Memorandum submitted by the UK Working
Group on Arms
THE EU CODE OF CONDUCT ON ARMS EXPORTS
1.1 This submission focuses specifically
on the EU Code of Conduct on arms exports. It is written by the
UK Working Group on Arms which comprises Amnesty International
(UK), the British American Security Information Council, Christian
Aid, International Alert, Oxfam (GB), Saferworld and Save the
Children Fund. It
is intended to complement individual submissions from some of
these organisations that focus on their different areas of expertise.
1.2 The European Code of Conduct agreed
by Foreign Ministers on 25 May 1998 is an important first step
towards establishing responsible international controls on arms
exports. The UK Working Group welcomes the Government's leadership
role in its establishment and acknowledges the difficulty in getting
agreement across the 15 Members States. However, the agreement
fails to provide full respect for international humanitarian law
and falls short of establishing adequate EU mechanisms and procedures
for Member States to take co-ordinated action to effectively monitor
and control transfers by Members States and their nationals of
military, paramilitary and security equipment and services. As
European Union arms exports account for 40 per cent of weapons
sales to developing countries there is an urgent need for an improved
European Code; one which can lead the way in providing for more
effective international controls and help ensure that the effects
of human rights, development and regional security are considered
above short-term commercial interests.
1.3 The Code of Conduct is in two parts:
a set of export guidelines outlining what considerations should
play a part in decisions to license arms exports and a number
of operative provisions which detail the basic procedures for
notification, consultation and review between Member States. This
submission makes a series of recommendations as to how the existing
guidelines and operative provisions need to be strengthened and
furthermore, what existing loopholes need to be addressed as a
matter of urgency if the Code is to achieve its objective of setting
"high common standards".
1.4 The UK Government as the co-sponsor
of the Code and as Europe's largest arms exporter has a special
duty to continue to work for a strengthened, water-tight agreement.
With the first annual review of the Code due in June 1999, the
German Presidency of the European Union (January to June 1999)
presents an important opportunity for progress. The UK Working
Group urges the Government to begin immediate dialogue with the
new German Government on strengthening the Code.
2. THE GUIDELINES
2.1 Criterion 2 of the Code states that
Member States will "not issue an export licence if there
is a clear risk that the proposed export might be used for internal
repression". There is considerable difficulty in the Code's
use of the term "internal repression". This phrase is
ambiguous and not adequately comprehensive. It is not used in
international human rights or humanitarian law. Under this wording,
the UK control system could still allow licences for exports to
recipient forces even if they are likely to commit breaches of
humanitarian law in the context of an internal armed conflict.
This wording may allow exports to those forces even if they are
likely to be used to abuse human rights and violate humanitarian
law outside their own borders: for example, when serving in other
countries or during cross border attacks on their own nationals
who have fled internal fighting. So arms authorised, for example,
to Turkey could be used against the Kurds in Northern Iraq. Since
many of the worst atrocities and repressive acts are committed
in the context of armed conflict, this is a serious flaw in the
The Government should replace the term "internal
repression" so that it covers all violations of international
human rights standards, international conventions and humanitarian
2.2 Overall, the proposed guidelines are
ambiguous in many places and leave far too much room for subjective
interpretation. While outlining the types of considerations to
be taken into account when granting export licences, they fail
to specify how, and at what point, these concerns will have a
material impact on arms export decisions.
In marginal cases, where it is unclear as to
whether a proposed export might breach one of the guidelines,
the Code should state that there will be a presumption that the
export will be denied.
3. THE OPERATIVE
3.1 Consultation on Undercutting
Member States have agreed to notify each other
when they deny an export licence. Unfortunately, a country that
wishes to take up a licence that has already been denied is only
required to consult with the country that issued the initial denial,
rather than with all 15 Member States. This limited level of consultation
carries with it certain potential dangers. In the first place,
it will inevitably lead to a lack of consistency in European Union
arms exports because no common picture of what arms exports are
in fact being licensed will exist until the circulation of the
annual reports (see below). Much greater consultation is essential
if Member States are to achieve their stated objective of adhering
to "high common standards". Furthermore, the Code fails
to specify a time frame in which Member States have to circulate
denials. There is, as a result, a chance that one Member State
may unwittingly undercut another. If and when details of undercutting
eventually emerge through the annual reports the net effect could
prove to be divisive, possibly leading to a culture of undercutting
as governments become increasingly uncertain that exports they
refuse will not be taken up by other Member States.
The Code should insist on in depth multilateral
consultations between all 15 Member States when one country wants
to grant a licence that another has refused. A 10 day limit should
be set for the circulation of denials.
3.2 Control Lists
Member States failed to agree a common list
of equipment to which the Code of Conduct controls will apply,
although members have agreed to "work for the early adoption
of one". Until then, national lists will apply "incorporating
where appropriate elements from relevant international lists".
This is extremely concerning because many national and international
lists do not include much of the military, security and police
equipment which could most easily be used to abuse human rights.
Member States of the EU should urgently adopt
a harmonised, extensive control list which covers exports and
licensed production of major conventional weaponry, small arms,
police and paramilitary training equipment and services and dual-use
goods. There should be a special list of equipment which is prohibited
from export including anti-personnel mines and electro-shock weapons.
The Government has indicated that it will seek to establish such
a list of prohibited equipment with its EU partners, although
this initiative will be separate from the Code. It is crucial
that the Government follows through on this commitment.
3.3 Annual Report
"Achieving greater transparency" is
one of the stated objectives of the Code. However, there are no
provisions in the text to help realise this. Member States have
to compile annual reports of their arms exports and on their implementation
of the Code, but only for confidential circulation to each other.
The EU Council of Ministers will also prepare a consolidated European
report but again this will not be published. The net effect of
this is that it has removed any reference to public or parliamentary
accountability from the Code of Conduct.
All governments should have to publish annual
reports of their arms exports. It is encouraging that the British
Government is due to publish one in October 1998. The consolidated
European report should also be published. This will allow post
facto review of arms export policy and, as such, represents
the minimum level of scrutiny.
4.1 There are a number of omissions from
the Code of Conduct which threaten to undermine its efficacy.
The following are essential elements of an effective Code which
should be introduced urgently.
4.2 Prior Parliamentary scrutiny
A truly transparent and accountable system of
arms exports would be one that requires Member States to allow
national parliaments (or committees thereof) to scrutinise proposed
arms exports in advance of the granting of licences. In Sweden,
an all-party Export Control Committee has the power to scrutinise
forthcoming licences. The Swedish government has never granted
a licence for an export that the committee has objected to.
A committee of parliamentarians in each Member
State should examine all arms export licence applications to countries
where there are serious concerns over human rights violations,
internal instability or civil wars, regional or international
conflilct, or high military expenditure as a proportion of social
4.3 End-Use Controls
Unless there are rigorous controls on the end-use
of arms, seemingly legitimate exports can be used for proscribed
purposes or diverted to governments which abuse human rights.
Current procedures for monitoring the final use of weapons exports
are woefully inadequate and futhermore, vary widely within the
Union. Indeed, very few Member States have follow up mechanisms
to ensure that, once exported, the equipment remains with the
stated end-user. For example in the BMARC scandal British naval
cannon were sold to Singapore only to be re-exported to Iran.
The recently published Government White Paper does give a commitment
to addressing this issue and to explore ways to coordinate policy
with other EU Member States.
Member States should adopt a common system of
end-use controls with end-use certificates that are regarded as
legally binding contracts and which could be revoked if broken.
In addition, a system of follow up checks should be established
to ensure that the goods remain with the intended recipient. These
checks could be carried out by British Embassy or Consular staff.
4.4 Control of brokering
Many arms deals organised by companies or individuals
in the EU involve the transfer of arms and security equipment
and services from third countries without the weapons touching
EU soil (eg the arms transfers from Bulgaria to Sierra Leone,
organised from London by Sandline). The EU Code does nothing to
address this issue and this is a loophole that must be urgently
addressed. The recent White Paper on Strategic Export Controls
does plan to extend the powers of Government to allow it to prosecute
UK citizens who broker deals in contravention of UN, EU, OSCE
and national embargoes. However, arms brokers in the UK would
still be free to broker deals that would not be allowed if the
weapons were exported directly from Britain. The issue also remains
to be tackled at the European level.
All arms brokers should be registered with EU
national governments and the information gathered in a central
database. All transactions proposed by arms brokers should require
a licence whether or not the equipment actually passes through
EU territory. Such legislation is already in place in a number
of countries such as Germany.
4.5 Control of Licensed Production
Another weakness of the Code is the failure
to tackle overseas licensed production where one arms or security
manufacturer enables another company to manufacture its product
under licence in a second country. Such agreements are increasingly
supplementing, or even taking the place of, exports of equipment.
For example, Heckler and Koch (a subsidiary of British Aerospace)
have just won a contract to transfer technology for the local
production of 200,000 combat assault rifles in Turkey. Yet there
are no controls on licensed production deals in the Code.
All licensed production deals involving EU-based
firms should be scrutinised and approved by EU governments in
advance of any contracts being signed.
4.6 Legal Status of the Code
The Member States have agreed to adopt the EU
Code of Conduct on Arms Exports only as a Council Declaration
(under the Common Foreign and Security Policy). This type of politically,
but not legally, binding agreement has not been sufficient to
ensure a common approach amongst the Member States under the eight
common criteria on conventional arms exports agreed by the Council
of Ministers in 1991 and 1992.
The decision that the code should not be legally
binding upon Member States means that the need for parliamentary
and public scrutiny becomes even more pressing. It is important
that EU governments are held accountable for their implementation
of the Code.
13 October 1998
28 These organisations have differing mandates and
areas of speciality and while we, individually, do not have detailed
policy on all areas covered by the Code, we can each comment on
specific elements and expand on the recommendations given. Amnesty
International policy does not include opposition to, or support
for, comprehensive arms embargoes, arms transfers which alter
a strategic military balance, or criteria to determine excessive
military expenditure. Back