APPENDIX 7
Supplementary memorandum from Saferworld
This memorandum responds to a number of points
made by the Secretary of State for Trade and Industry, Patricia
Hewitt, in her oral evidence to the Committee on 3 April.
ARMS BROKERING
(a) Home Office criteria
During the evidence session, the Secretary of
State frequently said that the Government had assessed the case
for extra-territorial controls on arms brokering against the Home
Office criteria and concluded that such controls were inappropriate
and "wholly inconsistent with the view that we take on extra-territorial
legislation."[26]
However, the UK Working Group on Arms' (UKWG) submission to the
Committee in 2001 made a strong case for extra-territorial legislation
using the Home Office's own criteria:
"The Home Office states that extra-territorial
jurisdiction can be considered where at least one of the (points
i, iii, iv, v, and vi). The arguments relating to each of these
points are set out below.
(i) That the offence is regarded as serious
is indicated by the fact that the draft Bill sets the maximum
penalty for arms brokering without a licence at ten years imprisonment.
(iii) The 2001 UN Conference on the Illicit
Trade in Small Arms and Light Weapons in All its Aspects demonstrated
a growing international consensus that brokering is in urgent
need of international regulation, with the UK Government taking
a leading role in pushing for a legally-binding convention on
arms brokering.
(iv) Anecdotal evidence suggests that arms
brokering tends to be particularly prevalent in areas where the
more straightforward supply methods are unavailable or restricted,
typically war zones or localities where systems of law and order
are breaking or have broken down. In such lawless environments,
the victims of the impact of brokered arms are frequently powerless
civilians (an estimated 80 per cent of all casualties), all too
often women and children. Their vulnerability is absolute, in
that the weapons are used to intimidate and kill, and that the
position and status of the victims of violence in fractured societies
often afford them little protection.
(v) The Government has worked hard to position
itself as playing a leading role in international attempts to
develop more responsible attitudes towards the arms trade, and
not only through its work regarding the UN 2001 Conference (see
above). The UK was instrumental in creating the EU Code of Conduct
on Arms Exports, and the Annual Report on Strategic Arms Exports
has in many ways set a benchmark against which other reports can
be measured. Within this context, there can be little doubt that
the Governments position is undermined and the reputation of the
country is harmed by scandals involving UK arms brokers. Until
legislation covering arms brokering has full extra-territorial
effect, the international standing of the UK will continue to
be damaged by cases such as Mil Tec brokering arms supplies for
the perpetrators of the Rwandan genocide in 1994, or Peter Bleach
and Border Technology & Innovations Limited (BTI) of Hexham
brokering the supply of hundreds of small arms and thousands of
rounds of ammunition for an insurgent group in West Bengal in
1995. The UK would garner much international respect if it put
its own house in order by introducing effective legislation to
control the activities of its citizens overseas.
(vi) Unscrupulous arms brokers are past masters
at creating a series of shell companies and a confused paper trail
through many jurisdictions to prevent proper oversight of their
work. Indeed, they play off jurisdictions against each other.
If the UK does not act to control their activities, it is highly
improbable that perpetrators will be brought to justice in other
jurisdictions. In order to track the activities of brokers, the
agent rather than the location needs to be at the heart of the
legislation.
If the new legislation covers arms brokers only
where at least part of their activities take place within the
UK, it will simply encourage UK passport-holders to travel abroad
to conduct their business, which surely cannot be the intention
of the Government. The case for full extra-territorial jurisdiction,
as made above, more than complies with the Government's own criteria.
The UKWG therefore recommends that the regulation of arms brokers
cover all UK persons irrespective of the location of their operations."[27]
This analysis was supported by legal advice
the UKWG received from Matrix Chambers in October 2001 who said
that:
"I agree with the analysis in the UK Working
Group's response to the consultation paper as to why it is appropriate
in this situation for extra—territorial jurisdiction to
be created."
(b) Dual criminality
The Government has argued that in the past prosecutions
in cases with extra-territorial jurisdiction only occur where
the crime is also an offence in the country where the offence
occurred. However, since the earlier UKWG submission[28]
was made to the Committee, the Government has overcome the principle
of dual criminality in its support of Ann Clwyd's Private Members
Bill on Female Genital Mutilation. In March 2003, the The Parliamentary
Under-Secretary of State for the Home Department Hilary Benn said:
"Hon. Members will want to recognise the
fact that the Bill represents a significant extension of the present
law because it will go a step beyond the current established international
practice that dual criminality is normally needed—namely,
the practice needs to be an offence in both countries to apply
extra-territoriality—but I am very pleased that my hon.
Friend the Member for Cynon Valley has chosen to do so because
of the nature of that abhorrent practice. . ."[29]
(c) Resources
The lack of resources to allow effective implementation
was often given by the Secretary of State as a reason not to fully
extend extra-territorial controls. Given the current strategic
environment and the urgent need to prevent arms from falling into
the hands of rogue states and terrorist organisations, it is vital
that the Government allocates increased resources to implementing
effective brokering controls.
In the wake of the tragic shootings in Birmingham
at the start of the year, the Government has announced significant
increased resources to prevent the illicit trafficking of weapons
into the UK. According to the police, the main source of the weapons
coming into the UK is Eastern Europe and the Balkans - the same
sources that UK brokers use to supply weapons to conflict regions.
Preventing weapons coming into the UK will therefore require enhancing
police and intelligence systems and links with law enforcement
agencies in these regions. The Government should therefore examine
the possibility of using these enhanced information exchange and
co-operation systems to also enforce new controls on UK arms brokers
overseas.
— Saferworld maintains that the Home
Office criteria do support the introduction of extra-territorial
controls on arms brokering and the Government has overcome the
principled objection to dual criminality. Furthermore, extending
arms brokering controls extra-territorially would help the Government's
commitments to control arms flows internationally and also the
domestic gun agenda.
14 April 2003
26 Quadripartite Committee, uncorrected minutes of
evidence, 3 April 2003 (paragraph 12). Back
27
UKWG submission to the Quadripartite Committee, March 2001. Back
28
UKWG Joint Committee on Strategic Export Controls Committees inquiry
into the Secondary Legislation of the Export Control Act 2002,
10 March 2003. Back
29
House of Commons Hansard, 21 March 2003, Column 1209. Back
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