Arms sales rules working on paper – just not in practice

Anna Stavrianakis is Senior Lecturer in International Relations at the University of Sussex and author of the 2010 book, “Taking Aim at the Arms Trade: NGOs, Global Civil Society and the World Military Order”

Once again, European arms exports are contributing to crisis in the Middle East, and war in the Middle East is creating a crisis of European public policy. In August 1990, Iraq invaded Kuwait using weapons supplied by all five permanent members of the UN Security Council as well as a host of other weapons producers. Today, European-supplied weapons are playing an important role alongside those of the US and Russia, not only in the Saudi-led war in Yemen, but also in Syria.

One of the outcomes of the 1990 scandal over arms to Iraq was the agreement of the 1998 EU Code of Conduct on Arms Exports – a multilateral regime that bound European suppliers, politically at least, to respect regional stability and human rights when assessing their arms exports. Since 2008, those rules have been legally binding in the form of a Common Position. EU arms exports are governed by the national implementation of the Common Position, which requires countries to refuse to authorise arms exports if there is a clear risk they may be used to violate international humanitarian law, for internal repression, or be diverted to unauthorised end-users. Institutional mechanisms to promote information-sharing and circulate notifications of denials of arms exports are meant to prevent a race to the bottom, as seen in the 1990s. But there is now a significant body of thought that sees these commitments as having more rhetorical power than regulatory purchase. EU member states regularly violate the spirit, if not the letter, of their commitments. Nonetheless, common EU rules have created a yardstick by which member states can seek to improve and harmonise their practices, and parliamentarians and activists can attempt to hold states to account.

The EU’s common rules have been thrown into crisis by controversy and disagreement over the supply of weapons to Saudi Arabia and other Middle Eastern states. Although they lag a considerable way behind the United States as the most ardent supporter of the Saudi regime, Britain and France have increased arms exports exponentially during the war in Yemen, despite widespread allegations of war crimes committed by the Saudi-led coalition. Taking a more restrictive approach are the Netherlands, Denmark, Sweden, Germany and Flanders, which licences its own arms exports from inside Belgium. The strongest position has come from the Netherlands, whose Parliament passed a bill in March calling for the government to halt arms exports to Saudi Arabia, citing violations of international humanitarian law in the war in Yemen. This move gives practical effect to the European Parliament’s call for an embargo, made in February.

Arms exports to Saudi Arabia are playing a role in another Middle Eastern crisis as well, causing a split between EU member states and a problem for common European controls. Arms supplies to
Saudi Arabia – as well as to Jordan, the United Arab Emirates and Turkey – are being “re-transferred” to armed groups fighting in Syria. This not only includes the Free Syrian Army units, whom
Western states support, but groups fighting for the Assad regime and Islamist groups such as Ansar al-Sham and Jabhat al-Nusra. Between May 2011 and May 2013, there was an EU embargo
on arms exports to Syria, including both the regime and rebel groups, but France and the UK pushed to lift it. Their aim was to supply rebels – in line with their support, alongside the US, of
groups fighting both the Assad regime and, more recently, against Daesh. Other EU countries such as Germany, Austria, the Czech Republic, Finland, Sweden and the Netherlands were reluctant to lift the embargo, in part because of the risk of escalation, and in part due to the potential for diversion that arms supplies to rebel groups could cause.

The divisions in the EU have now been exacerbated by revelations of a significant increase in arms exports from Balkan and Central European states – themselves EU members or candidate countries, and thus bound by the EU Common Position. Research by the Balkan Investigative Reporting Network and the Organised Crime and Corruption Reporting Project has found that weapons worth almost €1.2bn have been licensed by states such as Bulgaria, Croatia and Serbia to the Middle East since winter 2012. Almost 70% of them went to Saudi Arabia. There is considerable evidence that these weapons have been re-transferred to armed groups operating in Syria and Yemen, and are contributing to human rights violations in the course of the wars in those countries. The common European controls, designed to prevent another race to the bottom and human catastrophe, are in disarray.

The impact of Brexit on European arms export controls will depend on the level and type of British access to the single market. Institutionally, some things will be more challenging once the UK
withdraws from the EU and is no longer party to the harmonisation and information-sharing mechanisms that have been painstakingly built. And there are a host of technical regulations at the EU level – such as the Dual-Use Regulation, Firearms Directive, regulation on torture goods, and the Intra-Community Transfer Directive – that will be very difficult to unpick and rework from outside the EU. On the other hand, the UK is already party to the Arms Trade Treaty, a legally-binding treaty that sets common international standards for the regulation of arms exports and contains many similar restrictions to the EU Common Position. In this sense, there is no reason why UK standards should suddenly drop, especially given the UK’s vocal leadership in the negotiation of both the EU regime and the Arms Trade Treaty, and its claim that its national standards exceed them.

But the UK, while a prominent proponent of supposedly progressive standards, is also a violator of said standards. Its sales to Saudi Arabia since the war in Yemen began are the most recent and notable example of the way arms exports repeatedly make cracks in the façade of a European public policy based on values of liberal democracy and human rights. While over-inflated economic arguments about the benefits of arms exports to the UK economy could encourage even greater sales, such a move would need to be accompanied by the abandonment of the rhetoric of restraint or common European policy.