A higher standard for human rights due diligence in arms exports?

Sticker - Stop Arming Saudi

The obligations of companies to implement human rights due diligence (HRdd) has reached the political agenda with the announcement of EU Commissioner Reynders to propose a binding EU framework, a range of national initiatives and the negotiation of a UN Treaty on Business and Human Rights. However, such human rights obligations by private actors are a horizontal application of obligations held by states. How are states performing their human rights due diligence and how accountable are they? Arms export licensing was originally driven by strategic concerns, but it is an important area where states have obliged themselves explicitly to conduct human rights due diligence. Common Position 2008/944/CFSP provides the framework in the EU.

This article was first published by IPIS.

The EU member states generally praise themselves about the high standards and strict controls they uphold in their arms export licensing. In their latest evaluation the member states saw no problem or need for change other than updating the Common Position 2008/944/CFSP to new developments like the Arms Trade Treaty. The Council welcomed “Member States’ renewed commitment to the legally binding Common Position”. The assumption here is that the implementation of the EU Common Position, and the export criteria it contains, is unproblematic. However, several Belgian court decisions show that, when courts are given the opportunity to review arms export licences, they tend to be more critical towards the practice of their governments.

In Belgium the Council of State, the main administrative court, has developed a jurisprudence in which it shows a growing critical attitude towards the arms export risk assessment decision by the government. This jurisprudence has been developed over a range of legal challenges, first against export licences for Libya in 2011-2012 and later against export licences for Saudi Arabia in 2018-2019. Earlier jurisprudence did also lead to the suspension and annulation of several export licences, but was based on procedural and formal elements. The application of the criteria in the arms export decree, made by the regional government, was not as such evaluated. This left open the possibility that the Walloon government could get off the hook by merely fulfilling all formal requirements and adding an explicit evaluation of the criteria to its licensing decision. In its recent arrests in 2020 the Council of State dropped its reluctance to evaluate how the government made use of the criteria of the Common Position, which have been transposed in the regional arms export decrees.

Early 2020 the Ligue des droits humains, CNAPD and Vredesactie challenged the new export licences for Saudi Arabia issued by the Walloon region. This concerned on the one hand direct export licences of small arms and ammunition by FN Herstal and Mecar. On the other hand, export of turrets by CMI Defence to Canada, where they are mounted on armoured vehicles with final destination Saudi Arabia.

In its judgment of 9 March 2020 and its later rulings of 7 August 2020 the Council of State for the first time makes an in-depth, substantive evaluation of the export licensing decision made by the Walloon regional government and its application of the Common Position criteria. The judgment made clear that the application of the EU Common Position was not so unproblematic as suggested in the evaluation by the member states.

The judgment of 9 March suspended all export licences to Saudi Arabia and caused approximately 75% of Belgian arms exports to be put on hold. The Walloon government silently retracted these export licences and renewed them partially with a new licence. When the NGOs noticed in the export statistics that exports had restarted, they contested the licences again before the Council of State. This time with mixed success. The export licences of FN Herstal were suspended, those of CMI Defence not. Mecar had not received a new licence (yet?). Because CMI Defence can continue to export, the economic impact of these decisions is much smaller. However, the suspended export licences for Saudi Arabia still represent a value between 200 and 300 million euro. All these rulings concerned “suspensions in urgent procedures”. A final decision will follow in the annulation procedures, which are ongoing.

The central element in the rulings was if the government had properly considered the risk for violations of IHL and human rights. That is the second criterion in Common Position 2008/944/CFSP, and more specifically the risk posed by the potential use of these arms in the war in Yemen. The exports for the Saudi National Guard were indeed considered to pose such risk. This evaluation of risk for IHL violations was based on the observations made by the UN Group of Experts on Yemen in its reports to the UN Human Rights Council, as well as the position expressed in several resolutions of the European Parliament. The statements by the Walloon government that the Saudi National Guard is a military force which is only active inside Saudi Arabia were not accepted, because the National Guard had been deployed earlier to Bahrain and the fact that the Saudi king had ordered the National Guard to participate in operations in Yemen. In case of CMI Defence the Council of State changed its position because the government argued that the sole destination of these weapons was the Royal Guard, which is not active in Yemen. This statement is doubtful, as the number of vehicles exported is much too large to have the Royal Guard as the sole destination. Further the Royal Guard has been implicated in internal repression and a range of covert operations. But due to the initial lack of information these issues were not raised in the procedure.

While the Common Position 2008/944/CFSP and the earlier Code of Conduct till now largely remained human rights window dressing, these decisions make clear how subjecting arms export licences to control by courts can make a difference. But they also show which hurdles and limitations still exist and need to be solved before this Common Position can become an effective instrument for human rights due diligence in arms exports.

Two important hurdles have been taken in Belgium which made these judgments possible, but still remain widely present in other EU member states. First, Common Position 2008/944/CFSP is considered binding on the member states as international law, but it still needs transposition into national law before courts can address how governmental decisions respect the criteria. In Belgium the criteria have been included in the regional arms export decrees, but in several EU member states such transposition is not the case. Second, NGOs need to have legal standing in order to be able to challenge export decisions. Once contested, this is now achieved in Belgium. Again, such legal standing remains limited among EU member states.

The third remaining hurdle concerns information. Without knowledge about the export licence it is impossible to demand a legal review by the courts. Current transparency in relation to export licences is much too weak to allow effective legal procedures. It comes very late and often the exports have already happened before a court procedure can be initiated. Freedom of information procedures prove much too weak to address this. In the Belgian case the Walloon government tries to avoid and delay any public knowledge about its arms trade licensing in order to prevent further challenges in court. Moreover, the Council of State remained reluctant to allow more access. Therefore, NGOs are obliged to formulate their objections with no access to the information available to the adverse parties and the judge. As a consequence these legal challenges remain a difficult shot in the dark, leaving the application of the criteria to a large extent unchallenged.

Notwithstanding this, the Belgian court judgments demonstrate the contribution a legal review by courts can provide in the implementation of Common Position 2008/944/CFSP. Such active control by courts is a necessity to turn it into a credible framework for human rights due diligence.