Criminal Complaint against the UAMA and RWM Italia S.p.A
Armed Conflict in Yemen
Saudi Arabia, United Arab Emirates
The request was submitted jointly on behalf of Yemeni victims and three NGOs who called for an investigation into the individual criminal responsibility of the officials of the competent national licensing authority, UAMA, who had granted licences for the export of arms to Saudi Arabia and the UAE to Italian arms manufacturer RWM Italia S.p.A. In addition to the government licensing officials, the claimants requested a criminal investigation into the liability of the corporate executives of RWM Italia S.p.A for abuse of office, involuntary manslaughter and personal injury caused by the use of RWM products in Yemen.
The claimants relied on credible evidence from NGO Mwatana for Human Rights that a bomb used in an airstrike in Yemen, which was allegedly carried out by Coalition members and resulted in civilian deaths, involved components manufactured by RWM Italia. Quite exceptionally, at the site of the airstrike, bomb remnants were found, along with a suspension lug, both manufactured by RWM Italia S.p.A.
The claimants had requested the prosecutor to open an investigation into the crimes of involuntary manslaughter, personal injury and abuse of power, however an investigation was only opened for the latter. In October 2019, the prosecutor requested dismissal of the case, arguing that its investigation indicated no serious factual and legal grounds for proceeding. On appeal, the prosecutor was ordered to continue with the investigation and to name the UAMA officials and RWM Italia managers under investigation, in order to allow them to exercise their rights as defendants.
On 10 March 2023, following a second request of dismissal, the Judge for Preliminary Investigations ordered the proceedings to be definitively closed, deeming that the suspects were not prosecutable for lack of intent. The decision was taken despite finding UAMA to be “in violation of at least Articles 6 and 7 of the Arms Trade Treaty (ATT)” by issuing export licenses.
Event: The Arms Trade Litigation Monitor: Legal Actions Against Irresponsible Arms Trade
Francesco Vignarca discusses the criminal investigation into the liability of UAMA officials and RWM Italia S.p.A for arms exports to Saudi Arabia and the UAE.
News Article: Italy fails victims of war crimes in Yemen despite proof of violation of Arms Trade Treaty
Rete Italiana Pace e Disarmo published an article on the decision of the Judge for Preliminary Investigations in Rome concerning the criminal responsibility of Italian public officials and the CEO...
Complicity through gross negligence in murder and personal injury
On the first ground submitted by the claimants, it was argued that both sets of defendants were able to foresee that the arms could be used in the commission of war crimes (a criminal act), and were therefore grossly negligent in failing to properly consider the impact of their actions, which resulted in the presence of these arms in Yemen. Italian Criminal Code, Articles 589, 590 and 61(3)
It was also submitted that the defendants should be investigated for voluntary complicity in murder and personal injury as it was argued that through their actions the threshold of criminal intent was met.
In satisfying the mens rea of these crimes, it was submitted that the defendants were, either voluntarily or due to gross negligence, part of a chain of events that led to the airstrike and resulted in civilian deaths. The specific acts that it was argued made the respective defendants criminally liable were, first, the licensing decision by UAMA that allowed for the export of arms to Saudi Arabia and, second, the physical delivery of the weapons manufactured by RWM Italia and used in the airstrike to Saudi Arabia.
The claimants argued that the two sets of defendants had foresight that the arms would be involved in war crimes, invoking evidence of serious IHL as well as IHRL violations committed by the coalition in Yemen as contained in UN agency reports and Resolutions of European Parliament. Additionally, evidence from a shareholder meeting of RWM Italia was brought forward that indicated that the corporate defendants were aware of the risks of arms exports and the wider context of the armed conflict in Yemen.
Abuse of Power
The second ground, directed against the UAMA officials, argued that by unlawfully granting licences to RWM Italia for the export of arms to Saudi Arabia, the defendants had violated the Italian Criminal Code due to the overwhelming evidence that these arms could be involved in the commission of IHL and IHRL violations in Yemen. Italian Criminal Code, Article 323(2)
This legislation requires a public official to have acted in violation of a rule ‘that leaves no margin of discretion’, a high threshold of culpability which is hard to satisfy in this sensitive, and highly political, context.
Decision of the Prosecutor
The request was initially dismissed by the prosecutor who, after conducting an investigation, concluded that there were no serious factual and legal grounds to initiate a proceeding.
Abuse of Power
With respect to the crime of abuse of power, it was found by the Prosecutor that the export authorisation granted by UAMA was aimed at ensuring the public interest of maintaining jobs and protecting the national economy. On these grounds, he sustained that the subjective element of the crime of abuse of power should be excluded.
Complicity through gross negligence in murder and personal injury
The charges of murder and personal injury were also dismissed against both sets of defendants, however the Prosecutor did not provide a reason for this.
Accuracy of evidence
Of note, it was confirmed that the evidence introduced by the claimants indicating that RWM Italia-manufactured material had been used in the airstrike, and had been exported to Saudi Arabia and the UAE after the coalition had become involved in Yemen, was accurate.
Decision on Appeal
On appeal, the ‘Judge of Preliminary Investigations’ (GIP) ordered for the investigations to continue.
This judgement stipulated certain conditions that must be established in the reopened investigation, including for the defendants to be named and for the prosecutor to look more broadly at licences granted and denied for export to Saudi Arabia and UAE between March 2015 and December 2018, rather than just the licence to RWM Italia that allegedly allowed for the export of material used in the airstrike.
Mens rea standard
On the mens rea component, the GIP also directed the prosecutor to focus on whether each licensing official independently had the requisite mens rea, rather than seeking to establish a common criminal accord.
In the judge’s view, the profit made by the company through these exports constitute an unjust profit, and the UAMA’s argument that they were safeguarding employment levels in Italy by licensing these arms cannot justify a ‘conscious, deliberate infringement’ of rules on arms exports.
Applicability of the ATT and EU Common Position
Of additional interest, it was confirmed that the ATT and EU Common Position are directly applicable in Italy and must be considered as part of an assessment of arms transfers under Italian law.
Decision of Judge for Preliminary Investigations in Rome
It could not be proven that the directors of UAMA pursued an aim that was not in the public interest. Therefore, the Judge decided to dismiss the criminal proceedings.
The judge pointed out that “UAMA was certainly aware of the possible use of the arms sold by RWM to Saudi Arabia in the conflict in Yemen to the detriment of civilians.” The decision to continue to issue arms licences to RWM was therefore found to be “in violation of at least Article 6 and 7 of the ATT, ratified by Italy in April 2014, a binding legal instrument, establishing that a state must not authorize arms exports if it is aware of their possible use against civilian targets.”
The judge did not consider the suspects prosecutable, as it could not be proven that UAMA officials had the intent to procure a pecuniary advantage to the company. According to the judge, the public officials had complied with the formal procedures of the arms export authorization process, which she described as complex and in accordance with government policy. Since the charges against the officials of UAMA were considered ill-founded, the judge ordered the dismissal of the investigation also in relation to the manager of RWM Italia S.p.A.
08 Oct 2016
An airstrike in Deir Al-Hajari, Yemen results in the death of six civilians including four children and a pregnant women.
09 Oct 2016
Yemeni NGO Mwatana for Human Rights explore the remnants of the bomb used in the airstrike and find a suspension lug (a device used to attach the bomb to its aircraft) that had been produced by RWM Italia.
17 Apr 2018
Case enters the courts. Complaint filed to the Public Prosecutor’s Office in Rome, requesting the investigation of corporate executives of RWM Italia and senior officials from UAMA regarding their alleged individual criminal liability for the role their exports allegedly played in the airstrike and subsequent civilian harm.
18 Sep 2018
Case dismissed by the Prosecutor. Prosecutor concludes that no characterisation of mens rea is required for the abuse of power of UAMA, and there are no serious factual and legal grounds for proceedings.
22 Oct 2018
Dismissal appealed to the Judge of Preliminary Investigations. The claimants argue that the Prosecutor has failed to consider murder and personal injury charges as well as the criminal liability of the corporate executives, and failed to properly review the lawfulness of the licensing procedure.
22 Feb 2021
GIP orders for the investigation to be continued and orders the Prosecutor to request additional information from the Italian authorities and the RWM Italia.
07 Dec 2021
The prosecutor requests the dismissal of the case again, on the same legal grounds that led him to the dismissal in September 2018, and which had already been overruled by the GIP.
15 Mar 2022
The NGO complainants appeal the decision of the Prosecutor to the GIP. The appeal argues that there is sufficient evidence in the case to move directly to trial. A hearing on this second dismissal is pending.
10 Mar 2023
Judge for Preliminary Investigations rules that that it could not be proven that the main intent of the directors of UAMA was to cause unfair damage to the victims or to procure a pecuniary advantage for RWM Italia S.p.A.Read preliminary analysis of judgement here
Contact the Claimants
The criminal complaint was jointly filed by three NGOs – Mwatana for Human Rights, Rete Italiana Pace e Disarmo and the European Centre for Constitutional and Human Rights (ECCHR). The claimants were represented by Francesca Cancellaro.
If you would like to know more about this case, please get in touch with our primary contact Laura Duarte-Reyes (ECCHR) by email.