Executive Summary
The legal and regulatory frameworks governing arms transfers have evolved significantly since the Arms Trade Treaty (ATT) came into force in December 2014. These frameworks, aligned with international, European, and national export control systems, have been increasingly shaped by efforts to ensure accountability for arms transfers that result in adverse human rights impacts. This evolution has been driven by the limited yet crucial avenues provided by states’ judicial and parliamentary mechanisms for supervision and oversight.
The majority of such (only partially effective) efforts were in relation to the provision of arms by Western countries to Saudi Arabia and the United Arab Emirates (UAE), who led the military coalition engaged in hostilities in Yemen since 2015, despite their unequivocal systemic violations of and disregard for international law. These supply relationships entailed different forms of complicity relations that fueled and enabled the mass and structural violence and its dire humanitarian consequences, some of which amounted to indirect involvement in the conflict.[1]
In the absence of other avenues for accountability, especially for primary perpetrators of international crimes, arms trade-related accountability efforts have been a means of restraining mass violence and seeking accountability for conflict atrocities. These challenges have exposed the constraints in holding European states and companies accountable for significant international law violations facilitated by the arms they provide. This is due to the discretionary powers granted by such laws and systems to states, as well as the numerous gaps and blind spots they perpetuate, stemming from the limitations of their regulatory reach.
The laws and systems governing arms exports and relevant oversight and accountability mechanisms and regulations in major arms-exporting European countries and the UK offer some, albeit limited, potential means for challenging arms transfers that contribute to international law violations. The advocacy opportunities and accountability paths that have been pursued by civil society organizations in the Southwest Asia & North Africa (SWANA) region have sought primarily judicial review of licensing processes. Most cases focus on administrative law rather than on civil or criminal forms of compensation and other reparations for those affected by mass and structural violence in recipient countries.
The primer critically examines the regulatory frameworks, processes and practices (judicial and non-judicial) available to restrain arms sales to countries where they are used in repression to commit serious violations of international law. Although the ATT and other relevant international laws are part of European policy and law on arms export controls, there are limited mechanisms, beyond political advocacy, for contesting their fragmented implementation and the unlawful transfer that aid violations by several leading exporting states. A comparative assessment of the laws, licensing procedures and oversight mechanisms in five major European exporting countries – France, Germany, Belgium, the Netherlands, and Italy – and in the UK, demonstrates the displacement of legal considerations by licensing procedures, and fragmentation and denial of access to judicial review and remedies in specific European exporting countries that supply arms to SWANA countries.
The lessons drawn from past and ongoing domestic proceedings and other accountability efforts, analyzed in relation to three case-studies concerning the provision of arms to parties involved in the conflict in Yemen, Libya, and Palestine, show how domestic laws and proceedings have often been thwarted, largely by the evidentiary and procedural requirements. While certain forms of recourse under domestic law, such as civil and criminal suits, allow for the centering of plaintiffs in limited ways (and are the only forms for challenging corporate misconduct), the high-threshold evidentiary and procedural requirements of such processes pose significant barriers to access to such remedies, making administrative suits have greater prospect in blocking certain sales and either directly or indirectly challenging state complicity.
Compensating for these impasses to a certain extent, the role of international and regional mechanisms has become more relevant, while offering largely indirect, declarative forms of redress. Yet, these can become significant for addressing systemic shortcomings in state licensing systems and in broadening grounds and scope for arms accountability as systemic, intersectional and transformative justice and accountability for conflict, and other mass and structural violence. Overall, however, accountability efforts have revealed the capacity of states licensing regimes to evade determinations of prohibitive risk and thus the review and suspension of arms exports, signaling the need to redirect civil society efforts towards a systemic analysis of arms trade accountability, as part of the international system’s responses to and regulation of complicity relations with mass and structural violence.
Taking an intersectional and systemic approach also means accounting for the ways arms supplying states are often involved in providing humanitarian and development aid to war-torn recipient countries without consequence or prejudice to the devastating socioeconomic and developmental implications of the violence fueled by said state’s arms supplies, which should be addressed in the scope of their responsibility and relevance to broader justice processes. By accounting for the ways arms suppliers contribute to fueling and sustaining violence, such processes should seek to address the infrastructure of antimilitarism and its intersection with migration policies, environmental impacts, climate justice, and transformative justice processes.
[1] Some defense relations arguably amounted to ‘indirect participation in hostilities’: O. Hathaway and A. Haviland, ‘The Legality of U. S. Support for the Saudi-Led Campaign in Yemen’, Just Security, 1 March 2018, available at: https://www.justsecurity.org/53226/. N. Weizmann, ‘Are the U. S. and U. K. Parties to the Saudi-led Armed Conflict Against the Houthis in Yemen?’, Just Security, 22 September 2016, available at: https://www.justsecurity.org/33095/.