Belgium and Arms Transit

The Flemish government publishes a strict policy towards certain countries with a high risk of violations of IHL. Therefore an export or transit licence towards these countries would probably be denied. However, Vredesactie alleges that the Flemish government does not adequately control and enforce the licensing obligations in its Decree on transit. With these complaints, it appeals to the judicial authorities to do so.

Arms export controls in Belgium are primarily regulated at the regional level with distinct legislative measures on arms exports in the three respective territories of Flanders, Wallonia and Brussels Capital. In all three regions a licence is required for arms transit when transhipment occurs. The Flemish region also requires a licence for transit without transhipment, when there is a risk that such transit would be in violation of ATT Article 6. This requirement has been included, in order to fully transpose the obligations under ATT Article 6, in the Arms Trade Decree with the 2017 Decree to amend and optimise various provisions of the Arms Trade Decree of 15 June 2012 (2012 Arms Trade Decree). As a result such transit without transhipment can be prosecuted before the criminal courts if a licence has not been asked for and obtained.

Specifically, the challenges are based on Arms Trade Decree Article 8 §2/1: 

“In the following cases, an authorisation as mentioned in Article 21 is required for the transit of the goods mentioned in paragraphs 1 and 2:

…

3° the exporter, carrier, or transporter of the goods or any other party involved in the intended transit shall learn or be informed by the department designated for such purpose by the Flemish Government that:

(c) the goods are or may be intended for the commission of genocide, crimes against humanity or war crimes, as defined in the international treaties to which Belgium is a party;

(d) the transit is or may be contrary to the obligations of the Flemish Region and Belgium as a party to international treaties or as a member of international regimes in the field of non-proliferation or disarmament;

…”

The challenges also rely on ATT Article 6(3), which bars a State Party from transferring the relevant conventional arms, “if it has knowledge at the time of authorisation that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects of civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.” 

The complaints argue that under Arms Trade Decree Article 8 §2/1, the defendants are required to obtain a licence to transit defence-related materials through the Port of Antwerp, while under ATT Article 6(3), the Flemish government is obligated to not issue a transit licence for the defendants. 

The complaint further states that there is a legal obligation on the Belgian authorities not to issue a licence for the transfer of arms which may be used in the commission of war crimes, crimes against humanity, genocide, and other such serious infringements of the Geneva Conventions. The plaintiffs further argued that defence-related materials transported to Saudi Arabia, and possibly the United Arab Emirates (UAE), are likely to be used in the violations of international humanitarian law in Yemen.

Plaintiffs’ arguments 

The plaintiffs stated that several of the Bahri vessels transiting through the Port of Antwerp, Belgium were carrying ammunition and likely other defence-related goods, without obtaining the requisite licence. The plaintiffs had additional information of armoured vehicles being transported in Bahri vessels from Canada to Saudi Arabia. The senders of the ammunition and defence-related goods remain unknown. The complaint speculates that it is either the Saudi government or the consignor of the goods on board the ships. 

The complaint also states that there is a clear obligation on the Belgian authorities not to issue a licence for the transit of arms that may be used in the commission of war crimes, crimes against humanity, genocide, and other such serious infringements of the Geneva Conventions, in line with both their domestic obligations under the Arms Trade Decree and international obligations under the ATT Article 6.  

In the expectation that the defence-related material is destined for Saudi Arabia, and potentially the UAE, the plaintiffs argue that the military intervention by the Saudi-led coalition in Yemen is accompanied by large-scale violations of international humanitarian law. As such, the goods transited may be intended for use to commit these violations. Moreover, the transit of goods to these end-users would be contrary to Belgium’s obligations under ATT Article 6.  

Therefore, it can be concluded that the defendants had a legal obligation to obtain a transit licence under Arms Trade Decree Article 8 §2/1.  

Given these facts, the plaintiffs ask the court to launch an investigation into the defendants and impose on them the necessary financial penalties and prohibit them from carrying out import, export, or transit activities for the relevant defence-related goods.  

The complaint states that it must be assumed that there is a high risk that military goods exported or transited to Israel will be used for war crimes and serious violations of the Geneva Convention. Moreover, the Flemish government has a policy of not permitting the transfer, export, and transit of strategic goods (defence-related, law enforcement, or other military use materials) if the end-user is the Israeli government, the Israeli army, an Israeli defence-related company, or civilian companies using goods for military purposes.

Plaintiffs’ arguments

The plaintiffs had evidence that the ZIM vessels regularly transited through the Port of Antwerp carrying ammunition and that it could not be ruled out that other defence-related materials were also onboard at the same time. The transit of such goods requires a licence under Arms Trade Decree Article 8 §2/1. The complaint also states that there is a clear obligation on the Belgian authorities not to issue a licence for the transit of arms that may be used in the commission of war crimes, crimes against humanity, genocide, and other such serious infringements of the Geneva Conventions, in line with both their domestic obligations under the Arms Trade Decree and international obligations under ATT Article 6. 

The recipients of the transited goods remain unknown, though it could be the Israeli government or the consignor of the goods on board the ships. However, there is a high risk that the goods in transit to Israel may be intended to be used in violation of international humanitarian law. This risk is also the rationale of the licence obligation. Moreover, the Flemish government has a policy of not authorising the transfer, export, and transit of strategic goods (defence-related, law enforcement, or other military use materials) if the end-user is the Israeli government, the Israeli army, an Israeli defence-related company, or civilian companies using goods for military purposes. 

Therefore, it can be concluded that the defendants are in violation of the Arms Trade Decree.  

Given these facts, the plaintiffs ask the judicial authorities to launch an investigation into the defendants and impose on them the necessary financial penalties and prohibit them from carrying out import, export, or transit activities for the relevant defence-related goods.    

The first claim against Bahri was brought by Forum Voor Vredesactie (Vredesactie).

The second claim against ZIM Integrated Shipping Services was first brought by Vredesactie, and joined later by nine other NGOs: 11.11.11, Oxfam Belgium, Al-Haq Europe, Broederlijk Delen, De-Colonizer, Vrede, Palestina Solidariteit, Association Belgo-Palestinienne, and Intal.

If you would like to know more about this case, please get in touch with our primary contact Hans Lammerant (Vredesactie) by email.