Retoric or Restrain ? Trade in military equipment under the EU transfer control system

On 23^rd November 2010 the Report “Retoric or Restrain? Trade in military equipment under the EU transfer control system”, addressed to the EU Presidency was launched in Brussels. The report was edited by An Vranckx, from the Conflict Research Group at the University of Ghent. Here is the summary of full report that you can find at http://www.psw.ugent.be/crg/agenda/rhetoric%20or%20restraint_%20.pdf

 

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 was revealed through this analysis was that military equipment sales of a certain 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 instruments.

 

The report highlights, for example, major sales of naval equipment toIsrael,Morocco,RussiaandVenezuelathat were approved or supported byMemberStategovernments 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 asChadandMali– with issues regarding development, human rights and (sub-) regional stability to the fore. Various factors 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 development, belief that opponents to the intended recipient are such that supplying military equipment for use against them is justified. In all of these instances, decision-makers appear to have forgotten that EU States are obliged to base decisions 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 recommended 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 toColombia. 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 intoLatin Americaon 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.

 

One case study in this report, which investigates EU Member State involvement in the probable supply of Ukrainian tanks toSouth 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 presented, for example the multi-billion-Euro SouthAfrican 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 implementation of the criteria, and proposals for limiting this pro-export bias.