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19 April 2023

Strategic litigation and the arms trade

ATLM Launch Event

The Arms Trade Litigation Monitor (ATLM) is a product of the joint work of a community of practitioners and advocates who have for many years sought to challenge and restrain the arms trade through legal means. The Monitor was co-created by Saferworld and EJC, with the support of ICJ, to document the recent proliferation of legal challenges launched in response to decisions by numerous authorities to supply arms to those breaching international human rights and humanitarian law. At the time of drafting (late 2023), almost all of the cases documented in the ATLM focus on the relationship between certain arms transfers and the armed conflict and humanitarian crisis in Yemen. Civil society campaigners and experts have argued that due to the egregious conduct of all combatants in the war in Yemen, routinely supplying arms, particularly at such high risk of being used in that conflict, is in breach of national laws, as well as the EU Common Position criteria and the Arms Trade Treaty (ATT) where these apply. When deciding whether to supply arms to the combatants, states are evidently failing to either adequately undertake a risk analysis or to come to a rational conclusion where an adequate risk assessment has been carried out. 

While the situation in Yemen has changed over the last year, with efforts to reach a ceasefire and a halt to airstrikes by the Saudi military coalition, the situation remains tense on-the-ground with an ongoing risk of re-ignition of direct mass violence. 

There is also a need to ensure that those who supported the war, and the consequent violations, are held accountable for their actions. This is not only to ensure that justice is served for the wrongs done, but to reduce the chance of this happening again in other wars and other contexts elsewhere.  Legal processes such as those considered by the ATLM are a crucial way of doing so.

Other attempts to use the courts to challenge government decisions about arms transfers, though rare, have also occurred beyond the relative proliferation of cases relating to the Yemen war. In 2002, civil society tried to challenge arms transfers to Nepal before Belgian courts but were denied standing. A further legal challenge was initiated in 2021 in the Netherlands in relation to arms transfers to Egypt and their misuse there.

Many barriers remain with regards to access to legal pathways to challenge states’ arms export decisions. Standing remains an issue in many jurisdictions, e.g. in Germany, where standing is only granted to those who are direct victims of the arms exported or to those negatively affected by decisions to deny export licences, such as the arms manufacturers. Thus, this excludes civil society in the country of export from leading such challenges. 

Before even gaining standing, most potential challengers struggle to obtain sufficient information to launch timely and effective challenges; lack of transparency is a major obstacle to litigation efforts. External observers repeatedly struggle to access information ahead of licensing decisions being made or enough information to adequately challenge these decisions. In the Netherlands, for example, the government is arguing information that was accessible between  2016 and 2018 now falls under the secrecy provisions of the European Customs Code. However, the right to information is fundamental and there are ongoing litigation efforts aimed at improving transparency, for instance in Spain

Creative efforts continue to be launched to overcome such challenges. In Belgium, civil society actors used the Aarhus Convention, relating to environmental matters, to access information about military cargo on board the ships that would not be available through general Freedom of Information requests.  These crucial efforts revealed that Bahri (a Saudi state-owned shipping company) vessels were transiting without a licence through Antwerp, Belgium and prevented them from passing through Belgian ports subsequently. 

There are as yet unexplored routes that may present opportunities to seek legal accountability. The EU Charter of Fundamental Rights , for example, could be used to link the issue of arms exports to the right to life. There are also links between the arms sector and human rights due diligence, including with regards to corporate accountability. For instance, ongoing discussions at the EU level raise the prospect of the Corporate Sustainability Due Diligence Directive (CSDDD) being used to hold private entities accountable for their role in arms transfers where these violate international laws and regulations. Outside the EU, the UN Guiding Principles on Business and Human Rights (welcomed in August 2023 by the ninth Conference of States Parties to the ATT) and the OECD Due Diligence Guidance for Responsible Business Conduct may also have implications for the arms sector, as might the UN Working Group on Business and Human Rights’ information note on responsible business conduct in the arms sector.  

The ATLM was created to survey the efforts to challenge certain arms exports through strategic litigation. Since in many cases arms supplies continue to condition and fuel violations of international law, and the laws on arms export control offer limited means for such regulation, the possibility for creative legal interventions is vital. By documenting and providing analysis of legal challenges to international arms transfers, the ATLM website aims to facilitate the exchange of knowledge and teachings to support further legal interventions that challenge problematic arms transfers, with the potential to increase the accountability of governments and support survivors’ efforts to seek justice.