Select Committee on Foreign Affairs First Report


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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