A Hard Sell? Arms Export Licensing and International Responsibility for Unlawful Arms Transfers – Part II

[Valentina Azarova is an international law practitioner and academic currently Visiting Academic at the Manchester International Law Centre, University of Manchester, and Legal Advisor to the Global Legal Action Network (GLAN). This is the second part of a two-part post. The first can be found here.]

The first part of this post discusses the ways in which the Yemen conflict has animated a body of ongoing legal challenges against arms exports in the Yemen context, and sets down the way both challenges against licensing decisions and efforts to hold state and corporate actors accountable for wrongful assistance to serious violations of international law, in European and north American states, have been less successful than expected, and instead made apparent the limits and politics of international arms export control law including the domestic ATT-based regimes.  This second part of the post examines a further dimension of such limits, namely the apparent decoupling in practice of the application of the ATT from international responsibility frames, and turns to consider epistemic forces such as strategic legal argumentation and litigation could reframe the conditions of possibility and remedial reach of this highly-politicised area of law.

The ATT and International Responsibility

The indeterminacies of the procedural and substantive thresholds of domestic licensing procedures have had the effect of insulating states from the legal consequences of decisions to authorize certain sales. These procedures, however, do not exonerate states and corporate actors from international responsibility. State responsibility for wrongful military assistance is at the core of the concerns that ATT law seeks to address by setting out the preventive obligations of states and providing a clear cut-off point for the suspension of licenses for transfers deemed unlawful due to the consequences they produce.

ATT law functions as a special regime for combatting complicity in serious violations of international law. Yet, domestic implementation of the ATT has been more of a distraction from, than a tool for, accountability. The limiting domestic judicial review processes for arms transfers, as reflected in relevant litigation in the UK, France and Belgium, have in effect channeled arms-transfer challenges to focus on surface-level procedural challenges and defeating narrowness of arms export control grounds. Meanwhile, arms licensing rules and procedures remain almost entirely controlled by political decision-making actors, with only a light touch of judicial interference either to request a new decision from the political echelons, as in the CAAT case, or in the most exceptional of cases adjudicate the potential responsibility of state or corporate actors for an unlawful transfer. These developments have considerably weakened the juridical relation between the ATT, as the specialized international law regime for arms export control, and the general rules on state responsibility; not to mention the underwhelming enforcement of the international responsibility of arms-selling corporate actors.  

Despite the obligations of arms-supplying states under the ATT, domestic proceedings have decoupled wrongdoing by these states and their corporate actors – including their potential role as accomplices in international crimes – from the legality of the licenses authorizing the arms transfers. The UK Court of Appeal kept to the restrictive view of the issues at stake by explicitly considering complicity questions to be outside the scope of decisions made under the licensing process; thus maintaining what appears to be a perversely illogical dichotomy between such questions and the wrongful assistance standard mirrored by the transfer-prohibiting provisions of the ATT.

Practitioners seeking a cause of action for the international responsibility of states or indeed even corporate actors, must rely on an exceedingly thin international legal practice on unlawful arms transfers. International courts including the International Court of Justice, which is at least in theory the forum for state responsibility questions, or IHRL courts such as the ECtHR, and quasi-judicial bodies like the Human Rights Committee, remain under-explored venues. The same goes for the somewhat more creative means needed to bolster the role of the EU as ‘guardian’ of the 2008 EU Common Position, and perhaps also that of the political UN bodies such as the Human Rights Council (and its Special Procedures) as well as the General Assembly who should be expected to undertake a more vigorous role in enforcing non-assistance obligations against arms supplying states and corporations. Not to mention the track record of the Security Council and its role in this regard in relation to South African apartheid (Resolution 418 (1977), Portugal’s colonial repression (Resolution 218 (1965), and the former Yugoslavia (Resolution 713 (1991), which is admittedly relevant in fewer cases.

As for domestic options, civil claims that seek compensation for victims of unlawful attacks need to show a strong causal link between the company’s actions and the injury, proving the impossible by finding that the specific weapon sold during the war (1) was then used in a serious violation that caused the injury. They are thus both cumbersome and costly; not to mention financially risky due to possible court fees. Whereas administrative challenges of arms exports can be explicitly blocked by their exemption from judicial scrutiny due to their being ‘acts of government’ part of the state’s foreign policy (France),  or more subtly by requiring that litigants show for an ‘imminent threat to civilians’ caused by the challenged policy (Germany), that an affected plaintiff support the case (Germany) or subjecting NGO standing in court to stringent conditions (Netherlands, Spain). In a criminal law-based cause of action, ECCHR, Mwatana and others invoked complicity in murder and personal injury through gross negligence in a pending filing to the Italian prosecutor against the managers of Italian Subsidiary of German Arms Manufacturer and Italian Arms Export Authority officials. The truth is that these cases essentially call on judges to lift the veil from the ‘safe haven’ that state licensing regime provide defense sector businesses.

Conclusion: Explicating Legal and Policy Implications

Perhaps ironically, practitioners focused on the Yemen conflict have sought to address arms supplying states under a fairly reasonable strategic assumption that European and North American states would be concerned with the consequences of their decisions to continue to supply arms to the principal perpetrators in the Yemen context. In fact, it appears that the opposite is true: the very fact that such decisions are rule-based and law-abiding in their own way has limited the scope of their reviewability and entrusted domestic regulation regimes that (purport to) implement the ATT with at once the protection of the economic interests of defense sector businesses and the diffusion of responsibility for the (international) legal implications of such transactions.

What conditions of possibility could international arms export control law nevertheless provide to practitioners looking to challenge and hold to account state and corporate actors involved in unlawful arms transfers? One possibility is for legal practitioners to resuscitate ATT law in its broader normative environment, international responsibility regimes eg under IHRL, IHL and ICL, to bear in a manner that generates a (re)statement of the definition of unlawful transfers that aim to realign domestic licensing practice with the necessary policy preferences of arms export control law. A question that is central to this endeavor is whether and how domestic risk assessments for transfers can better account for the legal implications of transfers under the very international rules that inform and remain coapplicable to the ATT – eg IHRL, IHL, ICL, or the law of (third) state responsibility (eg  Article 41(2) of the International Law Commission’s Draft Articles on State Responsibility applicable to ‘serious breaches of peremptory norms’ including ‘intransgressible IHL rules’ per ICJ Nuclear Weapons).

The aim of the inquiry into arms export control laws undertaken by GLAN and its partners is to interrogate the both international and domestic arms transfer laws with a focus on the revelations of the swell of relevant practice in the Yemen context. The highly concerning policy implications of such transfers has not always meant that such transfers were considered unlawful and that domestic licensing regimes could be effectively challenged to abort them. Challenges before domestic and international legal fora – including transnational legal processes to bring domestic regulatory authorities to challenge corporate contracts, revenues and ‘deceptive commercial (marketing) practices’ – could certainly contribute to shoring-up of the more hard-edged legal consequences of unlawful transfers for supplying states and businesses that support and sustain abject forms of human suffering. An understanding of the policy implications and human consequences of seemingly innocuous bureaucratic licensing decisions is necessary to ground state and corporate actors’ responsibilities and realign these with the expected policy preferences and as yet incomplete function of international arms export control law.