Arms in Yemen at the European Court of Human Rights

Since the 1990s, the export of military equipment – including the issuance of end-user certificates – has been increasingly regulated, due in part to the inherently dangerous nature of weapons and their impact on people’s lives and human rights. Italian arms exports are regulated by domestic Italian law (Law 185/1999), the European Common Position on arms export controls (2008), and the Arms Trade Treaty. These legal frameworks forbid arms exports to countries where there is a clear risk that they might be used for internal repression or to commit serious violations of international humanitarian or international human rights law. The Arms Trade Treaty was ratified by Italy in April 2014.

This comprehensive legal framework was not in place in 1995, when the then European Commission of Human Rights, issued an inadmissibility decision in Tugar v. Italy. In that case, an Iraqi citizen was injured by the explosion of an Italian mine in Iraq. He claimed that Italy had violated his right to life (ECHR Article 2) by knowingly supplying mines to Iraq that would likely be used indiscriminately. Moreover, he argued Italy had failed to comply with its positive obligations under Article 2 to protect the right to life by effectively regulating arms transfers. The application was declared inadmissible on the grounds that the negative consequences of the absence of arms trade regulations were considered by the Commission to be “too remote” for Italy to be held liable. The fact that new regulations have been put in place implies that, in order to guarantee the right to life as enshrined in the ECHR, Italy is obliged to prevent their use in violation of fundamental rights as long as it has the concrete possibility to do so, i.e. at the stage of export authorisation and through the suspension and revocation mechanism, on the basis of the information available on the foreseeable use of the armament material by the end user.

In this context, the application offers the ECtHR the unprecedented opportunity to ensure that European states provide access to justice for victims of war crimes committed with European weapons.

How does the application to the ECtHR relate to the proceedings at the ICC?

The application to the ECtHR differs substantially from the communication submitted to the ICC, also documented on this site, with respect to the parties involved, the relevant legal provisions applicable, and the type of redress sought. While the ECtHR application concerns the responsibility of the Italian state for the violation of its duty to protect the right to life and to conduct effective investigations into its potential violation by public or private actors, the ICC communication deals with the criminal responsibility of state officials and corporate actors for their contribution to war crimes.