Saferworld Publications Glossary presumption of denial When Saferworld refer to a ‘presumption of denial’ for licence applications, we take this to mean that there should be a significant shift in the balance of the licensing decision towards a denial, but that the final decision to approve or deny the licence will depend on other criteria. If these other criteria also lean towards a denial (or outweigh positive reasons for the supply, such as a legitimate defence requirement for the equipment in question) then the licence should be denied. Types of Export Licences: Standard Individual Export Licence (SIEL) This is the most common licence and permits shipments to a single consignee up to the quantity specified by the licence. It is normally valid for two years, and applicants are required to submit an End-User Undertaking (EUU) in all cases, except where the consignee is a government body. Open Individual Export Licence (OIEL) This licence is specific to an individual exporter and covers the regular shipment of certain (non-sensitive) goods to a range of specified (usually non-sensitive) destinations. It is normally valid for either two years (military goods) or three years (dual-use goods). The exporter is required to demonstrate that the company has effective internal compliance procedures, and so end-use details are not normally required. Open General Export Licences (OGELs) These licences remove the need for an exporter to apply for an individual licence, and no specific application to the DTI is necessary, although Customs and Excise must be notified when the goods are shipped that they are covered by a specific OGEL. There are 24 different OGELs currently in force covering such items as military components, the export of military goods after exhibition or repair, military surplus vehicles, dual-use goods, technology for dual-use goods, low value shipments, and the export of Wassenaar-controlled goods. Certain OGELs require registration before or within 30 days of their use. Transhipment Licences These licences are used when controlled products enter the UK solely for transit to another country. In the Annual Report, information is given on Standard Individual Transhipment Licences (SITLs). Executive Summary Introduction This report is an audit of the UK Government’s first Annual Report on Strategic Export Controls, which was published in March 1999. The aim is to assess: whether the Government followed its own criteria for exports, as in force at the time of the decisions taken during the period 2 May 1997 - 31 December 1997; whether the Annual Report provides enough information to enable a judgement to be made on whether the Government is following its own criteria for exports (and recommend improvements where appropriate); and where, in the light of the operation of the Government’s criteria in 1997, changes in the interpretation and implementation of the criteria should be made. Specific destinations, regions and exports are examined in order that a shared understanding and common practice can be achieved around a restrictive interpretation of the UK export criteria (and the criteria contained in the EU Code of Conduct on Arms Exports). The importance of transparency and parliamentary accountability The first Annual Report: a significant step forward The first Annual Report on Strategic Export Controls, published in March 1999 and covering the period 2 May to 31 December 1997, is a significant improvement on previous practice in the UK and also on what else is currently available in other EU states. It allows for increased scrutiny of licensing decisions, enhances the quality of parliamentary oversight, and as such offers a useful starting point from which to develop a template for best-practice throughout the EU. The Report details the number and types of licences granted for exports by country; it includes, for the first time, summary descriptions of the Military List items licensed; and it lists the value of exports for the period in question by country, rather than by region as in previous years. The response of UK Parliamentary committees to the first Annual Report On the 20 April 1999 the four select committees principally concerned with strategic export controls - Defence, Foreign Affairs, International Development, and Trade and Industry – met as a joint committee to discuss the Annual Report. This exercise in parliamentary scrutiny has already set a useful precedent. At the request of the committees, the FCO provided a memorandum setting out the general policy considerations that operated in respect of individual licence applications for exports to Indonesia, Morocco, Nigeria, Saudi Arabia, Sri Lanka and Turkey. The FCO are to be congratulated for providing this level of detailed information, and the committees are to be congratulated for publishing it in their Special Report (Committees’ Inquiry into the 1997 and 1998 Annual Reports on Strategic Export Controls, HC540, 15 June 1999). The joint committee also intend to hear oral evidence from Ministers after publication of the next Annual Report later in 1999, and will then publish a more substantive report on the annual reporting system to Parliament. Transparency within the Annual Report and recommendations for improvement The level of detail contained in the Annual Report is a significant step forward, but could still be presented in a more ‘user-friendly’ way. Robin Cook has rightly stated that ‘an informed public debate is the best guarantee of responsible regulation of the arms trade’. Yet vague descriptions for certain types of equipment in the Annual Report means that this debate is still not fully informed. Both the Military List ratings and equipment descriptions are supplied, but in the case of countries to which a larger number of licences have been granted, it is often difficult if not impossible to match the data. Moreover, the data for each country is currently provided in six different locations in the Report. In some cases, the summary description provided is precise, for example, ‘machine gun’. However, in many cases the level of detail provided is often still not enough to enable a judgement to be made as to whether the licence meets the export guidelines. For example, ‘aircraft spares’ or ‘electronic equipment’ could cover a range of equipment which could either be fairly benign or of potential concern. Important information which is omitted from the Report, includes: summary descriptions for licences granted for exports of dual-use equipment; volume and value data for licences; information on end-users; summary descriptions for licences refused; and information on government-to-government transfers. As it currently stands, therefore, the Annual Report does not allow Parliament and citizens to make an informed judgement on whether the Government has fully implemented its own export guidelines in all cases. It is still difficult in many cases to assess whether strategic exports have gone to countries where they might be used to abuse human rights, support external aggression or undermine development. Improving the presentation and content of the Annual Report A number of improvements in the presentation and content of the Annual Report are recommended: The list of ‘descriptions’ of Military List SIEL’s should be reorganised in order to correspond to the list of ratings for these licences. Information on OIEL’s should also be provided in the same form. Summary descriptions of equipment licensed for export should be detailed enough to enable the implementation of policy to be judged. A summary description of all dual-use goods licensed for export should also be given. Information on the maximum quantity of equipment that can be exported on a particular licence should be included in the Annual Report’s country tables. Information on the total value of licences granted each year to each country should be included, subdivided into military list and dual-use equipment categories. Consideration should also be given to publishing value data for individual licences. The annual report should state whether the end-user for each licence within each country is the army, navy, air force, police force, other state body, commercial organisation, sports club or private individual. Information on licence refusals should be provided at the same level of detail as for licences granted. The full descriptions of items exported should be included, together with comments on transfers, that are already provided to the UN Register. Improvements should be undertaken in both the numerical and value data on items exported (as shown in Table 8 of the Annual Report). Information on strategic goods and technologies exported under government to government agreements should be included in the Annual Report, including separate statistics on the physical exports of surplus military equipment. The Annual Report should include (in a separate table or separately identified within existing tables) statistics on the physical exports of surplus military equipment and dual-use goods. The information provided should include the same level of detail (i.e. summary description, quantity, value and end-user) as provided for individual licences granted. The need for effective prior and retrospective scrutiny While the retrospective scrutiny proposed by the joint committee is very welcome, if concerns about human rights, regional security and sustainable development are to be given full weight, Saferworld believes that parliamentary scrutiny needs to be enhanced by: parliament holding an annual parliamentary debate on the substance of the Annual Report and on the implications for UK arms export policy; the government ensuring that full and proper answers are given to parliamentary questions about arms exports. At the moment, for example, no summary descriptions of military equipment are given in response to parliamentary questions. As a minimum standard, therefore, the level of information given in response to parliamentary questions about arms exports should be the same as is included in the Annual Report; the joint committee holding regular evidence sessions with ministers and officials; and parliament establishing a committee of MPs to scrutinise sensitive arms export licence applications in advance of their approval or denial, as happens in Sweden. In order to build up expertise and make the appropriate linkages with other aspects of the scrutiny process, this committee should be based on the existing joint committee. The need for wider reporting and higher standards of transparency across the EU and partner countries The publication of the Annual Report by the UK Government, together with the commitment by some other EU governments to publish annual reports on their own exports and implementation of the Code of Conduct, set important precedents and provide a basis for wider reporting across the EU and partner countries. Although the content and format of these annual reports will develop with experience, it is important that the UK Government presses for the highest common standards of reporting at the earliest opportunity. In particular, it needs to: work towards an EU-wide agreement on common guidelines for annual reporting, including the principle of public disclosure of such reports; ensure that the first annual review process for the Code of Conduct in Autumn 1999 is substantial and effective and that the Consolidated Report is made available to parliamentarians and the public; and encourage EU Associate countries in Central and Eastern Europe to undertake public annual reporting of their own exports, as part of a process towards eventual inclusion in the information-exchange and consultation mechanisms of the Code of Conduct. The Audit - A country by country analysis of exports of concern Countries examined All 142 recipient destinations (i.e. those that received at least one SIEL) were reviewed against the Government’s export criteria, and separated into three distinct categories: non-sensitive countries (i.e. members of the EU, OECD and most NATO countries which are generally regarded as 'safe' destinations); sensitive countries (i.e. those that appear to ‘trigger a concern’ under one or more of the eight criteria);and very sensitive countries (i.e. those under international embargo). Next, the licences granted to ‘sensitive’ and ‘very sensitive’ destinations were reviewed in order to remove those countries that were granted licences for non-controversial items. This left 42 countries to examine in greater detail. Exports of greatest concern For each country selected, the audit involved an evaluation of both the country and the arms export licences granted. This evaluation, based on Saferworld’s interpretation of the UK Government’s export criteria, produced the following list of ‘exports of greatest concern’. Saferworld recommends that the joint committee ask further questions about these licences at the earliest opportunity. One group of questions primarily concern transparency issues (requiring, for example, further information on values, quantities and/or end-users). In these cases, if the Government were to supply the requisite information then the balance of probability suggests that our concerns are likely to be pacified. The specified licences to the following destinations fall within this category: crowd control ammunition to Bangladesh; submachine guns to the Cayman Islands; small arms, ammunition and armoured personnel carriers to Cyprus; dual-use goods to Iran; CS cartridges, baton rounds and electronic equipment to Kuwait; shotgun cartridges, shotguns, and ammunition to Lebanon; submachine guns to Macao; submachine guns to Mexico; shotguns and ammunition to Nepal; aircraft spares to Peru; submachine guns, pistols and sniper rifles to the Philippines; electronic equipment and dual-use goods to Syria; and pistols and shotguns to Thailand; A second group of questions, while still raising transparency issues, are more concerned with general licensing policy considerations or how the Government has interpreted or implemented specific aspects of its export criteria. The specified licences to the following destinations fall within this category: small arms and ammunition to Bahrain; pistols and small arms ammunition to Brazil; small arms and ammunition to the Channel Islands; aircraft engine parts and spares, electronic equipment, communications equipment, military imaging equipment and nuclear dual-use goods to China; ammunition components and smoke grenades to Columbia; ‘refurbishment of cluster bombs’, firearm production equipment and small arms to Ecuador; submachine guns, rifles and ammunition to Hong Kong; aircraft machine gun spares, body armour and military helmets to Indonesia; aircraft engines, aircraft spares, ammunition, military explosives, vehicle spares, ammunition components, aircraft engine components, and gun spares to Israel; CS grenades and high technology equipment to Jordan; assault rifles and spares, pistols, pistol spares and shotguns to Kenya; shotguns, submachine gun silencers, machine gun and submachine gun spares and naval spares and equipment to Pakistan; submachine guns and shotguns to Singapore; ammunition, machine guns and equipment/spares and stun grenades to Sri Lanka; electronic equipment and dual-use goods to Syria; shotguns, ammunition and telescopic sights to Tanzania; aircraft engines, electronic equipment, aircraft spares, silencers, helicopter spares, missile components, sniper rifles, ammunition, rifles and missiles to Turkey; handcuffs and air-to-surface missiles to United Arab Emirates; submachine guns, ammunition, rifle spares and shotguns to Zambia; and submachine guns and ammunition, aircraft spares and spares for helicopters to Zimbabwe. There are also additional concerns regarding: potentially destabilising accumulations of military equipment to India, Pakistan and Taiwan; the development implications of exports of military equipment to Brazil, India, Pakistan, South Africa and the Gulf States although such concerns are inconclusive in this Annual Report; and undisclosed Government-to-Government exports (i.e. exports that do not require a licence) of military equipment to Saudi Arabia. Key concerns in UK export policy The audit has revealed several inconsistencies in the interpretation and implementation of some of the export criteria which the Government will need to address. Criterion One – International Obligations International (EU, OSCE or UN) embargoes were in place against 15 countries during the period covered by the Annual Report. There were no SIELs issued to four of these countries and a total of 117 licences were issued to the remaining eleven countries. With the exception of some of the 64 licences to China, most of these licences appear to be acceptable exemptions to the military embargoes in force. However, to be absolutely certain, more information is needed on: the communications and electronic equipment licensed to Angola; the communications and armoured 4-wheel drive vehicles licensed to Rwanda; the quantities and end-users of the submachine guns, shotguns and armoured personnel carriers licensed to Cyprus; and the dual-use technologies licensed to Iran. Some of the licences granted to China raise particular concerns. An EU arms embargo has been in place against China since June 1989, but in the absence of agreement on a common interpretation, its scope has been left to national interpretation. The UK interprets the ban to cover lethal weapons, specially designed components for such weapons, weapon platforms and any equipment that might be used for internal repression. In 1997, however, there was a strong case for increasing the scope of the UK interpretation to include ‘specially designed’ components for weapons platforms. The Government and the joint committee should review the current interpretation of the EU embargo against China to see whether it should be widened to include components for weapon platforms. An additional concern under this criterion is the compatibility of the air-to-surface missiles licensed to United Arab Emirates with the Missile Technology Control Regime (MTCR). More information on the quantity and type of missiles is required to make a proper assessment. Criterion Two – Human Rights It is in regard to the interpretation and implementation of this criterion where the most inconsistencies are to be found, particularly regarding the licensing of small arms, light weapons and ammunition. The UK Government has given many indications that it understands the severity of the problem of small arms and light weapons, and has acted in a number of ways to help prevent destabilising accumulations. Yet approximately 30 per cent of the total number of ratings detailed in the Annual Report were for categories of equipment including small arms, light weapons and ammunition. Most of these were to Western Europe and North America, and a number of licences to sensitive destinations were refused or revoked, but there were still a significant number of licences issued for exports to regions of concern (e.g. Middle East & North Africa – 173 licences; Sub-Saharan Africa – 138 licences). In particular, despite raising serious human rights concerns, Bahrain, Columbia, India, Kenya, Lebanon, Pakistan, Sri Lanka, Turkey and Zambia were all recipients of licences for small arms and light weapons. The joint committee should seek further information on the quantities and end-users for the weapons licensed to these destinations. The committee should also satisfy itself that licence denials and ‘presumptions of denial’ are being rigorously and consistently applied for small arms, light weapons and ammunition to destinations that raise human rights concerns. A second problem under this criterion involves the licensing of defensive body armour and military helmets to Indonesia and body armour to Bahrain. These exports raise questions of consistency between the UK’s own export criteria and the criteria contained in the EU Code of Conduct. Although in many ways identical, the national criteria contain a caveat that is not included in the EU Code. Under the UK criteria, equipment which has obvious application for internal repression can be licensed if ‘the end-use of the equipment is judged to be legitimate, such as protection of members of security forces from violence’. Although the arguments in favour of such a caveat have some merit (i.e. body armour and military helmets are unlikely to significantly increase the capacity of the security forces to abuse human rights and such items are needed to protect the security forces from violent opposition), in the context of certain situations - and Indonesia in 1997 was arguably one such situation - any increase in the identifiable risk to human rights should be enough to trigger a denial. Moreover, there is also an inconsistency between these two cases and the decision to refuse a licence for the export of similar equipment (helmets) to the Chinese police during 1997. Criterion Three – Internal Situation As this criterion is closely linked to Criterion Two, it is hardly surprising that a number of inconsistencies are also apparent here as well. These mainly concern licences that were granted for military equipment to countries involved in localised or regional internal conflicts, such as Israel, Turkey, Sri Lanka and Zimbabwe. The joint committee should ask the Government to clarify what end-use and end-user guarantees are in place to ensure that military exports to these destinations do not end up in the hands of security forces with a history of carrying out acts of internal repression. The committee should also seek clarification on how the Government assesses the likely impact of exports of small arms (and other equipment which can be used for internal repression) on internal tensions. Criterion Four – Regional Stability Relatively few individual licences were issued for ‘big ticket’ items (e.g. tanks, combat aircraft), and it is notable that only a few appear to raise concerns under this criterion. These include the ‘refurbishment of cluster bombs’ and firearm production equipment to Ecuador (which was embroiled in a border conflict with Peru in 1997), and the surface-to-air missiles and other missiles to Turkey (which may exacerbate Greek-Turkish-Cypriot tensions). The joint committee should seek further information on the quantities, specifications and end-users for these weapons. Multiple exports of militarily significant equipment and dual-use goods are also a potential cause for concern under this criterion. The large numbers of licences falling under the electronics and telecommunications/information security categories are particularly noteworthy. But without more information on these types of exports (especially quantities, details on the specific technologies involved and end-use) there is no way of independently assessing the extent to which they may be acting as a force multiplier in a region or affecting the balance of forces between neighbouring states. Nonetheless, potentially destabilising accumulations of military equipment were licensed to India, Pakistan and Taiwan. Moreover, if these countries are importing similar quantities of equipment from other countries, including other EU member states, it may be that the UK and our partners within the EU are missing upward trends in transfers of destabilising accumulations of military components and dual-use goods and technologies - as was the case with arming Iraq in the 1980s. The joint committee should seek further information on how the UK Government is working with other member states in both the EU and Wassenaar Arrangement to track potential trends in destabilising accumulations of military components and dual-use goods and technologies, both to sensitive destinations in general, and with particular regard to India and Pakistan. Criterion Seven – Diversion and Re-export (End-use controls) A number of destinations received licences for small arms, light weapons and/or other military equipment despite raising re-export or diversion concerns. Jordan and Singapore raise broad policy concerns about licensing to countries with a history of diversion, while the Channel Islands, Ecuador and Hong Kong raise more specific concerns. The joint committee should seek further information on the application of end-use controls to these four destinations. In addition, given that ‘no formal mechanisms exist at present for systematically monitoring the use of British equipment once it has been exported’ the joint committee should explore with the Government how this particular criterion is implemented in practice (to destinations such as Jordan and Singapore) and whether it needs to be strengthened. Criterion Eight – Development And Military Expenditure A reasonable level of consistency and rigour seems to have been applied in respect of this final criterion. Of the 50 countries that fall within either (or both) of the 'heavily indebted poor countries' or 'countries furthest away from international development goals' classifications, 32 of them received a total of 224 licences (or 2.8 per cent of the total number of licences granted). Ghana accounted for the most licences (41), followed by Kenya (28), Nepal (26), Tanzania (24) and Ethiopia (14). None of the 32 countries appeared to receive licences that raise concerns under this particular criterion (although the absence of value data makes this a provisional assessment). However, five of those countries (Ghana, Kenya, Nepal, Tanzania and Zambia) received export licences which raise additional concerns under other criteria, and the joint committee should ask the Department for International Development (DFID) to explain why these licences were allowed. In addition, a number of other countries also raise development concerns, including Brazil, India, Pakistan, South Africa and most of the Gulf States in the Middle East. DFID does get to see licence applications to all of these destinations (with the exception of the Gulf States) and the development concerns are rather inconclusive from the limited evidence available in the Annual Report. Nonetheless, particular attention should be paid to the development consequences of future strategic exports to these destinations. The failure to consider the impact of strategic exports on the development goals in the Gulf States is an important omission, however. DFID should therefore widen its brief to include the review of licence applications to all the Gulf States in the Middle East.