Criminal Complaint against the UAMA and RWM Italia S.p.A

Complicity through gross negligence in murder and personal injury

Actus Reus

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.

Mens Rea

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 international humanitarian law (IHL) as well as human rights law (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.

Investigation reopened

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.

Findings

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.”

Decision

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.