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Legislators in court; fighting export permits the judicial way
When an arms company application for an export permit is turned down, the company can appeal to a court. In the Netherlands for example, arms company Thales appealed successfully against the denial of an export license to India in 2005. But what if an arms company is permitted an export license where campaigners fear human rights consequenses? What happens if civil society organisations appeal against an arms export permit? At present several law suits are running in the EU, under different laws and with different angles, but all waged by anti-arms trade campaigners and human rights activists.
The most well-known is the British case of Campaign Against Arms Trade (CAAT) against the government. Ever since Tony Blair's intervention to stop a corruption investigation into arms sales to Saudi Arabia there was a high need to reinstall justice against arms trade and recently (July 30) the High Court has ruled that CAAT can take the government’s arming of Saudi Arabia to a judicial review. Judges will now consider whether the government’s decision to continue licensing arms sales to Saudi Arabia, which may be used in Yemen, is legal. The UK government itself admits that UK-made combat aircraft, missiles and bombs have been used in the Saudi-led attacks on Yemen – attacks which have killed thousands and precipitated a humanitarian disaster.
Another case of arms used in Yemen concerns the manufacture and shipping of bomb components of Rheinmetall subsidiary RWM Italia S.p.a. from Sardinia being used in attacks by the Saudi-led coalition in Yemen, where many civilian deaths have been documented. The case has been discovered and documented by journalists with the help of peace and human rights activist, thanks also to some MPs, and presented to Justice. In Italian law prosecution is mandatory if a judge/prosecutor/police officer has reports of a possible crime (“notitia criminis”).
The evidence is handed over to prosecutors of different cities; Rome as the capital and seat of Government, Brescia where RWM Italia has its legal HQ and Cagliari because the RWM plant is in Sardinia. According to the Rete Disarmo, the Italian Disarmament Network, the large number of documented shipments of bombs to the Saudi Arabian army are proof of breaking the 185/90 law which prohibits the sale of weapons to countries in armed conflict.
Of a different nature is the court case in France against arms company Exxelia Technologies for complicity in Gaza war crimes. The plaintiffs are members of the Shuheibar family in Gaza City that lost three children in an Israeli airstrike on their house in 2014. A missile struck the Shuheibar family home while five children were feeding poultry on the roof. Three childeren were killed, another two seriously injured. Found among the remnants of the missile that was fired at the house was a component manufactured the French company Eurofarad, now named Exxelia Technologies. The component is part of a small missile fired from the air, most likely by drone. Survivors and witnesses assert that no military target existed in the house at the time of attack, or otherwise. Accordingly the house remained a civilian object, protected from attack under international law. The targeting of the home, which resulted in the death of civilians and damage to a civilian structure, was therefore unlawful and could amount to a war crime.
The complainants accuse the French company of complicity in a war crime, or at a minimum manslaughter, upon the establishment that the sensor was indeed sold to the Israeli military. They lodged the complaint with the prosecutor of the war crimes unit. If the prosecutor accepts the case and the war crime allegation is proved (a process that could take years) the head of the company could be criminally charged, and the company will have to pay compensation to the family.
In the Netherlands, human rights lawyers and peace organisations appealed together against the Dutch government’s decision to grant an arms export license for Egypt. According to the organisations, the government has not, or insufficiently, taken human rights and the Egyptian involvement in the Yemen war into consideration. The State did not take the arguments of the organisations into consideration but declared that civil society organisations are no party in a case like this, as they have no direct interest. The organisations claimed to be party though, based on an earlier case in 2006 were they were recognised as such by a civil court, and based on their organisation's mission.
Last Thursday the administrative court decided that the State is right and that civil society organisations cannot appeal to an export permit . This decision is based on new costums law of the European Union which says that only companies can appeal against decisions on export permits. This law is overruling Dutch law. Peace and human rights organisations have no “direct and individual' interest. The EU costums law does not recognise common or collective interest.
Of course, the organisations are very disappointed and are considering next stept. It is unacceptable that only arms companies can go to court on arms exports to human rights violators. It cannot be that nobody can juridically defend human rights interest on arms exports from the Netherlands.
Legal cases against arms export are an additional campaign tool to try to stop deals with nasty regimes or exports to warmongers. By itself the law can never completely stop unethical arms exports, as arms export laws are deliberately left open to political interpretation and thus not watertight. But in some cases, the law can make it very difficult for governments. And juridical debates can lead to a lot of helpful publicity to push for the political steps necessary to change policies.
Together with Stop Wapenhandel, the Public Interest Litigation Project (PILP) of the NJCM (Dutch Lawyers for Human Rights) has organised a research into judicial possibilities to prevent arms exports to notorious and human rights violating countries. A number of students have analysed the legal framework of arms export on a national level, national-European level, on the level of the European Union and on a public international scale. In general, the question was: To what kind of human rights based test do states evaluate with the granting of permission for arms export by arms trade companies and what kind of test should they be assessing? You can find the results of this research here.