House of Commons - Defence

Select Committee on Defence Fourth Report

4 END USE ASSURANCES: INDONESIA

80. End-use assurances are undertakings limiting how equipment intended for export will be used. We have previously considered end-use undertakings given by Israel that equipment exported from the United Kingdom will not be used aggressively in the Occupied Territories, and the Government's reaction to a breach of these assurances.[92] The value of end-use assurances depends essentially on how reliable the assurances are perceived to be. These issues have come to prominence again as a result of the use of British built equipment by the Indonesian armed forces in the province of Aceh, in the context of end-use assurances given by the Indonesian Government.

Some recent history

81. The Indonesian province of Aceh has a long history of separatism, with the current dispute dating back to the late 1970s. Human rights abuses, including extra-judicial killings, have been attributed to both sides to the conflict. The FCO has stated that "long-term solutions to this conflict can only be achieved through peaceful negotiation".[93]

82. Until August 2002, the Indonesian Government was bound by an undertaking not to deploy British-built military equipment to Aceh, and to provide advance warning of any possible deployment. In August 2002, the British Government received advanced notification of the Indonesian Government's intent to deploy British-built armoured personnel carriers to Aceh for "casualty evacuation and logistical support". The Indonesian Government provided assurances that this equipment would "not be used to infringe human rights in Aceh or elsewhere". On 3 October 2002, the Foreign Secretary wrote to our Chairman informing him of this.[94]

83. However, in September 2002, while the Indonesian Government gave fresh assurances that "British-built military equipment would not be used offensively or in violation of human rights" anywhere in Indonesia, the British Government also agreed that the Indonesian Government would no longer need to provide advance warning of any deployment of military equipment to Aceh. Neither we nor anyone else in Parliament were made aware of this change in policy until 12 June 2003, when it was set out in a written answer to a parliamentary question.[95]

Purpose and transparency

84. We put it to the Foreign Secretary, and he has accepted, that the Government should have informed us explicitly in October 2002 that it had agreed to do without future notification of the proposed use of British-built equipment in Aceh.[96] We also asked him why the Government had agreed to this.

85. The Government's written response on this point is confusing. It suggests that "advance warnings of deployment to Aceh alone was subsumed as soon as the assurances became applicable to the whole of Indonesia".[97] Yet, as a Foreign Office minister has made clear to Parliament, the assurances regarding human rights applied throughout Indonesia before August 2002, as well as afterwards.[98] The Government's answers do not clarify why it was originally considered necessary to seek assurances under which the Indonesian Government would not deploy any British-built equipment to Aceh at all; nor why the situation in 2002, not long before a major military operation in Aceh, was thought conducive to lifting this geographical restriction.

86. In the second half of 2002, the situation in Aceh was unstable, but by no means as bad as it later became. In December 2002, a ceasefire agreement was signed between the Indonesian Government and the main separatist rebel group. But the Government has not suggested that it was content for the Indonesian Government to deploy British-built equipment to Aceh because its concerns about the situation there were declining. It may be that in practical terms the British Government had little choice but to accept the Indonesian Government's decision to deploy the equipment. But it seems to have done so with surprising equanimity. This reaction to the prospect of the deployment of British-built equipment to Aceh raises questions about the purpose of the earlier assurances that this equipment would not be used in Aceh under any circumstances. We conclude that there has been a serious lack of clarity in the Government's explanation to us of its rationale for allowing the Indonesian authorities to alter end-use undertakings regarding their use of British-built military equipment.

87. The Government has stated that it is "satisfied with the substance of the new assurances", but these new assurances are weaker than those given previously. They were also accepted at a time when the Indonesian Government was continuing to conduct offensive operations in Aceh, albeit not on the scale of those seen in 2003.

Use of British equipment in Aceh

88. In May 2003, martial law was declared in Aceh and the Indonesian armed forces began military operations against separatist rebels there. Hawk jets supplied by the United Kingdom were used, but according to the Indonesian Government, this use was not "in violation of the assurances" or "offensively".[99] In June 2003, 36 Scorpion armoured vehicles were deployed to Aceh. In the same month, Mr Mike O'Brien MP, a minister in the Foreign Office, visited Indonesia, and reminded the Indonesian Government of the assurances given about the use of British-supplied military equipment, warning "of the possible consequences for defence sales and defence relationships if there was a breach of the assurances". He promised that the Government would "be using all available sources of information to monitor the use of British-supplied equipment and [would] follow up all credible allegations on the misuse of British military equipment".[100]

89. According to press reports, the status of the end-use assurances has been widely questioned by senior military figures in Indonesia. The senior military spokesman in Aceh reportedly said of the Scorpion armoured vehicles that "they will become a key part of our campaign to finish off the separatists … Maybe later the British foreign minister will have a fit",[101] while the Army's chief spokesman was quoted as saying of Hawk jets that "we have already paid, so there is no problem. We use fighters to defend our sovereignty".[102]

90. David Landsman, the head of the Counter-Proliferation Department in the FCO, has told us that "there is no evidence that Scorpion has been used in Aceh in recent times".[103] There is certainly evidence that Scorpion was used in Aceh during 2003, supposedly "to defend roads against attack". The British Government was well aware of this.[104] In January 2004, Indonesia announced that it would withdraw Scorpion from Aceh in favour of locally produced armoured personnel carriers equipped with light machine guns and grenade launchers.[105] It is therefore possible that by the time Mr Landsman was speaking to us, Scorpion had in fact been withdrawn from Aceh.

91. According to the US State Department report on human rights in Indonesia for 2003:

106

92. As the Foreign Secretary notes, "the [Indonesian] security forces have a legitimate right to adequate protection whilst carrying out their duties, as long as they operate in accordance with international human rights standards and humanitarian law".[107] Whether the Indonesian security forces have been operating in accordance with these human rights standards and with humanitarian law is of course at issue. The US State Department's report would appear to suggest that they have not. In the case of British-built equipment, however, because of the undertakings that Indonesia gave when purchasing this equipment, the Government would be rightly concerned if the Indonesian Government were to use the equipment offensively in Indonesia, even if this use were consistent with human rights standards and humanitarian law.

Monitoring possible breaches of the assurances

93. The Government has claimed that it "has no confirmed evidence that British-built military equipment has been used in violation of human rights or offensively anywhere in Indonesia in 2003" and that it "regards the Indonesian Government's assurances about the end use of British built military equipment as standing".[108] David Landsman has told us that "from our researches we have no confirmed evidence that any British built military equipment has been used in any way contrary to the Indonesian assurances anywhere in the country in 2002 and 2003".[109]

94. We asked the Foreign Secretary what steps had been taken (other than asking the Indonesian Government) to find out how Hawk and Scorpion were being used in Aceh, and we asked specifically whether British officials had visited the province themselves. Mr Landsman told us that "the most recent [visit] was in February this year, very recently".[110] But clarification from the FCO reveals that in fact this has been the only visit to Aceh by British officials since the military operation began (indeed, since September 2002), and that its stated purpose was to meet local human rights NGOs in the provincial capital.[111] It is not clear how this meeting contributed to the British Government's knowledge of how British-built military equipment was being used in Aceh.

95. The Campaign Against Arms Trade and TAPOL, the Indonesia Human Rights Campaign, have written to us noting a report in The Guardian on 20 January 2004 that local Indonesian television had "on several occasions" shown heavy machine guns mounted on Scorpion vehicles firing at "alleged separatist positions", and commenting that "it would be a simple matter for the Jakarta Embassy to track down the TV footage in question, but as far as we are aware they have not done so".[112] We too have not been presented with any evidence that the Government has examined television footage in order to monitor the use of Scorpion in Aceh.

96. The Foreign Secretary has said that his Department does "not turn a blind eye to anything".[113] We recommend that in its response to this Report, the Government should explain what steps it has taken to find and examine television footage of Indonesian armed forces' operations in Aceh, including local Indonesian television footage, in the course of monitoring the use of British-built military equipment in Aceh; and what the results of any such monitoring were.

97. It is of course possible that the Government has taken steps to monitor the use of military equipment in Aceh which it is unwilling to disclose to us, although we would expect there to be other higher priorities for the use of covert resources. Nonetheless, we can only conclude that we have seen no evidence that the Government has taken any action (other than talking to the Indonesian authorities) to investigate claims that British built military equipment has been used in violation of human rights or offensively in Aceh. This calls into question the importance of such assurances in the eyes of the Government.

Available sanctions

98. We asked the Government what action it believed would be appropriate for it to take if an end user did not abide by assurances given on the use of military equipment, and whether it had set out what the consequences of a breach of such assurances might be. The Government has replied:

Where substantive misuse or diversion is established, the Government may, for example, revoke existing export licences to that country or end-user, and information on such misuse or diversion will be taken into account when assessing future export licence applications. Where the end-user is another government, the United Kingdom has the full range of diplomatic tools available to it.[

114

This answer discusses misuse and diversion more generally, suggesting that the specific area of end-use assurances is not a subject to which the Government has given much direct thought.

99. Saferworld has suggested that:

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Legal contracts are usually made between an exporter and a foreign government; bringing the British Government into this process would be complex. Saferworld's suggestion might be workable if the aim were to prevent goods from being re-exported without permission. Legal and political measures to this effect have been adopted in some other arms exporting countries. In the case of Indonesia, however, the question is not who is using the equipment, but how they are using it. In these circumstances, it seems to us that a legal solution might be difficult to enforce. But we agree with the general direction in which Saferworld is pushing, and we conclude that without more legal or political backbone, end-use assurances are not worth the paper they are written on.

100. The suspicion in this case and in other cases like it is that the principal function of end-use assurances is to shield the exporting Government from criticism when equipment is misused. This would not be the case if the Government were prepared to monitor more actively the end use of military equipment once it has been exported, and to take action where misuse is discovered. The Government has taken such action at least once in the past, when it discovered a relatively minor and possibly inadvertent breach of end-use assurances by the Israeli Government concerning the use of British-built military equipment in the Occupied Territories. But this is the only instance in which we are aware of any action having been taken.

Conclusion: monitoring assurances

101. We have previously recommended that the Government should adopt a more formalised programme of end-use monitoring, and during our evidence session last year, the Foreign Secretary undertook to examine the US State Department's Blue Lantern Program.[116] In November 2003, the Government informed Parliament that "officials in the Foreign and Commonwealth Office have been researching the United States system of end-use monitoring, and will be informing Ministers of their findings in the near future".[117] The Government's conclusion from this research is that it already carries out "the vast majority of the work in the Blue Lantern programme as part of our current licensing procedures". This may be true.[118] The Government writes of having already a "careful system of post-export checks".[119] But the very few cases of end-use monitoring shared with us by the Government suggest that there is very little "system" to the end-use monitoring currently carried out by the Government and that it could usefully be targeted more effectively.

102. We conclude that the Government's reassessment of how it conducts end-use monitoring is welcome. If end-use assurances or undertakings are to have any real value, the Government must be prepared to monitor the end use of the equipment concerned effectively and actively where the suggestion of misuse arises. There is little point in the Government seeking assurances on the end use of equipment if it is not prepared to conduct a thorough investigation when evidence emerges that those assurances may have been breached, or if it is not prepared to take punitive action when assurances have indeed been breached.

92 HC (2001-02) 718, Ev 48 Back

93 Foreign and Commonwealth Office, Human Rights: Annual Report 2003, Cm 5967, p 42 Back

94 HC (2002-03) 474, Ev 17 Back

95 HC Deb 12 June 2003, cc 1038-1039W Back

96 Appendix 22 Back

97 Appendix 22 Back

98 HC Deb 12 June 2003, c 1039W Back

99 HC Deb 4 June 2003, c 436W; HC Deb 12 June 2003, c 1039W Back

100 HC Deb 12 June 2003, c 1039W Back

101 'Scorpions move in on rebels as Indonesia reneges on weapons pledge to Britain', The Guardian, 24 June 2003 Back

102 'British-made jets "used in attack on Indonesia villages"', The Times, 26 May 2003 Back

103 Q 21 Back