Examination of Witnesses (Questions 1
- 19)
WEDNESDAY 25 APRIL 2001
MR MICHAEL
CROWLEY, MS
JULIA SAUNDERS,
MS SARAH
MEEK AND
DR IAN
DAVIS
Chairman
1. You represent the UK Working Group on Arms.
You have very kindly sent us the most informative memorandum,
which will be the basis of this morning's discussion, generally
speaking. My colleagues are going to begin with what I think is
in a sense the ground-breaking part of the draft Bill, and that
is the schedule of purposes. This is going to be the first time
in legislation that there is going to be listed a series of purposes
for which orders preventing exports taking place will actually
be put into legislation. I wondered about a point that you have
not raised particularly in your memorandum, which strikes me and
colleagues. Whereas orders can be made under the Act and are going
to be part of the statute, the actual licensing process, which
is really the main instrument, is going to remain non-statutory,
as well of course as the code of criteria and other guidance are
not going to be made statutory. I know we will come on to the
issue of whether the Code should be written into the schedule
but do you have any comment on the fact that the licensing process
is not going to be put on a statutory basis? You do not actually
mention it in your memorandum?
(Ms Meek) I think it is something we
have considered in our reply to the QSC. I think we looked at
it from two perspectives. One was that in the consultation paper
the government has referred to the fact that a licence that was
issued contradictory to the purposes would in fact make null and
void that licence. So I suppose we have to allow a degree of interpretation
in the carrying out of this, but for us it is also very closely
linked, as you have mentioned, with the issue of the export criteria
and whether you put the export criteria on a statutory basis,
and perhaps there might be further questions on that.
2. You feel reasonably content therefore that
because the schedule is going to be on a statutory basis, that
is a sufficient safeguard? (Ms Meek) With some amendments.
3. Yes, with the amendments that you are going
to propose. (Ms Meek) Yes.
4. That is agreed. Let us get on to the point
that you would like to put other things into the schedule, in
particular the code of conduct? (Ms Meek) Our concern
is quite simply that it looks like we are putting forward two
sets of language. We have the consolidated national EU criteria
that is government policy and then we have now in the purposes
a separate set of language, which is not contradictory to the
code necessarily but it is not completely complementary to the
code. We would like to see explicitly references in the purposes
to the code criteria 3 and 7, which are the internal situation
as 3, and 7 is the risk of diversion. The government makes this
point in its consultative paper when it is discussing options
for licensed production overseas; it talks about the risk of diversion.
We feel that the risk of diversion is one of the fundamental issues
that needs to be addressed. I think we are still debating to a
degree, and we apologise for that, how best to put the export
criteria of the code of conduct on to a statutory footing. If
it was to go through orders, we recognise that the government
would object to that on the grounds of rigidity. Perhaps we could
get into an appeal process through the courts of law that we would
be hesitant to see developed as well. Our overriding concern is
that these export criteria are not simply up to each government
to make part of its policy but that there is some way that each
successive government is also required to abide by the principles
in the code of conduct. We are perhaps in a bit of a conundrum
about how to proceed. (Mr Crowley) May I elaborate
on that? I think it is right also to say that we welcome the explicit
inclusion of human rights as opposed to strictly internal repression
in the consequences of the Act. That is a new addition which we
welcome. Picking up on what Sarah has said about the need to expand
and clarify what is in the primary legislation, it is very important
that there is a determination and an explanation of what international
humanitarian law and aspects and what human rights standards and
norms are going to be used for licensing determination. Basically
we believe that in its licence determination the government must
ensure that there are no transfers of goods which are likely to
be used to breach international humanitarian norms and standards
and human rights norms and standards. Specific UN criteria that
should be included in such determination are: UN-basic principles
on the use of force by firearms by law-enforcement officials;
the UN code of conduct for law enforcement officials; the UN Convention
against Torture; the UN International Covenant on Civil and Political
Rights and the Universal Declaration on Human Rights.
5. Are you suggesting that all these be written
into the schedule? (Mr Crowley) Not into the schedule
but the fact of international standards on human rights and humanitarian
law should be written in and then an explanatory text either in
secondary legislation or in the government criteria is needed.
6. Do you not think that if you look at the
schedule, paragraph 2(b), any other international obligation would
sweep up the points you are making? (Mr Crowley) I
think that sweep-up phrase might work very well but there are
key texts which would be useful to reference specifically.
7. By specific identification often you can
exclude others. You have to be careful. That is a good catch-all
provision. (Ms Saunders) I would like to say a word
about the sustainable development criteria. Obviously it is extremely
welcome to see this in the schedule here but I think the criteria
have to be at the heart really of the new regulatory system. Looking
at what is actually in the EU code on this particular language,
it would be very useful if we looked at some of the language in
the EU code and considered if it could be used to improve the
language here. In particular, the EU code has a very short phrase
about striking a balance between the interests for development
and the military needs of the country. That short phrase, which
is no longer what we have here, would be a very useful alternative
text. It would mean that there was harmony between what we are
saying at the EU level and putting in UK legislation.
8. You want consistency between the schedule
and the Code of Conduct on sustainable development? (Ms
Saunders) Yes.
9. On human rights, and we noticed this too,
of course the reference there to human rights is about the transfer
of weapons or arms which might actually assist internal repression
or contribute to that, not the general human rights record of
the country concerned. That has been a distinction we have had
running right through some of our earlier reports and it drew
attention to that. You would want in this case the schedule to
be again a catch-all human rights provision rather than one linked
to the issue of internal oppression. Is that right? (Mr
Crowley) The basis that has to be in the schedule is: are
these arms or is this security equipment likely to be used to
facilitate human rights violations? It is that link that is crucial,
but when officials and ministers are determining whether a licence
will be granted or not, they have to bear in mind what is the
human rights situation in the country, and that is partially determined
by what national controls there are on law enforcement officers
and whether they abide by international standards. The actual
determination has to be on the basis of: will these arms be used
to facilitate human rights violations?
10. Let me give an illustration. That would
still allow a country with a poor human rights record to be able
to purchase arms and for arms to be licensed if they were for
the defence of the territorial integrity of that state? (Mr
Crowley) Yes, absolutely.
11. You would accept that, would you? (Mr
Crowley) If they are not going to be used or are unlikely
to be used to facilitate human rights violations; it is a judgment
or a decision by ministers and officials. You have to weigh up
the human rights situation as reported to you by human rights
organisations, journalists, the UN and your own embassy, as to
what the situation is on the ground and, in the light of that
information, make the determination. (Dr Davis) There
is also the consideration of the type of equipment being exported
and the end user of the equipment. These factors balance the decision.
If it was equipment specifically related to the use in torture
or whatever and, if, for example, it was small arms and light
weapons which can be used, these considerations can be taken into
account. It is not just the end user; it is a combination of the
type of equipment and the end user.
Chairman: Unless my colleagues have any
more questions on schedule, I will turn to brokering, which is
the main part of your submission.
Mr O'Neill
12. Reference is made to brokering in paragraph
59. The question is whether or not it should cover UK nationals
when they are living abroad. I am not very clear as to how you
enforce such a provision. If someone was living in Gibraltar there
might be a bit of arm-twisting in, as it were, the British diplomatic
community. But let us say that the individual chose to operate
out of Bulgaria; it may be rather more difficult there. Is it
really worth our while having provisions which we cannot enforce
because we could perhaps end up like the United States with weak,
empty, hand-wringing kinds of gestures. How do you address this
problem because it is a real one? (Dr Davis) We certainly
welcome the proposals on arms brokering and they go further than
the original White Paper consultation. Clearly the measures that
are current now go some distance towards closing down the operations
of unscrupulous individuals and companies, but if you do not take
full extra-territorial measures, we feel that the danger is that
British citizens will just simply evade the controls by simply
stepping into anther country, and you gave the suggestion of Gibraltar
or to Bulgaria. So the brokering legislation, as we see it, is
severely compromised by the fact that we do not have this currently
laid out fully for the extra-territorial question. There are several
aspects to the question of policing. Firstly, by criminalising
this process, you are putting this forward as a deterrent to deter
individuals from doing it. This is certainly the experience, having
discussed this issue with American officials. As you say, the
situation in the United States is fairly weak but there has been
a number of prosecutions. The suggestion is that it does act as
a deterrent simply by having the legislation on the statute books.
Secondly, we need to see trafficking of arms in the context of
wider issues to do with trafficking of other illegal goods, the
trafficking of humans and of drugs and the increasing co-operation
that is taking place against organised crime through groups like
Interpol and the increasing use of joint intelligence operations.
I think it can be enforced at the international level through
greater co-operation in policing. The required evidence will be
collected in the course of collecting evidence against other forms
of trafficking. As I say, this is implicitly tied up with organised
crime activities.
13. Do you have any evidence of a hard kind
of a sizeable number of successful convictions being prosecuted
by the American authorities on their own citizens? (Dr
Davis) As far as I am aware, there have not been any successful
prosecutions so far. We know that in the last three years they
have issued licences to some 200 applications and that they have
investigated two or three cases a year. As far as we are aware,
there have been no successful prosecutions. They strongly refer
to the deterrent role that it has.
Mr Cann
14. Could you tell me the name of any particular
dictator or tyrant who has not been able to access weapons against
his own country? (Dr Davis) I think there are clearly
cases, if you look at where the situation is usually so severe
that, for example, an arms embargo has been applied. There are
often discussions about arms embargoes not being successful and
that weapons get through to the intended destinations. In most
examples where arms embargoes have been applied, the access of
weapons has been delayed and slowed down and the international
community is sending out a message. There are examples of this. (Ms
Saunders) That is not really the point. In a sense you are
right. As far as I know, there has not been a case where a dictator
has failed to get hold of weapons. The last thing we want is for
him to get hold of British weapons or weapons that were facilitated
by British brokers or shippers. I would hope that this is what
we are here today to try to do. We are after a system whereby
we can tighten up controls so that that does not happen because
it has certainly happened in the past. In Oxfam we see people
being shot every day by weapons that certainly are from British
sources or are sent there by British brokers. We are here today
to try to encourage this process along. I am sure it is why many
of us are gathered here. I would agree with you: yes, that is
the problem and we have to try to do something about it.
15. What you are talking about is a moral proposal,
not a practical one? (Ms Saunders) It is a question
of life and death. If that is moral, then it is moral.
Mr O'Neill
16. You refer to shipping and you have said
that you would like British shippers to be subject to control.
How do you think our export licence system, decrepit though it
may be, would cope with the issuing of licences to British shippers
to ship between two foreign countries? (Dr Davis) You
have to look at that question in the context of the general liberalisation
that has taken place in the export control system in the UK. The
DTI's own figures suggest that the percentage of total UK exports
covered by the existing rules is something like 5 per cent. Within
that 5 per cent, there have been additional liberalisation controls;
for example, greater use of open licences and general licences.
If you went back to the mid-1980s, for example, there were something
like 90,000 individual export licences considered by the DTI in
one year. Now they consider something like 10,000 to 12,000 individual
licences a year. This is part of the export control philosophy
that is now applied which is about higher fences around fewer
goods. We think that extending controls to brokers is part of
that philosophy. In the US system they have had something like
200 licence applications over the last three years. In Germany
they have had 10 to 15 licences a year. We have talked to shippers
and, as far as we can work out, there are probably between 20
and 30 shipping agents in the UK, so we are not talking about
a terrible burden on the licensing system.
17. So it is not a burden because it is not
very many but, if it is not very many, do you need legislation
which, by your own admission, you know will be shot through in
pieces because it is virtually impossible to enforce? (Dr
Davis) I do not think it is impossible to enforce. As I said,
I think it can be tied into existing enforcement in other areas.
In this day and age, with the other ordinary export licences,
the enforcement is not just at borders and about Customs; it is
about intelligence operations and co-operation with other countries.
This co-operation already exists in the context of other efforts
to control other illicit goods and trafficking of humans and in
the context of organised crime we work very closely with groups
in Interpol. You cannot begin to enforce something until you have
criminalised it.
18. What I am concerned about is that, even
if you did criminalise it, the chances of you catching the people
is very small. Would we be spending disproportionate resources
on that rather than focusing attention on more important things?
I do not disagree with your objectives but you are into the area
of the best being the enemy of the good. (Dr Davis)
I think this is a priority area on which we should be concentrating
resources. There has been lots of evidence since the Mil Tec case
in 1994 on arms to Rwanda, Saferworld and other organisations
here can come up with numerous examples of British citizens involved
in arms trafficking. It is this type of trafficking which gets
the weapons to the conflict zones; these are particulary small
arms type weapons. We feel that for the UK Government this is
a priority area and I think the UK Government has indicated that
it is a priority area by the fact that it is taking a lead in
trying to negotiate an international convention in the Untied
Nations and within the European Union.
19. Would you draw a distinction between shipping
and brokering or do you lump them together? I know they are together
in your presentation. Would you say that one was as important
and as possible to control as the other? There is always the danger
of discrediting legislation by putting in things that we cannot
always achieve easily or effectively and therefore the whole piece
of legislation becomes discredited as a consequence? (Dr
Davis) Our view is that you should try and include them both.
For example, by the wording in the Firearms Protocol, which talks
about controlling activities of delivery of movement: for us that
could be seen to cover both shipping agents and brokers. It would
depend on the exact nature of the wording of the legislation.
We feel that it could be worded to cover both types of trading,
again given the numbers involved. In fact there is already a certain
amount of regulation that involves shipping agencies; for example,
they need to be registered to allow them to carry firearms in
the first place. We think there is sufficient scope in legislation
for that to happen. (Ms Meek) I think there are three
stages, and I will be very brief on this point. The first is that
what we are trying to do is essentially put in place the powers
so that when a situation at one level arises, you have the ability
to respond. That is one purpose for which we are here today pushing
for the inclusion of brokers and shippers in this process. The
second is a preventative measure, as Ian put very well, which
is to try to act as a deterrent to prevent future violations.
The third is to keep up with the emerging international situation.
The United Kingdom has been at the forefront of negotiating the
Firearms Protocol and is under an obligation to consider regulations
on brokers. The definition of illicit trafficking includes the
delivery and movement of goods. This is where the UK is going
to have to put its attention. It should be using the opportunity
before it to do that.
Mr Cohen: In your presentation you make
the point, with which I am very sympathetic, that the controls
in this area must extend to the activities of all UK passport
holders, even if operating wholly on foreign soil, but you also
make the point that unscrupulous arms brokers are past masters
at creating a series of shell companies and computer paper trails
in many jurisdictions. How do you see the legislation reaching
Mr British Unscrupulous Arms Dealer if he is operating through
a shell company that has been clouded out on a Caribbean island
somewhere? Do you think that needs to be tightened?
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