Problems With EU Code of Conduct on Arms Exports
By David Raja Marpaung S.IP M.Def
Leading human rights organization, Amnesty International, issued a warning in May 2004 saying that arms export controls in the expanded European Union are dangerously ineffective[1].It is supposed to see a review of the
EU Code of Conduct, but Amnesty fears that “the review will not be wide or deep enough to address very serious flaws.”
In a report titled Undermining Global Security: the European Union’s arms exports[2], Amnesty noted many of the things highlighted further above from the Control Arms Campaign, but with more detail, and more specifically, with the EU Code of Conduct.
Amnesty also notes:
- The EU is a major player in arms deals: France, Germany, Italy, Sweden and the United Kingdom accounted for one third of the worldwide arms transfer agreements signed between 1994 and 2001.
- EU expansion to include 10 new members adds some additional countries with significant arms deals.
- The application of the EU Code has shown the system to be deeply flawed. Disturbingly, there are numerous reports of exports of MSP [Military, Security and Police] equipment, technology and expertise from existing EU Member States or new EU member states which have been transferred mostly in secret to recipients who have used such items for grave human rights violations or breaches of international humanitarian law.
Problems include:
- Loopholes allow arms transfers to human rights abusers;
- Lack of transparency and accountability;
- A weak code that allows this to happen
Loopholes allow arms transfers to human rights abusers
Amnesty described various ways arms are transferred to human rights abusers or where concerns are to be found. For example,
- 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 and therefore have allowed arms and security equipment to be transferred to illicit or abusive end users.
- There have been failures to control transit and trans-shipment of arms adequately.
- Arms brokers are experts at using “shell” companies, shipping agents and distributors to arrange the sale of arms and weapons to human rights crisis and conflict zones. Because of the lack of effective controls at the national, EU and international level, the brokers, transportation agents, intermediaries and those providing financial services for such third party arms transfers rarely break export laws and can operate with impunity despite the serious human rights abuses caused by such arms transfers.
- The provision of powerful surveillance and interception capabilities are sometimes provided to repressive states, thus contributing to human rights violations carried out by the police, security and intelligence forces. Amnesty also charges that EU governments seem to have paid little regard to this aspect of export control.
- Companies in the EU and New Member States are still manufacturing and trading in equipment that may be used in torture and ill-treatment, despite ratifying a United Nations Convention prohibiting any torture.
Lack of transparency and accountability
Many of the problems Amnesty describes is due to lack of transparency and accountability. For example,
- There is no Operative Provision in the Code to address the massive risks posed by the spread of LPO (Licensed Production Overseas), where a company in one country allows a second company in another country to manufacture its products under license.
- There is a lack of reporting and regulation on military, security and policing training provided by varios military and security companies.
- There is a lack of monitoring of end-use certificates. As Control Arms noted further above, certificates are sometimes faked, or there is inadequate resources to follow up.
- Transparency and reporting are poor. Information that is vital to enable parliamentarians and the public to hold governments to account is poor. While some countries have improved in this area, (often only after public pressure), very few governments provide sufficient details on products licensed for export, the quantities of weapons exported, who the end user is, etc.
A weak code that allows this to happen
This situation has arisen because the EU code is weak. Major flaws in the EU Code make it hard to be fully effective. Such flaws include:
- Code is only “politically binding” not legally binding;
- Vague phrases and criteria lead to different interpretations and loopholes;
- Some provisions are weak, such as countries only need to “take into account” the level of human rights in a receiving country.
- Lack of many operative provisions to close loopholes, increase transparency and accountability;
The review of the EU’s Code of Conduct on Arms Exports holds a number of lessons in terms of policy coherence for development: • Perhaps especially on a subject area in which the Commission has a limited role, it is member states that have the responsibility for achieving policy coherence, individually in terms of licensing decisions and collectively in terms of reviewing the Code of Conduct. • COARM is the key Council committee. COARM has been seen as a technical committee, which is ill-suited for taking account of development objectives. But, with COARM firmly established as the main committee, it is imperative that it becomes a forum where development objectives are discussed. • Efforts to attain policy coherence on development objectives can be very much influenced by political issues that might seem distant from the issue at hand. This can stimulate progress towards policy coherence fordevelopment, but also hinder progress. • Arms exports are a pillar 2 inter-governmental issue, while development is, in part, a pillar 1 area of Community competence. This distinction can be a source of friction, for instance in terms of efforts to prevent the spread of small arms in developing countries. The division of responsibilities between the Commission and the Council needs to be clear and well-understood. • The use of criteria to guide decision-making about whether or not to grant arms export licences has played a useful role in ensuring that development objectives are not forgotten. But, the existence of clear criteria does not ensure that they are interpreted and applied in the same ways by different countries; political considerations can override the application of the criteria. Elaboration of the criteria is very important. In addition, there is a danger that once a ‘development criterion’ has been established, stakeholders will take the view that the development issues are covered entirely by that criterion. To prevent this, efforts must be made to clarify the relationship between different criteria and to ensure that criteria – which aim at preventing development from being forgotten – do not lead to development being marginalised.
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