30 Grasping the nettle: Ending Europe’s Trade in Execution and Torture Technology Member State targeted end-use control Certain end-use controls or functionally similar mechanisms that enable sensible action to be taken by States to prevent very harmful and expressly prohibited outcomes have been incorporated into a number of national, regional and multi-lateral arms control and disarmament regimes. Of particular relevance in this regard are the mechanisms adopted by the Australia Group125 and the EU dual-use export controls.126 Amnesty International and Omega have previously urged the European Commission and Member States to add a targeted end use clause to the Regulation.127 Such a clause would allow individual EU Governments to halt a specific transfer of certain goods covered under the scope of the Regulation that are not specifically listed in the Regulation Annexes that clearly have no practical use other than for the purposes of capital punishment, torture and other ill-treatment; or where there is evidence that such items would be used for the purposes of judicial execution, torture and other ill-treatment. The provision would enable individual States to act immediately at the national level to halt a specific potential transfer of grave concern that comes to their attention, irrespective of subsequent actions which may or may not be taken at an EU level. Under international human rights law, specifically the UN Convention against Torture, all States are obliged to prohibit torture and other ill-treatment and to ensure they do not facilitate such prohibited practices.128 Similarly, EU Member States have undertaken obligations to actively combat the practice of capital punishment where-ever it occurs.129 Amnesty International and Omega believe that only by the introduction of targeted end use controls will EU Member States, confronted with a specific proposed transfer of non-listed goods they know is intended to be used for torture or capital punishment, be able to immediately stop such a transfer taking place, and thereby fulfil their obligations under international human rights law. UK Government proposal: Following a review of its national export controls, which included an extensive public consultation exercise, the UK stated that it would seek, “To introduce an end use control on torture equipment, enabling the UK to licence – and thus refuse – the export of any goods from the UK which were destined for use in torture or similar inhumane or degrading acts.”130 The UK Government stated its intention to seek the introduction of such an end use control clause at EU level, rather than nationally, in order to ensure that the EU as a whole operates to the same standards, and that UK exporters are not able to circumvent the control simply by exporting via other Member States. The UK government subsequently proposed a draft text for such an end use control clause which was transmitted to the Commission for consideration in September 2009.131 European Parliament resolution: In June 2010, the European Parliament adopted a resolution on the implementation of Council Regulation (EC) No 1236/2005 calling on the Commission and Member States to implement a range of measures to strengthen the Regulation and ensure its full adherence.132 The resolution specifically: “Urge[d] the Commission to come forward with a proposal to insert into the Regulation as soon as practicable a ‘torture end-use’ clause, which would allow Member States, on the basis of prior information, to license and thus refuse the export of any items which pose a substantial risk of being used for capital punishment, torture or other ill-treatment by their destined end-users.”133 125 Further provisions applicable to Australia Group Participants: Catch-All, Guidelines for Transfers of Sensitive Chemical or Biological Items, June 2012. See in particular Article 1 and Article 2. http://www.australiagroup.net/en/guidelines.html (accessed 1 July 2013). 126 Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items, (Recast). See in particular Article 4 and Article 8. 127 See for example: Amnesty International/Omega Research Foundation, From Words to Deeds (2010) op.cit. Amnesty International/ Omega Research Foundation, No More Delays, (2012) op.cit. 128 United Nations, Convention against Torture (December 1984) op.cit. 129 Council of the European Union, EU Guidelines on Death Penalty, 8416/13, COHOM 64, PESC 403, OC 213,12 April 2013. 130 UK Department of Business, Enterprise and Regulatory Reform, Export Control Act 2002. Review of export control legislation (2007): Government’s initial response to the public consultation (February 2008). 131 United Kingdom Foreign and Commonwealth paper: Torture End-Use Control, handed to Commission staff in bilateral meeting, September 2009. 132 PE441.942 European Parliament resolution of 17 June 2010 on implementation of Council Regulation (EC) No 1236/2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment, 17 June 2010, P7_TA-PROV(2010)0236. 133 European Parliament (17 June 2010) op.cit. Paragraph L.16. Amnesty International May 2015 Index: EUR 01/1632/2015