7 The EU and the international perspective
Introduction
105. Previous work of the Committees has included
scrutiny of the reviews on arms exports at a European level: we
follow up that work here. In this section we also report on progress
made by the UK in work towards an international arms trade treaty.
Finally, throughout 2008 the Committees have focussed their evidence
sessions with Ministers and stakeholders on the subjects of export
of arms to Sri Lanka and Israel. We report on the evidence we
have received so far.
Adoption of the EU Code of Conduct
on Arms Exports as a Common Position
106. The EU Code of Conduct on Arms Exports adopted
on 8 June 1998 forms the basis of the UK's decision-making process
for licence applications. The Code contains political commitments,
but is not legally binding. It represents minimum standards which
all Member States have agreed to apply to exports of controlled
goods. These standards are defined through a common set of criteria
to be used in deciding whether proposed exports should be allowed.
The Government has published consolidated EU and National Criteria
which explain how it interprets the terms of the Code.[150]
107. As noted in our previous Reports, the EU
Code has been subject to a fundamental review and a revised code
was agreed at a technical level with an agreement in principle
that the revised text should be adopted as a Common Position under
Article 18 of the Treaty of European Union. This Common Position
would be legally binding on Member States, who would be obliged
to ensure that their domestic legislation conformed with the Common
Position.[151] We welcomed
the revisions and recommended in our last Report that the Government
continue to press determinedly for the revised EU Code of Conduct
on Arms Exports to be adopted with this status.[152]
In response to our recommendation the Government said that it
remained strongly committed to seeing the Code of Conduct adopted
as a Common Position and had detailed discussions with other Member
States aimed at resolving concerns that had been raised. In addition,
it had already subjected the text to parliamentary scrutiny, which
would enable the UK to move quickly to adoption once consensus
on adoption has been reached.[153]
108. We recommend that the Government
report back to the Committees by the end of 2009 on how discussions
with other EU Member States have progressed towards consensus
on a revised EU Code of Conduct on Arms Exports to be adopted
as a Common Position.
Peer review of implementation
of EU Council Regulation 1334/2000 on dual use
109. In 2006-07, the Committees asked about progress
in carrying out recommendations arising from the 2004 peer review
on the implementation of EU Council Regulation 1334/2000 on the
control of dual-use items in the enlarged EU. In a memorandum
received in April 2008, and printed in our last Report, the Government
said that there was no need for domestic legislation but that
Council Working Groups were still considering the Regulation.[154]
In our last Report we recommended that:
the Government explain whether the conclusions
and recommendations from the peer review of the implementation
of EU Council Regulation 1334/2000 on the control of dual-use
items have led to changes in the operation of the export control
system to improve its effectiveness.[155]
In response, the Government said that work on the
Regulation would be finished by the end of 2008, and "thereafter
it will be possible to focus more attention on some of the other
aspects of the Review's conclusions and recommendations".[156]
110. Ian Pearson was questioned by us in January
2009 on the progress made by the Council Working Group review
on the dual-use regulation:
I think there was some hope that during the French
Presidency it would come to conclusions, but that has not been
possible […] There is still some more work for the Council
Working Group to do and we are playing our full part in that.[157]
111. In evidence to us on 11 March, the NGOs
expressed frustration that little action appeared to have been
taken on amending the dual-use regulation, even though the Government
had promised to take a lead on EU discussions.[158]
A main concern for the NGOs was to ensure that the EU implements
its obligations on dual use so far as they relate to UN Security
Council Resolution 1540 (2004) on the non-proliferation of weapons
of mass destruction and their means of delivery.[159]
112. EGAD also raised separate concerns about
non-compliance and enforcement in the dual-use sector:
[I]t remains worrying that the Defence Industry,
which accounts for approximately 2% of UK GDP, continues to account
for over 60% of export licences. At the very least, this lends
strong support to the (very considerable) anecdotal evidence that
there is significant non-compliance in the dual-use sector […]
This non-compliance is not that which is often encountered by
the relevant agencies, that of a mostly law-abiding and compliant
exporter making an honest mistake or a technical breach of licence
conditions; rather it is a sector of what should be a regulated
Industry operating wholly outside of the regulatory regime.[160]
EGAD recommended that the government put in as much
effort into enhancing the effectiveness of the UK's export controls
relating to the dual use sector as it put into controls on controlled
goods within the conventional sector.
113. We recommend that the Government
report back to the Committees by the end of 2009 the progress
made by the EU Council Working Group on the implementation of
the recommendations of the review on EU Council Regulation 1334/2000.
In its Response the Government should set out the necessary steps
that need to be taken by the EU to implement the recommendations
of the review together with the Government's strategy for achieving
implementation.
EU Arms Embargo on China
114. In our last Report we noted that the value
of standard individual exports licences (SIELs) issued for exports
to China had increased steadily from 2004 to 2007, despite the
arms embargo being in place since 1989.[161]
When asked whether the embargo had any economic or commercial
effect, the FCO responded:
It is important to note that it is not a "full
scope" embargo. The export of some controlled goods to China
was always envisaged and thus, increases in the volume of exports
for controlled goods that are not covered by the terms of the
embargo should not be seen as a barometer of the effectiveness
of the embargo. It is also difficult to assess the economic and
commercial impact of the embargo based on one year's figures,
and this needs to be assessed against a longer period.[162]
115. Whilst the Government told us that it continued
to have "serious concerns" about human rights in China,
it argued that: "Strengthening the arms embargo would do
nothing to encourage dialogue, and would risk isolating the Chinese
Government in a way which would make it significantly more difficult
for us to raise human rights concerns."[163]
116. We repeat our conclusion
that the British Government and the EU should maintain their arms
embargo on China, and that the Government should provide us in
its Response with an update on its assessment of the human rights
situation in China and of the adequacy of the current arms embargo
in place.
Progress towards an Arms Trade
Treaty
117. We have previously commended the Government's
support for an international Arms Trade Treaty (ATT)[164]
and continue to monitor the progress of negotiations. This subject
has also been covered more fully in the Foreign Affairs Committee's
recent Report on non-proliferation.[165]
118. The meetings of a Group of Governmental
Experts (GGE) between February and August 2008 established the
existence of divergent views as to the feasibility of the ATT,
what should be its scope and which activities and transactions
should be covered, and the parameters of the treaty, for example
the "applicability of existing international human rights
law and international humanitarian law".[166]
Subsequently, in December 2008, despite US opposition and a number
of key abstentions, the General Assembly endorsed a First Committee
resolution which called on the UN to establish an Open Ended Working
Group (OEWG) to "further consider those elements in the report
of the Group of Governmental Experts where consensus could be
developed for their inclusion in an eventual legally binding treaty.[167]
The OEWG will be open to all Members States to participate and
will meet a total of six times between March 2009, when it first
convened, and 2011.[168]
Despite voting against the General Assembly Resolution, the US
are taking part in the OEWG and Bill Rammell described the contributions
of the US delegate as "constructive".[169]
Jo Adamson, the FCO's Deputy Head of Counter Proliferation added
that she had been "really struck by the change in tone from
the delegate at that meeting", but admitted that "we
have now got to dig below what would be beyond engagement."[170]
119. The Export Group for Aerospace and Defence
(EGAD) continues to support the Government in its pursuit of an
ATT. However, EGAD referred to "the overly-enthusiastic pronouncements
of some in the NGO lobby", adding "we do not perceive
this, alone, as being a panacea."[171]
THE SCOPE AND STRENGTH OF AN ARMS
TRADE TREATY
120. One critical question remains the balance
that will emerge between the strength of an ATT and the number
of Member States willing to sign up to its provisions. One of
the key elements of the strength of the treaty will be its scope.
NGOs stressed to us that the a scope limited to the UN Register
of Conventional Arms' seven categories of major conventional weapons
with the addition of small arms and light weapons, the so-called
"7+1 formulation", would not produce a sufficiently
comprehensive treaty.[172]
For example, it would exclude a number of categories of weapon,
as well as components and parts.[173]
Amnesty further suggested that states would find such a treaty
difficult to implement "because [7+1] is not reflected in
their own control lists".[174]
In oral evidence Amnesty, Saferworld and Oxfam went as far as
to state that they would not lend support to a treaty based on
7+1.[175] Marilyn Croser
of Oxfam said:
We feel very strongly that the Government needs
to be out there arguing for broad scope, high standards, because
otherwise they are going to end up with something that is not
effective. If you go into a negotiation position with a kind of
fairly low bar, then what tends to happen is the bar goes down
as negotiations go on, and that is why it is very important going
into a negotiation to have the bar high.[176]
EGAD also highlighted the practical implementation
problems of using the UN list as a basis for the treaty and additionally
stressed that re-using the alternative Wassenaar Military list
would run the risk of associating the ATT with the Wassenaar states.[177]
Further, they expressed concern about adding to the burden on
industry and suggested "some kind of harmonisation of the
list so that everybody was playing off the same level playing
field". They stated that a harmonised list would be preferable
to maintaining individual states' rules on extra-territoriality.[178]
121. Bill Rammell acknowledged the "absolutely
legitimate concern" with respect to the strength of an eventual
ATT and told us that:
we most certainly do not want a weak treaty and
will do everything in our power—and I do have a difficulty
without revealing a negotiating hand—to ensure we set the
threshold as high as possible. If, at the end of the day, we
get a weak treaty that does not make a material difference, I
would regard that as a failure.[179]
122. We conclude that the Government
is to be commended for its continuing commitment to an international
Arms Trade Treaty (ATT). We recommend that the Government continue
to seek an ATT that is as strong as possible. We conclude that
a successful ATT should be clearly enforceable, have as wide a
scope as is achievable, and underline the applicability of international
human rights and humanitarian law. We concur with the recommendation
of the Foreign Affairs Committee, that if in the future, the Government
is forced to choose between giving priority to the strength of
the treaty or achieving the widest possible ratification, it should
give priority to securing the strongest possible treaty.
Sri Lanka
123. In the course of our evidence sessions,
we raised our concerns with witnesses on the subject of Sri Lanka.
On 11 March 2009, we asked representatives of the Export Group
for Aerospace and Defence (EGAD) to what extent they saw similarities
between exporting arms to Sri Lanka and Israel. David Hayes, Chairman
of EGAD, told us that an embargo would be "a matter for Government,
not for industry".[180]
However, Nigel Knowles, Vice Chairman of EGAD, felt able to offer
an argument against an embargo, citing the leverage generated
by trade. He suggested that it was sometimes necessary "to
take a little grief in order to keep a friendship".[181]
We were not persuaded either by the leverage generated in this
case, or indeed the general principle. Indeed, the Campaign Against
Arms Trade notes in its written memorandum that the Defence Industrial
Strategy concluded that "the balance of argument about defence
exports should depend mainly on non-economic considerations".[182]
124. We pursued the issue of Sri Lanka with Bill
Rammell at our session on 22 April 2009.[183]
He told us that the FCO's judgment was that an embargo, or the
threat of one, was not the best vehicle for trying to secure a
ceasefire.[184] Using
an embargo signalled "the end of the diplomatic road"
and demonstrated that a lot of influence had been lost.[185]
The Minister told us that few licences had been granted for exports
to Sri Lanka since the beginning of 2007 which he cited as evidence
of procedures being effective.[186]
125. The issue of Sri Lanka illustrates the difficulties
faced by the Government, and by those who, like us, scrutinise
the licensing decisions made by Government, in assessing how exports
of arms might be used by the destination country at a future date,
particularly if political situation in the country at the time
of the exports appears stable. Bill Rammell told the Committees
that licensing decisions were based on evidence from FCO posts,
from NGOs, newspaper and media reports and a variety of other
sources.[187] He said
that "you make judgments based on the situation at the time;
you do not make judgments for ever and a day."[188]
In its submission to us, Saferworld listed the type of weapons
that had been licensed for export to Sri Lanka from 1997 onwards,
including the period of the fragile ceasefire starting in 2002.[189]
During the ceasefire, a wide variety of military equipment and
weapons were exported to Sri Lanka, and, due to the extremely
limited access of international observers to Sri Lanka, it is
impossible to be certain how many of those weapons were used subsequently
against the civilian population when hostilities began to escalate
again in 2006. Bill Rammell argued that few licences had been
issued for Sri Lanka since 2007, but accepted that the international
community had not focussed enough on what had been happening in
Sri Lanka.[190] We
note the fact that in the period 1 April 2008 to 31 March 2009,
34 licences were issued for export to Sri Lanka, and we will be
keeping a keen eye on all future exports.
126. We conclude that the policy
of assessing licences to Sri Lanka on a case-by-case basis is,
in our opinion, appropriate. However, we recommend that the Government
should review all existing licences relating to Sri Lanka and
provide in its Response an assessment of what implications the
situation in Sri Lanka will have on how the Foreign and Commonwealth
Office judges the possible future use of strategic exports by
that country and the risk that the export licensing criteria might
be breached. We further recommend that the Government provide
in its Response an assessment of what UK supplied weapons, ammunition,
parts and components were used by the Sri Lankan armed forces
in the recent military actions against the Tamil Tigers.
Israel
127. We have focussed particularly this year
on arms exports to Israel, an issue on which we have previously
commented. In parallel, the Foreign Affairs Committee has reported
on these issues in its Report into Global Security: Israel and
the Occupied Palestinian Territories.[191]
We will not repeat the full discussion of the evidence in that
Report on the merits of imposing an arms embargo on Israel. Instead,
we focus particularly on the more technical issues relating to
whether or not components supplied under licence from the UK (particularly
incorporated in products assembled in a third intermediary country)
were used by the Israeli Defence Forces (IDF) in Gaza during Operation
Cast Lead which began on 27 December 2008. The Foreign Secretary
made a Written Ministerial Statement on 21 April which stated
the Government's understanding of the situation.[192]
128. We have previously commented on the Government's
decision in 2002 to authorise the export to the USA of components
for incorporation into aircraft for onward export to Israel, when
it would not authorise the export of the relevant components or
aircraft to Israel directly.[193]
Under the 2002 decision, the UK has supplied components to the
US for incorporation into F-16 fighter aircraft and Apache attack
helicopters. We questioned Ian Pearson on this subject in January
and he later wrote, clarifying the Government's position:
At the evidence session I stated, on the basis
of advice that I had received, that no export licences for F-16
Head-Up Display (HUD) equipment to Israel had been granted since
2002.
While this is correct, I would like to clarify
that this refers to licences for the export of F-16 HUD components
direct (underlined) to Israel, for use in Israel. Since that date
there have been a small number of licences granted for these goods
where, although not going direct to Israel, we were aware that
Israel was the ultimate end-user.[194]
In his 21 April statement, the Foreign Secretary
stated that the F-16s and Apache helicopters used by Israeli forces
during Operation Cast Lead "almost certainly" contained
British-supplied components incorporated in this way.[195]
The Foreign Secretary also identified that Saar 4.5 naval vessels
and armoured personnel carriers "almost certainly" included
British-supplied components. The UK authorised the export direct
to Israel of gun components for the former. The latter included
converted British Centurion tanks sold to Israel in the late 1950s.[196]
The UK has also supplied "minor components" for reconnaissance
satellites which "might" have been used to prepare operation
Cast Lead, but which "would not have played a significant
part in the operation itself."[197]
129. Bill Rammell told us in April that the Government
had not authorised any exports relating to F-16s, helicopters
or armoured personnel carriers for Israel, including for incorporation
in a third country, since the conflict in Lebanon in 2006 and
that "all of these export decisions were in accordance with
the criteria on that information that we had available at the
time."[198] In
a memorandum to the Committee, the FCO outlined instances where
licences were refused for the supply of components for F16s for
use by the Israeli Air Force on the basis of Criteria 2, 3, 4
and 6 of the consolidated criteria.[199]
Ian Pearson told us that "Israel regularly features in three
destinations with the highest number of refusals",[200]
and that the Government continues "to assess such applications
on a case-by-case basis".[201]
130. The UK Working Group on Arms highlighted
to us the issue of unmanned aerial vehicles (UAVs), specifically
Hermes 450 UAVs which were used during Operation Cast Lead.[202]
Hermes 450s are manufactured by Elbit systems in Israel and at
least some engines are provided by Lichfield-based UAV Engines
(UEL). Elbit has stated that Hermes 450s containing British engines
are manufactured in Israel exclusively for export and are not
used by the IDF.[203]
The Government has said similarly that British export licences
have only been issued for the engines to be incorporated in Israel
and then exported.[204]
The Foreign Secretary told the House in his 21 April statement
that the FCO had "no evidence that goods licensed by the
UK [for UAVs] were diverted within Israel for use by the IDF."[205]
However the UK Working Group on Arms state that it "can find
no other publicly available source to suggest that alternative
engines are fitted into Hermes 450 UAVs operated by the IDF".[206]
Oliver Sprague of Amnesty International told us that in 1997 and
1999 "technology transfers for know-how and related technology
for their engine designs" were made and highlighted that
"they could be manufactured in other countries which would
obviously raise concerns around licensed production issues or
technology transfer issues".[207]
REVIEWING LICENCES FOR EXPORTS TO
ISRAEL
131. The Government is reviewing all extant export
licences to Israel, to see if any need to be reconsidered in the
light of the conflict in Gaza. Bill Rammell told us that licences
would be revoked if necessary.[208]
It has been widely reported that the Government has revoked licences
to export naval gun components to Israel but at the time of finalising
our Report we had not received confirmation from the Government
of this.[209] The Foreign
Secretary also told the House that the Government would take the
conflict in Gaza into account in assessing all future licence
applications.[210]
132. We conclude that it is
regrettable that components supplied by the UK were almost certainly
used in a variety of ways by Israeli forces during the recent
conflict in Gaza and that the Government should continue to do
everything possible to ensure that this does not happen in future.
We conclude that the Government is correct to assess the granting
of licences for export on a case-by-case basis and we endorse
decisions not to grant a number of licences in relation to Israel.
This includes the refusal of licences to supply a variety of components
for end-use by Israel since the war in Lebanon in 2006. We further
conclude that the Government's review of extant licences relating
to Israel is to be welcomed, as is its stated intention of assessing
the need to revoke any which should be reconsidered in light of
the Gaza conflict. We recommend that the Government keep us informed
of the progress of the review, of whether or not the Government
chooses to revoke any licences and whether the Government believes
that its eventual position has implications for the UK's defence
relationships with either the USA or Israel itself, or for the
operational capabilities of the UK's armed forces.
150 European Union Code of Conduct on Arms Exports,
EU Council Document 8675/2/98; see also HC Deb, 26 October 2000,
col 203W Back
151
HC (2005-06) 873, Ev 126, Q 303 Back
152
HC (2007-08) 254, para 126 Back
153
Cm 7485, p 19 Back
154
HC (2007-08) 254, Ev 87 Back
155
HC (2007-08) 254, para 127 Back
156
Cm 7485, p 19 Back
157
Q 51 Back
158
Qq 73-75 Back
159
Q 75 Back
160
Ev 59 Back
161
HC (2007-08) 254, paras 141-143 Back
162
HC (2007-08) 254, Ev 90-91, Q 12 Back
163
HC (2007-08) 254, Ev 91, Qq 13-14 Back
164
HC (2007-08) 254, para 137 Back
165
Foreign Affairs Committee, Fourth Report of Session 2008-09, Global
Security: Non-Proliferation, HC 222 Back
166
United Nations General Assembly, Report of the Group of Governmental
Experts to examine the feasibility, scope and draft parameters
for a comprehensive, legally binding instrument establishing common
international standards for the import, export and transfer of
conventional arms, UN Document A/63/334, 26 August 2008, www.poaiss.org Back
167
United Nations General Assembly, Resolution 63/240, Towards
an arms trade treaty: establishing common international standards
for the import, export and transfer of conventional arms,
www.un.org/disarmament Back
168
Meeting dates of the Open Ended Working Group on an ATT, www.un.org/disarmament/convarms/ArmsTradeTreaty/html/ATTMeetings2009-11.shtml
Back
169
Q165 Back
170
Q167 Back
171
Ev 60 Back
172
Ev 84, Qq 86-88 Back
173
Ev 84 Back
174
Q 87 [Oliver Sprague] Back
175
Q 88 Back
176
Q 86 Back
177
Currently used as the basis for the Wassenaar Arrangement's export
control regime http://www.wassenaar.org/ Back
178
Q 108 [Nigel Knowles] Back
179
Q163 Back
180
Q 94 Back
181
Q 96 Back
182
Ev 61 Back
183
Qq 150-155 Back
184
Q 150 Back
185
Q 152 Back
186
Q 153 Back
187
Q 123 Back
188
Q 150 Back
189
Ev 87-106 Back
190
Q 153 Back
191
Foreign Affairs Committee, Fifth Report of Session 2008-09, Israel
and the Occupied Palestinian Territories, HC 261 Back
192
HC Deb, 21 April 2009, col 8WS Back
193
Defence, Foreign Affairs, International Development and Trade
and Industry Committees, First Joint Report of Session 2001-02,
Strategic Export Controls: Annual Report for 2000, Licensing
Policy and Prior Parliamentary Scrutiny, HC 718, paras 136-147;
Defence, Foreign Affairs, International Development and Trade
and Industry Committees, Second Joint Report of Session 2002-03,
Strategic Export Controls, Annual Report for 2001, Licensing
Policy and Parliamentary Scrutiny, HC 474, paras 130-154 Back
194
Ev 64 Back
195
HC Deb, 21 April 2009, col 8WS Back
196
HC Deb, 21 April 2009, col 8WS Back
197
HC Deb, 21 April 2009, col 8WS Back
198
Qq 122, 126 Back
199
Ev 108 Back
200
Q 6; see also Q 139 Back
201
Q 13; see also Q132-141 Back
202
HC Deb, 21 April 2009, col 8WS Back
203
Ev 78; Amnesty International, "Fuelling conflict: Foreign
arms supplies to Israel/Gaza", 23 February 2009, pp 30-31 Back
204
Q 19 Back
205
HC Deb, 21 April 2009, col 8WS Back
206
Ev 78; see also Q 64 Back
207
Q 64 Back
208
Qq 123-124 Back
209
"UK cuts Israel weapons contracts", BBC news online,
13 July 2009, news.bbc.co.uk Back
210
HC Deb, 21 April 2009, col 8WS Back
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