Thanks to mobile phones, the use of European weapons against brave Arab people demanding democracy is well-documented. Many Europeans were shocked, and journalists and parliamentarians publicly asked how this could have happened. We do have European arms export regulations, don’t we? We were supposed to take human rights into consideration. Some people said this proves the need for a United Nations Arms Trade treaty (ATT) to establish common, legally binding rules, under which such exports could not have taken place. But is that true?
Activist groups all over Europe have been protesting for years against arms exports to Arab regimes (such as armoured vehicles to Egypt and Bahrain, anti-tank weapons and small arms to Libya, and about anything to Saudi-Arabia) because of the undemocratic nature of these regimes. But despite a clause on human rights and internal repression in the EU export regulations, governments gave permission for all kind of exports, which resulted in the shameful situation of Europe being complicit with suppressing Arab democratic movements. As the Arab spring evolved, many European arms deliveries to Egypt, Bahrain, Libya and Tunisia were put on hold. But for protesters of course these temporary embargo’s came way too late. The damage was already done.
Apparently there is something fundamentally wrong with the way governments judge arms exports in relation to human rights and internal repression. At the European Network Against Arms Trade’s (ENAAT) annual meeting in June one analyst even blamed the very existence of EU arms export regulations for the carte blanche for military trade with dictatorships. He might be right.
When European countries in the 1990’s composed regulations on the export of military technology and equipment they phrased it very carefully. The current European Common Position on the arms export says that Member States will not issue an export licence if there is a clear risk that the proposed export might be used for internal repression. Member states should exercise special caution and vigilance in issuing licences, on a case-by-case basis and taking account of the nature of the equipment, to countries where serious violations of human rights have been established by the competent bodies of the UN, the Council of Europe or by the EU (Criterion 2 of the EU Common Position on the export of military technology and equipment)
Of course, this criterion is meant to prevent complicity in human rights violations and the aggravation of armed conflict. But how, in practice, do governments use this text? It is all a matter of interpretation.
When is there a clear risk that the proposed export might be used for internal repression? Is this only when one specific product can be connected to one specific human rights violation in the past? Governments tend to interpret regulations that narrow. Even today many European governments continue to allow for exports ranging from fighter aircraft and mortars to tank communications, to one of the world’s most notorious human rights abusers, Saudi Arabia.
Governments could decide not to use a material specific approach (as illustrated above), but a context specific approach. The material specific approach takes the weapon as starting point for checking against arms export criteria, the context specific approach starts with the costumer, the buying regime. The context specific approach considers the broader political situation, beyond a potential direct relation between the equipment and the criteria. And this makes more sense, because arms a not an ordinary commodity. Selling arms is giving political support. Arms trade establishes and reinforces a political relationship and gives the message that you are backing a regime. So arms deals cannot not be evaluated in isolation but must always be viewed in line with the wider foreign, security and human rights policy context. Selling arms to dictators is undermining the coherence of your human rights policy. And you know that any dictator, when confronted by serious internal opposition, will use his armed forces to stay in power.
It is up to a government to interpret the arms export regulations. The EU common position explicitly leaves possibility for interpretation open (also, that is, for an interpretation less literally and more in the spirit of human rights protection) open. And of course this is deliberate. The people who phrased these regulations knew what they were doing. It would have been impossible to reach a common position on arms export with a text really leaving governments no other option than denying an export license in certain cases. No government wants it national interest (be it security, good relations with oil suppliers or economic profits) be limited by human rights considerations, unless it defines otherwise on a case-by-case policy. Arms export rules did not make this change.
Worse, what we see is now is that governments use the material-specific approach to justify arms exports to dictators and human rights violators. Because they are not obliged to check against a human rights context, they say, they cannot deny an export licence, or else the arms industry may sue them . Of course this justification is nonsense; governments continue to keep the right to make their own stricter policy and in the end it is up to the government, not to any judge, to define what is a good foreign policy. But it gives the arms industry another tool to make campaigning against them more difficult.
So instead of being helped by arms exports regulations, they are used against human rights protection. And unless some very serious improvements in the draft text will be made soon, the UN Arms Trade Treaty will fall into the same trap, because it is using the same, material specific approach without any reference to the context. Supporters of the ATT hail the treaty as a not-to-be-missed opportunity to “close loopholes left by the current transfer control arrangements” and “establish common, legally binding rules”. However, it is to be feared that the major loopholes in the existing common, legally binding rules will be duplicated.
[WdV, 24 June 2011]