To be ethical or not? The German Government faces this dilemma since the outbreak of the Ukrainian conflict. Sending and selling weapon systems (from RGW90 and Strela to the air-defence system IRIS-T-SLS to Marder and Pzh2000) to Ukraine is one thing: another is to decide to draft a bill based on this exceptional event.
On page 146, the coalition contract (24th November, 2021) stated that the new coalition would pursue a restrictive, transparent, arm’s export policy, translated into a law with the target of a harmonization at the European level:
“For a restrictive arms export policy, we need more binding rules and therefore want to coordinate a corresponding European regulation on arms exports with our European partners.
"We advocate a national law on the control of arms exports.
"Our aim is to anchor the EU common position with its eight criteria as well as the political principles of the federal government for the export of weapons of war and other armaments, the principles of small arms and the extension of post-delivery checks in such a law.
"Exceptions can only be made in justified individual cases which must be documented in a publicly understandable manner. We will make the arms export control report transparent.
"We do not issue arms export licenses to states as long as it can be proven that they were directly involved in the war in Yemen."
As promised, the State secretary of the minister for Economy, industry and climate (BMWK), Mr. Sven Giegold, is working on a draft of the future arm’s export bill (in German: REKG or Rüstungsexportkontrollgesetz). His head of the arms export control department, Mr. Toschev is drafting a summary document on key issues (Eckpunktepapier); this ‘position paper’ will be presented before the end of the parliamentary session in the Bundestag; in a second phase, a bill will be submitted to it.
From various sources, it is confirmed that the general environment will be taken into account (public freedoms, domestic policy, regional diplomacy), and no longer just the use of exported equipment.
The German defence industry is belatedly trying to warn the coalition of the harmful consequences of an export law. It considers that the future export law will no longer allow, with rare exceptions, exports outside the EU and NATO. It warns that an even more restrictive law will no longer allow industry to participate in European cooperation. It therefore demands a European harmonization of national export regulations, before the export law is passed in Germany.
The Chancellery seems to follow a pragmatic way, along with the FDP: it stands for an ‘assistance’ to the countries being in the same situation than Ukraine today.
But there are considerable differences between the respective positions of government and the defence industry:
Formalization in law:
While the government holds a law is necessary to wants a law intends to clarify the decisions and the criteria on which they are made, in compliance with the coalition contract, the defence industry -- which has always respected the government’s instructions on exports, fears a law would limit its room to maneuver on a case-by-case basis, and mostly holds that the political practice of each government is enough.
Class actions by NGOs
The government wants to keep the possibility of having the legality of decisions reviewed, and holds that the proposed right of class-actions by NGOs is not directed against corporate entities.
Industry believes that the right to appeal should be an administrative and not a criminal procedure, that it should be placed under the imperative mandate of NGOs and no more that one of the State, and that NGOs’ right of appeal cannot apply to decisions relating to diplomacy and national security.
The government position is that a harmonisation at a European level is necessary to avoid legal loopholes, and could become a future government objective (best solution), while the defence industry believes it is necessary to avoid “German-free” or a Franco-German “de minimis” model.
The government does not foresee a general ban in the future law, while for industry this is a necessity (“überlebenswichtig”: crucial), which sees a need for a long-term directive on this issue.
The government holds that integration of the body of texts into a law will allow it to explain its decisions, and will increase commercial visibility and legal certainty for companies. It also believes that the use of the exported goods by the customer country must be taken into account as it may be different from the advertised or conventional use.
For industry, the law cannot contain liability clauses for companies and their managers. The only criterion of human rights cannot suffice to decide an export license; other defence criteria must be included, such as the protection of trade routes, infrastructure, etc. Furthermore, the case-by-case examination of this criterion is necessary to discern the very different situations from one country to another.
Finally, industry sees the need to specify what will be binding and actionable, and not just legally binding.
The government wants to publish online the export licences it grants, but not of prior licence requests from industry. It also wants a distinction between transparency and publication.
For industry, requests for marketing authorisations must remain confidential; it must also be able to comply with the legislations and regulations of each customer country. Industry could live with the publication of granted export licenses, but only if the customer country agrees.
What about the famous ‘Jemen-Klausel’?
In January, the de facto embargo on Saudi Arabia (or ‘Jemen-Klausel’) was renewed for the sixth time (and for another six months) by the Government without, however, specifying whether the provisions derogating from the law (de minimis agreements, in particular with France or bilateral agreement with UK) would be maintained or not.
Similarly, the coalition has not yet specified which other countries would be covered by this so-called ‘Yemen clause’ and the next Export law: will it be all coalition member countries or only those which are really participating? In the first case, Egypt, Jordan, Bahrain, UAE, Kuwait and Sudan are all targeted, while in the second case it is only KSA.
The Greens have always said that Yemen was just one reason among many: the nature of the regime must also be added to the reasons for a decision of embargo. Foreign Minister Annalena Baerbock’s crusade on diplomacy of values should now enter into its decisive phase.
In June, just before the end of the embargo, the Government was, again, reassessing its position on arms exports to Arabia: it will have to decide whether or not to pursue both the general ban and the specific exception of parts produced for European partners who then re-export them to Saudi Arabia.
Since the formation of the government, the government has not authorized any arms exports to Saudi Arabia, whether direct nor indirect, contrary to the previous government which, between January 2020 and June 2021, had authorized the export of €32.7 millions’ worth of German products for its European partners with the final destination of Saudi Arabia. This position was temporary, as the Export Control Act was supposed to solve this isolated problem, but as it is falling behind schedule, it must now decide.
Between the war in Yemen, which is only suspended by repeated truces that are often broken, and the very nature of the Saudi regime, which is considered as ‘brutal’ and ‘repressive’, it is hard to imagine the current government changing its attitude towards Saudi Arabia. The coalition not only backs a ban on exporting arms to conflict zones (except for defensive cases, in the face of deliberate aggression) but also includes acts of internal politics in its decision criteria.
The future law should put an end to this endless regime of on-again, off-again bans, and instead provide precise and definitive criteria for the export of military equipment.
However, only specific export projects should really determine the position of the German government in sensitive cases (Egypt, Turkey, UAE, Qatar, Morocco and perhaps Indonesia).
Which means that both German manufacturers and their European partners will find themselves in the very uncomfortable position of not knowing what they are allowed to export or not to a lot of countries…