Germany: Arms Exports or the “Endless Dilemma” of the Greens (2/3), a Three-Act Play -- Second Act: Complication
(Source: Defense-Aerospace.com; posted Oct. 26, 2022)
By Alistair Davidson
On October 13, Mr. Habeck’s deputy, Sven Giegold, unveiled the position paper on arms export controls to his government colleagues and to the press (in an interview with the Süddeutsche Zeitung): this was the second step towards an arms export law, after the hearings which took place during the spring and before a more formal legal framework for arms export control.
Coincidence or not, the position-paper came just after the decision of the Federal Security Council to authorize some minor exports to forbidden countries, and just before the meeting in Bonn of all the Federal delegates of the Greens (13th-16th October).
As is the case in many plays, complications come from everywhere.
The first one to come was the approval by the Government - with the participation of Habeck and Foreign Minister Baerbock - of three minor licenses to European partners of Germany for embarrassing end-users: €36.1 million license for IRIS-T air-to-air missiles on Saudi Typhoons, €1.3 million for spare & parts for the fleet of the UAE’s MRTT fleet and a last one for wareads for the RAM system to protect the future Egyptian Meko corvettes.
If the timing was right for Mr. Scholz’s trip to the Gulf (24-26th September), it was a very wrong one for the Greens, just a few days before the 48th days of their Federal delegates in Bonn (13-16th October).
Bad timing but also a bad defence: for the two Green Ministers, it is about the fulfilment of old contracts in the course of a joint project that were approved and closed by previous governments. Germany is bound by it. Otherwise, damages would be due…
The second one was the public quarrel between the defence (Mrs. Lambrecht) and Economy ministries (Mr. Habeck and Giegold). Mr. Habeck had recently rejected her demands to ease defence exports from European joint projects. Germany has "an obligation to deliver," said Lambrecht in her speech in front of the DGAP (12th September): if France, Italy or Spain consider deliveries to third countries to be justifiable, Germany cannot prevent them.
But Federal Minister of Economics Habeck wants to make the rules for arms exports more restrictive and, in all cases, to be reduced to a case-by-case decision.
The final complication comes from European partners. With a pan-European, uniform regulation in sight, Habeck and Giegold want to prevent the main production for European joint weapons projects from moving to the country whose criteria for arms exports are interpreted most flexibly.
This concern is also in the interest of the German defence industry, which fears competitive disadvantages and, ultimately, being side-lined: ‘German-Free’ is as popular in third countries as ‘American-free’.
European partners such as Italy, Spain and UK have repeatedly complained that joint projects cannot be financed if the weapon systems cannot also be sold to third countries, and signed contracts cannot be honoured if Germany refuses export. But they all know an EU regulation could prove to be worse than a German ban.
Scene two: Habeck’s position paper
The key points for an arms export control law (or ‘Eckpunkte für ein Gesetz zu Rüstungsexportkontrollen’) were partly unveiled by Mr. Sven Giegold on October 13: these were the cornerstones that still have to be agreed in the federal government before a draft law can be drawn up and submitted to the Parliament to be discussed and voted.
The general principle is, no surprise, the case-by-case principle (“Einzelfallentscheidung”): for Western countries, arms exports are “allowed in principle” (“grundsätzlich nicht beschränkt”), while for third-party countries they are by definition “restrictive, taking into account foreign and security policy considerations” (“unter Berücksichtigung außen- und sicherheitspolitischer Erwägungen hingegen restriktiv gehandhabt”).
Exceptions are also possible “for particular reasons of foreign and security policy or with regard to respect for human rights” (“aus besonderen außen- und sicherheitspolitischen Gründen oder im Hinblick auf die Achtung der Menschenrechte möglich”).
The current wording leaves room for considerable ambiguity on the choice of "interests" from which, one guesses, that the government does not want to leave: "the export of weapons of war is only authorized if particular interests of foreign policy and safety argue in favour of the granting of a licence” (“Der Export von Kriegswaffen werde nur genehmigt, wenn besondere außen- und sicherheitspolitische Interessen für eine zu erteilende Genehmigung sprechen”).
Formulated in this way, the text does not provide enough clarity about the so-called ‘foreign and security policy considerations’: does the final version bring more precision on this provision which recalls the national security clause, often used in the past to go through? What about arms deliveries to Turkey, to Algeria, Indonesia, the Philippines, not to mention Egypt?
--The compass is the human rights: export licenses should not be issued if there is “reasonable suspicion” that the goods to be exported are being used for "internal repression, continuous and systematic violations of human rights and gender-based violence or specific to minorities or in relation to the deployment of child soldiers”
--Applications from countries whose human rights situation is deemed "tensed" should be able to be rejected in the event of continuous and systematic human rights violations; it means that the “background” of the applicant is taken into account, beyond the use of weapons in consideration. If the applicant has a bad track-record in human rights, it should not be considered as ‘a good buyer’. In the case of illegal exports, manufacturers should no longer be protected from civil lawsuits.
This principle is the cornerstone of all previous papers: the Bill drafted by Jürgen Trittin, the first of its kind on the 25th of April 2018, Neumann’s report and regulation (September 2020 and October 2021) and the Coalition contract (page 116, 24th November).
--Transparency. The Ministry of Economics wants to increase the transparency of granted permits by informing the Bundestag about all deliveries of defence items and war weapons to third countries that do not belong to NATO or the EU. South Korea, Singapore, Chile and Uruguay are to be given the same status as NATO and EU countries. Habeck is also considering making license data for arms exports publicly available in a database. Approval procedures are likely to be simplified and include stricter anti-corruption guidelines.
This is the circle of traditional German customers (countries that bought since decades Leopard MBTs and U-Boats); This is also the export map imposed by all the Governments at power since 2013. The data for the first nine months of 2022 establishes that 73% of the export license’s authorizations were granted for this specific list of countries; the 2021 annual report was exceptional due to the passage (by force and discreetly) of the Egyptian package (€4.34 billions).
--post-shipment controls are to be extended: the Federal government will reinforce its checks whether any reservations in export permits are being complied with by the recipient country. Violations will have an impact on future approvals. In addition, controls should be possible for all armaments and weapons of war and, in justified cases, also in EU and NATO countries.
--Suspicion is everywhere: even, in justified cases, in EU & NATO countries.
--Export licenses would therefore also depend on whether recipient countries consent to such controls.
--Graduated sanctions should be applied.
--EU regulations. Federal Minister of Economy wants to ensure that the countries involved in co-operation projects decide on exports together with a majority and no longer individually according to the respective interpretation of the criteria agreed in the EU. He is aiming for a clear-cut European regulation for arms exports.
**The Federal government is drafted a position-paper which will be submitted to the other state members;
**The new idea – still in the air - is to give to each European partner the voting rights corresponding to its weight in the joint project and, in the case of an export, to vote to see whether there is a majority to go for export or not…
**Self-defence: this basic principle will be clearly recognised and limited. “The Federal Government takes into account the situation and the positioning of the Federal Republic in the conflict, existing alliance obligations and security partnerships, other foreign policy & security issues and the existence of a threat or use of force contrary to international law against the beneficiary State”.
**This criterion will be also applied only on a case-by-case basis, and being carefully documented.
**But it could be applied to sensitive cases such as countries aggressed by Iran (Saudi Arabia and UAE), a case that some Greens (including Mrs. Neumann) have, so they said, recently discovered. Does the full understanding of a complex situation unlock some decisions?
Scene three: a clever compromise, but too or not clever enough?
In conclusion, all temporary (we shall and should wait for the version sent to the Bundestag), this document is a clever political compromise:
--It formalizes a number of basic principles that are already applied (case by case; post-shipment control; selective opening according to widely shared criteria already recalled in the 2008 EU regulation: full, in principle in Western countries and restrictive elsewhere).
--It confirms that the Federal government will make of the harmonization of national export control systems a European hobbyhorse by taking the initiative on its own to draft a project.
--It maintains open some doors, on exceptional basis; without saying it, it is about the survival of the "national security clause" which, in the past, served to justify the contract of Lürssen in Arabia (2013), of Rheinmetall in Indonesia and currently serves for (Naval) sales to Turkey and general to Algeria.
--It recognizes under some conditions (alliance, partnerships, existence of threats) the principle of self-defence; used for Ukraine, it could be extended to countries under Iranian threats (Gulf)…
Striking the balance between ethics and politic, morale and trade, national interest and European solidarity is somewhat impossible. The compromise proposed by Mr. Habeck is clever: will it be clever enough to overturn all the oppositions? In other words, are all monsters out?
Scene four: are “monsters” really out?
The main characteristic of this paper is to put the “monsters” out, i.e, all radical ideas that have been for years pushed by the left wing of the Greens and the SPD (not to mention die Linke, strongly opposed to any arms export but not part of the current coalition).
What are these “monsters”? If we take all the papers drafted by radicals, we have a quite detailed list of them:
--The control of after-sales service contracts and exports through German subsidiaries located abroad, which could circumvent federal decisions.
--The deletion of article 11 (2) of the KWGK law which delegates to the Ministry of Economy the management of arms exports; the Greens demand that decisions rest with the full Federal Cabinet and no longer be the sole prerogative of the Federal Security Council.
--The justification in a public debate in the Bundestag on the export of arms to third countries.
--A right of collective action, which allows qualified and recognized non-governmental organizations to have the legality of exports checked by specialized administrative jurisdictions.
--Transparency guaranteed by the publication of quarterly data, in particular total exports and no longer just war weapons (with the adaptation of customs statistics for this purpose).
--The prohibition of licenses intended to allow the installation of arms production in third countries.
--The prohibition of Hermes guarantees for arms exports.
If the position-paper does not include them, does it mean that they will totally disappear from the future law?