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Transfers to Undesirable End Users:
Loopholes in European Arms Controls
Presentation by Michael Crowley, Senior
Analyst, BASIC
Swedish Peace and Arbitration Society Conference
May 2001, Nyköping, Sweden
In the last few years with the introduction of the EU Code
of Conduct on Arms Exports in 1998, and the subsequent publication
by more and more European states of Annual Reports detailing
strategic exports; real advances in transparency, accountability
and control of the European arms
trade appeared to be taking place.
However whilst the reporting of arms transfers after the
event in certain states has seemingly improved, it is far
from clear whether the current control systems in many European
countries prevent the transfer of weapons to human rights
violators or to conflict regions.
Direct Exports of Concern
Firstly let us take those direct exports licensed by governments,
and detailed by them in their annual reports or in customs
statistics.
Analysis of the 1999 UK Annual Report, published in July
2000, for example shows that licenses continue to be granted
to countries with records of serious human rights violations.
Kenya - has been granted licenses for general-purpose
machine guns, rifles, semi-automatic pistols
Israel - components for combat aircraft and combat
helicopter, small arms
ammunition
Morocco - anti-riot guns, CS grenades, tear gas, rifles
Sri Lanka - CS grenades, small arms ammunition
Similarly an examination of information gleaned from customs
statistics by
Spanish NGOs shows Spanish exports for the year 2000 included:
Rifles and shotguns, ammunition to Turkey
Pistols to Sri Lanka
Ammunition to Israel
I pick these countries merely as indicative examples. There
are a number of direct exports detailed in the Annual Reports
of other EU countries, which have also been of concern. The
cases illustrate that there appear to be European arms transfers
breaching national and EU Code criteria. I say appear to be.
But in many cases we cannot be certain.
For without greater transparency - especially regarding the
details of who the end users of such EU weaponry are - neither
Parliaments nor the public in Europe can be sure whether for
example UK small arms have gone to Kenyan paramilitary police
officers responsible for torture and ill-treatment or have
been sent to Kenyan game wardens peaceably going about their
job. And this will be an issue I know we shall discuss at
length during this conference.
But even if there were sufficient transparency of such direct
exports, these Annual Reports would only tell a part of the
story. For there are whole categories of arms transfers that
are not adequately included in such reports, and that is partly
because the governments do not at present adequately control
these transfers. Governments cannot properly report on those
transfers which they do not adequately monitor or control.
These gray
areas include: Licensed Production Agreements, the activities
of arms brokers/shippers and the transfer of military/security
expertise. They will form the core of my talk.
But before I delve into these three export control lacunae,
I would first like to raise the related and critical issue
of End Use Monitoring.
End Use Monitoring
End use certification and monitoring procedures are vital
for the credibility of
export control systems. Without them governments, parliament
and the public cannot be sure that the arms transfers that
governments have authorised in accordance with national and
EU code criteria are not being misused by the end user or
have not been diverted to illegitimate recipients.
Sadly current procedures for establishing and monitoring the
end-use of arms and security equipment transferred from many
European countries are
woefully inadequate. The use of false end-use certificates
is not uncommon, and there is little, in current certification
requirements, which would prevent irresponsible end-users
from using arms for proscribed purposes.
This has been acknowledged by certain states. In February
1999, for example, the then UK Foreign Office Minister Derek
Fatchett stated that: "No formal mechanisms exist at present
for monitoring the end-use that has
been made of British defence equipment once it has been exported."
There have been numerous cases brought to light primarily
by NGO researchers and journalists of the consequences of
poor end use controls.
Finnish bullets
During a May 1999 research mission to Indonesia and East Timor,
Amnesty International collected the casings of bullets, which
were found following a paramilitary militia attack in the
Dili area. These bullet casings were later analysed and found
to have been manufactured by the Finnish company Patria Lapua
Oy. The Finnish government has in the past admitted granting
export licenses for ammunition to the Indonesian security
forces. But how did such ammunition fall into the hands of
paramilitary groups?
UK Hawk jets in East Timor and the DRC
A further concern is that in some EU countries end-use assurances
have no force in law to bind the recipient to contractual
obligations not to misuse the weaponry. And even when such
end use assurances have been wantonly breached, governments
have still refused to revoke the licenses or stop further
transfers. Despite repeated assurances given to the UK government
over the years that UK supplied equipment would not be used
in East Timor, the Chief of the Indonesia Armed Forces admitted
on 15th July 1999, that a British-made Hawk jet flew over
Dili twice. Its use was as part of a programme of intimidation
against the people of East Timor, then striving peacefully
for independence. However despite continued evidence of human
rights violations in East Timor, the UK government argued
that it was contractually obligated to maintain supplies of
such military equipment. Similar concerns about end use and
contractual obligation arose with regardto the UK transfer
of spare parts for military aircraft to Zimbabwe in January
2000, despite reports that Zimbabwe was using these jets in
the conflict in neighbouring DRC, then subject to an EU arms
embargo. Following a public and parliamentary outcry and a
worsening human rights situation in Zimbabwe itself, the licenses
were eventually suspended in May 2000.
These cases illustrate the inadequacy of the end-use follow
up mechanisms, which are in place in many EU Member States.
Measures must be put into place immediately to ensure that
EU weapons are never misused by the customers or diverted
to other end-users. In strengthening and/or developing stringent
systems for end-use certification and monitoring, EU states
could build on current best practice in for example Sweden
or Belgium.
The most effective system would include provisions whereby
an end
use certificate takes the form of a legally binding contract,
which contains a list of proscribed uses (such as human rights
violations) and a prohibition on unauthorised re-export or
transfer.
Failure to honour the terms of an end-use contract should
result in the revocation of the license and a halt in further
supplies, provision
of spares, maintenance or training. A comprehensive system
of follow up checks should also be provided for within the
contract to ensure that exported goods are not misused by
their stated end-user,
or are not being diverted, or re-exported. The requisite checks
could
be carried out by consular officials based in the country
of destination.
From the failures of end use monitoring, I now wish to turn
to the three important loopholes in EU export controls, which
I mentioned earlier. The first is licensed production.
Licensed production - the practice where one company allows
and enables a second company in another country to manufacture
its products under license - is increasingly supplementing
existing export deals or in some cases taking the place of
direct exports of security equipment and weaponry. During
such agreements the licensee may receive a range of support
from the licensing company such as component parts, machine
tools, blue prints, technical drawings, designs and subsequent
modification
specifications. Technical personnel such as engineers may
also be seconded to help establish or modify the licensee's
production facilities. In many EU countries such licensed
production agreements are inadequately controlled. The effects
of such paucity of control can be deadly.
Heckler and Koch
The Anglo German company Heckler and Koch, now owned by the
UK company BAE systems, has engaged in a number of licensed
production arrangements with the state-owned Turkish arms
manufacturer MKEK. In 1998, for example, Heckler and Koch
won an $18 million 10 year contract for the licensed production
of 200,000 HK33 5.56mm assault rifles in Turkey. While several
EU member states had previously refused arms supplies to Turkey
due to serious human rights concerns - including torture,
ill-treatment and excessive use of force - this local production
of H&K small arms allows the provisioning of the Turkish
military and security forces, enabling them to continue their
activities as they will.
Not only has licensed production allowed Turkey to equip
its police and military but MKEK, has also boosted its own
export market and counts countries like Kuwait, Burundi, Libya,
Pakistan and Tunisia among its clients. And then there is
the notorious case of Indonesia.
In 1998 the Turkish News Agency reported that MKEK was exporting
500 H&K MP5 sub-machine guns to the Indonesian police.
These weapons were subsequently shipped to Indonesia at the
very height of the massacres in East Timor in 1999 - when
assault rifles and submachine guns were among the weapons
of choice, used by the pro-Indonesian paramilitaries, the
TNI and the Indonesian police to carry out grave human rights
abuses, to wound and kill hundreds of unarmed women, men and
children.
The MKEK deal was announced just a few months after the UK
government
had denied licenses for the same weapons to the Indonesian
Armed Forces. The actual MKEK transfers reportedly took place
just as the EU was agreeing to introduce an arms embargo on
Indonesia. This came into force on 16th September 1999 and
meant that neither Heckler & Koch in Germany or the UK
would have been allowed to export MP5's to Indonesia, but
the same weapon, made under license by MKEK in Turkey, could
be transferred into the eager hands of the Indonesian human
rights abusers.
FMN Herstal in Indonesia
But the HK/MKEK deal was not the only way that weapons reached
the human rights violators in East Timor. For according to
Janes Infantry Weapons 1999-2000 an Indonesian company, PT
Pindad of Bandung had established a factory manufacturing
SS1 5.56mm assault rifles which are licensed copies of the
Belgian FN Herstal FNC rifle.
Thus once again we see that the inadequate control of licensed
production can result in the establishment of new centres
of production of military and security equipment over which
the initial licensing government (and licensing company) can
have little or no control.
Yet despite these grave concerns several European governments
continue to allow their nationals to enter into new licensed
production agreements with countries and companies of concern.
On 23rd August 2000 the Turkish
Minister of Defence signed a contract with a consortium of
companies from Germany, Belgium and France to install an ammunition
manufacturing plant
in Turkey. A recent report by the Belgium Flemish NGO coalition
details this case. The plant will be run by MKEK and the lead
foreign company will be Fritz Werner of Germany. This licensed
production deal will give MKEK the opportunity to produce
5.56 mm calibre ammunition, well suited for assault rifles.
Will the governments of Germany, Belgium and France succeed
where the UK and Germany previously failed, and be able to
ensure that MKEK will not provision human rights violators
once again?
The licensed production loophole must be closed now.
EU Member states should not allow the licensed production
of arms and security equipment where there is a risk that
this equipment will be transferred to sensitive and proscribed
end-users.
In those licensed production deals allowed to take
place there must be
strict control of production levels and a prohibition on export
without the originating EU government's consent.
If there is evidence that the license has breached
the contract and transferred products to those likely to use
them for human rights violations, then the licensed production
agreement should be revoked. All provision of related machine
tools, parts, training and technology should be halted.
Details of licensed production agreements must be included
in annual
reports and scrutinised by Parliament.
Control of arms brokering and shipping agents
A major weakness in the EU Code and in the national controls
of many European states is the omission of any reference to
regulation of the activities of EU arms brokers and shipping
agents. These are companies or
individuals who organise or are involved in the transfer of
arms from third countries to their customers, without the
weapons touching EU soil. Although some states such as the
USA, Sweden and Germany have regulations, which control the
activities of arms brokers, the majority of EU states do not,
leaving the brokers free to ply their trade virtually as they
please. In the past such European brokers have organised the
supply of electroshock batons to states that commit torture
and have arranged the provision of arms to Rwandese forces
committing genocide.
Subsequently European brokers and transporters have been
linked with arms shipments to regions of conflict such as
Eritrea, where civilians were the victims of the devastating
hostilities with Ethiopia. In autumn 1998, large quantities
of army equipment, including replacement engines for 80 battle
tanks, were impounded at Antwerp docks in Belgium. The authorities
became suspicious of the cargo, which was listed as building
equipment and water pumps bound for Eritrea. The military
equipment had been bought in Germany, brought together in
the Netherlands and moved by rail to Antwerp for loading on
to a ship bound for Eritrea. A UK company had arranged the
deal.
European brokers and transport agents have also been implicated
in the breaching of UN arms embargoes, such as that still
in place against the Revolutionary United Front (RUF) in Sierra
Leone.
On 13th March 1999, for example, a shipment of 68 tons of
Ukrainian arms
was flown from Ibiza, Spain, to Ouagadougou, Burkina Faso.
The shipment organised by a Gibraltar company, contained over
700 boxes of weapons and cartridges. It was flown in an Antonov
aircraft run by a UK company, Air
Foyle. The weapons were subsequently trans-shipped to Liberia.
From Liberia such arms could then be easily shipped to the
RUF forces waiting eagerly.
Over the last two years European governments have discussed
measures to control the activities of arms brokers and shippers
following proposals presented by Germany during its EU Presidency.
Whilst such discussions have not yet resulted in EU wide action,
some states such as the UK are developing their own national
control measures. These are important advances but more co-ordinated
action is needed.
Recommendations
Such control measures should apply to the buying, selling
and promotion of
all arms and related military and security equipment. All
such brokering transactions should require the licensed approval
of governments. Furthermore the brokering of equipment for
torture, cruel, inhuman and degrading treatment and punishment
(CID) and the death penalty, and weapons banned under international
human rights or humanitarian law such
as antipersonnel land mines (APMs) should be prohibited.
To be effective, EU controls should apply to all EU passport
holders where ever they live, and to any company or individual
resident or registered in the
EU. Such measures would help to ensure that European brokers
are unable
to escape regulation simply by stepping outside the EU.
In addition, all EU member states should require nationals
who are arms brokering agents to register as such and to publish
their audited accounts relating to arms trading. Agents who
break laws regulating arms exports, or
deliberately supply misleading information about their arms
transactions should be prosecuted and banned from any further
arms brokering.
Transfer of skills
But it is not just the transfer of arms and security equipment
that is of concern. European countries, especially France
and the UK, are among key government providers of training
worldwide to the military, security and police forces of foreign
states. Some of this training may have the potential to benefit
recipient communities by providing better skilled security
forces, which respect the rule of law and seek to promote
and protect the rights of the civilian population. However,
unless such training is stringently controlled and independently
monitored, there is a danger that it will be used to facilitate
human rights violations.
Unfortunately much of this training occurs in secret so that
the public and legislatures of the countries involved rarely
discover who is being trained, what skills are being transferred,
and who is doing the training. Both recipient and donor states
often go to great lengths to conceal the transfer of expertise
which can be used to facilitate human rights violations. However,
sometimes light is thrown into this world of shadows.
In May 1999 Amnesty International published a report describing
decades of intimidation, torture, "disappearances" and killings
by Togo security forces against the civilian population. The
report also detailed the assistance that France had given
to the government of Togo. French aid included the provision
of small arms, transport vehicles and training to the Togo
military and security forces. France has provided a permanent
presence in Togo of military advisers, including instructors,
a pilot and mechanics. Togolese miliary and security personnel
have also been trained in France and have included officers
allegedly responsible for torture or ill treatment. Grave
concerns over the nature of the assistance given, and of the
recipients of such assistance were further highlighted in
1998 by the awarding of France's prestigious National Order
of Merit to a high-ranking officer in the Togolese gendarmerie.
Togo's National Commission has accused this same officer for
Human Rights of ordering the torture of four people in August
1990.
However it is not just the state provision of military or
security training and expertise that is inadequately regulated.
The private supply of military or security services is a
growing market that has largely evaded proper regulation and
monitoring by governments. These
security services have the potential to facilitate torture,
ill treatment or grave
human rights abuses in the recipient country.
During the last 10 years more than 30,000 people have been
victims of politically motivated killings in Colombia. The
majority were killed by the Colombian armed forces and paramilitary
organizations that operate with their support or acquiesance.
In October 1998 human rights organizations including Amnesty
questioned the activities of Defence Systems Colombia (DSC),
a subsidiary of the large
UK based private security company, Defence Systems Ltd. DSC
was under
contract to British Petroleum to run its security operations
in Colombia and,
until 1997, was also contracted by OCENSA - the consortium
company which owned the pipeline from the oil fields to the
coast.
According to information provided to the Guardian, a UK newspaper,
the security strategy of OCENSA/DSC may have directly or directly
contributed
to serious human rights violations. The security strategy
reportedly relied heavily on paid informants whose purpose
was to covertly gather "intelligence information". This intelligence
information would then reportedly
be passed on by OSCENSA to Colombian military officers, who
with their paramilitary allies were responsible for numerous
disappearances", torture and killings. Evidence also emerged
that in 1997 OCENSA/DSC purchased
military equipment for the Colombian army's XIV Brigade, which
has an atrocious record of human rights violations.
Once again governments must control this grey area. They
should:
- Make public information on all government sponsored
police, security and military training programs for foreign
personnel, in particular the individuals and units trained,
the nature of the training, and the monitoring mechanisms
put in place. Establish mechanisms to rigorously monitor
the human rights impact of the training provided.
- Introduce legislation to control and monitor the activities
of private providers of military and security services.
Companies and individuals providing such services should
be required to register and to provide detailed annual reports
of their activities. Every proposed international transfer
of personnel or training should require prior government
approval. This should be granted in accordance with publicly
available criteria based on international human rights and
humanitarian law.
Conclusion
I believe that in the last few years some advances in transparency,
accountability and control of the European arms trade have
taken place. However much, much more needs to be done if we
are to ensure that European arms transfers do not fuel conflict,
undermine regional peace, development and stability or facilitate
human rights abuses. For, as I have outlined, there are still
whole classes of transfers that are not adequately controlled
by governments.
During this conference I therefore ask you, when you are
considering issues of transparency to also consider the intertwined
issues of effective and comprehensive arms control. For you
cannot have effective transparency unless you first have effective
control. There will be no truly comprehensive and detailed
Annual Reports on strategic arms exports for parliament, the
press and the public to scrutinise unless the Governments
first recognise that areas such as arms brokering, licensed
production and the transfer of military expertise need to
be stringently controlled and licensed. And similarly how
can you put faith in an arms control system, which does not
have an effective end use certification and monitoring regime?
You cannot.
Now the immediate response from overworked and under resourced
officials
in this room and elsewhere may be. This is asking too much.
And. How much will this cost? What will be the price of such
increased controls?
Yes the development and enforcement of effective national
and European arms control regimes covering these areas will
be difficult, and yes will entail extra resources. But consider
for a moment the cost, the awful cost if such controls are
not put in place. For without such controls many of the illicit
arms flows will remain unchecked, arms embargoes will be breached
and arms, security equipment and expertise will continue to
be placed in the hands of criminals, terrorists and human
rights abusers. And the price will be paid, paid out daily
in the recipient countries - in Turkey, Indonesia, Colombia,
Israel, Kenya - paid out in human lives and misery.
Michael Crowley
Senior Analyst
BASIC
For further information please contact BASIC at basicuk@basicint.org
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