A Code of Conduct for Arms Sales

By-passing end-use limitations

Some governments demand to see an end use certificate identifying where arms are going and what they are to be used for.

This is a vital mechanism to ensure that

• Arms authorized for export are delivered to the stated end user;
• Arms are not diverted or misused for human rights violations.

But arms dealers can still get the weapons to their clients because this system is easy to bypass. For example,

• The licensing body does little, or has limited abilities to, verify certificates;
• Certificates are obtained through corrupt channels;
• Certificate are faked or cite a destination that is just a transit stop. Control Arms cites an example of Canada selling 33 helicopters to Colombia, a country with a terrible human rights record. They achieved this by going through the US, despite strong Canadian controls. Certificate for end-use is not required if selling to the US, and there are no re-export guarantees.

Lack of accountability and financial transparency

As noted in the Arms Trade⁶ section on this site, the arms trade is one of the most corrupt businesses in the world.

Many arms dealers—middlemen—are corrupt and use corrupt means, such as corrupt arms transporters and financiers. Off-shore banking is used to make it hard to track the finances.

(For more about off-shore banking and its problems in general, see this site’s section on Evading Responsibilities⁷.)

By-passing national laws by manufacturing in another country

By shifting production to another country, arms companies can avoid national laws. So, as Control Arms notes, even if these countries are engaged in, or export arms to, conflicts in which gross human rights abuses are committed, this practice allows arms exporters to effectively bypass controls prohibiting arms sales there.

Code Seems Positive

Yet, it too has an Arms Trade Code of Conduct. It prohibits military assistance and arms transfers to countries that do no promote democracy, do not respect human rights, are engaged in acts of armed aggression, and do not fully participate in the United Nations Register of Conventional Arms.

However, the Code allows presidential exemptions based on either a US national security interest or a determination that an emergency exists requiring the United States to transfer arms or provide military assistance. Congress can however, with a 2/3 majority vote, vote to block any presidential waiver. Nonetheless, to that end, the Administration would be required to compile annually a list of countries not meeting these requirements for military assistance and arms transfers and make the list available to Congress and the international community.

Furthermore, a resolution introduced in 1999 required the US President to promote an international arms transfer control regime, through the United Nations and other international fora … to limit arms transfers worldwide, particularly transfers to countries that do not meet the criteria established [in the resolution], for the purpose of establishing a permanent multilateral regime to govern the transfer of conventional arms.

The President then has to report each year efforts taken each year to gain international acceptance of the principles of arms code of conduct.

For more details, see a summary of the Code of Conduct⁹ from Center for Defense Information (CDI).

Internationalizing the US Code of Conduct so it Does Not Apply to the US!

Yet, despite what sounds like a promising code, and measures to promote such principles world wide, there has been growing criticism of the principle of a code of conduct. Indeed, as CDI also criticizes, there have efforts in the US to weaken the Code¹⁰ by making it apply to other countries but not the US.

Fears About a Code of Conduct Typically Unfounded

Often from commercial interests, there have been fears raised about any code of conduct, typically along the lines of If we don’t sell weapons, someone else will. As CDI also noted, this argument has become increasingly untrue and irrelevant as more and more countries have shown commitment to joining up to codes to prevent a free flowing marketplace of deadly weapons.

The Council for a Livable World’s Arms Trade Oversight Project deals with many concerns¹¹, noting that:

• The Code is NOT an arms sales ban;
• The Code does NOT create an arms sales blacklist due to annual reviews;
• The Code does NOT micro manage the President in foreign affairs but instead strengthens its position regarding human rights and military issues;
• Congress does NOT give up its right to block specific sales;
• The Code provides Congress an opportunity to scrutinize arms;
• The Code’s restrictions are very close to those already in existing law;
• While other countries may be able to sell when the US doesn’t, the US can help set standards, given its prominent world position and pressure other countries to also commit to an international code, thus leveling the playing field amongst competing arms dealers;
• The Code will NOT cost jobs; Already many foreign arms deals require concessions such as much of the production being overseas as well.

EU Code of Conduct Criticized as Weak From the Beginning, in 1998

Even though the code has been signed there are still many criticisms about it that say that it falls short of establishing effective monitoring of sales and transfers by a Member State. It is also claimed that it will still be probable that arms can be exported to the regimes that would be the most likely to use them and violate international humanitarian law (which lays down the rules of war).

In 1998, as the Code was agreed, a joint statement by leading NGOs in this field (Oxfam, Amnesty International, Christian Aid, Safer World, BASIC and the World Development Movement) issued a critique. They charged that

Many Problems with the EU Code of Conduct still, into 2004

Leading human rights organization, Amnesty International, issued a warning in May 2004 saying that arms export controls in the expanded European Union are dangerously ineffective¹³.

2004 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 exports¹⁴, 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 various 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;

Privatization of Security

Amnesty also highlights a marked increase in the last decade in the use of private security or military companies by governments, companies and also inter-governmental organizations (IGOs) and even non-governmental organizations (NGOs) to provide security training, logistics support, armed security and, in some cases, armed combatants. The types of companies in this privatization of security include:

• Mercenaries;
• Private Military Companies;
• Private Security Companies.

On mercenaries:

On private military companies, Amnesty gives an example of a French company which seems to have little accountability.

On private security companies, while services provided vary enormously, there are a number of cases where they have directly and indirectly contributed to human rights abuses.

The general concern about all three groups is lack of full accountability and transparency.

Expanded EU May Further Weaken European Code of Conduct and Encourage Irresponsible Export of Surplus Arms

EU expansion to include 10 new members brings additional concerns regarding Arms Control:

• Some new countries are significant arms dealers;
• The weak EU Code of Conduct may have to be made weaker to accommodate the newer members (because of taking the lowest common denominator approach to get new members to adopt the Code). While the EU appears to be attempting to address this, Amnesty criticizes it for being weak and only encourages countries to do things, rather than oblige them to;
• To meet NATO requirements, these new EU member countries will need to get rid of their old stock of weapons and modernize. Surplus must therefore be dealt with. Usually they are meant to be destroyed. But the irony of this is:
  • Many old weapons have been sold for cheap to third world countries;
  • The major European arms dealers sell more arms to the new European countries to help modernize;
  • EU aid to third world countries may help purchase these arms;
  • In effect, The richer EU countries are therefore financing their own arms sales.

But, as Amnesty also notes, even existing EU members have been guilty of irresponsibly exporting surplus arms contrary to the criteria of the EU Code mentioning Denmark, United Kingdom, Germany and France as examples.