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15. An Arms Export Agenda for the Expanded EU
Governments that export arms and those that receive them have a fundamental moral and developing legal responsibility to ensure that the arms are not misused for human rights violations or breaches of international law.(415) EU Member States should fully abide by their international obligations including those acknowledged in the EU Code of Conduct and related EU and other international agreements, including treaties on human rights and international humanitarian law. Fulfilling these obligations should not be viewed as a "hindrance" to trade, but as a fundamental pre-requisite for greater international security and prosperity.
Strengthening the EU code and related control measures
Credible evidence in this and other reports points to a series of dangerous gaps and weaknesses in the EU Code and in related EU Member States' national and regional mechanisms to control military and security exports. Clearly, these need to be urgently addressed by EU Member States if they are to achieve the stated goals set out in the Code.
The intended review of the EU Code should not skate over these weaknesses. Such an approach will come back to haunt EU governments when EU arms scandals - particularly those linked to grave human rights violations and war crimes - emerge, as they almost inevitably will do.
In reviewing the Code, therefore, EU Member States should seek to strengthen and clarify the Criteria by basing them on relevant principles of international law wherever possible. For example, under EU Code Criterion 6 it is not good enough to refer to states' obligations under international humanitarian law as obligations that are only "taken into account". All High Contracting Parties of the Geneva Conventions - the cornerstones of international humanitarian law - are required under Common Article 1 to "respect and ensure respect" for these obligations and therefore have a fundamental responsibility to prevent arms transfers that would contribute to breaches of them. In addition, gaps and weaknesses in the Operative Provisions need to be addressed in a strengthened Code and in related EU agreements and mechanisms. The scope of controls needs to extend to the full range of arms and security equipment, technology, components, expertise or services so as to ensure these do not contribute to human rights violations or breaches of international humanitarian law. To be meaningful, definitions and determination criteria in the Code must at least cover all: commercial sales, government-to-government deals, "third country" dealing by EU citizens and residents, licensed production overseas, "arms in transit" via the EU and "surplus arms". This should be explicitly stated in the strengthened wording of the Code.
Over recent years, and particularly following the adoption of the EU Code 1998, the EU has attempted to be an important and progressive voice promoting effective arms control internationally. The enlarged EU now has an opportunity to become an even more powerful international voice for positive change. In order to do this, the EU must put it own house in order. In order to help prevent the EU being complicit in, or otherwise contributing to, grave human rights abuses, Amnesty International believes that the enlarged EU should seek to:
· strengthen the EU Code by making it more consistent with fundamental principles of international law, as well as improving the scope of controls and reporting standards, including for arms in transit;
· promote and work towards a global arms trade treaty (ATT) to underpin a strengthened EU Code – EU Member States should demonstrate that a strengthened Code can be consistent with a legally binding and workable arms trade treaty;
· promote a global ban on the manufacture and transfer of equipment easily used for torture, ill-treatment and the death penalty by strengthening and adopting the proposed EC Regulation;
· curb the proliferation and misuse of arms, and small arms and light weapons in particular, by adopting an EU Joint Action or EU Code Operative Provision to widen the extra-territorial application of EU laws on arms brokering, transporting, and financing;
· adopt an EU Joint Action or EU Code Operative Provision to properly regulate surplus arms;
· prevent the unregulated spread of arms production by adopting an EU Joint Action or EU Code Operative Provision to effectively control EU licensed arms production in third countries;
· establish, through an EU Joint Action, a national legal requirement to observe international human rights and humanitarian standards for all EU military, security and police aid programmes to "third" countries, as well as laws consistent with such international standards for all EU companies purporting to provide such expertise and training, and a prohibition on mercenarism by EU nationals and residents.
An International Arms Trade Treaty to help strengthen the EU Code
To help overcome some of the fundamental problems with the EU arms control regime outlined above, EU Member States should actively support a process to develop a legally binding international arms trade treaty. To be meaningful, and to underpin the EU Code and other mechanisms, such a treaty would have to conform closely to existing relevant principles of international law. It would contain tougher export criteria than the EU Code (which is only politically binding) and could be ratified and implemented by a much greater number of states across all world regions. Such a treaty would be a basic building block for a much clearer, more consistent and widely shared set of international arms control practices. Existing political realities would probably mean that, initially, a viable arms trade treaty text would have more limited operative provisions than the existing EU Code (for example, it would probably not have consultation/undercutting operative provisions), but the arms trade treaty could have stronger universally applicable arms export criteria and could be enhanced over time with specific supportive binding measures, as outlined below.
Amnesty International and many other NGOs and individuals are calling on all governments, including those of the EU Member States, to press for the negotiation of an International Arms Trade Treaty that ensures full respect for international human rights and humanitarian law.(416) This Treaty should include the following:
Contracting Parties will not authorize international transfers of arms:
· which would violate their obligations under international law - including the Charter of the United Nations, arms embargoes and other decisions of the United Nations Security Council and international treaties prohibiting the use of weapons that are indiscriminate or that cause unnecessary suffering.
· In circumstances in which they know, or should know, that the arms due to be transferred are likely to be:
1. used in breach of the United Nations Charter or corresponding rules of customary international law, in particular those prohibiting the threat or use of force in international relations;
2. used to commit serious violations of human rights;
3. used to commit serious violations of international humanitarian law relating to armed conflict;
4. used to commit genocide or crimes against humanity;
5. diverted and used to commit of any of the above acts.
Furthermore there should be a presumption against the authorisation of those arms transfers likely to:
· be used for or to facilitate the commission of violent crimes;
· adversely affect regional security;
· adversely affect sustainable development.
Contracting Parties will submit an annual report on international arms transfers from or through its territory or subject to its authorization to an International Registry, in accordance with the requirements of this Convention. The International Registry shall publish an annual report and other periodic reports.
Operational Measures and Mechanism Required
EU Member States should act without delay to include the following specific measures either in the Operative Provisions of a strengthened EU Code, or in binding EU agreements such as EU Joint Actions. In addition, EU member States should work towards including such measures in wider international binding agreements, and as annexes to an arms trade treaty or in separate protocols to such a treaty:
Transparency and Accountability
· All international transfers of small arms and light weapon should be included in a UN register and be published regularly – pending UN agreement, states should submit such data to the UN Register on Conventional Arms and publish such data.
· States should publish comprehensive, detailed and timely annual reports on arms export licences and deliveries – data should include how many articles have been licensed to which country and to which end user, including numbers and types of components by description.
· Procedures should be established to ensure effective parliamentary scrutiny of arms transfer policy and practice – including a mechanism for prior parliamentary scrutiny of those proposed licenses which may violate the principles of the EU Code and existing international law.
· Systems should be established for adequate and reliable marking of arms during manufacture or import and for adequate record-keeping on arms production, possession and transfer. Such marking should include arms transferred by governments as well as commercial sales. International arrangements should be established for tracing arms by relevant authorities.
· EU Member States should publish annual reports giving details of EU companies or individuals who have been prosecuted for breaching EU national or European Union arms export control legislation.
Licensed arms production overseas
· All licensed production agreements with foreign partners must be authorised by governments and no permit for licensed arms production should be issued in circumstances where this would result in international arms transfers contrary to the International Arms Trade Treaty, the strengthened EU Code and the other measures outlined in this chapter.
· No licensed arms production should be authorised without a specific mutually binding agreement with the recipient state to seek prior authorization for any exports from a licensed production facility on a case-by-case basis, stating maximum production quantities to be exported and requiring in each case end-use certification and provision for end-use monitoring. The lifetime or duration of such agreements and the details of intended end-users should be clearly defined. Any such permission should be reported to the licensing state's parliament in its Annual Report.
· National legislation providing for the above and each agreement to establish a facility should also require the monitoring of such licensed production. Where there is credible evidence that arms resulting from such a facility have been used contrary to the Arms Trade Treaty or strengthened EU Code (e.g. for human rights violations) in the licensee's home country, or have been exported to destinations not subject to agreement, the licensed production agreement should be immediately revoked. In such cases all provision of related machine tools, parts, training and technology should be halted.
Arms brokering and transporting
· EU Member States should immediately implement the EU Common Position and include its voluntary recommendations in a legally binding instrument, and in particular should extend the extra-territorial scope of the provisions of the Common Position and provide for the regulation of the transportation and financial services that facilitate brokered arms transfers.
· All arms brokers or arms transport agents operating or having residence or business dealings on their territory must be registered by states. No body, individual or company, will be registered to act as an arms broker or arms transport agent if they have aided or committed crimes set out in the proposed International Arms Trade Treaty, or been convicted of illegal trafficking or money laundering.
· States will prohibit the conduct of all arms brokering and arms transporting activities by their nationals, permanent residents and registered companies unless these activities, wherever conducted are covered by a specific license, and will refuse such a licence if the applicant is not registered, or if the activity in question would result in arms transfers that violate the principles of the International Arms Trade Treaty or the strengthened EU Code and its provisions.
· States will ban the brokering and transportation of prohibited items, such as equipment designed for torture, cruel inhuman or degrading punishment or treatment, or for execution.
· States should dedicate financial, personnel and political resources to working with such organisations as INTERPOL, the World Customs Organisation and other law enforcement agencies to bring to justice those responsible for illicit brokering and transporting activities.
Surplus arms
· States will destroy all confiscated/illegal arms. Such destruction should only take place after investigation of the routes by which the weapons ended up in the hands of criminals, terrorists or human rights abusers. Those responsible for such transfers should be brought to justice where appropriate.
· Every effort should be made by states to destroy arms deemed surplus to their security needs, including both police and military arms. Where such destruction is not possible, surplus arms should be securely stockpiled. The EU should ensure human and financial assistance to all EU Member States and other states with insufficient resource to carry out destruction or secure stockpiling programmes.
· If in exceptional circumstances transfers of surplus arms are permitted, EU member states should ensure that such transfers do not contravene the principles of the Arms Trade Treaty or the strengthened EU Code criteria. All transfers of surplus arms should be subject to stringent licensing and end use certification, and rigorously monitored and reported.
· All arms collection projects supported by EU or EU Member States should be subject to the above measures and procedures.
Trans-shipment of arms
· All transit of arms and security equipment and technology out of the EU must be authorised on a case-by-case basis according to explicit and unambiguous procedures and licences refused if the trans-shipments are likely to violate the principles of the Arms Trade Treaty or the strengthened EU Code.
· Detailed information on all transit shipments for arms and dual use goods should be included in EU Member States annual reports. Details should include types of goods, quantities, routes, suppliers and end-users.
· EU Member States should provide financial and human assistance to those states that currently do not have the capacity to enforce transit/trans-shipment controls adequately. The EU must prioritise cooperation with the Russian Federation on measures to combat illicit trafficking. These should include regular information exchange on export and transit controls and licences. Special emphasis must be given to enforcing stringent controls in Kaliningrad.
Components for military and security equipment
· The principles of the Arms Trade Treaty and the strengthened EU Code should apply to components as well as to complete weapons systems, and specific binding operative provisions should apply to the export of strategic components for final assembly elsewhere.
· EU Member States government should improve their provision of information on exports of components in their annual reporting. They should specify whether the components are for spares and upgrades, or if they are destined for incorporation into other products or re-export.
· For small arms and light weapons, EU Member States should provide a further breakdown of what equipment has been licensed (e.g. trigger mechanisms, or proofed barrels) and it should also provide the quantity of items that it has licensed. Customs data, used to report the physical exports of small arms, should also include details and quantities of components in order to provide a realistic and accurate assessment of the EU states' involvement in the small-arms trade.
· All EU Member States should ensure that licensing approval is required for the transfer of MSP production technology for controlled goods. The criteria used by the governments for such licence determination should be as stringent as for transfer of MSP equipment and arms.
· EU states particularly those six members of the Letter of Intent process – should ensure that the enactment of the Framework Agreement does not undermine their obligations under the EU Code.
Surveillance and communication technologies
· All EU governments and the European Commission should review their export control policies with regard to the export of "dual-use" goods and their obligations under Operative Provision 6 of the EU Code of Conduct so as to develop further specific mechanisms to ensure that the transfer of sophisticated communication and surveillance systems do not contravene the principles of the proposed Arms Trade Treaty, the strengthened EU Code and other measures outlined here.
Repressive equipment other than conventional arms
· Adopt without further delay the European Commission (EC) Council Trade Regulation which will (a) ban trade in equipment which "has no, or virtually no, practical use other than for the purpose of" capital punishment or torture, from member states to countries outside the EU, and (b) place strict controls on the trade in equipment that it regards as having legitimate uses but which can also be misused for torture or cruel, inhuman or degrading treatment or punishment.
· EU Member States should strengthen the definitions of security and policing equipment to be banned and controlled in the proposed EC Trade Regulation on the trade in torture and death penalty equipment, as follows.
Ban on torture and death penalty equipment:
· Ban the manufacture, trade, promotion, brokering, possession and use of equipment which "has no, or virtually no, practical use other than for the purpose of" capital punishment or torture.
· Include death penalty equipment, specifically: gallows, guillotines, electric chairs, airtight vaults for the administration of lethal gas, automatic drug injection systems;
· Include electric-shock belts designed or modified for restraining human beings by the administration of electric shocks.
· Include leg-irons, gang-chains and shackles, designed for restraining human beings...Individual cuffs or shackle bracelets, designed for restraining human beings, thumb-cuffs and thumb-screws, including serrated thumb-cuffs.
Equipment used for torture:
· Ban the manufacture, trade, brokering, promotion, possession and use of restraint devices and methods whose use is inherently cruel, inhuman or degrading: including shackles, leg irons, leg cuffs and sharp or serrated cuffs;
· Ban the promotion and use of restraint techniques whose use is inherently cruel, inhuman or degrading: including, chain-gangs and the shackling of women in advanced pregnancy or labour; hog-tying and other prone restraint techniques;
· Subject the design and use of restraint equipment such as restraint boards and restraint chairs to rigorous, independent and impartial review by appropriate medical, legal, police and other experts based on international human rights standards, and suspend all transfers of this equipment pending the outcome of this review
Electro-shock equipment:
· Suspend the sale, transfer, brokering, promotion and use of high voltage electro-shock stun weapons, including tasers, whose medical and other effects are not fully known, pending a rigorous and independent inquiry by appropriate medical, legal, police and other experts based on international human rights standards. Publish the results of the inquiry on each type and sub-type of such weapons and demonstrate before the legislature/parliament in each case that the effects are consistent with international human rights standards before making any decision on deployment.
Kinetic impact weapons:
· Establish strict laws and regulations consistent with international human rights standards for the sale, transfer and use of batons, truncheons, sticks, and all their variants for law enforcement;
· Establish laws and regulations requiring all weapons that launch kinetic impact devices to be treated for practical purposes as firearms with regard to both their use but also the sale and transfer of such weapons.
Chemical incapacitants:
· Suspend the transfer and deployment of those types of pepper spray or other chemical irritants, which have revealed a substantial risk of abuse, unwarranted injury or death, pending a rigorous and independent inquiry into their effects in each case by appropriate medical, legal, police and other experts.
· Test every individual chemical irritant and each combination of irritant and solvent carrier as if it were a pharmaceutical and allow full open peer review before any irritant is manufactured, transferred or deployed.
· Publish the results of the inquiry on each type of such weapons and demonstrate before the legislature/parliament in each case that the effects are consistent with international human rights standards before making any decision on deployment.
Transfers of military and security expertise
· EU Member States should prohibit the transfer of skills and training of torture and execution expertise.
· All international assistance programmes should ensure that the training of military, security and police personnel of another country does not include the transfer of skills, knowledge or techniques likely to lend themselves to torture or ill-treatment in the recipient country. The practical application of relevant international human rights standards and international humanitarian law should be fully integrated into such training programs
· Objective procedures should be established to screen all potential participants in the training of military, security and police personnel of another country to ensure that those who according to credible evidence have been involved in serious human rights violations are prevented from participating unless they have been brought to justice and effective measures taken for their rehabilitation. Before any MSP training is provided the government must establish whether there is a serious pattern of human rights violations in the recipient country that would require a programme of legal reform in accordance with international standards and that such reform is undertaken.
· Information on all government sponsored police, security and military training programs for foreign personnel should be made public, 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.
· EU Member States should introduce national legislation and a binding EU mechanism to strictly control and monitor the activities of private providers of military, police 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 licensed approval which should only be granted if the training is not likely to contribute to violations of the proposed Arms Trade Treaty and the strengthened EU Code.
· EU companies and NGOs employing private military and security companies should introduce sufficient safeguards to prevent breaches of human rights standards, international humanitarian law, and other relevant aspects of international law by their personnel. Private security companies should not employ individuals credibly implicated in human rights abuses and there should be strictly enforced controls governing when force and firearms can be used which are consistent with international standards on the use of force, including the UN Code of Conduct for Law Enforcement Officials and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. All personnel should be properly trained in and committed to respect for such standards.
Monitoring and Control of End Use
· All end-use certificates used by EU Member States should take the form of legally-binding contracts which contain a list of proscribed uses; specifically those in breach of human rights standards and international humanitarian law. Contracts should contain full details of the articles to be transferred, a named recipient, a requirement for detailed information on transit routes and shipping agents, pre-notification of the importing and transit states, and a prohibition on the unauthorized re-export of the articles.
· Provision should be made in such contracts for post-delivery checks of end use. Qualified officials or embassy staff of the exporting EU Member State in the recipient country should carry out and report a systematic risk assessment of likelihood of misuse. Monitoring should focus on those recipients and transfers that are of most concern with regard to diversion or misuse, through a targeted use of limited resources against a matrix of likely risk factors. Joint EU monitoring should be used where this would save resources. Priority for end use monitoring should be given to military and security equipment, such as small arms, light weapons and riot control equipment, that are most readily utilized in serious human rights violations and war crimes by internal security forces and paramilitary police.
· Failure by the receiving state to comply with the terms of an end-use contract should result in the revocation of the licence and a halt in further supplies, provision of spares or other forms of support.
· As a first step towards a cooperative EU system, Member States should establish a "misuse and diversion" notification system along similar lines to the denial notification process, so that all member states would be informed of any incidents which raise end-use concerns. In the event of diversion or misuse of arms sourced from any EU Member State, the recipient would place at risk future sales from all Member States. Such a response would have a potentially powerful deterrent effect against the breaking of end-use undertakings.
International assistance to control arms
· Donor Member States of the EU should provide human and financial resources to those states currently lacking the expertise or funding to implement effective arms control systems as described above, for example with end use certification and monitoring mechanisms. A detailed manual should be produced to assist officials to promote and implement the Arms Trade Treaty and a strengthened EU Code and related mechanisms.
· Aid projects funded by the EU should be adequately resourced by Member States to prevent the proliferation and misuse of small arms as agreed in the EU Joint Action on small arms. These should promote strict adherence to international human rights standards and humanitarian law. Projects should include concerted efforts to increase the capacity of law enforcement agencies to control the proliferation and misuse of small arms, in accordance with international standards.
· EU Member States should collaborate to increase international training programmes for armed forces and law enforcement personnel in operational skills designed to uphold international human rights and humanitarian standards, including the UN Code of Conduct for Law Enforcement Officials and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials – the EU should argue to include such standards in the UN Programme of Action on the Illicit Trade in Small Arms and Light Weapons.(417)
· The EU fund that has been set up for support programmes for the collection and destruction of small arms should be adequately resourced to ensure that small arms which are not in legal civilian possession or acquired for legitimate national defence or internal security purposes do not fall into the hands of human rights abusers.
By adopting and promoting the above arms control framework, including binding export controls consistent with an International Arms Trade Treaty and the operational measures and mechanisms listed above, EU Member States will set a high common standard that can attract coherent global support to really improve international security. Paramount for such an effort is the principle that national arms export laws should meet states' responsibilities under international law and standards, particularly international human rights and humanitarian law.
Amnesty International therefore calls upon all EU Member States to adopt the above agenda and to work actively with other states, particularly in the run up to the 2006 UN Review Conference on Small Arms, to get their own house in order and promote full respect for international human rights and humanitarian law by all states through adherence to an International Arms Trade Treaty and the related measures set out in this report.
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