Examination of Witnesses (Questions 120
- 132)
THURSDAY 20 MARCH 2008
MR OLIVER
SPRAGUE, MS
MARILYN CROSER,
MR ROY
ISBISTER AND
MR MARK
PYMAN
Q120 Malcolm Bruce: There has been
a change of government in Ukraine since then.
Mr Sprague: It is still claimed
the vehicles still went in 2004. They were reported in the UN
register of conventional weapons. All this throws into the spotlight
the issues we were talking about before about the incorporation
of maybe non-listed components, the use of maybe vehicles that
fall just below the specification of what is a military vehicle
but clearly being used in the commission of grave violations of
human rights, which is why we argue that there is a need to push
forward end-use controls not just on goods that are incorporated
but also maybe on platforms, vehicle systems, utility trucks,
et cetera, that are used in embargoed destinations.
Mr Isbister: It is an interesting
case, is it not, because there is an EU arms embargo on China
just as there is on Burma but it is less comprehensive, so there
is equipment that can go from the UK to China which could conceivably
then end up in Burma. What we would ask the UK Government to do
is communicate their concerns to China about the possible onward
export to Burma, state the terms of the EU embargo on Burma, which
includes the indirect supply, so, for example, via China, and
that in licensing decisions the Government should take account
of the relationship between China and Burma and, where they perceive
any risk of diversion or onward export from China to Burma, refuse
those licences.
Q121 Chairman: May I come back to
a further question on cluster munitions? Forgive me; I should
have raised it earlier. I would like your view as to the argument
that says there is a military justification for cluster munitions;
there are no acceptable military alternatives to the use of certain
kinds of cluster munitions. How do you respond to that?
Ms Croser: Cluster munitions have
essentially been used as a weapon of convenience and when looking
at the military utility, lots of different scenarios in which
cluster munitions have and can be used have been put forward.
For instance, unseen enemy fighters in urban areas, convoys of
tanks, depots spread over a wide area. Ultimately, the humanitarian
consequences of the use of cluster munitions outweigh their military
utility. Alternatives to cluster munitions would have to be shown
to have increased precision and a lower failure rate, so an argument
for military utility of cluster munitions being used against the
ban is not an acceptable argument.
Q122 Mr Clapham: Can I turn to open
licences. General licences, I understand, are one of the fastest-growing
areas for UK users for exporting weaponry. You expressed some
concerns. Is there any evidence that the system is being abused
and that some of the exports are finishing up in the wrong hands?
Could you provide us with evidence, if there is such evidence?
Mr Sprague: I think it is for
me to address this question. I think what you are getting at is,
is there evidence that these licences are getting equipment into
the wrong hands. I would like to answer that first by saying that
there is an example of the wrong hands actually being able to
use them, and it relates to the growing consensus between us and
industry that these need to be licences in the true sense of the
word, so there needs to be some form of scrutiny and some form
of mechanism to revoke them. It is in our evidence but you can
see from the court transcripts of John Knight's prosecution that
his defence lawyer says that he is registered to use various open
general licences for his brokering and trafficking activities
and he wants to continue to use them after he has finished his
sentence. I would go one step further: under the current system
there is nothing to stop him using it now. As long as he has access
to a phone, he could be using that licence. It seems crazy that
somebody convicted of such a serious export control violation
is eligible to use an Open General Export Licence for the movement
of small arms and light weapons or of a wide range of goods on
the Military List. The second thing I would like to say is that
it is almost impossible, because of the way the transparency,
monitoring and enforcement works with open general licences, to
know exactly what is being exported under them because of the
incompatibility between the way the Customs database and the Customs
CHIEF system reports it and the way the ECO registers use of the
licence. We asked a question of Customs about whether that was
possible and the answer that came back was: in the six months
alone to December 2007 that would involve the manual cross-checking
of some 8,000 individual references. We have no way on our system
of extracting information about what has been exported under these
licences. So all we can go on is the compliance and audit visits
which are mandated when you register for an OGEL. If you look
at the figures, it is a growing trend of examples of misuse of
open licences when the compliance officers come to visit. In 2004,
5% of OGELs were seen to be misused; in 2005, 8% were seen to
be misused; and in 2006, 11%. That is just over one in 10, from
compliance visits, are shown to have problems with their use.
I do not know what the problems with those uses are, but still,
if we go back to the point that you are not able to remove companies
from using them, that would appear to be a problem. The last thing
I would like to say on OGELs is the notion that all they do is
allow non-sensitive equipment to non-sensitive destinations—if
you actually look at the OGELs and the schedule 2 list of destinations
of countries which you are not allowed to use them on, I am looking
here, for example, at the export after repair, replacement under
warranty, military goods, it basically means you are allowed to
repair, service and supply components, et cetera, spares, manuals,
for basically anything on the Military List. If you look at the
schedule 2 countries to which these licences are eligible, you
could use this licence for Chad, for example. There is nothing
to stop you repairing a military vehicle after warranty in Chad
or Colombia. You are not allowed to do the same thing to Croatia,
which is an EU member. If you look across the OGEL licences, these
anomalies are appearing all across them. If it is going to be
such a permissive licensing system, we really do need to work
on the list of sensitive destinations and make sure there is some
consistency. I am pretty sure that you would not want any form
of licence that would allow anything to do with military vehicles,
small arms, et cetera, to be going to a country like Chad under
the current circumstances, when it is involved in the current
conflict in Darfur. That, I think, really needs to be looked at.
We are not saying that OGELs have no place; we are just saying
that there needs to be a properly enforced licence.
Q123 Mr Clapham: So it really is
a serious issue. You are saying some of the equipment could actually
be finishing up in very sensitive areas.
Mr Sprague: It is legal to use
the licence. The terms of the licence are quite specific but yes,
you can use these licences for a number of destinations where
you would raise questions about whether you would want a permissive
licence like an open general to be in force.
Q124 Mr Clapham: And you feel that
the way of actually controlling open licences would be to specify
the destinations?
Mr Sprague: The destinations are
specified. I think there is a real case for updating those lists
and to make sure countries like Chad, Colombia, et cetera, are
on them as destinations where these licences are not eligible.
Q125 Mr Clapham: Have you raised
this issue at all with Customs or with government?
Mr Sprague: We have been writing
and questioning about the enforcement of OGELs and that is where
the figures have come from around compliance and how many compliance
visits are showing problems. I think it is things we have raised
over the years in a number of fora, including this Committee.
Mr Isbister: It is just worth
mentioning that we have been speaking with industry about the
notion of the eligibility to use an OGEL, and there is basic agreement
between us and industry that it should not be open season, so
we would hope that the Government will listen to this joint voice
and we will see a change at least in that aspect in the near future.
Q126 Mr Weir: You have called for
sustainable development to be added to the table of relevant consequences
of the Export Control Act 2002. Have you any evidence that adding
this would affect the number of applications turned down on grounds
of sustainable development?
Ms Croser: At the minute, the
only information we have available to us about the way in which
the legislation as currently written is operating is the number
of refusals. That seems to suggest that sustainable development
is not given equal weight to the other criteria. One thing that
would help us would be more information, specifically more information
from DfID in reference to the point that they raised with you
last year about the F680 process and the way in which the F680
process could potentially catch many licence applications, and
those licence applications could be deterred at pre-approval stage
if they were likely to be rejected under the sustainable development
criteria. It would be useful if data were available on that specifically
and, if it could not be made available to us, then we would argue
that it should be made available to the Committee. Principally,
change in the relevant consequences would mean that sustainable
development had equal weight to the other criteria in the legislation,
which it does not at the minute. Showing the direct effect of
a transfer on sustainable development is tricky, and that is all
the more reason to give it equal protection under the law.
Q127 Mr Weir: You mentioned there
that it was tricky to show it, but have you developed a model
for measuring sustainable development that could be applied to
arms exports?
Ms Croser: We are currently doing
a piece of work that is looking at financial opportunity costs
of a number of transfers on sustainable development. We do have
a model for assessing whether or not a transfer should go ahead.
A methodology on looking at the consequence of a transfer would
need to list a potential negative impact but also the possibility
that a transfer could have a positive consequence or an unavoidable
cost, and it would look at things like economic, developmental,
human security indicators. DfID last year said that they were
revising their own methodology and that they were considering
publishing that methodology. We would very much encourage them
to do that, partly because a very key part of applying sustainable
development criteria to arms transfers is about transparency.
We ask to see transparency ideally in procurement decisions from
importers, looking at how that decision has been reached, whether
it has been free of corruption, whether it has been democratic.
Equally, exporters should make their criteria for exporting to
countries with developmental concerns transparent. We would like
to see DfID's methodology published.
Q128 Mike Gapes: As you know, this
Committee has been pressing and has been congratulating the British
Government for taking the lead on the International Arms Trade
Treaty. Can you update us on where we are on that?
Mr Isbister: Yes. We are in the
middle of a long game basically, but very good progress continues
to be made. We continue to worry that we are going to come up
against some quite hard walls at some stage in the future but
we continue to make progress and it is very encouraging. If you
go back to the end of 2006, 153 votes in the UN General Assembly
in favour of looking at an arms trade treaty. Last year there
were approximately 100 national submissions to the UN Secretary-General
where states put forward their ideas about an arms trade treaty,
and they are overwhelmingly positive. Sixty states ended up fighting
for 28 places on the Group of Governmental Experts that is currently
in process. Most of the big hitters are on that group. This level
of interest in something of this nature is really unprecedented.
In fact, the UN ODA that had to compile the submissions was running
round in circles because the rules did not allow for such a weight
of submissions in terms of being able to print them. It really
came as something of a surprise. The GGE, the Group of Governmental
Experts, will meet three times this year. They have met once so
far and they have two more meetings to go. It is a closed process,
so it is very difficult to get any kind of detail of what is going
in there, but the general feedback is the first meeting was a
very positive meeting, and for the most part states feel things
are going very well. If I can look at the role of the UK, perhaps
that might be of interest. The UK continues to be one of the leading
countries on this, and we congratulate the UK on that and welcome
it, and encourage them to continue. There are, however, a couple
of areas where we think the UK could do more or could act differently.
The statements of support from the UK for an arms trade treaty
tend to be very general: yes, an arms trade treaty is a good idea,
we are pushing for it, et cetera, but we NGOs are not looking
for any old arms trade treaty; we are looking for an effective
arms trade treaty. There is no point in producing a piece of paper
just for its own sake. The Government tends to be quite shy of
saying what has to be at the centre of an arms trade treaty. From
our perspective, it has to be about dealing with human rights
abuses, breaches of international humanitarian law, and threats
to sustainable development. The Government in its general statements
and political statements does not tend to make these kinds of
points.
Q129 Mike Gapes: Last year the former
Foreign Secretary told us that this treaty should cover all international
transfers of all conventional arms, including small arms, light
weapons, parts, ammunition, technology to produce and maintain
such equipment, and also that consideration should be given to
related dual-use items. Do we have any idea yet what the treaty
is likely to contain?
Mr Isbister: Not really, again,
because the process is closed, and also the GGE is not about negotiating
a treaty. It is just about looking at what a treaty might involve,
and then it goes back to the UN General Assembly for them to look
at what to do next. Certainly there is widespread agreement that
an ATT should cover conventional weapons, including small arms
and light weapons. As you move into those other areas that you
talked about, that is where there are more contentious issues
involved. At this point in the process I would not speculate on
how far we could go.
Q130 Mike Gapes: Finally, is the
US still completely outside of this system?
Mr Isbister: No. The US was not
expected to attend the first GGE meeting, even though they are
a member of the GGE, but they did turn up, and again, it is difficult
to know exactly what was said in there but the general feeling
seems to be they were not particularly problematic in that meeting,
so they are engaging properly.
Q131 Mike Gapes: That is good.
Mr Isbister: Very briefly, two
more things that the UK should be doing. The UK should be pushing
as hard as it can to get the EU code transformed into a common
position, because the idea of EU states, including the UK, arguing
for a legally binding international treaty when the regional agreement
to which the UK is party is only a politically binding instrument
undermines their position. Also, the UK's position on the cluster
munitions again undermines their leadership role in taking the
moral high ground, if you like, in trying to push forward an international
agreement on conventional arms transfers.
Q132 Sir John Stanley: Can you just
explain a bit more why you say the UK Government's position on
cluster munitions is undermining their position in the International
Arms Treaty?
Mr Isbister: The UK has positioned
itself at the forefront of the moves towards agreeing an internationally
legally binding arms trade treaty. It has a status in the international
community in the area of conventional arms control. On the cluster
munitions side, it is in the tent but it is just hanging around
the fringes, and these two positions do not sit very comfortably
together. States may mischievously point that out and take advantage
of that.
Chairman: Can I say thank you very much
again. That was a very helpful session and we are very grateful.
Thank you for your written submissions, I think three between
the four of you. That was really helpful. Thank you. I declare
the meeting closed.
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