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Inhoud Rhetoric Or Restraint RHETORIC OR RESTRAINT? Trade in military equipment under the EU transfer control system A Report to the EU Presidency NOVEMBER 2010 Edited by An Vranckx, Confl ict Research Group University of Ghent Published with generous support of Belgian Federal Service of Foreign Affairs, Peace-building department Joseph Rowntree Charitable Trust Academia Press, Gent RHETORIC OR RESTRAINT? 1 Printed by Academia Press, Gent (Belgium) ISBN 978 90 382 1693 5 U 1522 D/2010/4804/242 Cover design by Studio Kmzero, Firenze www.studiokmzero.com All rights reserved. No part of this book may be reproduced in any form by any electronic or mechanical means (including pho- tocopying, recording, or information storage and retrieval) without permission in writing from the publisher or the author. 2 RHETO R I C O R R EST R AINT? Executive Summary More than two decades ago, EU Member States began developing a common framework to ensure their decision-making on military exports took into account political and moral concerns that were being raised in their constituencies. The Code of Conduct for European Union countries’ exports of military technology and equipment, which was put into place in 1998, represented a major milestone in that process. A decade later, the EU Code was cast in concrete when it was transformed into a legally-binding Common Position. While the system is a distinct improvement on what went before, and the level of control exercised in the EU is in many ways setting the global lead, the EU system is still far from perfect. In some cases this would appear to be because licensing authorities are not applying the rules with sufficient rigour; in others because the rules themselves are inadequate to the task. This report seeks to analyse cases where poor arms transfer decisions still appear to be taking place, to identify patterns of poor decision-making where they exist, to consider why such patterns exist and to suggest remedies. One of the patterns that revealed itself through this analysis was that military equipment sales of a cer- tain magnitude create economic (or other) pressures to export such that the restrictive criteria of the EU Code/Common Position can be overridden. Such an outcome is explicitly forbidden in the relevant EU in- struments. The report highlights, for example, major sales of naval equipment to Israel, Morocco, Russia and Venezuela that were approved or supported by Member State governments when there were good reasons under the EU criteria to refuse the deals. This practice is seen to generate inconsistencies in EU attitudes, whereby exceptional and large deals appeared to have been pushed through while permission to export to those same destinations has been withheld for more smaller transfers. Other cases were identified where large economic interests did not appear to be at stake, but rather where difficult deliberations were made between selling military equipment to states – such as Chad and Mali – with issues regarding development, human rights and (sub-) regional stability to the fore. Various fac- tors would seem to come into play here, e.g. colonial legacies, perceptions that the equipment concerned might help to create the conditions for the end of hostilities and improve prospects for long term develop- ment, belief that opponents to the intended recipient are such that supplying military equipment for use against them is justified. Supplies to Sri Lanka are also interesting in this context, as the scale of those trans- fers was not large enough for them to be defended on economic grounds. In all of these instances, decision-makers appear to have forgotten that EU States are obliged to base de- cisions on the conduct of the recipient and against the risk that certain negative consequences may ensue, as set out in the EU Code/Common Position criteria, a principle to which licensing authorities are recom- mended to return in all cases. The report also identifies an apparent significant disparity regarding the way Member States assess and respond to the risk of diversion of exported arms. Some seem to take this very seriously, others less so. The report presents in detail the case of many small arms of EU origin eventually finding their way to all sides in the Colombian conflict, despite never having been officially transferred to Colombia. These repeated instances of diversion occurred notwithstanding the fact that Member States had some familiarity with the situation and that some were refusing to license transfers of small arms into Latin America on a regular basis. A number of suggestions of how to reduce the risk of repeating a Colombian-type situation are included in the report, primarily involving better gathering, sharing and processing of relevant information. RHETO R I C O R R EST R AINT? 3 One case study in this report, which investigates EU Member State involvement in the probable supply of Ukrainian tanks to South Sudan, highlights the legal void in which European transport companies involved in this transaction were able to operate. There is also an examination of the way in which the EU arms transfer control system is not set up to respond to circumstances where arms sales are secured by corrupt practices. A number of cases are pre- sented, for example the multi-billion-Euro South African procurement from EU Member States of military equipment in the late 1990s, which might have had a different outcome had the EU Code/Common Position included an “anti-corruption” criterion. Related to this is an analysis of the ways in which governments are institutionally structured to promote arms exports, which again tends to militate against rigorous imple- mentation of the criteria, and proposals for limiting this pro-export bias. 4 RHETO R I C O R R EST R AINT? Table of Contents Executive Summary . 3 Dutch frigates for Morocco . 38 Human security and corruption . 39 Table of Contents . 5 Export policy considerations . 40 Tables and Graphs. .6 Spiralling regional arms purchases . 40 German-Israeli armaments cooperation: Introduction . 7 sea, land and air. .43 Acknowledgements . .8 German technology at war . 44 Glossary . .9 Inconsistencies . .47 The EU selling arms . .11 EU military supplies to the Sri Lankan How export promotion takes precedence civil war . .47 over controls . .11 ‘Appalling disregard for civilian safety’ . 51 Government support for military companies. 12 (Post-)War budget . 52 Leaders selling. 12 Development lost . 52 Arms export promotion agencies . 12 Further export considerations . 52 Export credit support and other subsidies . 13 French arms transfers to Chad . .53 Why do governments support the arms industry? . 14 War, autocracy and underdevelopment . 53 Recommendation . 15 Military role of France and the EU . 56 Corruption and the Arms Trade . .16 Conclusion . 57 Corruption and the EU . 16 Bulgarian attack helicopters for Mali . .58 Ex-EU arms transfers . 16 The role played by EU companies in Intra-EU transfers . 17 facilitating clandestine shipments of Conclusion. 20 T-72 Tanks and related equipment to Arms exports to South Africa . .21 Southern Sudan 2007-2008 . .60 Sudan: risks of grave violations of international Big interest cases . .23 humanitarian and Human rights law . 60 Fuelling the South Asian arms race. .23 The role of German and UK companies in facilitating Swedish spy planes for Pakistan . 23 clandestine shipments of weapons to Southern Major arms consumer . 24 Sudan between 2007 and 2008 . 61 Close to (civil) war . 25 Evidence that Ukrainian tanks were diverted to Development lost . 25 Southern Sudan . 62 Ignored export criteria . 26 Conclusions . 63 UK Hawk trainer jets to India . 27 Continuing military build-up . 28 Diversion . .65 Military vs human development . 29 What exactly is meant by ‘diversion’? . 65 Conclusions . 30 Approving and denying exports of SALW . 66 Supplying Venezuela . ..
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