2. Basic flaws in the EU Export Control Criteria

The EU Code of Conduct on Arms Exports requires EU Member States to use one or more of eight Criteria to consider, on a case by case basis, requests for exports of military equipment, including small arms and light weapons (SALW), and dual use equipment. These eight criteria are:(7)

Criterion One: International commitments:
· should refuse export licences if approval would be inconsistent with respect for international commitments such as UN, OSCE or EU arms embargoes or if approval would breach treaties that control specific arms such as missiles or completely prohibit specific arms such as anti-personnel mines;

Criterion Two: Human Rights:
· will not issue an export licence if there is a clear risk that the proposed export might be used for internal repression and will take into account the nature of the equipment to ensure respect for human rights; (8)

Criterion Three: Internal Conflict:
· will not allow exports which would provoke or prolong armed conflict or aggravate existing tensions or conflicts in the recipient state;

Criterion Four: Regional Peace and Security:
· will not issue an export licence if there is a clear risk that the intended recipient would use the proposed export aggressively against another country or to assert by force a territorial gain or adversely affect regional stability in a significant way;

Criterion Five: Defence and National Security:
· will take into account the defence and national security of Member States and their allies;

Criterion Six: Terrorism and International Law:
· will take into account the recipient state's attitude towards terrorism and organized crime, as well as its compliance with international commitments, in particular on the non-use of force, including international humanitarian law and agreements on non-proliferation, arms control and disarmament;(9)

Criterion Seven: Diversion:
· will consider the risks of diversion, especially to terrorist organizations, given the capability of the recipient country to exert effective export controls;

Criterion Eight: Sustainable Development:
· will take into account whether the proposed export would seriously hamper the sustainable development of the recipient country, considering the recipient country's levels of military and social expenditure.

The EU Code also contains operative provisions aimed at:
· harmonising the Code's application of arms export control by Member States, including the use of a common arms control list
· increasing transparency with regard to governmental authorized arms exports
· enabling consultation between EU governments on prospective exports
to prevent "undercutting"(10)

Under these operative provisions, states are required to notify each other of arms export licences they have refused when a proposed arms export has failed to meet the Code criteria. Before any Member State can grant a licence that has been denied by another Member State (for an essentially identical transaction in the preceding three years), it is required to consult the State that denied the original licence. Although the power to take the final decision remains with individual States, if a licence is granted in these circumstances, the licensing State will have to provide a detailed explanation of its reasoning. The EU Code also imposes an annual reporting obligation on States.

This combination within the Code of a comprehensive set of determination criteria coupled with the set of operative provisions to bring them into effect makes the EU Code an important advance in regional export control.

Yet despite these commitments, certain EU and new Member States have - by neglect, lack of resources or intent - undermined, by-passed or ignored their own national export criteria and those of the EU Code. Despite their promises to the contrary, EU and New Member States have allowed arms and security equipment to be transferred to illicit or abusive end users. Amnesty International and other arms control researchers, including United Nations investigators, have discovered the following ways through which this has occurred.

Divergences in governmental "interpretations" of the EU Code, Embargoes and National Export Control Criteria

There have been a number of cases where differing "interpretations" by EU governments of the EU Code have resulted in officially sanctioned arms exports in clear contradiction of fundamental EU Code Criteria. For example, arms or security equipment from the EU has been transferred to embargoed destinations in breach of Criterion One and, moreover, to security forces that are clearly likely to use such arms and security equipment for human rights violations or breaches of international humanitarian law, in breach of Criterion Two.

In addition there have been interpretations of how to implement the Operative Provisions of the EU Code that have resulted in arms and security exports contrary to the purposes of the Code. For example, the EU Code and most national export reporting systems of EU Member States do not explicitly cover transfers of government-owned arms to other governments - "government to government" transfers. Furthermore in many EU and new Member States, the level of secrecy around such "government to government" transfers means that neither parliament nor the public can be sure whether these transfers are consistent with national or EU export criteria.

The details of certain transfers that have come to light - either through limited government reporting or through the investigative work of journalists, human rights and arms control researchers - have given grave cause for concern.

The EU Code and "Undercutting"
Because the process of consultation over denial notices is confidential between governments, it has been impossible for Amnesty International to identify the true extent and nature of "undercutting". However an indication of the level of such undercutting was given recently by the UK Foreign Secretary, Jack Straw, in evidence before a Select Committee of UK Parliamentarians:(11)

"In terms of undercutting we [the UK government] consulted other Member States 20 times last year and we [the UK government] undercut them five times…the denial notices and undercut notifications are confidential. One Member State does make information available about its denial notices, which is the Netherlands, but all the rest of us do not, for our own reasons. In terms of total numbers it is roughly proportionate to the size of the different countries' defence industries." A UK Foreign Office official, also giving evidence before the Committee, stated that although he could not give a precise figure approximately 15 cases of "undercutting" were recorded per year across the EU.

Although government Ministers and officials may believe that such numbers are relatively low, in practice each case of undercutting can potentially result in arms being sent to a country where there are serious concerns that the weapons will be used for human rights violations, as illustrated in the following case.

In May 2002 after a long delay, the German government formally refused to issue an export licence for the export of H&K G36 rifles to Nepal, after Amnesty International's German Section had raised concerns about the possible impact of such a transfer on human rights in Nepal.(12) It would appear that the long delay allowed another EU member state, the UK, to issue an export licence for similar weapons before the German government's formal refusal, thus avoiding the need to initiate the EU code undercutting process.

In February 2002, Jane's Defence Weekly reported that "the Royal Nepalese Army has selected the H&K G36E 5.56mm assault rifle to fulfil a longstanding requirement for some 65,000 weapons. The initial delivery of some 5,000 weapons is intended for this month, but German export controls may yet block the deal. Deliveries of the full order will be phased over 10 years with the bulk obtained over the initial 2-3 year period. All details of the contract are not yet known."(13) In 2003, Jane's Infantry Weapons reported that G36 rifles are now in service in Nepal.(14)

The German company H&K has had a long-standing licensed production arrangement with Royal Ordnance, a UK company. In 2001, the UK government issued an export licence for the export of 6,780 assault rifles to Nepal. (15) In the absence of meaningful transparency by both the German and UK governments concerning arms export deliveries, Amnesty International has not been able to ascertain whether these rifles have been exported to Nepal.

In its 2003 Annual Report, Amnesty International reported that: "Against a background of mounting political crisis, there was a sharp rise in the incidence of unlawful killings, "disappearances", torture and arbitrary arrest and detention by the security forces, and of deliberate killings, hostage-taking and torture by the Maoists. The abuses were carried out in the context of the "people's war" declared by the Communist Party of Nepal (CPN) (Maoist) in 1996, and the declaration of a state of emergency and the deployment of the army in late 2001."

A National Human Rights Commission investigation team has investigated allegations that one person was shot dead and 19 others were summarily executed after being taken into custody by the army in Doramba village, Ramechhap district on 17 August 2003. This incident occurred during a ceasefire, and post-mortem reports suggest that the execution victims had their hands tied behind them, and were shot in the head at close range with rifles. The casings were found in the area by investigators. The army has recently admitted that some of the victims were killed illegally and is initiating court-martial against the major responsible for the patrol that day.(16)

Given such reports of the misuse of firearms by the Nepalese security forces, Amnesty International is calling upon all EU countries – particularly the German and UK governments - to announce a freeze on the export of such equipment to the Nepalese forces until the danger of deliberate and serious misuse no longer exists.

Austrian and UK transfers to Zimbabwe:
Following widespread and sustained human rights abuses by the Zimbabwean security forces and their armed supporters, the European Union (EU) introduced an embargo on military equipment to Zimbabwe in May 2000. In the run-up to the presidential election in Zimbabwe in March 2002, repression by government forces of opposition rallies and other campaign gatherings intensified. Youth militia, supporters of the ruling Zimbabwe African National Union-Patriotic Front (ZANU-PF), and so-called war veterans, often with the direct collusion of the police, perpetrated much of the political violence.

Despite the EU embargo and this pattern of repression, 66 four-wheel drive vehicles produced by the Austrian arms company Steyr were delivered to the Zimbabwe National Army (ZNA) in November 2001. Opposition parliamentarians in Austria raised concerns that the vehicles would be used to transport youth militias and war veterans spearheading Zimbabwean President Robert Mugabe's campaign for re-election in March 2002.

The Austrian authorities claimed that the vehicles were not covered by the EU embargo or by Austrian national legislation on military equipment because they were not fitted with guns and other special devices. (17) In contravention of Criterion Two of the EU Code, the 66 vehicles were considered by the Austrian government to be ordinary "transport vehicles" so that Steyr did not need special permission from Austria's Foreign and Internal Affairs Ministries before agreeing the deal with the Zimbabwean government.

Moreover, the involvement of Zimbabwean armed forces in the brutal war in the Democratic Republic of the Congo meant that the Austrian government also ignored Criteria Three and Four of the EU Code. In addition, the Austrian domestic law forbidding Austrian firms from selling military equipment to countries involved in war, or to places where there is a strong likelihood of war breaking out, was ignored.

In March 1998 the UK government announced that the Department for International Development (DIFD) had approved a project to supply over one thousand Land Rovers to the Zimbabwe Police as part of a programme to help to reform the police in Zimbabwe. The project was valued at US$14.8 million.(18)

Although these transfers of Land Rovers took place before the imposition of the EU embargo against Zimbabwe, concerns about the deteriorating human rights situation in Zimbabwe had previously been raised by a number of human rights organisations, including Amnesty International. In May 1998, just before the EU Code was adopted, the UK government had indicated that it was aware of the likelihood that the Land Rovers could be used for political repression. Nevertheless, the aid project was not formally cancelled until May 2000. By that time it was reported that some 450 Land Rovers had already been delivered and various reports had detailed the use of Land Rovers to facilitate human rights violations by the Zimbabwean security forces. For example, in the town of Zaka in Masvingo Province, local government Land Rovers were reportedly used in co-ordinated attacks on New Year's Eve 2001 against opposition party activists. Fifteen opposition political activists were hospitalized after severe beatings by militia members. DFID and the UK government's continued support for the supply of such vehicles after June 1998 was contrary to Criterion Two of the EU Code.

UK and other EU exports to China:(19)
The EU imposed an arms embargo on China (excluding the Hong Kong SAR) in June 1989, shortly after the Tiananmen massacre. Unfortunately the scope of the ban was left to interpretation by national governments. In the absence of an agreement on a common interpretation it appears that different EU countries have "interpreted" the breadth of this embargo differently. In addition, Criterion Two of the EU Code of Conduct also binds all EU Member States not to issue export licences "if there is a clear risk that the proposed export might be used for internal repression."

A memo dated 26 February 2002 to a joint parliamentary select committee in the UK,(20) examining the 2000 Annual Report of UK arms exports, states that the UK interpreted the arms embargo on China as including:

· Lethal weapons such as machine guns, large-calibre weapons, bombs, torpedoes, rockets and missiles;
· Specially designed components of the above, and ammunition;
· Military aircraft and helicopters, vessels of war, armoured fighting vehicles and other such weapons platforms;
· Any equipment which might be used for internal repression;
· All defence exports to China to be assessed on a case by case basis against the consolidated EU and national arms export licensing criteria.(21)

However, analysis from a recent report by Oxfam Great Britain(22) indicated that whilst UK components for 'lethal weapons' were banned, UK components for other military equipment were not. The 2001 UK Annual Report on Strategic Export Controls lists a number of components, technology, software, and related systems for weapons platforms licensed for export to China that year. These include categories of equipment that would clearly be for use in or with a weapons platform which would itself be subject to embargo.(23)

Furthermore it seems that the UK is not alone in its narrow interpretation of the range of MSP equipment that might be used for "internal repression" – as defined in the EU Code. This report also details below how a number of EU companies have been involved in the supply of communication and surveillance systems to China that have contributed to internal repression.

In addition to bending their "interpretation" of the scope of the EU embargo and the application of the EU Code Criteria, certain EU governments, specifically the French and the German governments, have been pressing for the EU arms embargo to be lifted completely, despite continuing widespread and endemic human rights violations throughout China. Thus, the European Council on 12 December 2003 invited the General Affairs and External Relations Council (GAERC) to re-examine the EU Arms Embargo on China. The GAERC met on 26 January 2004 and decided to remit the issue to the relevant working groups for detailed examination. The issue was due to return to the GAERC at the end of April 2004.(24) The European Parliament has taken a position against lifting the embargo several times, invoking continuing human rights infringements in China.(25) The fact that reservations about lifting the embargo have been expressed by some EU member states, particularly Denmark, the Netherlands and Sweden, could mean that a decision may be difficult.

French exports to Myanmar:
In April 2001 the EU agreed to extend the embargo on Myanmar [Burma] that had been in force since 1996,(26) and confirmed the embargo on the export of arms and military equipment from EU member states. Therefore it is puzzling to find, according to official data, that France made shipments of equipment within the category "Bombs, Grenades, Ammunition, Mines, & Others" to Myanmar in 1998, 1999 and 2000 as follows.

Whilst this data does not provide specific details of what exactly was exported to Myanmar, the categories of munitions listed above raise serious concerns regarding whether or not the French government has enforced the EU embargo on military exports to that country or fulfilled its obligations under the EU Code.

Colombia:
Spain together with a number of other countries – including the UK and most importantly the USA - has authorised transfers of military, police and/or security equipment and other assistance to Colombia over the past few years. Given the pattern of gave human rights violations committed by the Colombian security forces and by paramilitaries associated with them, such MSP transfers are almost certainly contrary to Criteria Two and Six of the EU Code.

At the end of February 2003, the Spanish government announced a huge unconditional package of military assistance to the Colombian government armed forces "to fight any kind of occurrence that affects the security of the Colombian people", in the words of Federico Trillo, the then Spanish Minister of Defence. It reportedly included eight Mirage-F fighter planes, two C-212 military transport planes and real-time satellite intelligence, as well as the possibility of helicopters and patrol launches. Reports indicated that anti-terrorist equipment and exchanges of military personnel to help train the Colombian security forces in military intelligence and anti-terrorism were included in the package. The fighter-planes were subsequently dropped from the aid package.(28) The new Spanish government which was to take office at the end of April 2004 has suggested that it may review the 2003 agreement with Colombia.(29)


"Design loopholes" in EU export controls

The Operative Provisions for the EU Code are quite general and even vague in their wording and, together with loopholes in many EU states' national arms export control legislation, allow many arms transfers to occur with little, or no, regulation. For example, the EU Code has no operative provisions for Member States to specifically control arms brokering, arms transporting and arms financing activities by EU nationals and residents when such activities, and the related arms deliveries, take place through "third countries". As explained in Chapter five of this report, these activities are still not adequately controlled despite the introduction of an EU Common Position on arms brokering in 2003.

Similarly, the EU Code has no operative provision for Member States to specifically regulate the transfer of licensed arms production or assembly facilities to "third countries", and no operative provisions for Member States to regulate transfers from stocks of surplus arms or the provision of MSP expertise, training or personnel. Other loopholes reported below have been uncovered by recent research. Taken together, these "design loopholes" can easily be exploited by arms traffickers or suppliers to circumvent the purposes of the EU Code.

Slovakian "repair" loophole:
Since its accession on 1 May 2004, Slovakia is now bound by the EU Code, and it has – along with other New Member States - previously aligned itself with the EU Code.

The UN Panel investigating breaches of the arms embargo on Liberia in 2001 strongly suspected that a Mi-24 combat helicopter was illegally delivered to Liberia.(30) In June 2000 a Mi-24 combat helicopter from Kyrgyzstan had been shipped to Slovakia to be repaired, and was allowed to leave in August 2000, purportedly to be flown back to Kyrgyzstan. A second Mi-24 was brought for repairs in October 2000, but was intercepted in February 2001 as it was at the airport about to leave Slovakia. The UN Panel asserted that the second helicopter, had it not been stopped, would have gone to Liberia as well. The UN found that the arms brokering company, the air transport company, and the aeroplane used for both shipments all played a role in other illegal arms deliveries to Liberia.

The UN Panel's report described that the then Kyrgyz military attaché in Moscow, Maj. Gen. Rashid Urazmatov, had signed a contract with the Slovak repair company LOT (Letecke Opravovne Trencin, or Aircraft Repair Company Trencin), claiming to act on behalf of the government of Kyrgyzstan. The Kyrgyz authorities, however, said they had no idea about a repair contract and, to the contrary, had arranged to sell the helicopters to a company based in Guinea, Pecos Compagnie SA.(31) The helicopters purportedly were for the government of Guinea, according to the end-user certificate supplied by Pecos that showed the ultimate purchaser of the weapons.(32)

Human Rights Watch(33) later uncovered that: "key to the fiasco was a loophole in Slovak law under which the arms deal with Kyrgyzstan did not require approval from Slovakia's arms-export licensing commission… [because]… arms deals were exempt from licensing requirements if the transaction was for repair or refurbishment. As a result, no license application was filed for deals involving repair or upgrading of military equipment from abroad; no end-user certificate was required; and no document authentication or checks on the destination were performed." (34) In response to the scandal, this legal loophole was closed by the Slovak government in December 2001.

Italian "hunting guns" loophole:
In Italy, as in many other countries, the category "small arms" is not precisely defined in the national export control legislation and administrative procedures. Officially a distinction is made between small arms for military purposes and civil arms generally used for sport, hunting and self-defence. "Military arms" require a specific government licence for export and their transfer is supposedly checked and monitored by parliament. Small arms categorized as military weapons or "war arms" come under the Arms Control (185/90) Law. Arms which fall within this category include rifles, machine-guns and machine pistols, which are automatic arms and specifically built for military purposes.

However, the export regulations governing the second category of weapons — "civil arms" — are very weak and it is possible to export handguns from Italy by merely obtaining the permission of a local police commander. Italian research institutes Archivio Disarmo and IRES Toscana reported that there had been an increase in exports of such small arms in recent years, especially to countries where they are likely to be used to violate human rights.(35)

Indeed the vast majority of the individual weapons exported from Italy in recent years have been categorized as intended for "civilian" use and so fall outside the remit of the 1990 Arms Control Law. Among the weapons exported under this category are not only semi-automatic firearms, but also manually charged canna-rigata rifles, canna rigata muskets, semi-automatic pistols, revolvers, and spare parts, ammunition and explosives that can, in any case, be used for military purposes.

Weapons routinely used by the police are normally not considered "war arms". This categorisation has led to a liberalisation in the trade in most semi-automatics. The result is that Italian traders are able to export "small civil weapons" to countries devastated by violent conflict and gross human rights violations. For example, in Brazil handguns made by the Italian company Berretta are the second most numerous foreign small arms confiscated by the police,(36) in a country where both the use of small arms by civilians in crime and misuse of small arms by police are rife, and where the government's attempts at control have so far been ineffective.

Likewise, between 1996 and 1997 Italian companies exported pistols, rifles and ammunition worth 13 billion lire (approximately US$6 million) to Algeria, a country which has been ravaged by serious human rights abuses resulting in the killing of more than 100,000 people by security forces, state-armed militias and armed groups since 1992.(37)

German "air" pistols loophole:
In 2002, the UK National Criminal Intelligence Service revealed that over 35% of the firearms recovered by the police were Brocock ME38 Magnum air pistols, and that many of them had been converted to fire live .22 and even .38 ammunition. A study by the Forensic Science Service has discovered that 50 unsolved murders and attempted murders were carried out with Brocock pistols. Such pistols have been imported from Germany and distributed by the Birmingham-based company Brocock, which makes the air cartridge system that powers the airgun pellets.(38)

In 2003, the UK Daily Telegraph quoted Mr Silcock, who runs Brocock, stating that the ME38 air pistol had been specially designed for Brocock by a German armaments manufacturer, Cuno Melcher.(39) Cuno Melcher continues to manufacture, and offer for export, the ME 38 pistol.(40) Enquiries with the German Federal Ministry of Economics and Labour found that there are no restrictions on the export of air guns and air pistols by the German authorities.(41)

The lack of consistent controls on firearms within the European Union has created a situation where the more stringent controls in one country are undermined by the lack of controls in another. This lack of consistency also applies to a range of other police or security equipment that are classed as controlled goods in some EU countries but not others: for example, stun guns, batons (tonfas) and certain types of chemical irritant weapons.

Some Lessons Learned

These cases and many more in the chapters that follow illustrate that despite the adoption of the EU Code in 1998 and the enactment of national systems of control, transparency and accountability, EU Member States and the new Member States have continued to allow the transfer of arms and military equipment to recipients who have used them to carry out human rights violations and breaches of international humanitarian law. These cases also illustrate how weaknesses in the EU Code, particularly the lack of clarity of how to interpret some of the Criteria and the limited scope and vagueness of the Operative Provisions, have resulted in inadequate, or even no, control of the transfer of certain arms and security equipment.

Since the enactment of the EU Code, EU Member States have acknowledged some of the above concerns and have attempted small improvements to strengthen the Code. Through discussions of the Working Party of the Council of the EU on Conventional Arms Exports (COARM), states have tried to improve the consistency of the Code's application amongst Member States, and have sought to include areas not originally covered by the Code. Although many of these are discussed in detail in subsequent chapters, the most important developments have included:

· publishing an Annual Consolidated EU Report giving aggregate figures on export licences granted by EU member states;
· the development of a "Users Guide to the EU Code" which seeks to clarify the Member States' responsibilities with regard to denial notifications and consultations;
· plans to establish a database of EU government licence denials – which should enhance information exchange amongst Member States and aid assessment of arms export licence applications;
· agreements on harmonising end-use certification processes;
· adoption of a Common Position on arms brokering;
· agreement of an updated military list.

However, as the following chapters demonstrate, these measures alone are insufficient to make the EU Code regime effective.

The EU Code Review and the Accession Process:

In late November 2003, the fifth EU Annual Consolidated Report to the EU Code of Conduct was made public. Among nine "priority guidelines for the near future" the EU Member States committed themselves to review the EU Code. Such a review can potentially provide Member States with an important opportunity to remove existing weaknesses in the Code and increase the scope of its coverage. However there is to date little indication of what such a review might contain or whether parliamentarians at national and EU level and members of civil society will be able to contribute to the review.

In reviewing the Code, EU Member States should enhance the Criteria and Operative Provisions to ensure that no MSP arms, equipment, technology, expertise or services are transferred to states where they could be used for human rights violations or breaches of international humanitarian law. All such obligations must be extended to cover government-to-government deals, "third country" dealing by EU citizens and residents, "arms in transit" via the EU, "surplus arms" and the provision of MSP expertise, training and personnel. This should be explicitly stated in the wording of the EU Code.