A lack of meaningful transparency about the reasoning and basis for arms transfer decisions, and the very limited information available on licences issued, has been a structural entry-level hurdle that has either completely barred proceedings or resulted in repeated filings in several jurisdictions.
In some jurisdictions, such as Belgium, France and South Africa, NGOs that file a claim do so without proper information on the scope and duration of arms sales and export licences. Delayed and insufficient reporting bars the initiation of legal challenges against licences until long after they are issued.
This results, for example as seen in Belgium, in the dismissal of claims as the contested licences have already been executed by the time the claimants become aware of them to be able to bring a claim.
Additionally, in the UK, the classified nature of the evidence relied on by the government in its licensing decisions has created issues of oversight and accountability. Some of the cases take place, in part, in closed proceedings thereby preventing meaningful scrutiny of court deliberations and proceedings.
Even in countries where some licensing information is made available, such as in the Netherlands, the scope of the information remains very limited and does not provide any real insight into licensing procedures, therefore still rendering the initiation of litigation let alone the possibility of a successful claim, a significant challenge.
To a certain extent, litigation against arms transfers have had an important impact in overcoming the procedural and substantive barriers posed by untransparent licensing and export practices.
For example, in the course of proceedings in Italy, the claimants have been able to obtain access to previously unknown information about government decision-making by bringing a case against the state, which could now form the evidential basis of future legal challenges.
Similarly, in Canada, court proceedings granted access to a Memorandum of Information that provided some further insight into the reasoning for the government’s decision-making.
In Spain, the impact of untransparent practices is directly under scrutiny in the courts with the claimants seeking to gain access to licensing-related documents that are presently classified under domestic law, by invoking the right to access information both under IHRL and domestic law.
Similar efforts have been thwarted in French courts, as a request to disclose all documents from the French authorities was denied by the courts and justified on the grounds of ‘secrecy’ under domestic law.