Memorandum submitted by TAPOL: The Indonesia
Human Rights Campaign
COMMENTS ON THE WHITE PAPER ON STRATEGIC
1. These comments are provided by TAPOL,
the Indonesia Human Rights Campaign, which campaigns for the realisation
of human rights throughout Indonesia and East Timor. For many
years TAPOL has been concerned that military equipment exported
from Britain has been directly involved in violations of human
rights and has strengthened a military regime engaged in international
aggression against East Timor. TAPOL has called for, and continues
to call for, a complete ban on all arms exports to Indonesia.
2. The present licensing system is weighted
heavily in favour of the defence industry, whose lobby is extremely
powerful both inside and outside government. The anti-arms lobby,
which represents widespread public concern, is allowed little
influence over policy and decision-making. As Sir Richard Scott
correctly pointed out, in his Report on exports to Iraq, export
controls are weighted in favour of granting licences. Significantly,
the Foreign Secretary opened his statement on the new export licensing
criteria announced in July 1997 not with a reference to human
rights, but with a commitment to a strong defence industry.
3. As long as the Government remains so
committed to arms exports, changes of the sort proposed by the
White Paper will amount to little more than window-dressing. Substantive
change will not be achieved until the Government accepts that
arms exports are detrimental to human rights, security and the
economy and that they should be reduced and eventually eliminated.
The disclosure that the British taxpayer will have to foot part
of the £500 million bill for Hawk aircraft exported to Indonesia
because of the debt crisis is evidence of the heavy subsidy paid
by the taxpayer to maintain the defence industry. According to
Campaign Against Arms Trade, government support for military exports
represents a subsisy of £12,500 a year for every remaining
4. While TAPOL recognises that the British
Government is not presently minded to make the necessary policy
changes, it believes that the export licensing regime must be
strengthened considerably to provide far greater transparency
and parliamentary and public scrutiny of individual decisions.
The steps proposed in the White Paper fail to meet these basic
requirements of democratic governance and fail to challenge the
overwhelming influence of the defence industry.
5. There is considerable evidence of the
failure of the present licensing regime to protect the human rights
of the people of Indonesia and East Timor. Hawk aircraft, Land
Rovers and small arms have been used to bolster Indonesia's brutal
military occupation of East Timor. In April 1996, British-made
armoured vehicles were used in a violent assault on a university
campus, which resulted in many injuries and three student deaths.
Since then, British-made water cannon and armoured vehicles have
been used on numerous occasions to prevent peaceful demonstrations.
In May of this year, the British public had to endure the sight
on their televison screens of British water cannon and armoured
vehicles being used to put down the student protests which eventually
led to the downfall of the repressive regime of President Suharto.
The practice of using water cannon has continued under the Government
of President Habibie. In mid-September, they were again used against
a peaceful student demonstration.
6. The licensing system has failed the people
of Indonesia and East Timor under successive British Governments.
Despite widespread parliamentary and public concern and evidence
that previously-exported equipment has been used for repressive
purposes, there has been no apparent slowdown in the rate of licences
granted to Indonesia under the present Government. Between 1 May
1997 and 10 May 1998, 67 licences were issued and only six were
refused. TAPOL is unable to comment further on the equipment covered
by these licences since details of the specific nature of the
equipment are kept secret under the present system.
7. With these points in mind, the following
comments focus on those aspects of the White Paper which are of
greatest concern to TAPOL.
Parliamentary and public scrutiny
8. TAPOL notes the Government's decision
to introduce new primary legislation, which will provide for parliamentary
scrutiny of Export of Goods Control Orders made under it. It is
disingenuous of the Government to claim that this improves accountability
since it will not allow parliamentary, let alone public, scrutiny
of individual licence applications. The publication of a retrospective
annual report on strategic exports does not address the need to
ensure that individual licences are not granted in breach of the
purposes of export control.
9. The decision not to allow scrutiny of
individual licences will lead to less transparency and accountability.
The previous Conservative administration adopted a practice of
announcing, through parliamentary written answers, details of
certain sensitive licences. In December 1996, for example, the
President of the Board of Trade announced that he had granted
two licences for the export of armoured vehicles and water cannon
to Indonesia (although the full details of the equipment covered
by one of the licences was revealed only in response to a subsequent
written question). No similar announcements have been made under
the present administration and it appears they are unlikely in
view of the policy set out in the White Paper. The information
about the 67 licences referred to above was obtained only as a
result of persistent parliamentary questioning and was not volunteered
by the Government.
10. TAPOL urges the Government to look at
this issue again and to introduce procedures for parliamentary
and public inspection of licence applications in advance of the
application being considered to allow adequate time for comment
and debate. TAPOL notes that nearly half of the responses to the
initial consultative document on "Strategic Export Controls"
("the consultative document" came from NGOs, church
representatives and private individuals, reflecting the widespread
public concern about the issue. It is wrong to deprive this constituency
of any possible involvement in the export licensing process, especially
as past experience has shown that unscrutinised licensing decisions
may be made for reasons of political or commercial expediency.
11. TAPOL understands that satisfactory
procedures for advance notification of strategic exports are currently
employed in the USA and Sweden.
Purposes of strategic export controls
12. TAPOL notes the Government's decision
to set out the purposes of strategic export control in secondary
legislation. TAPOL is, however, concerned to note that the proposed
purposes include "to avoid contributing to internal repression",
but do not include "to avoid contributing to human rights
abuses", which was identified as one of the current purposes
in the consultative document. It is essential that this purpose
13. Alternatively, the secondary legislation
should include a definition of internal repression which refers
to human rights violations without qualification (the Government's
current definition of internal repression, contained in the export
licensing criteria announced in July 1997, refers to a major violation
of human rights and fundamental freedoms). Strategic exports should
not contribute to any degree of human rights violation.
14. The secondary legislation should make
it clear that the purposes it sets out are the only purposes that
can be taken into account. They should not, for example, be overridden
by wider considerations relating to general foreign policy.
15. Even if these points are addressed,
TAPOL doubts whether much will change. Considerable latitude is
allowed to officials and ministers in interpreting the criteria
used to determine whether a particular export breaches the purposes
of export control. The guidelines relating to "internal repression"
are hedged with so many qualifications as to ensure that almost
any export can be allowed (as indeed they are in the case of Indonesia).
Export licences will not be issued only "if there is a clearly
identifiable risk that the proposed export might be used for internal
repression". This includes "Equipment where there is
clear evidence of the recent use of similar equipment for internal
repression" and "Equipment which has obvious application
for internal repression, in cases where the recipient country
has a significant and continuing record of such repression".
[All emphasis added.] In a clincher for the defence industry,
the criteria allow exports to a country with a record of repression
if "the end-use of the equipment is judged to be legitimate,
such as the protection of members of security forces from violence".
II. EXPORT LICENSING
16. The White Paper states that none of
the proposals concerning export licensing procedures "would
affect the right to seek judicial review of export licensing decisions,
including decisions on appeal". In practice, unless the above
proposals concerning the notification of licence applications
are adopted, the option of judicial review still will be available
only to an exporter who has been denied a licence. NGOs and private
individuals who have sufficient legal interest (in the sense of
representing public concern and, for example, the potential victims
of human rights abuses) will be denied their legitimate right
to judicially challenge a decision to issue a licence. This right
is fundamental to democratic and open government. It is intolerable
that it will not be available to third parties.
17. The opinion of judicial review is necessary,
but not sufficient on its own, since the courts are reluctant
to interfere with ministerial decisions. The Government proposes
to allow licence applicants to appeal against a decision to refuse
a licence within 28 days, but it does not propose to grant third
parties the right of appeal against a licence being granted. TAPOL
urges the Government to reconsider this point. There is no obvious
reason why third parties should not be allowed to appeal provided
they are able to establish sufficient interest and time limits
are imposed. A right of appeal would be dependent on the notification
of licence applications and must not preclude the right to seek
Categorisation of equipment
18. For the reasons stated, TAPOL believes
that parliamentary and public scrutiny of individual licence applications
is vital to improved transparency and accountability. However,
if the Government persists in its decision not to allow such scrutiny,
it should at the very least address the problems caused by the
practice of aggregating a range of equipment within a single export-control
category (rating). This is clearly designed to cause confusion
about the type of equipment covered by a particular licence. For
example, category PL5001 (security and para-military police equipment)
covers equipment ranging from water cannon to electric-shock batons
to anti-riot shields and helmets. It is in the Government's interest
to disaggregate equipment within licence categories to facilitate
transparency and to aid the identification of equipment which
might contribute to human rights abuses. TAPOL understands that
the US has undertaken to resolve a similar problem by separately
identifying individual items.
19. TAPOL is extremely concerned that the
Government has not yet devised detailed proposals for end-use
monitoring. In the case of Indonesia, there has been no attempt
to monitor the use of equipment despite clear breaches of assurances
by the Indonesian Government that equipment would not be used
for internal repression. Monitoring is vital both to prevent previously-exported
equipment contributing to human rights violations and to ensure
that the Government is properly informed as to the possible use
of equipment which is the subject of a licence application.
20. At present, the onus is on the victims
of human rights violations to obtain evidence of the misuse of
equipment, often at great risk to themselves. The burden of proof
has been made impossible to meet by Foreign Office insistence
that evidence must establish not only misuse of equipment, but
also that it was not being used to protect security forces.
21. The Government has abdicated virtually
all responsibility in this area. On one occasion, the Foreign
Office responded to clear video evidence of the misuse of water
cannon in Indonesia by referring to the evidence as "allegations",
which would be "considered if we receive any application
in future for export of similar equipment" [letter to TAPOL
from private secretary to Foreign Secretary, 29 August 1997].
Credible evidence of the misuse of equipment should be investigated
immediately, and a finding of misuse should result in the Government
refusing to issue further licences to the country concerned. Delaying
an investigation until a future application is received is, for
obvious reasons, unacceptable.
22. TAPOL endorses the suggestions concerning
end-use monitoring made by Campaign against Arms Trade in its
response to the White Paper.
Location of export licensing authority
23. TAPOL regrets that the Government has
failed to address the conflict of interest inherent in the dual
role of the DTI in both promoting and licensing strategic exports.
This means that export controls are weighted in favour of granting
licences. This bias is increased by the rights of exporters to
appeal and to seek judicial review, which are denied to other
interested parties under current proposals (see above). TAPOL
callsupon the Government to establish an independent licensing
authority with responsibility for applications and the enforcement
of export control legislation. All export licence applications
should be circulated to the FCO, DTI and MoD, with a more active
role in considering applications being played by the Human Rights
Policy Department of the FCO.