Committees on Arms ExportsWritten evidence from the UK Working Group on Arms (UKWG)

Introduction

1. The world is now in the run-up to the negotiating Diplomatic Conference on the Arms Trade Treaty (ATT). Since 2006, the UK has been widely perceived as the lead government on this Treaty process, which has the potential for significant positive humanitarian and human rights impact. However, UK profile and activity has significantly reduced in recent months, with potentially negative results in the final Treaty, and the UK Working Group on Arms (UKWG)1 recommends the Government to urgently scale up its ATT work.

2. The UKWG on Arms believes that recent events in the Middle East and North Africa have exposed certain weaknesses in UK arms transfer policy and practice. We further maintain that the recent internal review of UK export control policy was flawed in terms of process and has failed to properly acknowledge and address these weaknesses. This memorandum contains a number of suggestions as to how UK policy could be amended and recommends that the Government should henceforth adopt a much more inclusive approach to reform.

3. In addition, this memorandum considers several other issues, such as illegal activities at the Defence & Security Equipment International exhibition, the involvement of UK financial institutions in cluster munitions production, and the introduction of a ‘torture end-use’ control.

Recommendations

Arms Trade Treaty Negotiations

4. The UK Government needs to urgently reprioritise its leadership role on the ATT. The Government must treat the ATT as a key diplomatic priority and make more resources available at both the political level (through engagement by Ministers) and at senior official level.

5. The Government must in particular reassert striving for a Treaty that will have positive humanitarian and human right benefits. While the Government should continue to work to bring sceptical states into the ATT mainstream, we urge it not to compromise on essential Treaty elements, eg in relation to human rights and international humanitarian law and a comprehensive scope, in the interests of universal acceptance.

6. The Government should continue to promote the current Chair’s Paper as the starting document for the ATT Diplomatic Conference, and must resist attempts by sceptics to water-down this paper.

7. The Government should throw its full weight behind ensuring that the whole ATT Diplomatic (negotiating) Conference, and not just the Committee of the Whole, is open to civil society, and should revert to including an NGO representative, as well as an industry representative on its ATT delegation.

UK arms transfer policy and practice

8. Having failed to involve external stakeholders in the UK export control review process so far, the UK Government should engage fully with these stakeholders as the recommendations of the review are developed and implemented. This engagement could be in the form of workshops that would allow for discussion of the results so far and for further improvements to be made, with a clear timetable for the process to identify when these changes will be completed and implemented.

9. Arms transfer licensing policy must be adjusted so that it: is brought in line with the actual criteria used to grant licences with a shift in focus from “evidence of previous misuse” to “risk and likelihood” in the risk analysis process; ensures the context within which arms may be used is included in such analysis; takes full account of the capacity of the proposed end-user to use equipment in accordance with international obligations; takes a longer-term and broader attitude to risk including consideration of governance issues; engages with other relevant Government processes and initiatives, eg the Building Stability Overseas Strategy (BSOS); better utilises external expertise; and reduces scope for licensing decisions to give undue weight to political, strategic or economic factors.

10. The UK Government should immediately update its arms export licensing criteria to accurately reflect its obligations under the 2008 EU Common Position, which contains much stronger commitments on transfer licensing than those currently employed.

11. The Government should consider developing a list of particularly sensitive ‘countries of concern’ to which additional licensing safeguards, such as making licensing decisions based on a ‘presumption of denial’, could be applied.

12. As part of its commitment to improve scrutiny of security and justice assistance in the future, the Government should disclose the evaluation of the training received by the Libyan Police in 2007 and respond to the CAEC’s 2008 recommendation on this issue.

13. The Government should provide to the CAEC details of what evidential standards it utilises when checking end-use issues relating to UK arms transfers, including details of how monitoring is undertaken, what checks are actually carried out and by whom, and how information is collated, assessed and analysed when making conclusions about the potential misuse of UK-supplied equipment.

14. To allow meaningful scrutiny of the Government’s implementation of its arms transfer policy, continued improvements are necessary on the quality of information provided in its annual, quarterly and online reporting. Improvements should include qualitative information such as the types, quantities and end-users or end-uses of UK-licensed equipment for all licence types, including open licences. Such improvements would also be of considerable benefit to the Government when explaining seemingly controversial licensing decisions, especially in difficult cases.

Defence & Security Equipment International exhibition

15. The UKWG suggests that the CAEC request information on the scope and nature of compliance checks before and during all UK defence and security exhibitions.

16. To prevent future promotion of cluster munitions, the Government should prohibit any state that has not signed and ratified the Cluster Munitions Convention, and any company that has not signed a written guarantee that they (or any subsidiary or partner) do not produce cluster munitions or their components, from attending any trade event in the UK.

17. Any company guilty of displaying illegal promotional literature should be required to in future submit all promotional materials for explicit approval by exhibition organisers.

18. Any company guilty of repeated illegal promotion should be refused permission to exhibit in future, with the length of their ban based on the severity of the malpractice and remedial action taken by the company.

19. In light of the apparent clear breaches of UK legislation, the UKWG call on the Government to launch immediate investigations into Beechwood Equipment Ltd, Pakistan Ordinance Factories and the Nammo Group and prosecute any company found to be in breach of UK legislation.

20. We urge the Government to confirm its intention to honour existing commitments made by the previous government to end indirect financial support for cluster munitions.

EU Common Position Review

21. We urge the UK Government to continue to press the European Commission and EU Member States to urgently introduce a torture end-use ‘catch all clause’ through an amendment to EC Regulation 1236/2005.

22. If, after the EU Commission’s November 2011 discussions on amending the EC Regulation, there is no progress on establishing the end-use clause and in light of almost four years of delay, there is a strong case for a torture end-use control to be introduced unilaterally at a UK level (thereby setting an example for EU partners to follow), in concordance with the UK Government’s previous statement that it would consider introducing such a control independently.

23. We also urge the UK to continue its efforts to strengthen EC Regulation 1236/2005 to broaden the range of equipment covered, specifically by updating the annexes on prohibited equipment (Annex 2), eg to include all drugs used in lethal injection, and controlled equipment (Annex 3), so as to reflect developments in the security equipment market.

Detailed Analysis

Arms Trade Treaty negotiations

24. The UKWG is concerned that the resources devoted and priority accorded to the ATT in the FCO at this vital stage in the run-up to final negoitations have been significantly reduced. During July 2011 PrepComs and the 2011 UN First Committee, other supportive States (including major UK allies) have been telling us at the UN that their impression is that the UK has “rolled back” in its leadership and activity on the ATT. Comments tend to focus on UK interventions on the ATT being notably much less substantial than in previous years, a reduction of political profile, and an absence of senior official activity.

25. It is noteworthy that there is no longer a dedicated post of lead ATT negotiator for the FCO with the ending of the post of Multilateral Disarmament Ambassador in July 2011. The lead role has shifted to the Head of the FCO’s Counter-Proliferation Department, who would appear to have a large number of other demands on her time and attention. While we have worked closely with the UK since 2006 on the ATT, there has been less interaction with the FCO during 2011. Moreover, although we have previously received assurances from UK Ministers that there would be no reduction in ATT resourcing or activity (see last CAEC evidence session with Minister Alistair Burt) this has not been borne out in practice. Similarly, we are concerned that other important UK departments and ministries, such as BIS and the MOD, are failing to allocate the resources necessary to ensure the UK does all it can to deliver a meaningful Treaty.

26. These factors appear to be both reducing UK influence in the process, which in turn affects the level of drive to achieve a strong humanitarian and human rights oriented Treaty. The UK’s reduced profile on the ATT internationally and at the UN is leading other states to assume that UK support for an ATT with a clear humanitarian and human rights focus is waning.

27. It should be underlined that the UK has much at stake in these negotiations. The ATT is an extremely significant multilateral treaty (the most significant treaty in 30 years, according to the UN Office for Disarmament Affairs), which as Alistair Burt noted in March 2011, “has the potential to prevent human rights abuses, reduce conflict and make the world a safer place”.2

28. Because the UK has been perceived internationally as the main initiator and driver of the ATT, whatever the outcome in July 2012 it will reflect on UK diplomacy; it is therefore in the UK interest to ensure a robust treaty, rather than a weak and ineffective one. To be effective the ATT must include:

clear humanitarian and human rights goals and objectives;

comprehensive scope (all conventional weapons, components and ammunition and potentially lethal weapons used in policing and internal security) and all types of transactions;

strong criteria against which arms transfer applications are assessed, based on human rights and international humanitarian law and socio-economic development; and

transparent and practical implementation mechanisms.

29. We welcome the fact that the UK is working to bring P5 members China and Russia, which so far have not been convinced of the merits of a robust Treaty, into the ATT mainstream. However we urge the Government not to compromise on essential elements, eg in relation to human rights and international humanitarian law and a comprehensive scope, in the interests of getting universal acceptance. We recognise the give-and-take nature of negotiations, but the Treaty must retain its humanitarian and human rights orientation if it is to have impact on the millions affected by conflict and armed violence every year.

30. To achieve these goals, the Government must put its full weight behind the negotiations, including not only adequate staff resources but also concerted political engagement especially from FCO but from all departments concerned, including BIS, DFID and MOD. We would also recommend greater parliamentary engagement, which could, for example, include participation by the CAEC at the Diplomatic Conference next July to reinforce the message of UK support for a strong result.

31. Three ATT Preparatory Committee meetings (PrepComs) have so far been held, in advance of a one-month Diplomatic (negotiating) Conference scheduled for July 2012. The key output of the most recent PrepCom (July 2011) was an informal Chair’s Draft Paper which, although not containing all that the UKWG would like, includes many of the essential elements of a humanitarian and human rights-focused ATT. The Chair’s Draft Paper is not written as a treaty per se, but there are detailed provisions regarding inter alia the scope of weapons, types of transfers, criteria governing transfers and implementation mechanisms.

32. It is planned that the final PrepCom, scheduled for February 2012, will establish the rules of procedure for the Diplomatic Conference. Key among the deliberations of the PrepCom will be a decision about how the Chair’s Draft Paper (which has no formal status) may be used in the final negotiations. We urge the UK to continue to promote the current Chair’s Draft Paper as the starting document for the Diplomatic Conference.

33. In addition, the final PrepCom will decide on whether the negotiations will be open or closed, ie whether civil society will be able to attend as observers. We urge the UK Government to push very strongly for this—a number of sceptical governments are likely to seek closed negotiations. The Government has recognised the important role of global civil society in the ATT process at both the national and international (UN) level. This has included financial support for NGO activity at the UN, which has been recognised as mutually beneficial in terms of outreach and technical support. This is particularly so for conflict-affected States, which are often less-capacitated than big European delegations. The UK also had an NGO representative on its ATT delegation from 2008–2010, and we urge that this practice be resumed.

Recommendations

34. The UK Government needs to urgently reprioritise its leadership role on the ATT. The Government must treat the ATT as a key diplomatic priority and make more resources available at both the political level (through engagement by Ministers) and at senior official level.

35. The Government must in particular reassert striving for a Treaty that will have positive humanitarian and human right benefits. While the Government should continue to work to bring sceptical states into the ATT mainstream, we urge it not to compromise on essential Treaty elements, eg in relation to human rights and international humanitarian law and a comprehensive scope, in the interests of universal acceptance.

36. The Government should continue to promote the current Chair’s Paper as the starting document for the ATT Diplomatic Conference, and must resist attempts by sceptics to water-down this paper.

37. The Government should throw its full weight behind ensuring that the whole ATT Diplomatic (negotiating) Conference, and not just the Committee of the Whole, is open to civil society, and should revert to including an NGO representative, as well as an industry representative on its ATT delegation.

MENA and the Arab Spring

UK arms transfers to MENA

38. As the 2010–2011 Committees on Arms Export Control (CAEC) Report pointed out, the recent uprisings in the Middle East and North Africa region (MENA) threw a spotlight on UK arms transfer policy and government promotion of arms exports. We support the request in the Report for further information regarding exports to the particular countries in the MENA region that experienced uprisings and the request to the Government to state what changes it will implement to minimise the risk of UK arms being used for internal repression by authoritarian regimes.3

39. The Government’s decision to review UK export policy was therefore very welcome, however we have concerns about the way the review has been carried out. While there are some positives to which we can point in the Foreign Secretary’s statement of 13 October in which he announced the outcome of the review, there are also a number of unanswered questions as well as a suggestion that export policy will continue to be too reactive. Ultimately, we fear that the nettle has not been fully grasped.

40. In 2008 the CAEC expressed concern regarding the licensing of the export of water cannons and armoured-personnel carriers to Libya in 2007. The CAEC received the following reassurance from the Government:

“the Libyan Police … had successfully completed, and been assessed against, appropriate training on the use of this equipment and best practice in public order situations…Independent assessors from the UK MoD Police and Humberside Police evaluated this training. HMG considered the level of risk that the goods would have been used contrary to Criterion 2 to have been mitigated to an acceptable level by the training and evaluation.”4

41. Despite this reassurance the CAEC stated that:

“We have misgivings about these exports to Libya. In this case with Libya’s poor record on human rights there is a risk that the exports could be misused …

“In responding to this Report we recommend that the Government explain whether in issuing export licences for armoured personnel carriers and water cannons to Libya it made an exception to its policy to refuse an export licence if the issue of a licence is assessed to be inconsistent with the Consolidated Criteria and whether it will carry out end-use monitoring in the case of these exports to Libya.”5

42. As far as the UKWG is aware no Government response was received.

43. The concerns expressed by the CAEC in 2008 have unfortunately been borne out by the violent suppression of protests in countries including Bahrain, Egypt, Libya and Tunisia to all of which, in 2010, the Government granted export licences for equipment that could be used to facilitate internal repression. While many export licences to these destinations were revoked when the uprisings began the UKWG believes that the licences should have been refused in the first place due to the risk of the goods being misused.

44. Two particular exports demonstrate how UK equipment could be used to facilitate human rights violations. UK company NMS International sold 10 armoured vehicles to Libya having first obtained a UK export licence.6 It is not known when these vehicles were exported but some of these vehicles were identified on the streets of Libya in February 2011 during a Government crackdown against protesters. The UK Government has repeatedly claimed there is no evidence of UK equipment being used in Libya, yet we draw the Committees’ attention to the video footage and photographs documented by Amnesty International showing distinctive armoured crowd-control vehicles patrolling the streets of Libya in February 2011, crowd-control vehicles licensed for sale by the UK Government.7 We believe this is clear evidence of the use of British equipment against civilians in Libya. Amnesty International first drew the Government’s attention to this material in February 2011; we are unclear on what basis this has been dismissed.

45. In January 2011, the UK-arm of US-based General Dynamics were fulfilling a contract to upgrade communications systems for tanks, artillery and armoured personnel carriers (however the upgrade was not completed before the company pulled out of the contract). These vehicles were for the Khamis Brigade, which was among those elements of the Libyan security services directly involved in putting down the Libyan uprising.8

46. We are also concerned over the UK Government’s stated wish to promote arms exports and that this may trump human rights concerns. In 2010 at the Libyan arms exhibition LIBDEX the UK pavilion was co-sponsored by UKTI DSO and NMS International. At least 50 UK companies exhibited, including those that sell sniper rifles, crowd-control ammunition, armoured vehicles and electrified razor wire. The UK pavilion at the February 2011 IDEX fair in UAE featured companies selling crowd-control equipment and armoured vehicles. In February 2011 David Cameron visited Egypt, Kuwait, Qatar and Oman along with senior representatives from BAE Systems, Thales UK and Qinetiq. The UKWG questions whether the Government should be giving this level of support to UK companies to help them secure contacts to export equipment to authoritarian regimes. We are also concerned that such high-level and aggressive support for UK arms exports could corrupt the export licensing process, as officials are clearly placed in a difficult position if they are refusing licences for deals that have already been promoted at the political level.

47. Also noteworthy is that although, as mentioned above, the Government revoked many licences for transfers to Bahrain, Egypt, Libya and Tunisia, no licences were revoked for transfers to Saudi Arabia. UKWG members have previously presented evidence that the Saudi air force was involved in indiscriminate attacks against civilians in Northern Yemen in late 2009. Eyewitness testimony, including photographic evidence detailed sustained and intensive bombardment by Saudi Arabian planes reported to have killed hundreds of people, caused widespread damage to homes and infrastructure and displaced up to 280,000 people.9 This evidence subsequently corroborated by information obtained from released US diplomatic cables from 7 February 2010, which detailed specific concerns over attacks against civilians including satellite imagery reportedly showing a bombed medical clinic.10

48. In a letter to the Chair of the CAEC in February 2010, FCO Minister Alistair Burt admitted the use of UK-sourced aircraft by the Saudi Air Force in attacks but went on to state that “after consulting a number of information sources” the Government had concluded that these attacks were proportionate.11 In light of available evidence, it is hard to see how this assessment by the Government was reached. More information regarding the identity of the information sources and the nature of the evidence to which the Minister referred might be useful in this regard.

49. In March 2011, footage emerged of Saudi Arabia sending UK-supplied Tactica armoured vehicles to Bahrain. Given the UK Government’s decision to revoke a large number of licences for transfers to Bahrain due to serious and substantial risk over the likely misuse of UK-supplied equipment in the current crackdown, it is unclear why there has been no action to revoke relevant export licences to Saudi Arabia. There is no evidence that either Saudi military action in Yemen, or its involvement in the brutal crackdown in Bahrain has resulted in any tightening of licensing policy or the revocation of any arms export licences. This leads UKWG to conclude that in the case of Saudi Arabia, other strategic, economic or political interests are deemed more important than transfer criteria relating to human rights, armed conflict and international humanitarian law.

50. All of these point to the fact that a review was badly needed, and the Government is to be commended for responding so quickly. However, the way the review has unfolded gives cause for concerns, in terms of both process and substance.

Export Policy Review

The process

51. The Foreign Secretary’s statement of 13 October, in which he announced the outcomes of the 2011 UK export control review, notes that “the Government will continue to work to improve public information on defence and security exports, including enhanced transparency of routine export licensing decisions and how we respond during a crisis.”12 However the review itself has been anything but transparent. Despite a statement by Thomas Drew, Director for National Security, Directorate for Defence and Strategic Threats in the FCO, during evidence from Foreign Office Minister Jeremy Browne to the Foreign Affairs Select Committee, that NGOs were consulted during the course of the first stage of the review13, there has been no consultation to date with external stakeholders (be they from civil society, industry or parliament). NGOs were given an informal briefing on progress in the review by civil servants once the first set of recommendations had been sent to ministers, but despite numerous requests, at no point were consultations held. We are unclear as to why this is the case, as past reviews of export control policy and legislation, at both UK and EU levels, have benefited greatly from external inputs. We conclude that so far the process has been deeply unsatisfactory, and hope that, moving forward, a much wider and deeper review of transfer licensing policy and its implementation will take place.

Substance—first stage

52. The Foreign Secretary’s statement to Parliament on 18 July on the completion of the first stage of the review revealed a number of flaws.14 He stated that “no evidence” of misuse of UK-supplied equipment had been found during the Arab Spring. However, arms exports are supposed to be denied if there is a risk that their transfer may have certain negative consequences (including internal repression). The Foreign Secretary’s statement suggests this stage of the review focused primarily on ascertaining whether UK-supplied equipment was used for internal repression during the Arab Spring. However, whether or not UK-sourced equipment was misused, there was a clear risk that it could have been, as seems to have been acknowledged by the cancellation of so many licences.

53. The Foreign Secretary elaborated on the abovementioned remarks, noting that “consultations with our overseas posts revealed no evidence that any of the offensive naval, air or land-based military platforms used by Governments in North Africa or the Middle East against their own populations during the Arab Spring, were supplied from the UK.”15

54. This statement is problematic in a number of respects. First, it supposes that licensing decisions are based on evidence of previous misuse of UK-licensed equipment. But as is clearly established in the Consolidated Criteria, the UK system is risk-based, not evidence-based. Certainly officials should look at the previous use of similar equipment, but this should be only one of many factors that make up an overall risk assessment. Moreover, an implication of the Foreign Secretary’s statement is that instances of misuse of non-UK-sourced equipment are not relevant to the UK assessment process. We find it hard to believe that UK licensing authorities would ignore misuse simply because it involved equipment supplied from elsewhere, but the Foreign Secretary’s statement does suggest that this may at least be regarded of less import.

55. We are also concerned that the Government appears to have relied for its evidence on its own overseas posts. It is not clear how, in a dangerous and fast-moving environment, when violence was been employed in a wide range of geographically dispersed locations, and given that identifying items such as ammunition, components and sub-systems is difficult at the best of times, overseas posts would be in a position to make any kind of authoritative claims about the use of UK-supplied equipment. This clearly raises questions about exactly what the UK Government means when it speaks of “evidence” in these contexts. What kind of evidence is “admissible”; is evidence required to a standard equivalent to that for a criminal prosecution; is absence of evidence being used as evidence of absence; is there any positive evidence that equipment was not misused?

56. A detailed examination of the second quotation above from the Foreign Secretary’s statement, which seems to elaborate upon the first quotation, raises further questions. “Consultations with our overseas posts revealed no evidence that any of the offensive naval, air or land-based military platforms used by Governments in [MENA] against their own populations … were supplied from the UK.”16 This implies that any confidence the Government may have that UK-supplied equipment was not misused was limited only to “platforms”. This leaves out many other kinds of military and security equipment, including the equipment which was the stated subject of the review, ie “equipment that might be used for internal repression, in particular crowd control goods”17, and which it is clear were being used against populations in MENA.

57. Moreover, the answer to a parliamentary question recently asked by CAEC Chair Sir John Stanley reveals that the only equipment falling within this category of “offensive naval, air or land-based military platforms” that has been licensed for transfer to Bahrain, Egypt, Libya, Syria, Tunisia or Yemen since 1999 is 12 armoured personnel carriers.18 The more information comes to light about this issue, the more disingenuous the Government’s statement appears.

58. An examination of the use of UK-supplied armoured vehicles in Libya and aircraft by Saudi Arabia in Yemen is also revealing in terms of the way the Government uses the idea of “evidence” selectively to justify its licensing decisions. In the Libyan case, the Government appears to have discounted video and photographic “evidence” of misuse of equipment. In the Saudi case, the Government has accepted Saudi assurances that the use of force was necessary and proportionate, when evidence on the ground would suggest otherwise.

Substance—second stage

59. The second stage of the review does seem to start to address some of the real problems exposed by the Arab Spring, however in many respects the Foreign Secretary’s statement of 13 October raises as many questions as it answers.19 In addition, the impression remains that at its core the review has been more about enabling a quicker and more appropriate response to rapidly moving events as and after they happen, rather than about anticipating possible developments and thereby avoiding problematic decisions in the first place.

60. The UKWG sees the sense and value in the Government being more responsive to rapidly changing circumstances. We welcome the introduction of a mechanism to provide for rapid suspension of licences as necessary, and congratulate the Government on boosting its commitment to end-use monitoring. Linking decisions about arms transfers to other relevant issues such as security and justice assistance is eminently sensible, as is the commitment to greater transparency.

61. It is also extremely difficult to argue against a commitment to enhanced assessments against export control criteria, more orderly and systematic information-gathering and application of controls or increased oversight by Ministers, all of which are promised in the Foreign Secretary’s statement.

62. However, it is far from clear from the statement how any of this is going to work in practice, as no substantive details of any of the proposed changes are given. Participation of external stakeholders and/or more details of how all this is to be operationalised would give more confidence that this will significantly strengthen the system. It is perhaps telling that while the 13 October statement advises that guidance issued to officials on assessing the human rights implications of overseas security and justice assistance will be made public, there is no commitment to publish guidance on how, for example, export control assessments or information-gathering will be enhanced.

63. The statement refers to the “introduction of a revised risk categorisation, based on objective indicators and reviewed regularly”20, but there is no indication of what this will mean in practice. What are the indicators; who will conduct the reviews, how and how often? The revised risk categorisation will allow “specifically for Ministerial scrutiny of open licences to ensure that the benefits of open licensing can be maintained while keeping the associated risks to acceptable levels”21, but Ministers already have the option to scrutinise open licences, while the notion of acceptable levels of risk is left unexplained.

64. Ultimately, the Foreign Secretary’s statement suggests not enough attention has been paid to one of the main weaknesses of the current system: an apparent difficulty in looking ahead to risks that are not obvious or imminent. As mentioned, there is repeated language in the statement about being responsive to and keeping pace with rapidly changing circumstances. This is of course important, but the first duty of an arms transfer control system is to anticipate trouble, and not just react to it.

The Need for Further Change

65. Analysis of UK arms transfers authorised to MENA and of the response to the Arab Spring suggest the Government currently makes its licensing decisions through an assessment of the immediate risks of misuse or diversion, based on a predominantly internal and relatively isolated analysis of the proposed end-user and the situation in and around the recipient country. By all accounts great store is set on the “evidence” of how the same or similar equipment licensed for transfer by UK authorities has been used by the same end-user in the past. The MENA experience also suggests the UK system assumes too readily that historical absence of armed conflict per se is a guarantor of future security and that the current behaviour of the recipient will remain constant regardless of how the security environment or context might change. Moreover, a comparison between licensing policies for transfers to Saudi Arabia compared to, for example, Bahrain or Libya tends to confirm our long-held concern that perceived strategic and economic interests are sometimes privileged above the rigorous application of the UK’s Consolidated Criteria.

66. The UKWG argues that the UK’s approach needs to change in several ways, most of which are inter-related.

(a)Licensing assessments must not focus only on the immediate situation. Much military equipment retains its utility for a number of years, even decades. Situations in-country inevitably change over time, and risk assessments need to be based on this understanding and an extended time horizon. Assessments need to identify the currents moving below the surface that could bode ill for the future.

(b)The Government should move away from its heavy apparent reliance on ‘evidence’ of past misuse, which by its very nature is backward-looking and in any event has been used selectively, to a forward-looking balance-of-probability/risk-based approach. It is also crucial to examine the capacity of the recipient to use and manage equipment lawfully and proportionally and to demonstrate an ability to implement international legal obligations and relevant standards related to the use of force. For example, as events in Libya indicate, regimes with a history of brutality against or a violent lack of respect for the human rights of their populations are clearly unlikely to exercise restraint where they perceive existential threats.

(c)There should be much greater involvement of external actors as part of the licensing-assessment process. Engaging with expert non-governmental opinion, including in-country, should be encouraged. Information from different sources should be judged on its merits; the opinions or guarantees of a state should not be accepted merely because they come from a state. Information-sharing and -exchange processes with allies (eg from the EU) should be improved.

(d)The temptation to privilege perceived economic and strategic interests over the Consolidated Criteria must be resisted. The same high standard of care and attention to detail should be applied regardless of the destination. The human rights of citizens in large UK export markets are of no less significance than of those in small markets.

(e)Licensing criteria and policy need to be updated to properly embrace the concept of joined-up government and to take into account developments in other relevant fields since the criteria, largely unchanged since 1998, were first developed. The reference in the Foreign Secretary’s latest statement to security and justice assistance is welcome, but more can be done. The UK’s 2011 Building Stability Overseas Strategy (BSOS) at one point refers explicitly to export licensing, while the BSOS definition of “stability” could usefully help inform the licensing process. Recent thinking on governance issues could also usefully be brought into transfer-control decision-making.

67. Some possible specific actions that the UK Government could consider introducing to help improve controls in line with the points made above are set out below. The UKWG would welcome the opportunity to elaborate upon these ideas and discuss them in detail with the Government and other interested parties, for example at the type of workshops recommended above.

(a) List of “countries of concern”

68. The Cabinet Office conducts a six-monthly review of ‘Countries at Risk of Instability’. As part of BSOS, the Government is to produce an annually-reviewed “internal Watchlist of those fragile countries in which we assess the risks of conflict and insecurity are high and where the UK has significant interests at stake”.22 UK activity in Watchlist countries will be systematically reviewed to “ensure that [the] overall approach to building stability is realistic, appropriately resourced [and] fully integrated”.23 As well, BSOS will establish an Early Warning System examining “countries in which political, economic and security shocks over the next 12 months could trigger violence”, to be summarised every six months in a new Early Warning Report.24 The BSOS notes that “these materials could usefully inform [BIS’s] work on export licensing.”25

69. Drawing upon these and other government sources as appropriate, which would assist in the process of joining up arms transfer policy to other government activity, the UK arms transfer licensing system should develop its own list of ‘countries of particular concern’ in the context of arms transfers. This list would be different to the BSOS Watchlist, as it would need to take into account all of the UK’s transfer criteria and not just focus on fragile states or be limited to countries where the UK has significant interests at stake. However the UKWG recommends that a judgement on whether a country meets the BSOS test of ‘stability’ would be one extremely useful launching point for deciding whether a state should be on an arms transfer control ‘countries of concern’ list.

70. According to BSOS, stability:

“can be characterised in terms of political systems which are representative and legitimate, capable of managing conflict and change peacefully, and societies in which human rights and rule of law are respected, basic needs are met, security established and opportunities for social and economic development are open to all. This type of “structural stability”, which is built on the consent of the population, is resilient and flexible in the face of shocks, and can evolve over time as the context changes.”26

71. Note that such a list would not serve as a replacement for embargoes; decisions about transfers to non-embargoed states on such a list would still be made on a case-by-case basis, but we would expect extra care to be taken in these cases (see below). Note that states not on the list would still need to be subject to no less rigorous application of the criteria than is currently the case.

(b) Governance

72. The MENA situation exposed the brittle nature of regimes that could be regarded as failing the BSOS stability test. Related to this is the issue of governance. Considerable work has been done in recent years in attempting to define good and bad governance. There is little in the current Consolidated Criteria that reflect these developments, but governance issues may give an important clue as to those states that might be at risk of violence or conflict in the longer term, as well as to the way in which the state may respond to internal disturbance, which are exactly the types of issue that the current UK transfer control system struggles to address effectively.

73. The Worldwide Governance Indicators (WGI) may be of interest in this regard. They cover 213 countries and territories, and consider six dimensions of governance: voice and accountability; political stability and absence of violence; government effectiveness; regulatory quality; rule of law; and control of corruption. They draw upon hundreds of individual variables, taken from a wide variety of existing sources.27 The indicators for Libya, for example, demonstrate there have long been major governance issues, in both 2009 and 2010 the country scoring in the zero-tenth percentile of all countries for voice and accountability and control of corruption, and the tenth to twenty-fith percentile for government effectiveness, regulatory quality and rule of law. In 2010 Libya fell into the twenty-fifth to fifthieth percentile for political stability and absence of violence.

74. The UKWG urges the Government to consider how governance issues could be better included in the licensing assessment process, potentially through amendment to exiting criteria or the addition of a new criterion.

(c) Presumption of denial

75. The UKWG would recommend developing a policy of “presumption of denial” for transfers to states on the list of “countries of concern”. This would still involve a case-by-case approach, but instead of the current practice of approving a licence application unless there is a specific reason for refusing it, the Government should refuse licences unless a legitimate defence need can be demonstrated, and the applicant can satisfy the government that the equipment will be used only in support of that need.

(d) Development of interactive database with partner governments

76. Information-exchange and -sharing with partner governments is seriously underdeveloped. Modern digital data-management systems for information-sharing with other licensing authorities are nowhere to be seen. Licence denials are periodically shared by CDR at the EU level, but beyond that information-sharing relies on personal contacts. These are by definition arbitrary, and subject to sudden dislocation with changes in personnel. They do not allow for the development of institutional memory. There is, for example, no systematic sharing of information on assessments of risks to certain end-users, countries or region; on problematic trade routes, brokers or transporters; on situation of unauthorised end-use, end-users, or problematic re-export. Better information-sharing could be used to identify spikes or unusual patterns in a purchasers’ or end-users’ efforts to procure controlled items from different states. All this information could be of critical importance with regard to the assessment of certain licence applications and should be shared among EU partner governments to ensure that, where the UK adopts a position of restraint, this is not inadvertently undermined by other governments who share the same values and objectives. Better information-sharing would not only improve decision-making, but could, if well-managed, reduce the efficiency and therefore the workload of licensing officials. The UK should urgently push for a major attitudinal and technological shift in information-sharing and -exchange with its EU and other partners.

(e) Use of external expertise

77. The point was made above that the decision-making process would benefit from greater use of external experts and information sources. Licensing officials need to become more proactive in seeking out this expertise. Outsiders who follow arms issues are an obvious resource, but regional and country experts, who may have no knowledge of arms trade issues in particular but have a detailed political, historical and/or cultural understanding, may still be able to provide valuable information about context, which is critical if licensing decisions are going to become more forward looking. There are various ways outside expertise could be tapped, for example through seminars at which a range of experts could talk about regional situations and likely developments. In the interests of efficiency, these could potentially involve partners from other licensing authorities in EU Member States.

Recommendations

78. Having failed to involve external stakeholders in the review process so far, The UK Government should engage fully with these stakeholders as the recommendations of the review are developed and implemented. This engagement could be in the form of workshops that would allow for discussion of the results so far and for further improvements to be made, with a clear timetable for the process to identify when these changes will be completed and implemented.

79. Arms transfer licensing policy must be adjusted so that it: is brought in line with the actual criteria used to grant licences with a shift in focus from “evidence of previous misuse” to “risk and likelihood” in the risk analysis process; ensures the context within which arms may be used is included in such analysis; takes full account of the capacity of the proposed end-user to use equipment in accordance with international obligations; takes a longer-term and broader attitude to risk including consideration of governance issues; engages with other relevant Government processes and initiatives, eg BSOS; better utilises external expertise; and reduces scope for licensing decisions to give undue weight to political, strategic or economic factors.

80. The UK Government should immediately update its arms export licensing criteria to accurately reflect its obligations under the 2008 EU Common Position, which contains much stronger commitments on transfer licensing than those currently employed.

81. The Government should consider developing a list of particularly sensitive “countries of concern” to which additional licensing safeguards, such as making licensing decisions based on a “presumption of denial”, could be applied.

82. As part of its commitment to improve scrutiny of security and justice assistance in the future, the Government should disclose the evaluation of the training received by the Libyan Police in 2007 and respond to the CAEC’s 2008 recommendation.

83. The Government should provide to the CAEC details of what evidential standards it utilises when checking end-use issues relating to UK arms transfers, including details of how monitoring is undertaken, what checks are actually carried out and by whom, and how information is collated, assessed and analysed when making conclusions about the potential misuse of UK-supplied equipment.

84. To allow meaningful scrutiny of the Government’s implementation of its arms transfer policy, continued improvements are necessary on the quality of information provided its annual, quarterly and online reporting. Improvements should include qualitative information such as the types, quantities and end-users or end-uses of UK-licensed equipment for all licence types, including open licences. Such improvements would also be of considerable benefit to the Government when explaining seemingly controversial licensing decisions, especially in difficult cases.

Trade Fairs

85. The Defence and Security Equipment International Trade Fair (DSEi) was held in London 13–16 September 2011. Three stands were closed due to the occupants marketing equipment classed as Category A goods28 in the Export Control Order (2008), the advertising of which is therefore subject to enhanced trade controls and prohibited under DSEi’s own guidelines.29 Similar concerns have been raised with previous committees, most notably in 2007 and 2010.30 It is not acceptable that such illegal products continue to identified by NGO researchers, journalists and MPs and not compliance or enforcement specialists working for event organisers and the UK authorities. Yet again we are seeing evidence that enforcement of existing UK legislation and resources and capacity to monitor and police defence exhibitions are clearly not adequate.

Torture Equipment

86. Beechwood International, a UK based trading company, was found to be clearly advertising in their brochure oversized leg cuffs, waist chains, lead chains and “the enhanced transport restraint system” (which combines waist chains and cuffs with leg cuffs) on behalf of US company CTS-Thompson. 31 Restraints such as these are classed as torture equipment under UK legislation and therefore subject to the enhanced controls, which cover promotional literature such as product brochures and catalogues.

Cluster Munitions

87. The stands belonging to Pakistan Ordinance Factories (POF) and the Defence Export Promotion Organisation (DEPO) of Pakistan were closed for displaying promotional material for cluster munitions. It was subsequently found that another company, Nammo Talley, a fully owned subsidiary of the Nammo Group, whose promotional material was on the Nammo Stand, also included references to cluster munitions in their literature.32 In all of these cases the references to banned equipment was prominently displayed. Nammo are currently decommissioning the UK’s supply of 155 mm cluster munitions, the fact that promotional material referencing 155 mm Dual Purpose Improved Conventional Munitions (DPICM) appeared on the stand at the DSEi 2011 event shows a clear disregard for UK regulations. When presented with the information by civil society organisations, Nammo apologised for an error in their promotional literature, stating they no longer manufacture components used in cluster munitions.

88. These findings, and the fact that a Russian company, Bazalt State Research and Production Enterprise (FSUE SRPE Bazalt) advertised cluster munitions at Farnborough International Air Show 201033, call into question the compliance checks undertaken by the relevant agencies and organisers both prior to the opening of the event, and during defence exhibitions. In the case of Pakistan Ordinance Factories, not only is it widely known that the company manufactures cluster munitions, but promotional literature for their 155mm Base Bleed DP-ICM (Dual Purpose Improved Conventional Munition) was found on their stall at DSEi 2009. Amnesty International alerted the organisers of the exhibition, Clarion, of the matter at the time. The very same cluster munition was even more prominently displayed at DSEi 2010. This company in particular should have been subjected to stringent compliance checks and calls into question the assurances given to Amnesty in 2009 that robust action would be taken. Both cases were raised by UKWG in our 2010 submission to the CAEC.

Recommendations

89. The UKWG suggests the CAEC request information on the scope and nature of compliance checks before and during all UK defence and security exhibitions.

90. To prevent future promotion of cluster munitions, the Government should prohibit any state that has not signed and ratified the Cluster Munitions Convention, and any company that has not signed a written guarantee that they (or any subsidiary or partner) do not produce cluster munitions or their components, from attending any trade event in the UK.

91. Any company guilty of displaying illegal promotional literature should be required to in future submit all promotional materials for explicit approval by exhibition organisers.

92. Any company guilty of repeated illegal promotion should be refused permission to exhibit in future, with the length of their ban based on the severity of the malpractice and remedial action taken by the company.

93. In light of the apparent clear breaches of UK legislation, the UKWG call on the Government to launch immediate investigations into Beechwood Equipment Ltd, Pakistan Ordinance Factories and the Nammo Group and prosecute any company found to be in breach of UK legislation.

Cluster Munitions: Finance and Investment

94. The Government must continue to support the eradication of cluster munitions. It is of concern that despite tabling a specific amendment on ending indirect financial support during the passage of the UK’s ratification of the Cluster Munitions Convention legislation in Spring 2010, it appears to be have rejected the previous governments commitment on developing extra controls on preventing indirect finance via a multi stakeholder review process. A number of large financial institutions have already indicated their desire to work with stakeholders to develop a policy framework in this area, while a number of UK-based financial institutions, including the Royal Bank of Scotland group, HSBC and AVIVA have recently strengthened policies on investments in companies involved in the production of cluster munitions.

Recommendation

95. We urge the Government to confirm its intention to honour existing commitments made by the previous government to end indirect financial support for cluster munitions.

Torture End-Use Control

96. The UKWG welcomed the UK Government’s February 2008 policy commitment to introduce a new EU wide end-use control for goods used in torture. In 2008, the Government stated that:

“We will be asking the Commission to introduce a control where the exporter will be required to submit an export licence application where they have reason to believe, or have been informed, that the items could be used for capital punishment, torture or other cruel, inhuman or degrading treatment.”34

97. We are alarmed that progress on this end-use control (first announced almost four years ago) has effectively stalled. Since our evidence to the CAEC last year, the UKWG is pleased that the UK Government has taken further unilateral action and placed export controls on sodium thiopental, pancuronium bromide and potassium chloride for use in lethal injection drugs to the US. We note, however, that this control only covers exports to the US and not other countries where these drugs could be used to carry out executions. We again state that if the Government had delivered on its 2008 commitment in this area, it would have been able to control exports of lethal injection drugs or items, as soon as it became known that they were being used in executions.

98. On 20 October 2011, BIS minister Mark Prisk, told MPs during a Westminster Hall debate on arms export controls that the UK Government has written to Baroness Ashton on strengthening EC Regulation 1236/2005 with regard to drugs used in carrying out the death penalty and on the Torture end-use clause. He advised that she has replied that the EU Commission would begin looking at amending the control list annexes to the EC regulation in November 2011 and would examine the merits of the proposed torture end-use control in that context.35 At the time of writing, the exact status of these efforts is not known.

Recommendations

99. We urge the UK Government to continue to press the European Commission and EU Member States to urgently introduce a torture end-use “catch all clause” through an amendment to EC Regulation 1236/2005.

100. If, after the EU Commission’s November 2011 discussions on amending the EC Regulation, there is no progress on establishing the end-use clause and in light of almost four years of delay, there is a strong case for a torture end-use control to be introduced unilaterally at a UK level (thereby setting an example for EU partners to follow), in concordance with the UK Government’s previous statement that it would consider introducing such a control independently.

101. We also urge the UK to continue its efforts to strengthen EC Regulation 1236/2005 to broaden the range of equipment covered, specifically by updating the annexes on prohibited equipment (Annex 2), eg to include all drugs used in lethal injection, and controlled equipment (Annex 3), so as to reflect developments in the security equipment market.

October 2011