APPENDIX 24
Supplementary Memorandum submitted by
Saferworld
THE EU CODE OF CONDUCT ON THE ARMS TRADE:
FINAL ANALYSIS[24]
PREAMBLE
The EU Code of Conduct agreed by Foreign Ministers
on 25 May 1998 is an important initiative in that it represents
a first step towards the development of a common, responsible,
approach to arms exports by the EU Member 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 the Member States and their nationals
of military, paramilitary and security equipment and services.
Despite appeals from parliamentarians and non-government
organisations in the EU, there is no explicit obligation to prohibit
transfers to forces which would most likely use them to seriously
violate international humanitarian law (which sets out the rules
of war). Moreover, there are virtually no provisions to address
the current deficiencies in most EU Members States' arms control
regimes, such as the failure to strictly regulate international
arms brokering and licensed production agreements, or to adopt
rigorous systems of certifying and monitoring end-use. Finally
the Code, as agreed, contains no provision for parliamentary or
public scrutiny over arms exports from the EU and thus does little
to foster greater transparency and accountability over the arms
trade across Europe as a whole. These omissions will need to be
rectified in the near future if the Code is to achieve its aims
of high common standards in management of and restraint in conventional
arms transfers.
THE GUIDELINES
Criterion Two: The respect of human rights in
the country of final destination;
Criterion Six: The behaviour of the buyer country
with regard to the international community, as regards in particular
its attitude to terrorism, the nature of its alliances and respect
for international law.
Promoting full respect for international humanitarian
law, complimenting respect for international human rights standards,
is an essential requirement for an EU Code, but the failure to
do this under Criterion Two and Six could easily undermine the
Code as it stands.
Under Criterion Six, Member States are only
required to "take into account the record" of the "buyer
country" with regard to "its compliance with its international
commitments, in particular on the non-use of force, including
international humanitarian law applicable to international and
non-international conflicts". In other words, they may still
consider that arms transfers can be authorised in spite of likely
breaches of international humanitarian law because of other strategic
reasons. It should be pointed out that under Article 1 of the
Geneva Conventions, states have a responsibility to "respect
and ensure respect" for international humanitarian law. The
right to transfer arms cannot take precedence over the duty to
ensure respect for such law, and this obligation should have been
explicitly recognised in the Code.
Criterion Two adds to this weak formulation
because the term "internal repression" is used as a
summary term and defined without reference to the obligations
set out in international humanitarian law—which has been
primarily designed to protect those not actively participating
in hostilities during both international and non-international
conflicts.
EU governments could thus claim that the Code
as currently worded allows them to authorise arms transfers 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 also allow governments to send arms 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. Since
very many of the worst atrocities and repressive acts are committed
in the context of armed conflict, these are serious flaws in the
wording of the Code and should be addressed as soon as possible.
The text under Criterion Two, which was bracketed
in the penultimate draft, and which defines "internal repression"
as "major violations of human rights and fundamental freedoms
as set out in relevant international human rights instruments"
and includes the risk of the diversion of the equipment for use
in "internal repression", has been retained in large
part and strengthened. The examples of actions which would constitute
internal repression have been extended to include "torture
and other cruel, inhuman and degrading treatment or punishment,
summary or arbitrary executions, disappearances, arbitrary detentions".
This particular wording is a welcome inclusion. However, the EU
governments should clarify that the term "internal repression"
will mean "violations of international human rights standards
and/or humanitarian law".
Beyond these criticisms it should be noted that
under criterion two, the clause which requires the Member States
to exercise restraint when considering the export of arms to countries
with a record of repression is not as restrictive as was hoped.
On 25 May, the Member States were faced with a choice of two formulations:
the first advocated caution—on a case by case basis, taking
into account the nature of the equipment—in the export of
arms to countries where human rights violations had been "established
by the competent bodies of the UN, the Council of Europe or by
the EU", the second, more restrictive option, advocated restraint
in the export of arms in general to recipients which are guilty
of serious human rights violations, however, it also implied that
Member States should abstain from licensing, to such end-users,
exports of equipment which has a potential for use in repression.
Unfortunately the final text of the Code incorporates
the first option which is expanded to include "special
caution and vigilance in issuing licences. . .where serious
violations of human rights have been established by competent
bodies of the UN, the Council of Europe or by the EU" in
the recipient country. The failure of the Member States to incorporate
the more restrictive option within the Code represents a missed
opportunity in terms of ensuring that maximum restraint is exercised
in the supply of military, paramilitary and security equipment
to regimes which abuse human rights.
While acknowledging the legitimacy and authority
of the judgements of "competent bodies" of the inter-governmental
organisations named, it is possible that a prospective recipient
may be guilty of human rights violations which, owing to their
recent occurrence, or the refusal of access to investigators,
have not been censured by the "competent bodies". Moreover,
it is not clear which "competent bodies" are referred
to, nor why the EU governments have chosen not to include, for
example, the Inter-American Court of Human Rights. EU governments
should clarify that the phrase "where serious violations
of human rights have been established by competent bodies"
will include those human rights abuses documented in reports by
special rapporteur, working groups and other thematic mechanisms
of the United Nations.
Also under Criterion Six it should be noted
that there is still an error in section (b) of the guidelines
under Criterion Six. This asserts that "Member States will
take into account inter alia the record of the buyer country with
regard to: . . . (b) its compliance with its international commitments,
in particular on the non-use of force, including under international
humanitarian law applicable to international and non-international
conflicts". However, it should be noted that international
humanitarian law refers to the regulation of the use of force
rather than the non-use of force.
Criterion Eight:The compatibility of the arms
exports with the technical and economic capacity of the recipient
country, taking into account the desirability that states should
achieve their legitimate needs of security and defence with the
least diversion for armaments of human and economic resources.
The text under Criterion Eight now refers to
EU and bilateral aid as a consideration in export licensing. A
wider variety of development indices, such as figures produced
by the UNDP, are also now to be included. Whilst these inclusions
are to be welcomed, the text still fails to articulate how this
and other considerations will affect export licensing decisions.
If this criterion is to prevent the transfer of arms to where
they could undermine the prospects for sustainable development
or hamper the effectiveness of development programmes or reconstruction
initiatives, then the Code must state clearly that the presumption
will be to deny exports where there is evidence to suggest that
negative effects would accrue.
OPERATIVE PROVISIONS
Consultation on undercutting
The penultimate draft of the Code of Conduct
set out two alternatives for the consultation mechanisms which
related to the procedures for the Member States following a decision
to take up a licence which had been denied by another Member State.
Unfortunately the Member States have agreed on the more limited
option. This requires any Member State wishing to undercut a denial
to consult with and ultimately inform only the Member State which
issued the denial in the first instance. The other alternative,
to inform all Member States of a decision to undercut, would have
served the purposes of transparency to much greater effect.
The decision to restrict consultation and notification
on undercutting to bilateral exchanges carries with it certain
potential dangers. In the first instance, bilateral consultation
between the Member State wishing to undercut and the Member State
which issued the denial is unlikely to facilitate the development
of a consistent approach towards sensitive end-users amongst the
wider group of Member States. Secondly, because any decision by
a Member State to go ahead and take up a licence denied by another
will only be notified to the Member State issuing the denial,
undercutting is likely to take place virtually in secret. If and
when details of undercutting eventually emerge, the net effect
could prove divisive, possibly leading to a reduction in the number
of denials issued and/or an increase in undercutting.
There remains the possibility that Member States
which have issued denials will seek, informally, to notify to
the wider group, a decision by another Member State to undercut.
Rather than relying on ad hoc procedures, however, a clear priority
for the Member States in the development of the Code of Conduct
should be the establishment of full multilateral consultations
on undercutting before and after a decision to undercut is taken.
Moreover, the Member States should agree to notify an appropriate
committee of their national parliament in order that the purposes
of transparency and accountability may be fully served. In view
of Foreign Minister Vedrine's statement that "we shall see
how to go further", progress in this area is imperative in
the short term.
A Common Control List
The Operative Provisions also state that "EU
Member States will work for the early adoption of a common list
of military equipment covered by the Code, based on similar national
and international lists". Until this process is completed,
national lists will form the basis of denial notification and
consultation "incorporating where appropriate elements from
relevant international lists". It is unfortunate that the
Member States could not agree on a common comprehensive list at
the same time as the Code of Conduct. However it is essential
that this process is completed without delay because some national
and international control lists do not cover the full range of
goods and services used in defence and law enforcement to which
the Code should apply. Utilisation of national and international
lists for any length of time could lead to a gap in the application
of controls on the part of some Member States. The Member States
should, moreover, ensure that the agreed EU Code control list
contains: i) all types of major conventional weaponry, all types
of small arms and light weapons, police and paramilitary equipment,
military and paramilitary training equipment and services; and
ii) a list of prohibited equipment—such as anti-personnel
mines, death penalty equipment, leg irons, electro-shock weapons
etc.—whose sole or primary practical use results in serious
abuses such as breaches of humanitarian law and international
human rights standards.
The Annual Report
A truly accountable system would be one which
requires Member States to allow national parliaments (or committees
thereof) to scrutinise proposed arms exports in advance of the
granting of licences (as is the case in Sweden). In particular
those licences which may be granted to countries where there are
serious concerns over human rights violations, internal instability,
regional or international conflict, or high military expenditure,
should be scrutinised and evaluated by national parliaments.
In this regard, the provisions for an annual
review which are contained within the final text of the Code fall
some way short of the level of public transparency which is necessary
for the proper regulation of the arms trade. In the penultimate
draft two alternatives were advanced. One required the Member
States to compile an annual report on their defence exports and
on the implementation of the Code and, further, for a consolidated
report to be provided to the Council of Ministers and the public.
The second weaker option provided for an annual meeting to review
the Code from which a report would be drafted for submission to
the Council only.
Clearly the first option went significantly
further in terms of transparency and accountability as it required
the Member States to provide details of their arms exports and
for some form of report to be made public.
While welcoming the decision by the Member States
to undertake an annual review of the Code, it is disappointing,
that the option chosen is, in fact, a watered down version of
the first option. While still requiring the Member States to produce
a report on their arms exports, it is stressed that this should
take place in confidence. Moreover, while a consolidated report
is to be produced, it appears that this will only be provided
to the Council of Ministers, and not to national parliaments,
the European Parliament, or the public. This is a major weakness
in the Code of Conduct. The net effect of this formulation is
thus to remove any reference to public or parliamentary accountability
from the Code of Conduct. As such the provisions for the annual
review of the Code are unlikely to facilitate achievement of the
aims of "greater transparency" which are articulated
so clearly in the Preamble to the Code. If the aims of transparency
and accountability are to be realised, the Member States should,
immediately, commit themselves to publishing their national reports
on defence exports as well as the consolidated report on the implementation
of the Code. This will allow post facto review of arms export
policy and, as such represents a minimum standard.
LEGAL STATUS
OF THE
CODE
The political and legal status of the proposed
EU Code will be crucial to its effective implementation. It is
disappointing, therefore, that the Member States have agreed to
adopt the EU Code of Conduct on Arms Exports only as a Council
Declaration (under CFSP). However, this type of politically, but
not judicially, 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 the Member States means that the need for parliamentary
scrutiny over arms exports from the EU becomes even more pressing.
EU governments must be held accountable for their implementation
of the Code of Conduct and, in the absence of any legal mechanism
for achieving this, increases the importance of parliamentary
scrutiny over EU arms exports and the need for the Council to
publish the consolidated annual report (see above).
OTHER ESSENTIAL
MEASURES
In spite of concerted pressure from the non-government
sector, the EU Code of Conduct which was agreed by Foreign Ministers
on 25 May 1998 contains no reference to the need to control the
activities of international arms brokering agents, the need to
control licensed production of military, paramilitary and security
equipment or the need for common EU controls governing end-use.
The absence of even a reference to these issues is a major disappointment.
The lack of common EU controls in these areas means that inconsistencies
will exist in the stringency of national controls in key areas
which could serve to undermine the aims of the Code of Conduct.
The Member States should, therefore, seek to address these omissions
at the earliest opportunity by agreeing common EU controls on
international arms brokering, on end-use certification and monitoring
and on licensed production.
August 1998
24 This paper was drafted by Liz Clegg, Saferworld,
in consultation with representatives of Amnesty International,
BASIC, Christian Aid, Oxfam UK and the World Development Movement.
These organisations have differing mandates and areas of speciality
and while we, individually, do not have detailed policy on all
the 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
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