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12. Monitoring and Controlling End Use
Effective and robust end use certification and monitoring procedures are vital to ensure that arms authorised for export are delivered to the stated end user, not diverted and, most importantly, not misused for human rights violations, breaches of international humanitarian law, to fuel violent conflict or to breach UN, EU or OSCE embargoes.
The examples from France, Italy, Netherlands, Slovakia and the United Kingdom in this chapter highlight the serious omissions in the end-use monitoring systems of both the 15 current EU Member States and the 10 new Member States.
A major problem has been that there is no agreed end use certification (EUC) definition or minimum monitoring requirements included in the EU Code and related mechanisms. Current procedures in many Member States for establishing and monitoring the end-use of arms and security equipment transferred are woefully inadequate. The use of false end-use certificates is not uncommon, and there is little in current end use certification requirements, which would prevent irresponsible end-users from using arms for proscribed purposes.
Several EU governments have publicly acknowledged that they have no systematic procedures for monitoring the exports of arms and defence equipment. In February 1999, for example, the then UK Foreign Office Minister Derek Fatchett stated that: "No formal mechanisms exist at present for monitoring the end-use that has been made of British defence equipment once it has been exported.(365) In February 2004 Jack Straw, the Foreign Secretary, talked about the difficulty of policing end use, and indicated that it is still essentially an ad hoc process, although he added: "We are seeking to strengthen [end use arrangements] as far as we can."(366) Similarly in 2001 the Irish government stated that: "While, like most other countries, Ireland does not carry out post-shipment inspections, all licence applications for exports of military goods are subject to the strictest examination before being granted. Both my department and the Department for Foreign Affairs must be fully satisfied with end-use assurances given before issuing a licence."(367)
Other EU Member and new Member States also have no formal end use monitoring systems but have not publicly reported this. More seriously even when a country has a record of diversion or of misusing the equipment and materials previously sent to it, certain EU member states have continued to transfer MSP equipment and arms.
Spanish transfers of French tanks to Colombia:
In February 2004 the Colombian newspaper El Tiempo(368) reported that the Colombian Ministry of Defence had announced that it had recently bought between 32 and 46 used AMX-30 tanks from Spain. These tanks were reportedly manufactured in France during the seventies and sold to Spain. However, it appears that the Spanish authorities failed to seek permission from France before re-selling these tanks to Colombia. Herve Ladsous, the spokesperson for the French Ministry of Defence said: "This issue was the responsibility of the Spanish authorities, who did not inform us as to whether they had the intention of selling the arms despite the rules regarding the control of end-use."
Although the Colombian Minister of Defence, Jorge Alberto Uribe, has claimed that the reason behind procurement of the tanks was "to combat terrorism", senior officials from neighbouring Venezuela are reportedly worried that the purchase could upset the delicate border relations between the two countries. Amnesty International is also concerned that the tanks may be used for human rights violations and breaches of international humanitarian law. It was later reported that the newly elected Spanish government which was due to take power at the end of April 2004 expressed concern at the decision to sell the tanks to Colombia.(369)
United Kingdom and the DRC:
The UK transfer of spare parts for military aircraft to Zimbabwe in January 2000, despite concerns that Zimbabwe was using these jets in the conflict in neighbouring DRC, then subject to an EU arms embargo, were raised by human rights and development organizations.(370) Following a public and parliamentary outcry in the UK and reports of the worsening human rights situation in Zimbabwe itself, the UK licences were eventually suspended in May 2000.
United Kingdom to Israel:
In March 2002, Junior UK Foreign Office Minister, Ben Bradshaw, disclosed that the Israeli armed forces had modified UK Centurion tanks, exported between 1958 and 1970, and were using them as armoured personnel carriers.(371) Mr Bradshaw stated that this contradicted a written assurance from the Israeli government on 29 November 2000 that "no UK-originated equipment nor any UK-originated systems/ sub systems /components are used as part of the defence force's activities in the [occupied] territories".(372)
Despite this open breach of end user assurances by Israel, the UK government has continued to supply arms and equipment to the Israeli security forces. Such transfers continue despite reports that generic types of such equipment have been used by the Israeli security forces to commit human rights violations and breaches of international humanitarian law in the Occupied Territories.
Finnish bullets to paramilitaries:
During a May 1999 research mission to Indonesia and East Timor, Amnesty International researchers collected the casings of bullets, found following a paramilitary militia attack in the capital of Dili. These bullet casings were later analysed and found to have been manufactured by the Finnish company Patria Lapua Oy. The Finnish government had in the past admitted granting export licenses for ammunition to the Indonesian security forces.(373)
Italian Arms to PKK :
During 2002, more than 50,000 light weapons were confiscated from the armed opposition PKK in Turkey and of these, the origin of production of about 16,000 have been identified. Italian landmines and light weapons were at the top of the list.(374) It is unclear how these arms fell into the hands of the PKK.
Slovakia end use certificates:
Until February 2002, the Slovak Ministry of Economy office responsible for arms trade licenses routinely issued Slovak end-user certificates (also known as "international import certificates") without first checking that the company in question had sought and been granted an import license for the goods in question. The office also failed to perform checks to see if the company to which it gave the EUC had imported the weapons as planned. This laxity allowed for a situation ripe with potential for misuse: A firm could obtain a Slovak EUC, use it to acquire arms abroad, and then sell the weapons to a client in a third country instead. As explained by the official who took over the export control office and ended this practice, "It was sick. It was a kind of concealed re-export trade, under which if the arms ended up in another country than the one on the certificate [Slovakia], we would get all the blame. […] Whether the risk was worth it, given the often very questionable economic benefits for Slovakia is very, very debatable."(375)
In November 2000, assault rifles exported from Slovakia to Uganda for use in that country were supplied to Liberia when Uganda decided it no longer wanted them. An Egyptian arms broker reportedly agreed to return the weapons to Slovakia, as Uganda says it requested after determining they did not meet contract specifications. Instead, the consignment of 1,000 AK-47s was delivered to UN-embargoed Liberia. A second shipment of 1,250 weapons of the same type was attempted, but not allowed to take place.(376)
Inadequate French end use monitoring:
An official of the French Ministry of Defence told Amnesty International that French customs authorities always work closely with customs authorities in the country of destination, in order to ensure the constant monitoring of goods exported from France.(377) But judging from several cases, the French government still fails to ensure that its export licence and 'end-use' monitoring systems prevent such transfers falling into the hands of those who have been responsible for human rights violations, whether they are state security forces or opposition groups. For example, despite persistent reports of human rights abuses involving the use of force by Egyptian security forces in the late 1990s(378), including excessive use of force and torture in police stations, shotgun cartridges were transferred from France to Egypt during 2000.(379)
In a student demonstration at Alexandria University on 9 April 2002, a 19-year-old student, Muhammad Ali al-Sayid al-Saqqa, was killed and several others were seriously injured by buckshot. The demonstration began peacefully but events escalated as security forces prevented students from leaving the confines of the university campus to join others outside for a protest march. A statement issued by the Egyptian Ministry of the Interior said that the security forces fired buckshot in an attempt to calm down the situation. Amnesty International fears that Muhammad 'Ali al-Sayid al-Saqqa died after being shot by buckshot fired by a member of the security forces in circumstances where the safeguards required under the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials were not adhered to.(380)
EU small arms to Brazil(381)
Inaction and non-cooperation by EU Member States and New Member States has hindered efforts to stem the flow of European arms to criminals in Brazil, which is plagued by one of the world's highest levels of gun violence. Firearms cause nearly 40,000 deaths annually in Brazil. Guns are the number one killer of young males aged between 15 and 19 (causing 65% of deaths in Rio de Janeiro state in 1999). As part of initiatives to combat this devastating gun mortality, the Brazilian authorities and NGOs have been attempting to trace the origins and means by which small arms and light weapons enter the Brazilian criminal world. Of 225,000 guns confiscated by the police in Rio de Janeiro State in 50 years, the majority were domestically produced, although many may have left Brazil and re-entered the country via Paraguay. Of the weapons produced outside Brazil, the countries of origin (in descending order) were as follows: the USA, Spain, Belgium, Argentina, Germany, Italy, Czech Republic, Austria, France, China, Israel, Russia, and Switzerland.(382)
On 12 July 2002 at the seminar: "Getting to the 'route' of the problem: following guns from the legal origin to the illegal destination", the Rio de Janeiro state authorities in partnership with the NGO Viva Rio proposed a program of systematic tracing for a large number of firearms, with the objective of identifying repetitive patterns of how small arms migrate from legal to illegal markets. Under this initiative the Rio de Janeiro state authorities called on the authorities in the countries listed above where the weapons were produced to aid them in their attempts to trace the routes by which the small arms ended up in the hands of criminals on the streets of Rio. Diplomatic representatives, as well as representative from relevant bodies within the United Nations and the Organization of American States were present at the seminar.
However, so far the response from the majority of governments has been slow. Whilst Argentina, Switzerland and the United States have all cooperated with the Brazilian authorities' tracing initiative, only Germany and Spain, from the EU have responded positively. Amnesty International calls on the remaining governments – particularly those from the EU – to cooperate with the Brazilian government in their attempts at tracing and closing down the illicit routes by which small arms and light weapons enter the Brazilian criminal sector.
Developing EU best practice
A draft European Parliament report on the European Council's 2000 Annual Report on the Implementation of the EU Code of Conduct on Arms Exports noted that there was "currently no EU provision for verifying the end user of exported weapons" and that "there are big differences between member states and end-user requirements and monitoring."(383) The European Parliament report urged all EU countries to agree best practices in the field of end-use certification and monitoring.
When considering the development of stringent end use certification and monitoring systems, EU governments should consider best practice in other countries. Within Europe, the Belgian, German and Swedish governments have in place certain end use certification and monitoring provisions, elements of which other EU states could consider adopting.
Sweden:
The Inspektionen för Strategiska Produkter (ISP) is responsible for administering export controls in Sweden. They require that in all cases an end-use certificate be supplied for the export of controlled goods. Exporters must use one of a number of different certificates, depending on the identity of the customer and the nature of the items being exported. A "Declaration by End-User", printed on special banknote-quality paper and bearing a unique number, is required for exports of military equipment for combat purposes to the armed forces in the recipient country. This type of certificate is sent by the exporter to the end-user, who upon completion delivers it to the Swedish embassy in the country of end-use. The embassy must verify that the request and the signature are legitimate before the export is authorised.
However, this level of control is not applied to all exports. Included in the certification process is a commitment by end-users not to re-export without permission. Requests to re-export are routed through the ISP, which applies similar criteria to such requests as it does to direct exports. There is also an undertaking to confirm receipt of articles when asked by the Swedish government, and in those cases where it is known that end-use undertakings have been broken, Sweden reserves the right to halt further contracted supplies. However, requests to verify delivery are very rarely made.
Furthermore, there is effectively no provision made for post-export monitoring; even where serious concerns are raised about end-use, the Swedish government has no formal avenue through which it can pursue enquiry or inspection.
Belgium:
In Belgium end use certificates include a written guarantee by the importing agency that they will not re-export the arms without the prior written consent of the exporting country. They also state that the recipient will not use the arms for proscribed purposes, including the committing of abuses of human rights or international humanitarian law. Three months after the goods are exported, the Belgian government monitors the process and requires proof of delivery, including details of the transit routes and travel plans. Although Belgian controls appear to be impressive on paper, Amnesty International is concerned about their effectiveness in practice.(384)
US best practice
There are elements of US controls which may be applicable to the control systems of EU Member States. The US government restricts commercial arms sales by requiring exporters to submit a "non-transfer and use certificate" with export licence applications. The details of the final end-user and country of destination must be provided to the US authorities, and the intermediary importer, the final end-user, and the importing government must certify that they will not resell or re-export the equipment outside the final destination country or to any other person or organization without prior permission of the US government. When the end-user is a foreign military, they must certify that they will only use the equipment in accordance with U.S. law, or for purposes specified in bilateral or regional defense agreements. The sales agreement may also specify approved use of the equipment. There have been several reports of US attempts at enforcing such controls. For example, in 2003 the Washington Times(385) described the US'calls to Greece to stop the supply of US-made weapons to Greek Cypriots as such supply ran counter to Washington's ban on arms sales to Cyprus.
The US government verifies compliance with these rules through three programs, one run by the State Department for "direct commercial sales", the second by the Pentagon for "government-to-government" sales and the third by the US Commerce Department. The State Department's "Blue Lantern" program involves (i) pre-screening of export license applicants for risks of diversion based upon a set of "red flag" criteria and (ii) post-sale on-site inspection to ensure the equipment has remained with the identified end-user and is being used for agreed-upon purposes.(386) Under this system, while some checks are random, the majority are triggered by the expert judgment of licensing and compliance officers using intelligence, law enforcement and a comprehensive list of "red flag" indicators. In 2001 and 2002, the US government conducted 428 and 410 Blue Lantern end-use checks respectively, of which 50 and 71 were determined to be unfavourable.(387) Crucially, it is considered that end-use monitoring has a deterrent effect, for example where there is a history of diversion.
Lessons to be learned
The fourth EU Consolidated Report on the EU Code, published in 2002, stated that "member states [have] agreed on a common core set of elements that should be found in a certificate of final destination when it is required by a Member State, … [and] an additional set of elements, which might also be required in accordance with their national legislation" (emphasis added). The core elements focus on the supply of information by the purchaser, for example with regard to the type, quantity and end-user of the goods. Included among the additional elements are limitations on use, for example restrictions on re-export.
However, there are two potential loopholes.(388) Firstly, it is left to the discretion of member states to decide when a certificate is required. Secondly, the additional elements are viewed as optional. As the first step in creating an effective system of end-use control, documentary proof of end-use must be compulsory for all transfers and restrictions on end-use and re-export must be clearly set out.
Under the Greek Presidency of the EU in the first half of 2003, discussions were held on moving a number of the "additional" (optional) elements into the "core" (recommended) set of elements. Agreement was reached on only one other requirement of certification, ie "an indication of the end-use of the goods" and not on any of the proposed elements concerning limitations on use.(389)However, certification is only one of a range of measures required if EU Member States are to institute fully comprehensive end-use controls. Amnesty International therefore supports the recommendations made by Saferworld for an effective EU system of end-use controls, including:
· comprehensive and thorough risk assessment at the licensing stage;
· a system of end-use certification and documentation that is not liable to forgery;
· explicit end-use assurances which take the form of a legally-binding contract between the exporting government and the end-user, which prohibits unauthorised re-export, and which sets out a list of proscribed uses of the equipment especially the abuse of human rights and breaches of international humanitarian law;
· a delivery verification and post-export monitoring regime; and
· provision for the application of sanctions in the event that end-use undertakings are broken.
Governments should also take into account a range of risk factors when assessing end use destinations for those categories of arms that have a high risk of being used to commit or facilitate human rights abuses, particularly small arms and light weapons (SALW) and security equipment such as restraints, electric shock weapons and riot control technologies.
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