A new and better way for British arms export licensing: presumption of denial

The British export licensing system depends on a “risk assessment” officials make at the time an export licence decision is made.  It is totally ill-fitted to how the world actually works, chiefly because weapons and weapon systems have a shelf-life far longer than the validity of the official risk assessment.

So what would a new and better way look like?

The answer might be contained in a case study included in the Committees on Arms Export Controls’ most recent report.  The Committees analysed a British Government decision to “give 2 export licence approvals for dual-use chemicals to Syria in January 2012 after the civil war had started in Syria in 2011”.  In its analysis the Committees proposed a rather different way of setting criteria by which the export licence applications might have been judged.

The Committees concluded that British Government decision to approve the two export licences was “irresponsible”.  As is well known, chemical weapons were used in the Syrian civil war on 21 August 2013, and probably on many other occasions.  Most observers believe the Assad regime was responsible.

On 17 and 18 January 2012, the British Government issued two export licences for Syria (the following information is available here).  One licence permitted the export of 1,000 kg of sodium fluoride to Awad Ammora Co. & Partners, Nashabia, Damascus, Syria and the other 1,000 kg of potassium fluoride to the same company.  For both licences the stated end use was “metal finishing of aluminium profiles for aluminium showers, window frames”.

Companies need a licence to export these chemicals because, the British Government says, “they are capable of use as precursor chemicals in the manufacture of chemical weapons”.

When the export licence applications were received

each application was reviewed by advisers in MOD (including Defence Intelligence and DSTL at Porton Down), in the FCO (including the regional Desk and POST, the Sanctions Team, and the Australia Group desk officer) and in the Chemical Weapons Convention UK National Authority in DECC. No concerns about end-use were identified by any of these reviews and accordingly neither licence application was put to Ministers for approval.

The chemical themselves are dual-use, meaning they can be used to make chemical weapons or for other peaceful purposes such as “the manufacture of toothpaste, the fluoridation of drinking water, production in the metallurgical industry, and in the manufacture of pesticides”.

Business Secretary Vince Cable, when justifying the decision, said

Each licence application was assessed on its own merits against the Consolidated EU and National Arms Export Licensing Criteria taking into account all relevant information available to us at the time. The stated end-use of these chemicals was a legitimate commercial application…There was no information from either open or classified sources available at the time, and none that we have received since, to link the end-user to any chemical weapons programme in Syria, and we did not — and do not —have any information to indicate that Syria was actively seeking to acquire these chemicals for use in the manufacture of chemical weapons. Given the nature of the stated end-use and the lack of evidence that would justify refusal, the licences were granted. Having reviewed the information on which these decisions were based, I am satisfied that this was the correct decision.

In the event the company which held the licences did not export the chemicals, and the licences were revoked on 30 July 2012.

A shorter version of Cable’s justification has appeared in the Government’s formal response to the Committee’s criticisms (pages 75-76).

So, you may ask, what is the problem?

Firstly, the assessment process only took into account the situation “at the time”, and did not include a longer-range assessment over the shelf-life of the chemicals themselves.  And, obviously, the end use to which the chemicals might be put could change once they arrived in Syria, either immediately or much later.  At that point, even if the British Government could discover what had happened (almost impossible as the British Government cannot track what is happening to every export it licences, and so does not attempt to), it could do nothing about it.  So even if it looked at the time that there was no reason for concern, that was no reassurance at all that the chemicals would not end up in Assad’s Weapons of Mass Destruction (WMD) programme.

Secondly, the application process only took into account information available from both open and classified sources.  The obvious problem here is that WMD programmes, especially when undertaken by vicious tyrants like Assad, tend to be secret or treated secretively by the regime.  Saddam Hussein concealed elements of his WMD programme from Western intelligence for many years; it was only UN weapons inspectors who were able to get to the truth (See Disarming Iraq: The Search for Weapons of Mass Destruction by Hans Blix).  So the absence of information as to a nefarious purpose in no way provides reassurance there is no nefarious intent.  Given the record on Iraq, one imagines British intelligence resources in Syria are wholly inadequate to the almost impossible task of keeping a comprehensive eye on Assad’s WMD programme and capabilities.

Thirdly, the fact the chemicals could be used innocently is not much of a justification.  They require an export licence because they are “capable of use as precursor chemicals in the manufacture of chemical weapons”.  To suggest that these chemicals should be exported unless the British Government has specific information at the time the export licence application is made that the chemicals will be used to make chemical weapons betrays a rather careless attitude as the conditions for refusal are so unlikely to be met.  But this appears to be the British Government position.

The Government in issuing these licences decided to take a naïve and ridiculously short-term view, all for the sake of two private commercial transactions worth a grand total of £20,200.

The Committee said (paragraph 148) given that:

1. Syria was a known holder of chemical weapons;
2. that Syria was a known non-signatory of the Chemical Weapons Convention;
3. the nature of the Assad regime;
4. that a civil war was raging in Syria;
5. that sodium and potassium fluoride were both listed by the Australia Group and the EU in its Dual-Use Regulations as precursor chemicals in the manufacture of chemical weapons; and
6. the company concerned appears to be a ‘Brass Plate’.

there should have been a presumption of denial against giving the licences.  The Committee suggests (paragraph 151) that there should be a “very strong presumption against approving licence applications for dual-use chemical exports to countries” that:

1. are known holders of chemical weapons;
2. have not signed and ratified the Chemical Weapons Convention; and
3. are not participating in an Organisation for the Prohibition of Chemical Weapons-verified destruction programme

and that any proposals to approve such licence applications should be put to Ministers for decision.

So, instead of adopting a presumption of denial for applications for dual-use chemical exports to certain regimes, why not extend the principle for all export licence applications?

What would be far better is if presumption of denial became a feature of the export licensing system for a far wider range of military equipment.  This is because the same flaws which gave rise to the decision to permit the export of chemicals to Assad’s Syria which could be used to make chemical weapons are also relevant to the decisions made to export equipment which could be used for internal repression to any number of human rights-abusing states.

The British Government should make a list of weapons which could be used for internal repression. It has already gone some way in this direction, providing a list to the Chairman of the Committees on Arms Export Controls, Sir John Stanley, in 2011, saying:

There is no comprehensive list of “crowd control goods” but some equipment carries a risk of being used for internal repression (rather than legitimate public order needs or external defence); this includes:

• CS grenades, tear gas canisters, crowd control ammunition.
• Water cannons.
• Anti-riot shields.
• Body armour.
• Shotguns, small arms, semi-automatic pistols, assault rifles, sniper rifles, submachine guns, and ammunition.
• Armoured personnel carriers, armoured fighting vehicles.

The British Government already has a list of “countries of concern” as regards human rights.  It should say that an export licence for equipment which could be used for internal repression to a country of concern could only be approved if there was unimpeachable proof that the equipment would not be used for internal repression, over the lifetime of the equipment concerned.

Then, at last, we might actually be moving towards an “export control” system which might reduce the risk of British-supplied military equipment ending up in the hands of tyrants.