hull University. The course examines "the theory and practice of strategy and security from the perspective of the defence professional". There are just three other students on the course.

  Such MSP training could also contribute to human rights violations in the receiving country and must also be monitored, licensed and controlled by the UK government. The records of such training should be available to the public or their elected representatives in a similar manner to government training programmes. AIUK recommends that such training be included in the ambit of the FOI Act where such training takes place under the auspices of the educational establishments cocvered by the Act and/or is funded by public sector sources.

Mercenaries, Military Consultants and Private MSP Training

  "Mercenaries usually deny that they are mercenaries and present altruistic, ideological and even religious reasons to mask the true nature of their participation under international law|but in actual practice the constant factor is money. Mercenaries are paid for what they do. The hired mercenary attacks and kills for gain, in a country or in a conflict not his own." Enrique Bernales Ballesteros, the UN Special Rapporteur on the use of mercenaries.

  The UK has a long history of the unregulated supplying of mercenaries, military training and other military and security services through security consultants such as Sandline International[18].

  In theory British subjects are prohibited from becoming mercenaries and recruiting others to do so, under the Foreign Enlistment Act (1870). However there are serious doubts about its applicability in modern circumstances. The last prosecution under the Act was back in 1896. Its language is archaic and contains serious loopholes. For example, it defines the offence of leaving the UK to enlist as a mercenary by reference only to departure by ship, so that leaving by air would not be unlawful. In 1976, a commission of inquiry led by Lord Diplock, found that the Act was unworkable and recommended that future legislation should concentrate on prohibiting recruitment rather than making enlistment illegal. However, no new legislation has been drawn up.

  Amnesty International does however welcome the recent responses made by Foreign Minister Tony Lloyd to AIUK members on this subject. In letters to members he writes. "We are now 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 Office is looking at measures taken by other governments, including recent South African legislation."

  AIUK believes that such companies should be strictly regulated. Companies should be registered and all MSP transfers of equipment, technology, training or personnel should require the licenced approval of parliament.

October 1998.

2   The Government should publicly clarify whether private companies acting as prime contractors for such Government to Government deals (eg British Aerospace) are export licence exempt when supplying MSP equipment under such contracts. Back

3   See Nitor example under Section 5.1 Back

4   "In addition, goods with the relevant ratings may have been exported to Kenya under the following Open General Export Licences: OGEL (export after repair: military goods) and OGEL (export after exhibition: military goods), both of which were first issued on 1 March 1994" Back

5   Hansard. Mr Nelson [holding answer 25 October 1995]: The Public Records, Board of Trade eighth schedule, submitted to both Houses of Parliament in June 1950, gave notice in the disposal schedule for all export licence application papers to be automatically destroyed after six years. The Public Records Act 1958 removed the need to comply with this schedule, but the then Board of Trade continued the practice of destruction after six years. This continued until July 1991 when it was decided not to destroy any existing application papers. This practice has continued to date. Back

6   For example labelling provisions requiring companies to disclose the ingredients of foods, pharmaceutical or toxic products involve the disclsoure of information to consumers which might be of assistance to competitors. The Companies Acts requirements for the publication of annual accounts, in the interests of shareholders and suppliers, require the disclosure of information which will often be of value to competitors.

The Environmental Protection Act 1990 (EPA), requires the establishment of public registers containing applications to operate potentially polluting processes, monitoring results, and other data. Though information may be withheld if it is commercially confidential, this is defined as information whose disclosure "would prejudice to an unreasonable degree the commercial interests" of the person from whom it is obtained. This is in effect a double harm test, requiring that disclosure be prejudicial and that the prejudice be more than is reasonable. Furthermore the Secretary of State may "in the public interest" order that particular types of information be included in the registers "notwithstanding that the information may be commercially confidential".

 Back

7   Military documents found in eastern Zaire in late 1996 provided further confirmation of a report published by Amnesty International in June 1995 of secret arms flights involving United Kingdom and Nigerian traders delivering weapons and ammunition from Albania and Israel to Rwandese armed forces in eastern Zaire in mid-1994 when these forces were committing a genocide in Rwanda.

It is unclear why UK Government law officers have so far declined to prosecute two UK companies implicated in this trafficking, despite the Convention Against Genocide and the mandatory UN Security Council arms embargo. The belated UK imposition of the UN arms embargo and failure by the previous UK Government to promulgate the arms embargo properly may have resulted in impunity for these arms dealers.

 Back

8   "Back on the Torture Trail" broadcast on 13 March 1996. SDMS (Security and Defence Marketing Services) provided details of deals for electro-shock weapons between its suppliers in South Africa and some 30 countries, some of which SDMS claim to have supplied, including Angola, Egypt, Cyprus, Zaire and other countries where electro-shock torture has been reported to Amnesty International. Back

9   On 25 May 1997 a military coup led by Johnny Paul Koroma, overthrew the democratically elected government of Dr Ahmad Tejan Kabbah. In response to this a UN arms embargo-Resolution 1132, co-drafted and sponsored by the UK, was imposed on Sierra Leone. In March 1998, with the assistance of mainly Nigerian troops from ECOMOG (Economic Community of West African States intervention force), Tejan Kabbah was reinstalled as President.

The overthrow of the illegal Koroma government was assisted by the UK based company of military consultants, Sandline International who provided training, logistical and technical support. This included brokering the shipment of 30 tonnes of arms (mainly AK-47s) and ammunition, flown out from Bulgaria by another UK based company, Sky Air Cargo Services, in breach of the UN arms embargo. These weapons have now fallen into the hands of the Nigerian ECOMOG forces, breaching a separate EU arms embargo.

Sandline International claimed to be operating with the knowledge and tacit approval of the Foreign and Commonwealth Office (FCO). The UK Government has denied that Ministers were aware of this and has instituted an inquiry under Sir Thomas Legg QC. A separate inquiry by Customs and Excise into whether UK law to enforce the UN arms embargo was broken by Sandline International and Sky Air concluded on 16 May 1998. After a six week investigation, Customs and Excise stated that there would be no prosecutions "even though offences may have been committed" because "the circumstances leading up to the supply affect the fairness of the case to the extent that any prosecution could well fail and would certainly not be in the public interest." Back

10   The Criminal Justice Act 1988 was the legislation through which the UK Government enacted its ratification of the UN Conventions on Torture. As such the Criminal Justice Act contains provisions for legal action to be brought against torturers or organisations complicit in the supply of torture equipment. Whilst this legislation may already contain existing powers to control the supply of torture equipment or services, to date it has never been used. Back

11   This should include such products as prisons designed and built by UK architects and contractors for countries that undertake executions and amputations, where these prisons have facilities to enable such human rights violations, designed and built-in to their structures. In the past AIUK has received reports of UK companies advertising such design and construction services. Back

12   UK Patent Application 2149068A (published 5 June 1985) detailing a patent for an electronic shock baton for police was granted to a Ching-Yaw Lin, 13 Chung-Cheh Road, Shen-Kang District, Taichng, Hsien, Taiwan. Back

13   On 21 July 1997 the UK government stated that "firearms training systems, unless they are specialised equipment for simulating military scenarios, do not require an export licence". (DTI, 21 July 1997). This would allow countries like Indonesia to switch orders for the same equipment away from the army to the police in order to circumvent UK export controls. During the TV programme World in Action broadcast on 2 June 1997, Nitor's Marketing Manager stated that the company had supplied such a training system to Indonesia and was negotiating with the Indonesian authorities the supply of close quarter battle houses, known as "killing houses", built to train special forces how to storm buildings and kill opponents inside. Back

14   "Tear gas is a day to day experience during demonstrations. It has become a very acceptable thing among the police. It is used again and again. There are times when the air around the city of Nairobi reeks of tear gas." Janai Robert Orina, Kenyan pro-democracy activist and human rights monitor. December 1997.

On 7 July 1997 Kenyan paramilitary police stormed the All Saints Anglican Cathedral in Nairobi, attacking pro-reform advocates sheltering within. Security forces threw tear gas canisters inside the Cathedral and then moved in wielding truncheons. Newspaper reports describe how an elderly opposition MP and several dozen other individuals were left wounded and bleeding as other victims groaned with pain in the pews.

Tear gas could be argued to have a legitimate use in the open air for certain crowd control situations. However the use of tear gas within confined spaces that people cannot physically leave is extremely dangerous. It is a form of punishment rather than dispersal. Kenyan police and security units do not use tear gas instead of physical beatings with batons, sticks or canes or as an alternative to lethal force, but rather as an additional form of punishment.

The DTI export licence data for 1995 and 1996, as well as recent parliamentary answers (see Hansard 18 December 1997), state that the ECLIPS cannot identify any licence records for the export of teargas to Kenya. However researchers have since discovered that riot control products manufactured by Pains-Wessex and Haley & Weller, both of which are subsidiaries of Chemring Plc, based in Hampshire, were apparently exported with export licences. Amnesty International researchers have also confirmed that tear gas canisters (and plastic bullets) used by the Kenyan security forces last year were manufactured by Pains-Wessex and Haley & Weller. Back

15   UK Government Consultation Paper on Freedom of Information-1997. Back

16   In the run up to the negotiations on the EU Code of Conduct on Arms Control, an opinion poll of the British people's attitude to the arms trade showed a dramatic majority favour greater transparency and stronger restrictions on the sale of arms which could be used to commit human rights violations.

The survey showed:

90 per cent of public disapproved of the Government selling weapons to governments which abuse human rights such as Indonesia.

81 per cent support the UK Government's push for a European Code of Conduct on arms sales.

85 per cent believe that such a Code should prevent EU countries selling weapons to human rights abusing governments.

77 per cent thought that there was too much secrecy surrounding British arms sales.

79 per cent believe that the Government should introduce tougher arms controls even if it meant some job losses.

The same percentage also believed that the Government should actively help British companies to change from the manufacture of arms to the manufacture of civilian products.

The poll questioned 1,000 people in May 1998, just before the final EU negotiations on the arms code, and was published in the Observer on 24 May 1998. It was conducted by Opinion Research Business, an established member of the Market Research Society, and was commissioned by AI, Saferworld, Oxfam, Christian Aid, BASIC and WDM. Back

17   See AIUK Response to the Freedom of Information Consultation Document-May 1998 Back

18   Sandline has been closely linked with the mercenary organisation, Executive Outcomes (EO) and also with companies such as Branch Energy who exploit mineral reserves in the countries where Sandline International and Executive Outcomes operate. All three companies share offices on Chelsea's Kings Road. In its promotional material Sandline's men are described as "military consultants" offering a range of services from training and procurement to conducting military operations (often using Executive Outcomes personnel). There have been numerous allegations and eye witness accounts of EO personnel perpetrating grave human rights abuses.

In May 1998 the Channel 4 Dispatches programme "The War Business" reported on Executive Outcomes activities in Angola against UNITA forces. EO personnel were accused of grave human rights abuses including the use of phosphorous bombs and the deliberate aerial bombardment of civilians in the market of San Pedro where as many as 500 civilians were killed in one day. Back