Campaigners outside Rome’s Palazza Montecitorio, July 9 2019, ‘Prodotto in Europa, bombardato in Yemen’, Disarmo
Criminal Liability for Violation of Arms Export Control Laws dismissed in Rome Court, October 2019
1. THE LATEST IN A DISSAPOINTING SERIES OF EUROPEAN DOMESTIC COURT REFUSALS
2. THE COMPLAINT
3. THE FACTS OF THE CLAIM
4. THE NATIONAL LAW RELATING TO THE CLAIM
5. THE HEARING AND CONSEQUENCE
6. ANALYSIS
7. THE NEXT FORUM
THE LATEST IN A DISSAPOINTING SERIES OF EUROPEAN DOMESTIC COURT REFUSALS
After more than a year and a half of investigations, the Italian public prosecutor’s office decided to dismiss the case against managers of an Italian weapons corporation and governmental licensing officials in October 2019[1]. The three complainants, Yemen-based NGO Mwatana for Human Rights, Italy-based Rete Disarmo and Berlin-based European Centre for Constitutional and Human Rights (ECCHR) have appealed the decision[2]. A hearing is expected in Rome in early 2020[3].
The prosecutor’s rejection marks the latest in the failure to attempt to establish the accountability of arms manufacturers and licensing authorities in criminal courts, assessing the criminal liability of those involved in the authorisation or export of weapons subsequently used to commit or facilitate violations of international human rights and humanitarian law.
It also comes at a post Arms Trade Treaty[4] and EU Common Position[5] time of disappointing or ineffective European national litigation proceedings in their respective administrative courts, challenging licensing decisions that should lead to a suspension or revocation of granted licenses.
Both the criminal and administrative approaches reflect the current appetite of European governments on interpreting the international Arms Trade Treaty, the EU Common Position on and domestic law on arms exports: lenient[6]. Intentionally, recklessly or negligibly, weapons from Europe are fuelling conflicts around the world, in particular in Yemen.
THE COMPLAINT
On 17 April 2018, Mwatana, ECCHR and Rete Disarmo, in cooperation with Osservatorio Permanente sulle Armi Leggere e le Politiche di Sicurezza e Difesa (OPAL), filed a criminal complaint against managers of RWM Italia S.p.A, (an Italian subsidiary of technology and weapons company, German Rheinmetall AG) and officials of Unita’ per le autorizzazioni dei materiali d’armamento (UAMA), the Unit for the Authorisations of Armament Materials[7], that authorises Italian arms exports. The body was established in 2012 to ensure the application of the Italian legislation[8], integrated with that of the EU[9] and of the international community[10].
Armin Papperger, CEO of Rheinmetall AG, quoted in CEO shareholder meeting in 2018 as saying ‘We do not [take] account [of] the customer’s use of our products. […] We cannot assume responsibility for the utilization of our military equipment[11]’
THE FACTS OF THE CLAIM
At 03:00am on 8 October 2016 an air strike – alleged to have been carried out by the Saudi-led military coalition – struck a civilian home in the village of Deir Al-Hajari, in the Al Hudaydah governorate, in northwest Yemen. The air strike killed a family of six, including a pregnant mother and her four children.[12]
At the site of the airstrike, bomb remnants were found, which indicate that the type of bomb used was a guided bomb of the MK80-family. Also in the rubble a suspension lug, which is needed to attach the bomb to the plane, was found. Its serial number marks clearly indicate that it was manufactured by RWM Italia S.p.A.[13]
There is no indication that the civilians who were killed were ‘collateral damage,’ (permissible only if commensurate in relation to the military advantage under customary international humanitarian law[14] and amongst others, Additional Protocol I[15] ) as a guided bomb was used and a military checkpoint that was, according to witnesses, more than 300 meters away was not targeted and has not been targeted ever since.[16]
The intentional directing of attacks against the civilian population as such, or against individual civilians not taking direct part in hostilities, amounts to war crimes.[17]
THE NATIONAL LAW RELATING TO THE CLAIM
Prior to the dismissal by the prosecutor, the complainants pursued among others things, the criminal liability of the managers and officials in Italy for;
Their complicity through gross negligence in murder and personal injury under articles 589, 590, together with 61 n.3 of the Italian Criminal Code. Depending on the results of the investigation by the public prosecutor, their actions could even amount to intentional complicity in murder and injury under articles 110, 575, and 582 of the Italian Criminal Code. In addition, the complaint requests the investigation into the alleged abuse of power by UAMA officials under article 323 (2) of the Italian Criminal Code. [18]
Francesco Vignarca from Rete Disarmo said:
“Despite the reported violations in Yemen, Italy continues to export arms to members of the Saudi-led military coalition. This is contrary to Italian law 185/1990, which prohibits arms exports ‘to countries engaged in armed conflict’. Further, it is in contrast with the binding provisions of the EU common position on arms export control and the international arms trade treaty.”[19]
THE HEARING AND CONSEQUENCE
After more than a year and a half of investigations, the Italian public prosecutor’s office decided to request a dismissal of the case. The public prosecutor does not have to publish their reasoning. The Italian constitution allows for an appeal of the prosecutor’s decision.[20] If the Italian judge, a preliminary ‘giudice delle indagini preliminari’ judge, agrees for the prosecutor to further investigate, and if eventually criminal proceedings are initiated, relatives of the deceased might be admitted as civil parties in the proceeding for compensation.[21]
The complainants in a joint statement said;
The decision by the prosecutor is incomprehensible. This case is not about mere business or improper commercial advantages, it’s about Italy’s potential responsibility for crimes committed in Yemen. The Saudi/UAE-led coalition has killed and injured thousands of civilians since 2015 in indiscriminate and disproportionate attacks in Yemen, fuelled by arms exports from Europe. If RWM Italia managers and officials of the Italian National Authority for the Authorization of Arms (UAMA) are complicit in crimes committed the Saudi-led coalition and their partners, they must be held accountable. [22]
Adding;
When looking at the offence of abuse of office (under Article 323 of the Italian Criminal Code) documents from the investigation show that still in November 2017 arms exports to Saudi/UAE-led coalition members were granted, despite the documentation of serious violations of international humanitarian law and grave human rights abuses committed by the Saudi/UAE-led coalition. The documents show that the decision-making process carried out by the UAMA was not in conformity with Italian Law, the EU Common Position on arms exports and the Arms Trade Treaty.
The prosecutor confirmed that the RWM Italia suspension lug found at the scene of the Deir Al-Hajari attack may have been exported in November 2015, at which point UN bodies, international NGOs and Yemeni organizations had documented repeated Saudi/UAE-led coalition violations.
The prosecutor insufficiently examined whether the exports by RWM Italia and their licensing amount to criminal conduct on the side of RWM Italia or the UAMA. [23]
ANALYSIS
The prosecutor’s rejection marks the latest in the failure to attempt to establish the accountability of arms manufacturers and licensing authorities in criminal courts, assessing the criminal liability of those involved in the authorisation or export of weapons subsequently used to commit or facilitate violations of international human rights and humanitarian law. The case depends on Italian prosecutorial discretion and is a political case targeting the defence industry that regularly hides behind potentially illegitimate government authorisations.
Distinguished from the Heckler & Kock[24] case, where the proceedings focused only on criminal liability for violations of export control laws[25], this case additionally carries the charge of criminal liability in the form of complicity (aiding and abetting) the crimes committed with the illegally exported weapons. This additional charge may allow those directly affected to be admitted as civil parties[26] in the proceedings, allowing for compensation.
As Italy has not transposed the Rome Statute[27] into domestic legislation, this will limit the scope to only national criminal prosecutions, and not to pursue a war crimes charge triable at the International Criminal Court (ICC).
The claimants will go before a judge in early 2020 to argue for prosecution. The judge has an option to dismiss entirely, push for further prosecution or to dismiss prosecution and indict on the current evidence. It is uncertain whether this piece of litigation will make it to an Italian court, but despite some other disappointing national rulings; French Court of Appeal denying jurisdiction as the licensing decision is inherently linked to foreign policy[28] (Action Sécurité Éthique Républicaine (ASER) v. Premier ministre de France), Dutch, Spanish and German Courts rejecting claims based on legal standing[29] (NJCM, PAX and Stop Wapenhandel v. Staat der Nederlanden; Asociacion de Familiares de Presos y Detenidos Saharauis et al. v. Ministerio de Industria, Comercio y Turismo; Faisal bin Ali Jaber and others v. the Federal Republic of Germany), momentum is being gained with the UK’s CAAT case[30] and the previously mentioned Heckler & Kock case.
THE NEXT FORUM: LEGAL RESPONSIBILITY OF CORPORATE AND POLITICAL ACTORS FROM THE EU
The regulatory landscape is itself incomplete and does not achieve its intended purpose. Ongoing criminal, administrative and the developing business and human rights angle[31] will eventually culminate in a portfolio of persuasive strategic litigation aimed at plugging the gaps in the current arms trade regime, and finding those responsible for their complicity in the trade.
On 12 December 2019, this author was at The Hague Humanity Hub when the ECCHR and its partners announced its submission to the International Criminal Court, calling upon the ICC to investigate the legal responsibility of corporate and political actors from Germany, France, Italy, Spain and the UK. The Communication focuses, among others, on Airbus Defence and Space GmbH, BAE Systems Plc., Dassault Aviation S.A., Leonardo S.p.A. and Rheinmetall AG.[32]
No one approach by itself will be a smoking gun when it comes to finding a solution to regulate the illicit arms trade, to hold arms traders and government officials accountable. However, to achieve an effective control regime, new and existing cases, like this Italian case, will remind governments and corporate actors alike what their responsibility are under existing legislation.[33]
[1] ECCHR, ‘European Responsibility for war crimes in Yemen’ Oct 2019 https://www.ecchr.eu/en/case/european-responsibility-for-war-crimes-in-yemen/ accessed 26/02/2020
[2] Ibid
[3] Scliemann and Bryk ‘Arms Trade and Corporate Responsibility’ [2019] available at http://library.fes.de/pdf-files/iez/15850.pdf accessed 26/02/2020
[4] Arms Trade Treaty 2014
[5] European Council Common Position 2008/944/CFSP
[6] ECCHR, Case Report The legal intervention against RWM Italia S.p.A and UAMA officials 17 April 2018, available at https://www.ecchr.eu/fileadmin/Fallbeschreibungen/CaseReport_Yemen_Italy_Arms_ECCHR_Mwatana_ReteDisarmo_20180418.pdf accessed 27/02/2020
[7] Italian Government, Ministry of Foreign Affairs, ‘The National Authority – UAMA (Unita’ per le autorizzazioni dei materiali d’armamento)’ https://www.esteri.it/mae/en/ministero/struttura/uama accessed 27/02/2020
[8] Law No.185 of 9 July 1990 “New regulations on controlling the exports, imports and transit of military goods”.
[9] European Council Common Position 2008/944/CFSP
[10] Arms Trade Treaty 2014
[11] Scliemann and Bryk ‘Arms Trade and Corporate Responsibility’ [2019] pg 2 available at http://library.fes.de/pdf-files/iez/15850.pdf accessed 25/02/2020
[12] ECCHR, Case Report The legal intervention against RWM Italia S.p.A and UAMA officials 17 April 2018, available at https://www.ecchr.eu/fileadmin/Fallbeschreibungen/CaseReport_Yemen_Italy_Arms_ECCHR_Mwatana_ReteDisarmo_20180418.pdf accessed 27/02/2020
[13] Ibid
[14] ICRC Rule 14 ‘Proportionality in Attack’ in ICRC IHL Database< https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_cha_chapter4_rule14>
[15] Articles 51(5)(b), 57(2)(a)(iii) and 57(2)(b) Additional Protocol I 1977
[16] Ibid, no 13
[17] Article 8(2)(b)(iv) ICC Statute 1998
[18] Ibid, no 13
[19] Ewan MacAskill ‘Italian officials and German firm face legal action over Saudi arms sales’ in The Guardian Online, 18 April 2018 at https://www.theguardian.com/world/2018/apr/18/italian-officials-and-german-firm-face-legal-action-over-saudi-arms-sales accessed 25/02/2020
[20] Italian Ministry of Justice ‘The General Prosecution Office at the Italian Supreme Court’ 23 March 2011 at https://www.giustizia.it/giustizia/it/mg_2_1_4_2_2.wp accessed 25/02/2020
[21] Scliemann and Bryk ‘Arms Trade and Corporate Responsibility’ [2019] available at http://library.fes.de/pdf-files/iez/15850.pdf accessed 25/02/2020
[22] Mwatana for Human Rights, ‘European Responsibility for war crimes in Yemen’ https://mwatana.org/en/european-responsibility-for-war-crimes/ accessed 27/02/2020
[23] Ibid
[24] Landgericht Stuttgart Zwei Mitarbeiter von Heckler & Koch wegen illegaler Waffenexporte zu Bewährungsstrafen verurteilt available at https://landgericht-stuttgart.justiz-bw.de/pb/,Lde_DE/Startseite/Aktuelles/Urteil+im+Verfahren+gegen+Mitarbeiter+von+Heckler+_+Koch?QUERYSTRING=heckler accessed 27/02/2020
[25] Ibid, no 4
[26] Ibid, no 4
[27] Rome Statute 2002
[28] Ibid, no 4 at pg 30
[29] Ibid, no 4 at pg 30
[30] Campaign against Arms Trade (CAAT) v Secretary for International Trade [2019]
[31] Ibid, no 4 at pg 19
[32] ECCHR ‘Made in Europe, Bombed in Yemen’ https://www.ecchr.eu/en/case/made-in-europe-bombed-in-yemen/ accessed 27/02/2020
[33] Ibid, no 4 at pg 28
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