Defence Bones of Contention (2/3): Arms export policy: is an unstable and unreliable Germany in sight?
(Source: Special to; posted Nov. 19, 2021)

By Alistair Davidson
PARIS --- German Arms export policy has proven to be one of the biggest sticking points of the Defence issues these last six years, not only into specialized and discrete German rings but also abroad, among its partners. Unstable, unreliable, the German policy has proven to be both for several years now.

As the group n°20 (Defence, foreign affairs and development) sent its conclusions to the chief negotiators of the SPD, the Greens and the Liberals, it is time to look in depth the conclusions drawn and drafted by these experts and see what consequences they should bring.

Restrictions, transparency and hypocrisy since 2013

Since 2013, Germany leads a restrictive, transparent and hypocritical policy regarding its arms exports. Restrictions have been inserted in the 2013 coalition contract (page 15).

The three guidelines of the coalition contract (November 2013 )

-- Compliance with the guidelines on the export of war material and various equipment drawn up in 2000 which remain the reference in any export decision relating to third countries ("Drittländer");

-- The relative transparency of the decisions of the Security Council (“Bundessicherheitsrat”), the only body empowered to decide on exports on a case-by-case basis: BSR decisions are forwarded to the Bundestag for information (which led to major leaks as an unavoidable consequence...); in addition, the Federal government report on arms exports from the previous year will be released before the summer recess; an interim (i.e, biannual) report on exports for the current year is also published (in Summer or in Fall depending on the year).

-- Support for naval exports since it is specified that they must continue to benefit from the cover of Euler-Hermès (Schlüsselindustries weiter stützen, page 20 & sq).

This so-called balance between very conflicting goals has led to a certain hypocrisy:

-- the contracts signed by the previous government Merkel (2009-2013) have been respected (‘pacta sunt servanda’, said Mr. Gabriel, Vice-Chancellor and Minister of Economy, SPD): Algerian, Turkey, Egypt, KSA and Indonesia have received their German tanks, military vehicles, patrol boats, shells and missiles.

-- exports through foreign subsidiaries (located in Italy, Switzerland, South Africa) of German companies have been allowed even if the end user was one of these regimes banned by Berlin.

-- Naval exports have always been greenlighted by the coalition: all that floats is authorized (alles, was schwimmt, geht’s), according to Mr. Genscher’s famous statement, even if the end user is Algeria, Saudi Arabia or Egypt.

But, during the 18th Legislature (2013-2017), some key events have led the coalition partners (CDU, CSU and SPD) to harden their positions in the coalition negotiations.

-- The war in Yemen (2015-…) which led the federal government to harden its position selectively vis-à-vis the belligerent countries (UAE and Arabia mainly); even though the UAE formally withdrew in 2019, its support and influence over the conflict continues to make him a Kriegspartei (a belligerent).

-- Pressure from the Greens who, alone or allied with Die Linke depending on the subject, have started a real parliamentary and media ‘guerrilla war’ on this theme, in particular the deputies Katja Keul (Defence), Agnieska Brugger (Defence), Omid Nouripour (Diplomacy) and Jürgen Trittin (Diplomacy, disarmament).

-- The position of the SPD, which on certain subjects has changed & hardened its position (on armed drones in particular).

The 2018 breaking year

A more restrictive coalition contract

The coalition contract of March 14th, 2018 (‘Abrüstung und restriktive Rüstungsexportpolitik’, page 148 and ‘Für eine restriktive Rüstungsexportpolitik’, page 149) marks a clear break with the 2013 coalition contract:

* The political parties openly campaigned for a restrictive policy of exports to third countries (outside the EU, NATO and assimilated to NATO members, editor's note): “Wir schränken die Rüstungsexporte für Drittländer weiter ein, die weder NATO noch EU -Mitgliedsländer sind, noch diesen gleichgestellt ”. In addition to the May 2015 decision, the parties agree to ban all exports of small arms to these countries ("Ergänzend zu den Kleinwaffen grundsätzen vom May 2015 sollen Kleinwaffen grundsätzlich nicht mehr in Drittländer exportiert werden").

* The immediate embargo on all arms sales to countries participating in the war in Yemen is recalled: "Wir werden ab sofort keine Ausfuhren an Länder genehmigen, solange diese unmittelbar am Jemen-Krieg beteiligt sind".

* Contracts signed before the coalition agreement are guaranteed. But this guarantee ("Vertrauensschutz") is only valid if the exporting companies can demonstrate from now on that the licenses granted only serve domestic needs: "Firmen erhalten Vertrauensschutz, sofern sie nachweisen, dass bereits genehmigte Lieferungen ausschließlich im Empfängerland verbleiben."

…hardened by events

The murder of Jamal Khashoggi on October 2nd, 2018 (long after, therefore, the signing of the coalition contract on March 14th, 2018) and the revelations that German industry was circumventing its embargoes through its subsidiaries established abroad (Switzerland, Italy, Australia and South-Africa mainly) led the Federal government to toughen the arms export regime.

Saudi Arabia thus became an embargoed state, first provisional and then permanent; under pressure from industrial partners of Germany (France, United Kingdom, Italy & Spain), changes to this regime have been decided, but the guidelines have themselves been considerably tightened.

-- With regard to Arabia, the regime imposed in 2018 and extended four times (November 2018 - January 2019; February - March 2019; March - September 2019, October 2019 - March 2020) have been extended for a fifth time (from 12/31/2020 to 12/31/2021, i.e. well after the last general elections of September, the 26th) to become a permanent regime, as the major condition for its lifting does not seem to be met for a long time (end of the War in Yemen).

This regime means:

-- That no new license will be examined,
-- No new export authorization will be issued,
-- That no exports will be supported by the government in the case of authorizations already given (they are not cancelled, but suspended, which de facto suspends deliveries).

-- With regard to German components integrated into sub-systems or systems produced by partner countries of Germany and then exported to Arabia and the UAE, the regime introduced in March 2020 is only extended for one year: from December 31, 2020 as of December 31, 2021:

“Die Bundesregierung wird sich in den Konsultationen gegenüber den Partnern dafür einsetzen, dass die die gemeinsam produzierten Rüstungsgüter im Jemen-Krieg nicht zum Einsatz kommen und dass während der neunmonatigen Verlängerung die-die gemeinsam produzierten (…)

“As part of the discussions with its partners, the federal government will ensure that jointly produced armaments are not used during the war in Yemen and to prevent during this period an armament resulting from these community programs is exported to Arabia. Arabia and the UAE..”.

“Den beteiligten Unternehmen wird zur Auflage gemacht, dass sie gegenüber den Vertragspartnern darauf bestehen, dass in diesem Zeitraum keine endmontierten Rüstungsgüter an Saudi-Arabien und die VAE ausgeliefert werden. ”.

“The companies concerned will be asked to insist with their contractual partners that during this period no final weapons system be exported to Saudi Arabia and the UAE”.

-- Regarding the guidelines, they were updated in July 2019 to tighten up the regime and the scope of this regime:

* Extension of the number of so-called “authoritarian” countries;
* Prohibition of sales to these same countries, even defensive systems;
* Drafting of a law (not mere guidelines or case-by-case decisions by the BSR).

The permanent basics of German Arms Export Policy

From these developments, it is possible to precisely feature the arms export policy of Germany.

On the main principles, the future coalition should not change its basic position which is based on three pillars constantly repeated in official documents:

-- The conduct of a "restrictive and responsible policy",
-- "The export of arms is not an element of German foreign policy",
-- The desire for European harmonization of the arms export policy on the basis of the restrictive German positions.

On countries or groups of countries,
-- Saudi Arabia is put under embargo: it is difficult to see the future coalition modifying the current regime which satisfies both its political milieu and its public opinion and its European partners, themselves regularly criticized for their exports to Arabia.

-- The prohibition of any authorization and license to countries involved in the Yemeni conflict.

-- The UAE and Qatar should remain under a restrictive regime, even if it is not formalized: the future of the current arrangements (de minimis agreement or German regime of March 2020) will be one of the points to watch in the future coalition contract, the Greens being opposed to this kind of derogations.

-- The so-called ‘authoritarian’ countries (whose list is not fixed but includes: Algeria, Egypt, Colombia, Thailand, Indonesia, the Philippines, Vietnam, etc.) should remain under the current state : exports limited to the only naval sector considered to be the least harmful possible for populations; the case of Turkey, banned from imports of land and air-land equipment by the current government, will have to be monitored for the naval part (U-214 kits, parts for Meko), because the Greens question it in the name of Ankara's deemed destabilizing role in many parts of the world.

-- Export to EU and NATO countries (and assimilate, i.e, Commonwealth and Japan) is considered as a priority and consequently encouraged and authorized.

2021: worse than in 2018?

After the general elections, the SPD, the Greens and the F.D.P have agreed on a document, which formed the very basis and reason of the on-going negotiations.

Published the 15th of October, the last point deals with defence and foreign affairs. On the sensitive issue of arms export policy, the text was in line with the previous guidelines: “For a restrictive arms export policy, we need binding rules and therefore wish to coordinate a corresponding European regulation on arms exports with our European partners”.

Towards a restrictive law on arms export policy?

The ’binding rules’ certainly refer to the idea of a law on arms export policy. Promised in June 2017 by Mr. Gabriel (SPD) when he was Vice-Chancellor and Minister of the Economy, who had set up in 2016 a committee to study the project, this law did not see the light of day due to the general elections of September 2017. Since then, the Greens demand it.

On a visit to the Wolgast site, affected by the embargo on Arabia, in January 2019, Katja Keul, Defence expert with the Greens, considered essential the need to have a clear legal framework, that is to say, a law on arms exports which sets clear rules and criteria: "Die Grünen setzten sich seit vielen Jahren für ein Rüstungsexportkontrollgesetz ein, mit dem man endlich klare Kriterien festlegen könne".

What content could this law have? The Greens' program, inspired in this by the motion tabled on April 25, 2018 by Mr. Jürgen Trittin , gives a first series of responses:

-- The ban on exports of arms and defence equipment to dictators, regimes flouting human rights and to war zones are prohibited (“Exporte von Waffen und Rüstungsgütern an Diktatoren, menschenrechtsverachtende Regime und in Kriegsgebiete verbieten sich.”);
-- Hermès guarantees for arms exports will not be authorized (“Hermesbürgschaften für Rüstungsexporte darf es nicht geben.”);

-- A right of collective action in the event of violations of human rights and an effective control regime over the end user (“Für Deutschland werden wir ein Rüstungsexportkontrollgesetz vorlegen und ein Verbandsklagerecht bei Verstößen gegen das neue Gesetz einführen und für eine wirksame Endverbleibskontrolle sorgen”);

-- Management by Foreign Affairs and no longer by the Ministry of the Economy. Deemed to be too protective of the Defence industry, the Greens took up Mr. Gabriel's idea on the transfer of the management of exports from the Economy to Foreign Affairs, considered more permeable to human criteria than the ministry of the Economy, considered as being too close to industrial interests.

-- A joint decision by Parliament. The Greens also believe that the Bundestag should no longer have only a right to information, but should detain a right to co-decide on export decisions. This co-decision will be accompanied by increased transparency on BSR decisions (publication of decisions?

-- Other topics could easily be included in these provisions, such as the close supervision of international investments by German companies or the sending of industrial executives abroad for technical assistance or R&T (Drucksache 19/14917 of November 8, 2019) viewed as necessary to fill the gaps in current laws ; the Greens also suggest that the Defence industry should publish: the framework of the international strategy of companies, in particular assistance for relocated production (point 1), their foreign subsidiaries (point 2) and the sending of German defence industry specialists abroad (point 3).

European harmonization as a means to reduce German shortcomings and bad conscience?

This Greens' agenda, now shared and agreed by the two other partners, is based on the Neumann report. Published in September 2020 by the European MP (from Germany and the Greens), it has paved the way to further restrictions.

-- "In order to reduce arms exports, we want to put in place a common and restrictive European Union control regime with strict rules and options for sanctions". ("Für die Reduktion von Rüstungsexporten wollen wir eine gemeinsame restriktive Rüstungsexportkontrolle der EU mit einklagbaren strengen Regeln und Sanktionsmöglichkeiten.”)

-- "Cooperation with the defence & security sector of other states in order to ensure compliance with democratic, constitutional and human rights criteria" ("Kooperationen mit dem Sicherheitssektor anderer Staaten müssen an die Einhaltung demokratischer, rechtsstaatlicher und menschenrechtlicher Kriterien geknüpft worden ”).

This European harmonization is also supposed to reduce the exports of German materials/components to European countries which then re-export them to countries that Germany bans (Saudi Arabia, UAE). The campaign already launched in Brussels by NGOs and MPs could be fostered by a new impulse from the German Cabinet itself.

In conclusion, could arms export policy lead to an unreliable Germany?

Few days before the meeting of the key negotiators (leaders from the three parties) which will decide over the main guidelines of the future coalition contract, the debate on arms export policy leads to clear consequences:

-- All the current decisions should be seen as a permanent regime.

-- New provisions shall be integrated: on foreign subsidiaries, human transfers, end of the Euler-Hermes export guarantees (probably not in Naval domain but certainly in the others) and on zones of conflict, meaning that all current exceptions would be suppressed.

-- Transparency will dominate: no more business secrets or even classification of sensitive documents as long as they are related to exports (projects, amounts, quantities…);

To be sure that these new guidelines will not be bypassed or ignored, a law shall be submitted to the Bundestag after a new Cabinet will be formed. Resistance is expected in details: the F.D.P, for example, is more open to arms exports that its two partners; the SPD is attached to the promotion of Naval construction and the Greens stick to their ultimate goal: the end of arms exports.

For Germany’s partners, including France and the UK, both being the most vulnerable to any further restriction of arms export policy of Berlin, these potential (and highly-likely) perspectives are not exactly welcome and could lead to new nervous breakdowns between Paris, London, Rome and Berlin, and certainly their MoDs and industries to accelerate the “German free” feature of their systems to avoid any dependence on German law and regulations.


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