Appendix 16: Further memorandum from Saferworld
Quality of the Annual Report
The Government announced some time ago that
there would be no more improvements to the Annual Report for three
years, however those three years were up by the time the 2002
Annual Report was produced. Nevertheless, the format of the 2002
Annual Report was effectively identical to that of 2001. It is
now generally accepted that it is in the public interest for the
maximum possible level of disclosure regarding export licensing.
Saferworld has long argued that the Annual Report should function
as a "one stop shop" which enables outside observers
to assess whether the UK Government is honouring its export control
commitments. Currently this is not the case.
The Report does not provide information on all
transfers of controlled items which are either sourced from the
UK or authorised by the UK Government (for example, the Annual
Report does not provide information on disposal sales).
Can the Government give an assurance
that the Annual Report will in future provide appropriate information
about all controlled goods or technologies transferred or brokered
from the UK, making clear the nature of the transfer (eg commercial
sale, disposal sale, gift, government-to-government contract etc.)?
Furthermore, for those transfers on which the
Annual Report does report, the information provided is insufficient
to allow effective analysis. While certain observers may have
access to additional information, for example the QSC gathers
more detail through written questions to the Government), many
are completely dependent upon the Annual Report: more comprehensive
data is therefore necessary.
Key elements missing from information on licences
granted (and refused) include:
End-use (this would be of particular
value, as the summary descriptions in themselves often leave many
questions unanswered. For example, what is the intended end-use
of "components for military infrared/thermal imaging equipment"
to China? Is it to monitor the gatherings of Falon Gong supporters
in Chinese cities? Information on the use of dual-use goods would
also be of significant value, for example, is "radioactive
material" for use in a hospital or for a nuclear programme?)
What plans does the Government
have to improve the nature of information on export licences in
the Annual Report so that outside observers are better able to
assess whether the Government is honouring its commitments?
There is also a need for greater disclosure
regarding the management of the open licensing system, for example
through information on deliveries made under open licences and
compliance procedures (see section on OIELs). There are still
some doubts about how the new types of licence will be reported,
but the indication that Global Project Licences (GPLs) issued
under a Framework Agreement[20]
project will be reported on in a similar fashion to OIELs is disappointing.
Will future Annual Report's provide
details of the finished product to which licences issued under
a Framework Agreement GPL refer?
Will the Government seek to persuade
his Framework Agreement partners to agree to publish those states
agreed as possible recipients of goods produced under a Framework
Agreement project?
Open Licences
It would appear that despite Government reassurances
to the contrary, the use of open licensing is increasing. This
is supported by analysis of the total number of countries listed
as destinations on OIELs since the Annual Report has been inexistence,
and by the opinion of industry. That the nature and scale of this
increase requires further examination has been made clear by the
QSC in its report on the 2001 Annual Report, in which it was stated:
"it is curious that industry recognises that there has been
an increase in the scope of open licensing, given that the Government
has consistently denied that this is the case."
Will the Government explain why
the use of OIELs in comparison to SIELS would seem to be increasing?
Will the Government tell the
Committee what proportion of controlled exports on 2002 were made
under SIELs, and what proportion under OIELs?
Saferworld is concerned that this apparent increase
in the use of open licences by the Government may be undermining
the licensing process. Open licences allow for a lower level of
scrutiny and transparency than SIELs, and while we appreciate
the rationale behind their use (ie to allow for limited resources
to be targeted more effectively), we are concerned that convenience
could here become the enemy of responsible policy.
The fact that OIELs typically place allow multiple
deliveries, place no limits on value or quantity, and do not specify
end-use or end-user, create particular concerns against a number
of the Consolidated Criteria. For example, the transfer of large
quantities of arms and military equipment under OIELs could adversely
affect regional or internal stability in situations where there
are tensions or conflict. The use of OIELs can also be problematic
in terms of diversion, where unscrupulous end-users may continue
to import arms and equipment beyond their needs in order to re-export
them to a third party. Additionally, transfers made under OIELs
can negatively impact development where potentially large-scale
exports of arms and equipment could undermine sustainable development
in very poor countries.
What steps are taken to ensure
that OIELs do not allow for exports on such a scale as to threaten
regional stability or hamper sustainable development in the recipient
state?
What steps are taken to ensure
that exports, permitted under OIELs to countries which are acknowledged
as diversionary risks, are not re-exported or put to inappropriate
use?
In transparency terms, moreover, because quantities
or values of equipment exported are not recorded in the Annual
Report, there is no way of Parliament or the public knowing the
volume or value of exports that have taken place under OIELs,
thereby preventing an objective assessment of the impact of particular
licences and therefore of Government arms export policy. This
lack of information also undermines the significance of the data
included in the Annual Report on SIELs. Examples from 2002 which
illustrate how this selective provision of value data paints an
extremely partial picture at the level of individual countries
include:
Cameroon: no SIELS granted (total
value £0); 10 OIELs granted;
Philippines: 5 SIELs (total value
<£250, 000); 34 OIELs.
At the very least, the Government should revise
the system of open licensing to stipulate maximum quantities and
values, and these should be reported upon in the Annual Report.
Will the Government commit to
providing information in future Annual Reports on the maximum
quantities and approximate values that may be exported under OIELs?
The Government has in place a range of audit
and compliance procedures to ensure that companies are honouring
their OIEL commitments. This system is a welcome component in
the UK export licensing regime. However, no information about
the result of these procedures is included in the Annual Report,
and it is thus impossible to judge what effect they are having.
In order to build confidence in the use of open licences, the
Government should report on the management of the compliance system,
including information on number of visits or audits, incidences
of anomalies or wrongdoing, and the remedial measures taken in
response to problems.
What plans has the Government
to include information on the OIEL compliance system in future
Annual Reports?
Saferworld is also concerned that OIELs are
being ordered for a broader range of equipment than is appropriate
to some destinations. For example, in 2002, it would appear that
42 countries were named on an OIEL for an extremely wide range
of equipment with offensive utility. This equipment would appear
to be predominantly naval, but there was also equipment of concern
that could have been for use in other environments. [21]lncluded
among the 42 states to which goods may be exported under this
OIEL are:
Angola | India
| Nigeria | Surinam |
Argentina | Ivory Coast |
Paraguay | Trinidad & Tobago
|
Brazil | Malaysia | Peru
| Turkey |
Cameroon | Martinique | Philippines
| Uruguay |
Colombia | Mexico | Senegal
| Venezuela |
Ecuador | Namibia | South Africa
| |
It may be that many of these countries have little interest
in a large proportion of the equipment on this licence, which
raises questions about why they should be included in the first
place. Conversely, if they are in the market for most of the items
listed, this would raise other, but no less important questions,
with regard to their suitability in light of various of the Consolidated
Criteria. In either case, Saferworld has serious doubts about
the wisdom of including these countries as permitted destinations
under this licence.
For example, what proportion of these predominantly naval
items listed is Paraguay, a landlocked country with a reputation
as a transshipment point, expected to buy over the lifetime of
the licence? If this is typical of the way open licences are being
issued it raises serious doubts about the system as currently
conceived. OIELs should be tied more tightly to actual requirements
of the individual countries concerned; only where there is a reasonable
expectation that there is a legitimate requirement for particular
equipment should that equipment appear on the licence.
Saferworld understands the concerns of the QSC, as expressed
in its response to the 2001 Annual Report, in which it recommended
that "the Government should consider how open licensing might
best be extended to minimise the regulatory burden on legitimate
business, and in particular to ensure that new business is not
lost." However, without a strong link between licences issued
and equipment intended for export, the integrity of the export
risks being undermined.
Will the Government clarify whether OIELs are
issued in circumstances where permitted destinations are not expected
to have an actual demand for all the goods listed on the OIEL?
If so, what steps are taken to ensure that this use of OIELs does
not lead to unforeseen exports of controlled goods?
In the case of OIEL number 10 to Paraguay,
as listed in the 2002 Annual Report, can the Government explain
why this landlocked country with a reputation as a transshipment
point was included on this licence (predominantly for offensive
naval equipment)?
Country concerns
Saferworld's Audit of the Governments 2002 Annual report
on Strategic Exports, contains a comprehensive country-by-country
analysis of UK Government export licensing decisions during 2002.
Drawing on this, the Audit has a full assessment of the Government's
implementation of the Consolidated EU and National Arms Export
Licensing Criteria (Consolidated Criteria). Below is a list of
countries where Safer world has raised concerns about the sale
of military equipment in relation to the different criteria, full
details are outlined in the Audit, along with assessments of Criterion
6: International Law and Criterion 7: Diversion.
|
Consolidated Criteria | Countries where concern is raised under criteria
|
|
Criterion 1: International commitments |
Afghanistan, Armenia and Azerbaijan, Bosnia-Herzegovina, China, Cyprus, Iran and Iraq, Somalia, Sudan
|
Criterion 2: Human rights | Brazil, Egypt, Jamaica, Jordan, Kuwait, Morocco, Nigeria, Pakistan, Philippines, Russia, Saudi Arabia, Sri Lanka, Thailand, Turkey
|
Criterion 3: Internal stability | Indonesia, Morocco, Pakistan, Philippines, Russia, Saudi Arabia, Sri Lanka, Turkey
|
Criterion 4: Regional tensions | India and Pakistan, Jordan, Egypt, and Israel, Kuwait, Saudi Arabia, UAE, Oman and Qatar
|
Criterion 8: Sustainable development | Angola, Bangladesh, Egypt, India, Indonesia, Cote d'lvoire, Jordan, Kenya, Nigeria, Pakistan, South Africa, Sri Lanka
|
|
There have recently been two developments in relation to
Pakistan and China:
Pakistan
The recent revelations about the role played by Pakistani
Dr Abdul Qadeer Khan in proliferating nuclear technologies, and
the possibility of widespread complicity by other senior Pakistani
officials raises very serious concerns about Pakistan as a diversionary
risk.
What steps are the Government taking to tighten
its export licensing policy to Pakistan as a result recent disclosures
with regard to proliferation of nuclear technology, not only on
key technologies but also on conventional strategic goods?
Has information generated by Libya's recent
openness caused changes of policy on licences granted for exports
to other countries?
China
The UK interprets the EU arms embargo on China as covering
lethal weapons such as machine guns, large calibre weapons, bombs,
torpedoes, rockets and missiles; specially designed components
of the above and ammunition; military aircraft and helicopters,
vessels of war, armoured fighting vehicles and other such weapons
platforms; any equipment which might be used for internal repression.
This interpretation does not prohibit the licensing of components
and technology for military aircraft and helicopters, vessels
of war, armoured fighting vehicles and other such weapons platforms.
In 2002, both the scale of export licensing to China and
the type of the equipment were of concern. For example, licences
were issued for the export of inter alia components for
combat aircraft, technology for the use of test equipment for
combat aircraft, test equipment for combat aircraft, components
for combat helicopters, technology for the use of combat helicopters,
technology for the development of components for combat helicopters,
components for frigates, components for electronic warfare equipment,
components for nuclear reactors, sporting gun ammunition, toxic
chemical precursors and technology for the production of toxins.
It is not at all clear how effective this interpretation can be
in pressurising the Chinese Government to improve its human rights
record. With regard to the licences relating to combat aircraft
and combat helicopters, very few licences for complete aircraft
or helicopters to any countries were issued in 2002, which raises
questions regarding whether the UK interpretation has any impact
on the licensing of this type of equipment to China.
Can the Government explain the purpose behind
the embargo to China, and explain how, in 2002, the issuing of
£50 million worth of SIELs and 26 OIELs for a wide range
of equipment is consistent with this purpose?
In view of the ongoing and systematic abuse
of human rights abuses in China, how is the current UK policy
and the licensing of such a large quantity of equipment serving
to pressurise the Chinese Government to have greater respect for
human rights?
The French Government has recently proposed ending the EU
arms embargo to China. A number of other EU states have responded,
with the tide apparently running in favour of the French position.
The Netherlands, for example, has recently changed its opinion
and is now open to such an idea. The US has expressed its strong
preference for the embargo to remain in place. The position of
the UK is so far unclear. On the basis of the ongoing human rights
situation, the significant procurement ambitions of the Chinese
Government and relations with Taiwan, Saferworld would recommend
that rather than ending the embargo, it should be strengthened
to include components of all embargoed systems.
What is the UK Government's position with regard
to changing or ending the EU arms embargo on China?
F-680 process
In recent years, more and more information has come to light
regarding the way in which the F-680 process is used in a variety
of ways within the UK export control milieu. From being used by
industry to get approval for the release of classified information
or to receive a non-binding indication as to whether they are
likely to (at a later date) be awarded an export licence for a
particular deal, it is also used in a number of ways by government
to manage its own conduct, for example to determine whether the
Government should become involved in supporting a possible sale
or to approve a disposal sale or gift.
The Government has given assurances that an F-680 assessment
lends full weight to the Consolidated Criteria, which begs the
question of why not then use the standard export licensing process.
The use of two overlapping processes inevitably creates confusion
about how the system works. Furthermore, as the Government has
itself stated, considerable time may pass between an F-680 approval
and a subsequent transfer, with potential for significant change
in the security environment. For example, the UK Government recently
threw considerable weight behind a BAE bid to sell Hawk aircraft
to India. But negotiations for the deal started almost two decades
before the sale was agreed. It is not clear what role the F-680
process had in the Government's involvement, or when any F-680
assessment might have been made. In order to build confidence
in the use of F-680, the Government must set out full details
of exactly when and how the F-680 is used in different circumstances.
This must cover all uses of the process.
Can the Government provide information regarding
all those circumstances where the F-680 process in used with regard
to the transfer overseas of controlled goods, including specific
and comprehensive details of when and how it is used?
Military gifts and the global Conflict Prevention Pool
One of the important issues raised by the QSC in its response
to the 2001 Annual Report on Strategic Exports concerns the Government's
role in gifting military equipment to overseas governments and
using funds from the Conflict Prevention Pool to finance the gifts.
The Export Control Act 2002 does not bind the Crown and as such
"no licence is generally required for Government-to-Government
transfers by gifting".[22]
This raises the prospect of the Government participating in transfers
of military equipment which have not been scrutinised against
the Consolidated Criteria. Indeed, in its response to the QSC,
the Government has acknowledged that "gifts of [strategically
controlled goods] made in recent years have not always been assessed
formally against the [consolidated] criteria"[23]
while maintaining that any gifts funded from the Conflict Prevention
Pool will have been subject to "appropriate inter-departmental
consideration." [24]In
the interests of transparency and accountability, it would be
instructive if the Government were to reveal the nature of this
consideration.
In addition, reference is made to the potential for the Government
to facilitate the transfer of controlled goods by way of a letter
of Crown Immunity which "confirms to HM Customs that the
item is either wholly owned by the Crown or is one over which
the Crown has the right of disposal, and will therefore not be
subject to licence".24 While this information is helpful,
again in the interests of transparency and accountability, it
would be useful to know under what circumstances a transfer would
be classed as eligible for Crown Immunity rather than constituting
a Disposal Sale, for example.[25]
When a Government Department wishes to make a gift in excess
of £100,000, it is normal practice for the Ministry in question
to place a Minute before Parliament, giving Members 14 days to
consider the proposal. If during the 14-day period an MP signifies
an objection to the gift through tabling a question or a motion
or otherwise, then the Government cannot approve the gift until
the objection has been considered. [26]
During 2002, controversy was generated by the manner in which
the Government gifted 114 Challenger I MBTs and 19 training tanks
to Jordan and 2 Russian-made Mi17 helicopters to Nepal. With regard
to the former, a memorandum regarding the intention to gift the
tanks to Jordan was deposited in the House of Commons Library
during parliamentary recess, thereby depriving Parliament of the
opportunity to scrutinise the proposal. The Government explained
subsequently that the need to keep UK-based tank refurbishment
facilities open lay behind the timing of the notice. [27]With
regard to the gift of two Mi17 helicopters to Nepal, a Minute
giving notice of the government's intention to gift the two helicopters
to Nepal was laid before the House at the end of July 2002. Unfortunately
the Minute was tabled only two days before the parliamentary recess
and so Members were not given the requisite 14 day period during
which to scrutinise the proposed gift. [28]
A related issue that arises in connection with the gifting
of helicopters (and other equipment) to Nepal concerns the source
of Government funds used to pay for the goods. The cost of the
gifts to the Government of Nepal, which came to £4.077 million,
was borne by the Global Conflict Prevention Pool. The QSC concluded
that Conflict Prevention Fund should not have been used to purchase
the military equipment.
In December 2003, it was reported that Britain had agreed
to supply two used Short-Take-Off-and-Landing (STOL) planes to
the Government of Nepal. [29]There
had been no announcement of this in Parliament. The Foreign Office
confirmed the purchase and said it planned to make a statement
to Parliament once the aircraft had been ordered. [30]However,this
does not explain why a statement was made by an embassy official
in Nepal that the Government had "agreed" to provide
the planes, when the correct approval system had not been followed.
[31]
Under what circumstances is a transfer classed
as eligible for Crown Immunity rather than constituting a Disposal
Sale?
What authorisation was given to the British
Embassy Official in Nepal to make a statement on 21st December
2003 that the British Government had agreed to supply two Short-Take-Off-and-Landing
planes to the Royal Nepalese Army?
What is the decision making process for granting
military gifts under the global conflict prevention fund?
Prior parliamentary scrutiny
For a number of years the QSC has been engaged in dialogue
with the Government regarding the possibility of the Committee
having sight of certain export licence applications in advance
of the decision being made, and thereby serving in an advisory
capacity. In July 2002, the Committee stated that "We do
not accept the arguments of principle raised by the Government
against our predecessors proposals for prior scrutiny. We recommend
that the Government . . . come forward with proposals for a system
of prior parliamentary scrutiny of export licence applications
by a select committee, or committees, of this House." Unfortunately,
the issue of prior scrutiny appears to have reached a stalemate
and the Government has not come forward with proposals or discussed
it further with the QSC. In April 2003, the Secretary of State
for Trade and Industry was asked whether the introduction of prior
scrutiny would assist the process of coming to decisions quickly
over licences. [32]The
Secretary of State dismissed the argument stating that "I
fear that this is one we are going to go on disagreeing for some
time to come." [33]
A system of prior scrutiny would be particularly appropriate
with regard to decisions over the gifting of military equipment
and also in terms of licences granted for disposal sales and government-to-government
contracts since these are a direct expression of Government policy
and can involve the transfer of publicly owned equipment. Under
the QSC's recommendations for a two-stage system of prior parliamentary
scrutiny of arms export licence applications, proposed gifts,
disposal sales or government-to-government contracts, should automatically
be notified to the Committee in Stage 2 (in which comprehensive
details of the proposed transfer are provided). Issues of delay,
confidentiality or principle do not apply, as in the case of gifts
over £100,000, Parliament should have to approve the gifts
anyway and the recent Nepal case illustrated that the intention
of the Government had been announced publicly.
What discussions has the Government had recently
on the introduction of prior parliamentary scrutiny?
Will the Government consider introducing a
system of prior scrutiny for the granting of military gifts, disposal
sales and government-to-government contracts?
End-use monitoring
Effective monitoring of the end-use of arms would go a long
way to allay many of the concerns that are raised about selective
arms exports. Despite the efforts that the Government makes to
ensure that arms which might be used for internal repression or
external aggression are not sourced from the UK, the danger remains
that unscrupulous or irresponsible end-users may themselves re-export
arms of UK origin to countries in conflict and human rights crisis
zones.
In 2002 and 2003 a number of reports surfaced regarding the
diversion of military equipment from third countries into Iraq,
India, Jordan, Ukraine, the UAE and Yemen, all countries to which
the Government authorised weapons sales in 2002, were suspected
of being links in the Iraqi military-equipment supply-chain. The
Government has declared itself satisfied that existing pre-licensing
checks are sufficient to prevent diversion or unauthorised export,
and refuses to institute a system of end-use monitoring to ensure
that in cases where there are grounds for concern. The Government
has argued that it does not consider that it is either practical
or useful to monitor the end-use of all military goods exported
from the UK. It has made this point on a number of occasions,
however most observers and the QSC have never called for such
a system. During a debate in March 2003 the Foreign Office Minister
Mike O'Brien said "It would not be possible to have a formal
requirement for end-use monitoring, because if we did that on
a formal basis everywhere, it would consume a vast amount of resources."
[34]MPs in the debate
challenged this stating that the call was not "a blanket
check-it is on those deals in which there is most likely to be
a problem." [35]However,
this clarification has not served to forward the debate.
The Government have stated that they "often impose certain,
re-export conditions and much informal checking is carried out
by posts." [36]However,
when the QSC called on the Government to "provide us, in
confidence if necessary, with a copy of the guidance issued to
overseas posts and desk officers on the circumstances in which
end use monitoring should be considered"[37]
the Government refused, but explained that the guidance advises
"the desk officer to consider where monitoring would be feasible
and would make a genuine contribution to our efforts to prevent
diversion or misuse of defence exports. It makes clear our commitment
that we are prepared to carry out such monitoring where possible
and appropriate." [38]The
Government have failed to answer when and under what conditions
end-use monitoring takes place and it is clear that it remains
an ad hoc, informal process.
The QSC asked the Government to look at the end-use system
in the US. In the US, several formal end-use monitoring systems
have been put in place, eg the State Department's Blue Lantern
programme. Under this system, while some checks are random, the
majority are triggered by the expert judgment of licensing and
compliance officers using intelligence, law enforcement and a
comprehensive list of "red flag" indicators. Depending
on the nature of the specific problem. In 2001 and 2002, the US
Government conducted 428 and 410 Blue Lantern end-use checks respectively,
of which 50 and 71 were determined to be unfavourable. [39]Crucially
it is considered that end-use monitoring has a deterrent effect.
As is the case in the US, targeting the use of limited resources
against a matrix of likely risk factors, for example where there
is a history of diversion, could be undertaken by the UK Government.
In February 2003, the Foreign Secretary Jack Straw said that he
would follow-up on the system. However, a parliamentary answer
in September revealed that Government officials had not had discussions
with the US state department on end-user controls. [40]This
changed in November when a parliamentary answer revealed that
officials in the FCO had been researching the US system and would
be "informing Ministers of their findings in the near future."
[41]
The Government should strengthen provisions for end-user
certification and monitoring. The Government should adopt a system
whereby end-user assurances provided by prospective recipients
of UK arms and dual-use goods take on the form of a legally-binding
agreementand it should forbid re-export without the express
permission of the UK Government. If these assurances are found
to have been broken at any point, sanctions should be invoked,
such as the revoking of the licence, the suspension of further
deliveries and the withholding of spare parts and servicing.
In its response to the 2001 Annual Report the QSC requested
that the Government explain how providing information on the identity
of the end-user of UK export licences would be to the commercial
disadvantage of the exporter. In response the Secretaries of State
asserted that revealing end-user information could compromise
commercial confidentiality and highlighted concerns put forward
by the UK Defence Manufacturers Association (DMA) that any information
on lower-value contracts, in particular, is much sought after
and of significant potential value. [42]However,
the DMA has in discussions with Saferworld expressed its frustration
with the Government's refusal to release certain additional information
on end-users in circumstances where greater disclosure would protect
against erroneous claims of irresponsible licensing decisions
and commercial activities. [43]
The Government also state that details of the end-user combined
with other information in the Annual Report could reveal sensitive
information regarding a recipient country's defence strategy and
could lead to difficulties with the UK's bilateral relationships
as well as making the UK a less desirable source of defence goods.
43[44] These arguments
remain theoretical and unsubstantiated and, moreover, have not
proven a barrier to the disclosure of such information on the
part of the US government.
What discussions has the Government had with
the US regarding the Blue Lantern System of end-use monitoring?
What impact has the discovery of the breaking
of end-use assurances (eg in Indonesia and Israel) had on export
licensing decisions?
Amending the Consolidated Criteria
Despite the entry into force of the EU Code of Conduct in
1998, the UK Government has continued to face controversies on
arms sales. In some cases this has prompted a review of how the
criteria are applied, as was the case with the publication, in
August 2002, of the new guidelines on sustainable development,
or a clarification of how the Code is applied, as with the Government's
statement, in July 2002, on the issue of incorporation. In spite
of these developments, broader questions remain as to how effectively
the criteria are being implemented.
In terms of the thousands of licences granted during 2002,
it should be acknowledged that only a relatively small proportion
raise concerns. As discussed in the end use section, it may be
that in most cases the concerns would be alleviated if the Government
were to reveal some limited information concerning the end-user
of the equipment. Information on any guarantees regarding the
use of the equipment given by the recipient could also be helpful
in alleviating certain concerns. Indeed, when the QSC have undertaken
further checks on a number of licences, often fears are allayed.
In the absence of this information, however, substantive
questions remain with respect to the Government's implementation
of the Criteria. Whilst NGOs and the QSC continue to urge the
Government to provide additional information in future Annual
Reports so as to facilitate a fully informed appraisal of UK arms
export policy on the part of Parliament and the public, the fact
that the same concerns are being raised year after year is suggestive
of deeper problems.
It is clear, in fact, from the evidence given by the Government
to the QSC that judgements under the criteria can be problematic.
At the last evidence session, the Foreign Secretary, Jack Straw,
admitted, with regard to the licensing, in 2001, of artillery
to Pakistan that ". . . on some initial reading of the criteria,
you could refuse every single application from every single country,
unless the idea of the sale was that the equipment should never
ever be used for the use for which it is contemplated." [45]A
Government official went on to explain that at the time of the
decision "the circumstances across the line of fire were
taking place, were involving at that time small arms rather than
artillery." [46]However,
as the QSC noted "that artillery exchanges across the line
of control were widely reported in both 2000 and 2002." Despite
the fact that the Consolidated Criteria states "if there
is a clear risk that" the goods could be used for internal
repression, regional stability or affect development, licences
continue to be granted. The answers above show how inadequate
the risk assessment is, for example in the case above even if
at the exact time the circumstances were involving small arms
and not artillery (which is disputed) surely there was still a
high "risk"?
Therefore, as evidence shows, if the UK Government can still
approve the export of significant quantities of arms to countries
where there are concerns relating to human rights, internal and
regional stability, International law and development, while still
adhering to the Consolidated Criteria, then a revised approach
to export licensing must be considered.
There are plans to review of the EU Code of Conduct and it
may be an opportunity to re-examine the Code Criteria (and therefore
of the Consolidated EU and National Arms Export Licensing Criteria),
with the express objective of strengthening the Code further and
eliminating the loopholes and inconsistencies and ambiguities
that threaten to undermine the laudable objectives of the Code
as agreed in 1998.
Does the Government have any proposals for
the EU Code review and how will the QSC feed into this process?
Incorporation
A continuing concern is the change in the guidelines for
goods which would be incorporated into products for onward export
that were announced in July 2002. The release of the guidance
was forced by the fact that a decision had to be made regarding
a licence for the sale of heads-up display units to the US for
incorporation into F-16 fighter aircraft for onward export to
Israel. Application of the Consolidated Criteria and the tightening
of sales to Israel would have made granting the licence problematic.
The Government therefore chose to issue the new licence at the
same time as announcing that the licence had been granted, with
no consultation.
In his recent book, Robin Cook illustrates the concern about
this issue. "Ben Bradshaw waits behind to share with me his
anxiety over the decision Jack Straw is announcing today that
we will allow the US to incorporate British avionics in the F-16's
that they are exporting to Israel. He is visibly upset by it,
as he regards it as a flat breach of our own domestic ban on the
export of weapons to Israel, and he personally resisted it during
his time as the junior minister responsible for the Middle East..."
[47]John Kamphner, in
his book "Blairs Wars" quotes a member of the Government
who said at the time: "the Israelis had given us assurances
that the planes wouldn't be used in the occupied territories,
we knew those assurances to be worthless. We knew similar planes
had been used to bomb refugee camps." [48]If
this is the case, it begs the question why the Government continues
to licence equipment in this way?
The QSC raised the issue of incorporation in the May 2003
report and recommended that the Government should identify in
the Annual Reports those licences for which the additional factors
were a consideration and that the final destination of the equipment
licensed for export should be identified in such cases as well
as the incorporating country. This reporting has not appeared
in the Annual Report.
Does the Government agree that by not seeking
guarantees regarding the use of Heads-Up Display Unitsexported
to the US for incorporation into F-16 aircraft for subsequent
export to Israelthat the Government is effectively circumventing
its own avowed policy not to allow UK equipment to be used in
the Occupied Territories?
How many arms export licences currently extant
have conditions attached to the use of the equipment and to which
countries do these apply?
Does the Government agree that, when it comes
to the export of major components and subsystems which are for
incorporation overseas, the Government should always be aware
of the final destination of the product and their intended use?
What has happened to the promised reporting
in the Annual Report on incorporation cases?
Brokering
The Government has chosen to assert extraterritorial control
on brokers only where the brokering activities are in relation
to long-range missiles or torture equipment, or to embargoed destinations.
In doing so the Government has rejected calls from the QSC to
introduce full extraterritorial controls on arms brokering. Subsequent
to the publication of the secondary legislation in October 2003
there has been additional debate about the adequacy of UK arms
brokering controls, with particular reference to the transfer
of surface to air missiles (MANPADS), which have become an increasing
concern. [49]The ease
of transfer of these weapons makes them a particular concern when
addressing trafficking and brokering of arms.
Janes estimates there are about 500,000 MANPADS in the world.
Of these, only 350,000 are held in defence stockpiles: 150,000
shoulder-fired missiles are in the hands of unauthorised parties.
Some of the simpler systems are available on the illicit arms
market for as little as $1,000. Janes further estimates that 27
militia groups and terrorist organisations own shoulder-fired
missiles. [50]In December
2003, the 33 participating states to the Wassenaar Arrangement
agreed to "apply strict national controls on the export of
MANPADS." [51]These
measures are to be aimed in particular at "preventing acquisition
by and diversion of these weapons to terrorists." [52]
However, the Government has given confused statements about
how they are controlled. In a House of Commons debate in November
2003, the Minister, Nigel Griffiths, stated that: "The trafficking
in shorter-range missiles by terrorists or for the purposes of
terrorism is covered in many circumstances by the anti-terrorism
legislation, which also has extraterritorial effect." [53]Roger
Berry MP asked "Will he advise us in which circumstances
the issue had not been addressed? Does he acknowledge that if
missiles are not covered through the extraterritoriality provisions,
they could be supplied to one or two individuals who could subsequently
supply them to terrorists . . .?" The Minister responded
that "My hon Friend's point is covered. One reason that we
consider exports on a case-by-case basis is to review reports
on where they end up. It is our intention to stop exports being
passed on by anyone beyond the designed destination. That is the
most effective way to keep weapons out of the hands of terrorists
or anyone else." The Minister is completely wrong to claim
that in this case the broker would be under the regulatory control
and be assessed on a "case-by-case basis". A UK broker
located overseas and supplying arms indirectly to terrorists,
will in most cases not need to apply for a licence, thus there
will be no assessment. UK law will not apply. This is exactly
why there is a need for extraterritorial controls.
The Government has since at further controls on MANPADS.
In a parliamentary question Foreign Office Minister, Denis MacShane,
stated that "to counter the threat from [MANPADS] the Government
will decide over the next few months whether anything further
needs to be done to control brokering of these weapons."
[54]
What decision has been made about the extension
of extraterritorial controls on arms brokering to cover MANPADS?
February 2004
20
The Framework Agreement, to which France, Germany, Italy, Spain,
Sweden and the UK are party, provides for streamlined licensing
procedures for co-production projects. One Global Project Licence
is to be issued for transfers among the co-production parties
which will cover all transfers connected with the project among
those parties. Exports to other countries will be licensed by
the country of final assembly. Back
21
The summary description for the licence is as follows:
Components for submarines, components for naval engines, components
for periscopes, components for torpedoes, components for naval
mines, components for naval electronic warfare equipment, components
for for naval sonar equipment, components for aircraft carriers,
components for surface to air missiles launching equipment, components
for for heavy machine guns, components for guided missiles decoying
equipment, components for command communications control and intelligence
equipment, components for naval communcations equipment, components
for weapons control systems, components for naval radars, components
for fire control equipment, components for combat aircraft, components
for combat helicopters, components for military utility helicopters,
components for military aero-engines, components for frigates,
components for anti-ship missiles, components for surface to air
missiles, components for small calibre artillery, components for
torpedoes decoying equipment, components for anti-ship missiles
launching equipment, components for torpedoes launching equipment,
components for anti-submarine rocket launching equipment, components
for corvettes, components for combat helicopters, components for
aircraft radars, components for depth charges, technology for
the use of combat helicopters, technology for the use of military
aero-engines, technology for the use of aircraft radars, technology
for the use of airborne electronic warfare equipment, technology
for the use of torpedoes, technology for the use of depth charges,
technology for the use of anti-ship missiles, components for military
sonar detection equipment, technology for the use of military
sonar detection eqipment components for patrol craft, componants
for mortars, components for heavy machine guns, components for
naval auxiliary vessels, components for general purpose machine
guns. Back
22
UK Strategic Export Controls Annual Report 2002, p 18. Back
23
Government response op cit, point 17. Back
24
Ibid, point 20. Back
25
Ibid, point 19. Back
26
The Departmental Minute Process is described in Erskine May (Parliamentary
Practice, 22nd edition, Butterworths, 1997). Back
27
The Guardian, 29 October 2002. Back
28
The Guardian, 5 August 2002. Back
29
Kantipur new online 24 December 2003 www.kantipuronline.com/php/kolnews.php?&nid=4860. Back
30
Peace fund used to buy military planes, The Guardian, 23
January 2004. Back
31
". . . when a government department wishes to guarantee for
which there is no statutory authority, and the liability thereunder
could exceed £100,000 it is normal practice for a Minute
to be laid before Parliament. Approval of the guarantee is usually
withheld for 14 days, after the date of laying. If in that period
a Member signifies objection by the tabling of a question of motion,
or otherwise, final approval is not usually given until the government
has considered to objection. A similar practice is followed in
the case of gifts of public stores, or property of an unusal nature
or of a value exceeding £100,000 Erskine May (Parliamentary
Practice. 22nd edition. Butterworths. 1997). Back
32
Defence, Foreign Affairs, International Development and Trade
and Industry Committees The Government's proposals for secondary
legislation under the Export Control Act, May 2003, HC621,
para 169. Back
33
Ibid. Back
34
House of Commons Hansard 27 March 2003, Col 186WH. Back
35
Ibid. Back
36
Ibid. Back
37
House of Commons Defence, Foreign Affairs, International Development
and Trade and Industry "Strategic Export Controls-Annual
Report for 2001, Licensing Policy and Parliamentary Scrutiny".
HC474. May 2003. Para 122. Back
38
Annual Report for 2001, Licensing Policy and Parliamentary Scrutiny-Government
response September 2003. Cm 5943. Back
39
Letter to Barry Gardiner MP from US Senate Committee on Foreign
Relations October 21 2003. Back
40
Mr Gardiner: To ask the Secretary of State for Defence what discussions
his Department has had with the US State Department on (a) the
use of extraterritorial export control legislation and (b) the
need to have strict end-user controls on arms shipments, to reduce
threats to military personnel. [130182]
Mr Ingram A range of issues have been discussed with the United
States Government in the context of the negotiations, concluded
earlier this year, on a text for an unclassified waiver from the
US International Traffic in Arms Regulations. These have included
consideration of extraterritorial control in relation to the export
of strategically controlled goods, but not specifically of end-user
controls. The national security of the United Kingdom and its
allies is considered at the time an application for a licence
to export is made, under the Consolidated EU and National Arms
Export Licensing Criteria. 17 Sept 2003: Column 752W. Back
41
Mr Gardiner: To ask the Secretary of State for Foreign and Commonwealth
Affairs what efforts he has made since 27 February to research
in greater detail the US systems of end-use monitoring of exports
of controlled goods; and if he will make a statement. [136293]
Mr MacShane: 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. 11 Nov 2003: Column 202W. Back
42
Annual Report for 2001, Licensing Policy and Parliamentary Scrutiny-Government
response September 2003. Point 42. Back
43
The DMA gave as a hypothetical example the case of an export of
spare parts to a Royal Australian Navy vessel on a courtesy visit
to Indonesia, which would appear as an export to Indonesia (the
geographical location of the vessel), rather than Australia (the
nationality of the customer). Back
44
Annual Report for 2001, Licensing Policy and Parliamentary Scrutiny-Government
response September 2003. Cm 5943. Back
45
House of Commons Defence, Foreign Affairs, International Development
and Trade and Industry "Strategic Export Controls-Annual
Report for 2001, Licensing Policy and Parliamentary Scrutiny",
HC474, May 2003, Oral Evidence 14 Q 87. Back
46
Ibid. Back
47
Robin Cook Point of Departure, 2003 p 117. Back
48
John Kampfner Blairs Wars, 2003, p 170. Back
49
In November 2002, a Kenya based Al-Qaeda cell fired a Russian-designed
Man Portable Air Defence System (MANPAD) at an Israeli airliner
in Mombassa. In February 2003, troops were deployed at Heathrow
airport because of the intelligence reports that Al-Qaeda planned
to fire portable missiles at civilian aircraft. In August 2003,
UK citizen Helmant Lakhani was arrested in the USA for allegedly
arranging the transfer of a MANPAD into the USA. In November 2003,
a cargo plane was hit by a SAM on approach to Baghdad and had
to make an emergency landing. Back
50
Janes Terrorism and Security Monitor: Portable missiles-the
ultimate terror threat. -AL J Venter. 1 October 2003. Back
51
Elements for Export Controls of Man-Portable Air Defence Systems
(MANPADS), The Wassenaar Arrangement, December 2003, http://www.wassenaar.org/2003Plenary/MANPADS_03.htm Back
52
Public Statement, 2003 Plenary Meeting of the Wassenaar Arrangement
on Export Controls for Conventional Arms and Dual-Use Goods and
Technologies, The Wassenaar Arrangement, December 2003,
http://www.wassenaar.org/2003Plenary/public_statement2003.htm Back
53
See Westminster Hall Debate Export Controls, 6 November
2003. Back
54
House of Commons Hansard 18 November 2003 Col 30WS. Back
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