The obligations of companies to implement human rights due diligence (HRdd) has reached the political agenda with the announcement of EU Commissioner Reynders to propose a binding EU framework, a range of national initiatives and the negotiation of a UN Treaty on Business and Human Rights. However, such human rights obligations by private actors are a horizontal application of obligations held by states. How are states performing their human rights due diligence and how accountable are they? Arms export licensing was originally driven by strategic concerns, but it is an important area where states have obliged themselves explicitly to conduct human rights due diligence. Common Position 2008\/944\/CFSP provides the framework in the EU.<\/span><\/p>\n The EU member states generally praise themselves about the high standards and strict controls they uphold in their arms export licensing. In their latest evaluation the member states saw no problem or need for change other than updating the Common Position 2008\/944\/CFSP to new developments like the Arms Trade Treaty. The Council welcomed \u201cMember States\u2019 renewed commitment to the legally binding Common Position\u201d. The assumption here is that the implementation of the EU Common Position, and the export criteria it contains, is unproblematic. However, several Belgian court decisions show that, when courts are given the opportunity to review arms export licences, they tend to be more critical towards the practice of their governments.<\/span><\/p>\n In Belgium the Council of State, the main administrative court, has developed a jurisprudence in which it shows a growing critical attitude towards the arms export risk assessment decision by the government. This jurisprudence has been developed over a range of legal challenges, first against export licences for Libya in 2011-2012 and later against export licences for Saudi Arabia in 2018-2019. Earlier jurisprudence did also lead to the suspension and annulation of several export licences, but was based on procedural and formal elements. The application of the criteria in the arms export decree, made by the regional government, was not as such evaluated. This left open the possibility that the Walloon government could get off the hook by merely fulfilling all formal requirements and adding an explicit evaluation of the criteria to its licensing decision. In its recent arrests in 2020 the Council of State dropped its reluctance to evaluate how the government made use of the criteria of the Common Position, which have been transposed in the regional arms export decrees.<\/span><\/p>\n Early 2020 the Ligue des droits humains, CNAPD and Vredesactie challenged the new export licences for Saudi Arabia issued by the Walloon region. This concerned on the one hand direct export licences of small arms and ammunition by FN Herstal and Mecar. On the other hand, export of turrets by CMI Defence to Canada, where they are mounted on armoured vehicles with final destination Saudi Arabia.<\/span><\/p>\n In its judgment of 9 March 2020 and its later rulings of 7 August 2020 the Council of State for the first time makes an in-depth, substantive evaluation of the export licensing decision made by the Walloon regional government and its application of the Common Position criteria. The judgment made clear that the application of the EU Common Position was not so unproblematic as suggested in the evaluation by the member states.<\/span><\/p>\n The judgment of 9 March suspended all export licences to Saudi Arabia and caused approximately 75% of Belgian arms exports to be put on hold. The Walloon government silently retracted these export licences and renewed them partially with a new licence. When the NGOs noticed in the export statistics that exports had restarted, they contested the licences again before the Council of State. This time with mixed success. The export licences of FN Herstal were suspended, those of CMI Defence not. Mecar had not received a new licence (yet?). Because CMI Defence can continue to export, the economic impact of these decisions is much smaller. However, the suspended export licences for Saudi Arabia still represent a value between 200 and 300 million euro. All these rulings concerned \u201csuspensions in urgent procedures\u201d. A final decision will follow in the annulation procedures, which are ongoing.<\/span><\/p>\n The central element in the rulings was if the government had properly considered the risk for violations of IHL and human rights. That is the second criterion in Common Position 2008\/944\/CFSP, and more specifically the risk posed by the potential use of these arms in the war in Yemen. The exports for the Saudi National Guard were indeed considered to pose such risk. This evaluation of risk for IHL violations was based on the observations made by the UN Group of Experts on Yemen in its reports to the UN Human Rights Council, as well as the position expressed in several resolutions of the European Parliament. The statements by the Walloon government that the Saudi National Guard is a military force which is only active inside Saudi Arabia were not accepted, because the National Guard had been deployed earlier to Bahrain and the fact that the Saudi king had ordered the National Guard to participate in operations in Yemen. In case of CMI Defence the Council of State changed its position because the government argued that the sole destination of these weapons was the Royal Guard, which is not active in Yemen. This statement is doubtful, as the number of vehicles exported is much too large to have the Royal Guard as the sole destination. Further the Royal Guard has been implicated in internal repression and a range of covert operations. But due to the initial lack of information these issues were not raised in the procedure.<\/span><\/p>\n While the Common Position 2008\/944\/CFSP and the earlier Code of Conduct till now largely remained human rights window dressing, these decisions make clear how subjecting arms export licences to control by courts can make a difference. But they also show which hurdles and limitations still exist and need to be solved before this Common Position can become an effective instrument for human rights due diligence in arms exports.<\/span><\/p>\n Two important hurdles have been taken in Belgium which made these judgments possible, but still remain widely present in other EU member states. First, Common Position 2008\/944\/CFSP is considered binding on the member states as international law, but it still needs transposition into national law before courts can address how governmental decisions respect the criteria. In Belgium the criteria have been included in the regional arms export decrees, but in several EU member states such transposition is not the case. Second, NGOs need to have legal standing in order to be able to challenge export decisions. Once contested, this is now achieved in Belgium. Again, such legal standing remains limited among EU member states.<\/span><\/p>\n The third remaining hurdle concerns information. Without knowledge about the export licence it is impossible to demand a legal review by the courts. Current transparency in relation to export licences is much too weak to allow effective legal procedures. It comes very late and often the exports have already happened before a court procedure can be initiated. Freedom of information procedures prove much too weak to address this. In the Belgian case the Walloon government tries to avoid and delay any public knowledge about its arms trade licensing in order to prevent further challenges in court. Moreover, the Council of State remained reluctant to allow more access. Therefore, NGOs are obliged to formulate their objections with no access to the information available to the adverse parties and the judge. As a consequence these legal challenges remain a difficult shot in the dark, leaving the application of the criteria to a large extent unchallenged.<\/span><\/p>\n Notwithstanding this, the Belgian court judgments demonstrate the contribution a legal review by courts can provide in the implementation of Common Position 2008\/944\/CFSP. Such active control by courts is a necessity to turn it into a credible framework for human rights due diligence.<\/span><\/p>\n Hans Lammerant<\/span><\/p>\n Vredesactie<\/span><\/p>\n <\/p>\n Further reading:<\/strong><\/span><\/p>\n Common Position 2008\/944\/CFSP:\u00a0 https:\/\/eur-lex.europa.eu\/legal-content\/EN\/TXT\/?uri=CELEX%3A02008E0944-20190917<\/a><\/span><\/p>\n RvS 247259, 9 maart 2020: http:\/\/www.raadvst-consetat.be\/Arrets\/247000\/200\/247259.pdf<\/a><\/span><\/p>\n RvS 248128, 7 August 2020 (FN Herstal): http:\/\/www.raadvst-consetat.be\/Arrets\/248000\/100\/248128.pdf<\/a><\/span><\/p>\n RvS 248129, 7 August 2020 (CMI Defence): http:\/\/www.raadvst-consetat.be\/Arrets\/248000\/100\/248129.pdf<\/a><\/span><\/p>\n Control of arms export: EU Council adopts conclusions, new decision updating the EU’s common rules and a revised user’s guide: https:\/\/www.consilium.europa.eu\/en\/press\/press-releases\/2019\/09\/16\/control-of-arms-export-council-adopts-conclusions-new-decision-updating-the-eu-s-common-rules-and-an-updated-user-s-guide<\/a><\/span><\/p>\n <\/p>\n The Use of Small Arms and Light Weapons by Terrorist Organisations as a Source of Finance<\/a> <\/span>| 28 September 2020 | ICCT<\/span><\/p>\n As the final report in ICCT\u2019s series on Small Arms and Light Weapons (SALW), this report presents the key functions of SALW used by terrorist organisations as well as a synthesis of the main trends observed across the different regions in terms of acquisition, trafficking and use of SALW as a source of finance by terrorist organisations. Key topics analysed include sources and acquisition of SALW by terrorist organisations, terrorist involvement in SALW trafficking, the synergy between arms trafficking and other forms of trafficking, and the vulnerability of fragile environments.<\/span><\/p>\n Cluster Munitions Used in Nagorno-Karabakh<\/a> | 23 October 2020 | HRW<\/span><\/p>\n Azerbaijan has repeatedly used widely banned cluster munitions in residential areas in Nagorno-Karabakh, Human Rights Watch said today. During an on-site investigation in Nagorno-Karabakh in October 2020, Human Rights Watch documented four incidents in which Azerbaijan used cluster munitions.<\/span><\/p>\n Without accountability: human rights situation in Yemen 2019 <\/a>| 19 October 2020 | Mwatana for Human Rights<\/span><\/p>\n In this annual report, Mwatana for Human Rights provides an extensive review of particular violations that occurred and the overall human rights situation in Yemen during 2019. Mwatana, whose work covers all Yemeni governorates except Socotra, has documented\u2014through fact-finding, evidence examination, and detailed research\u2014hundreds of incidents in 2019 alone that appear to violate international humanitarian law and international human rights law, some of which may amount to war crimes. The report presents some incidents as case studies, highlighting different types of abuse committed by the warring parties.<\/span><\/p>\n The United States Can’t Ignore Turkey’s War on Syrian Women<\/a> | 1 October 2020 | The National Interest<\/span><\/p>\n In cities where Syrian Kurdish female fighters won some of their first victories against dictators and terrorists, women now face \u201ca pervasive climate of fear which in effect confined them to their homes\u201d at the hands of Turkish-backed armed groups, a new report from the United Nations Commission of Inquiry on Syria has found.<\/span><\/p>\n Trump Sued Over U.S. Sanctions on War Crimes Investigation (1)<\/a> | 1 October 2020 | Bloomberg Law<\/span><\/p>\n Open Society Justice Initiative v. Trump, 20-cv-08121<\/a>, Southern District Court of New York<\/span><\/p>\n A group of law professors sued to block President Donald Trump\u2019s order sanctioning the International Criminal Court over its investigation of possible war crimes committed by the U.S. military in Afghanistan.<\/span><\/p>\n UN Group of Eminent International and Regional Experts on Yemen presents their third report to the Human Rights Council: A Pandemic of Impunity\u00a0in a Tortured Land\u00a0<\/span><\/a>urging an end to impunity, in a conflict with no clean hands, and the referral by the UN Security Council of the situation in Yemen to the International Criminal Court<\/span> | 29 September 2020 | UN Group of Eminent International and Regional Experts on Yemen | UN OHCHR<\/span><\/p>\n In its third report, officially presented to the Human Rights Council today, the Group of Eminent International and Regional Experts on Yemen detailed scores of serious violations of international human rights law and international humanitarian law. These include airstrikes that fail to abide by principles of distinction, proportionality and\/or precaution, indiscriminate attacks using mortar shelling, recruitment and use of child soldiers, and unlawful killings at checkpoints. Other violations include the use of torture, including sexual violence in detention, denial of fair trial rights, the targeting of marginalized communities and the impeding of humanitarian operations, having a devastating effect of the ordinary lives of those in Yemen. The Group also denounced the endemic impunity for those violations that fuels more abuses.<\/span><\/p>\n Yemen: Evidence of potential war crime by Saudi coalition<\/a> | 28 September 2020 | Sky News<\/span><\/p>\n A Sky News investigation has discovered evidence of a recent potential war crime in northern Yemen by the Saudi-led coalition, which is backed by the US and Britain.<\/span><\/p>\n UK Seeks to Stop Justice for War Crimes<\/a> | 23 September 2020 | HRW<\/span><\/p>\n The British government is preparing to break the law again \u2013 this time on torture<\/a> | 22 September 2020 | Shami Chakrabarti | The Guardian<\/span><\/p>\n The rule of law means that those responsible for the worst crimes should be promptly and fairly prosecuted. Yet the UK government is seeking parliament\u2019s approval of a law \u2013 the Overseas Operations Bill \u2013 that would make it nearly impossible to prosecute British soldiers for torture and other war crimes committed overseas. With this bill the government shows contempt for the rule of law, violates the UK\u2019s international commitments to prosecute the worst crimes, and risks creating impunity for grave abuse. <\/span><\/p>\n Human Rights Council: Help bridge Yemen’s ‘acute accountability gap’<\/a> | 22 September 2020 | Pax for Peace<\/span><\/p>\n States should help pave the way towards credible accountability and redress for the people of Yemen by renewing and strengthening international investigations into war crimes, other serious violations of international humanitarian law, and grave human rights abuses during this 45th Session of the UN Human Rights Council), 24 organizations said today.<\/span><\/p>\n Rape, ethnic cleansing and looting: UN reveals Turkey’s crimes in Syria<\/a> | 19 September 2020 | The Jerusalem Post<\/span><\/p>\n The abuses have been directed against women and children, and primarily target minorities such as Yazidis, Kurds and Christians.<\/span><\/p>\n Turkey rejects U.N human rights violation claims in Syria<\/a> | 18 September 2020 | Reuters<\/span><\/p>\n Turkey rejected on Friday the human rights violations claims in northern Syria laid out in a report by the United Nations Commission of Inquiry and following criticism.<\/span><\/p>\n U.S. blacklists ICC prosecutor over Afghanistan war crimes probe<\/a> | 15 September 2020 | Reuters<\/span><\/p>\n The United States on Wednesday imposed sanctions on International Criminal Court prosecutor Fatou Bensouda, Secretary of State Mike Pompeo said, over her investigation into whether American forces committed war crimes in Afghanistan.<\/span><\/p>\n U.N. Accuses Ankara of Transferring Syrian Nationals to Turkey for Trial<\/a> | 15 September 2020 | The Wall Street Journal<\/span><\/p>\n Dozens of Syrian nationals have been transferred to Turkey for trial since Ankara\u2019s invasion of Syria last year, according to relatives of those deported and a United Nations report published Tuesday that details alleged abuses in areas under Turkish control.<\/span><\/p>\n U.N. war crimes experts urge Turkey to rein in rebels in Syria<\/a> | 15 September 2020 | Reuters<\/span><\/p>\n Turkey must rein in Syrian rebels it supports in northern Syria who may have carried out kidnappings, torture and looting of civilian property, United Nations war crimes investigators said on Tuesday.<\/span><\/p>\n War Crime Risk Grows for U.S. Over Saudi Strikes in Yemen<\/a> | 14 September 2020 | The New York Times<\/span><\/p>\n State Department officials have raised alarms about the legal risk in aiding airstrikes that kill civilians. The Trump administration recently suppressed findings as it sold more weapons to Gulf nations.<\/span><\/p>\n Trump joins the world\u2019s worst human rights violators in waging war on the ICC<\/a> | 14 September 2020 | The Washington Post<\/span><\/p>\n President Trump refuses to confront Vladimir Putin over Russia\u2019s alleged bounties on U.S. troops in Afghanistan, clashes with U.S. forces in Syria, the imprisonment of two Marine Corps veterans, the poisoning of a prominent opposition leader, threats to intervene in Belarus, and attacks on the U.S. elections. The Trump administration appears to be much more exercised about the actions of two of Africa\u2019s most prominent human rights lawyers who are seeking to uphold the rule of law.<\/span><\/p>\n Report of the Independent Expert on the situation of human rights in the Sudan – Comments by the State<\/a>(A\/HRC\/45\/53\/Add.1) | 12 September 2020 | UN Human Rights Council | ReliefWeb<\/span><\/p>\n The Sudan thanks the Independent Expert on the situation of human rights in the Sudan for availing the opportunity to comment on the observations and findings of the draft report which was received by the Sudan\u2019s Permanent Mission in Geneva as an attachment to his note verbal dated 1st of July 2020, and in which he welcomes receiving the response of the Sudanese authorities by 16 July 2020.<\/span><\/p>\n U.N. report calls for alleged war crimes in Yemen to be referred to International Criminal <\/a>Court<\/a> | 10 September 2020 | The Washington Post<\/span><\/p>\n A new United Nations report detailing atrocities in Yemen\u2019s \u00adcivil war calls on the U.N. Security Council to refer alleged actions by all parties in the conflict, including the Houthi rebels and U.S. ally Saudi Arabia, to the International Criminal Court for possible war crimes prosecutions.<\/span><\/p>\n Myanmar: Leaked documents reveal global business ties to military crimes<\/a> | 10 September 2020 | Amnesty International<\/span><\/p>\n An Amnesty International investigation has exposed how international businesses are linked to the financing of Myanmar\u2019s military, including many units directly responsible for crimes under international law and other human rights violations. Leaked official documents analyzed by Amnesty International reveal how Myanmar\u2019s military receives huge revenues from shares in Myanmar Economic Holdings Limited (MEHL), a secretive conglomerate whose activities include the mining, beer, tobacco, garment manufacturing and banking sectors. MEHL has partnerships with a range of local and foreign businesses including Japanese beer multinational Kirin and South Korean steel giant POSCO.<\/span><\/p>\n Libya: Armed Groups Violently Quell Protests <\/a>| 10 September 2020 | HRW<\/span><\/p>\n Armed groups in Tripoli linked with Libya\u2019s Government of National Accord (GNA) used lethal force to disperse largely peaceful anti-corruption protests in late August 2020 and arbitrarily detained, tortured, and disappeared people in the capital, Human Rights Watch said today.<\/span><\/p>\n Situation of human rights in Yemen, including violations and abuses since September 2014 <\/a>– Comprehensive report of the Group of Eminent International and Regional Experts on Yemen<\/a> (A\/HRC\/45\/6) | 9 September 2020 | UN Human Rights Council | ReliefWeb<\/span><\/p>\n After six unremitting years of armed conflict, all parties continue to show no regard for international law or the lives, dignity, and rights of people in Yemen, according to the third report of the Group of Eminent International and Regional Experts on Yemen, which has been released today.<\/span><\/p>\n The European companies that armed the Ivorian civil war<\/a> | 27 October 2020 | Mail & Guardian<\/span><\/p>\n By the beginning of 2011, the fallout from C\u00f4te d\u2019Ivoire\u2019s disputed presidential election was turning ugly. Violence had flared across the West African country since President Laurent Gbagbo rejected the result of a second-round presidential poll that was won by his rival, Alassane Ouattara, in late November 2010.<\/span><\/p>\n Arms Deal: Thales SA tries to distance itself from the financing of Zuma\u2019s lifestyle<\/a> | 26 October 2020 | Daily Maverick<\/span><\/p>\n Thales South Africa argues that it had a legitimate business partnership with Jacob Zuma\u2019s former financial adviser and convicted fraudster, Schabir Shaik, and that it was unaware that Shaik was financing the former president\u2019s lifestyle via a corrupt \u2018retainer\u2019.<\/span><\/p>\n US sanctions on Africa need an overhaul, say experts<\/a> <\/span>| 23 October 2020 | DW<\/span><\/p>\n Washington plans to lift sanctions on Sudan in return for compensation for terror victims, making the African country a pawn in the US election campaign. Experts say this approach to sanctions in Africa needs to change.<\/span><\/p>\n Illicit Possession of Arms – Government Focuses On Strict Regulation<\/a> | 21 October 2020 | Cameroon Tribune<\/span><\/p>\n Within the framework of promoting peace through a reduction in the circulation of unauthorized weapons in the hands of civilians, government has committed itself to a strict regulation on arms ownership. This was during the official launching of the Amnesty Month in Cameroon dubbed SEPTAMM2020 by External Relations Minister, Mbella Mbella, on 19 octobre 2020 in the presence of other government officials and members of the diplomatic corps.<\/span><\/p>\n Nigeria goes local in weapons production<\/a> | 21 October 2020 | CAJNews<\/span><\/p>\n Nigeria is upscaling the local production of military equipment to save scarce foreign currency in Africa\u2019s largest economy bedeviled by problems.<\/span><\/p>\n Russia supplies BRDM-2 vehicles to Central African Republic<\/a> | 19 October 2020 | DefenceWeb<\/span><\/p>\n Russia has delivered ten BRDM-2 armoured vehicles to the Central African Republic (CAR), with another ten expected to be delivered soon.<\/span><\/p>\n Ghana allocates $86 million for armoured vehicle acquisition<\/a> | 16 October 2020 | DefenceWeb<\/span><\/p>\n Ghana\u2019s Parliament approved $86,1 million in government loans to fund acquisition of 19 armoured vehicles from Israel\u2019s Elbit Land Systems.<\/span><\/p>\n Nigerian Army reveals new acquisitions<\/a> | 15 October 2020 | DefenceWeb<\/span><\/p>\n The Nigerian Army has since April this year taken delivery of new hardware including Chinese-made VT-4 main battle tanks, some South Korean-made Kia Light Tactical Vehicle (KLTV) armoured personnel carriers and SH5 self-propelled artillery units as well as locally manufactured vehicles.<\/span><\/p>\n Ammunition from US, Israel, Iran used in farmer-herder crisis in Nigeria<\/a> | 10 October 2020 | The Cable<\/span><\/p>\n Ammunition from at least 21 different nations, including the US and Israel is used in the farmer-herder crisis in Nigeria, a report by SB Morgan (SBM) Intelligence says.<\/span><\/p>\n Milkor Y4 grenade launcher project handed over to SA Army<\/a> | 9 October 2020 | DefenceWeb<\/span><\/p>\n The Department of Defence and Armscor have officially handed over Project Kamogelo to the South African Army, after Milkor successfully delivered 370 Y4 medium velocity six-shot grenade launchers under the programme.<\/span><\/p>\n Nigerian firm Erojim to make shoes, uniform for military, 2 factories coming<\/a> | 8 October 2020 | PM News<\/span><\/p>\n A Nigerian Company, Erojim Investments Ltd, which has the approval of the Buhari administration will manufacture locally all military and paramilitary garments and footwear needs of the country.<\/span><\/p>\n US maintains suspension of military assistance to Mali, says envoy<\/a> | 8 October 2020 | DefenceWeb<\/span><\/p>\n United States military assistance to the government of Mali will remain suspended despite the formation of a transitional government following the 18 August military coup, J. Peter Pham, US Special Envoy to the Sahel, said on Wednesday.<\/span><\/p>\n Turkey and UAE openly flouting UN arms embargo to fuel war in Libya<\/a> | 7 October 2020 | The Guardian<\/span><\/p>\n Turkey and the United Arab Emirates are carrying out regular and increasingly blatant violations of the UN arms embargo on Libya, fuelling a proxy war that is evading political solutions, a joint investigation by the Guardian has found.<\/span><\/p>\n Des arm\u00e9es sah\u00e9liennes face au d\u00e9fi de la transparence et de la corruption<\/a> | 5 October 2020 | ideas4development.org<\/span><\/p>\n Un meilleur contr\u00f4le d\u00e9mocratique du secteur de la d\u00e9fense et de la s\u00e9curit\u00e9 au Burkina Faso, au Mali et au Niger constitue un imp\u00e9ratif majeur dans la qu\u00eate de stabilit\u00e9 durable dans le Sahel.<\/span><\/p>\n China-Africa arms trade: Zambia largest recipient of Chinese loans for military gear, study says<\/a> | 3 October 2020 | South China Morning Post<\/span><\/p>\n Logics of Arms Deals: Multilevel Evidence from China-Zambia Relations<\/a> (pdf) | May 2020 | Johns Hopkins University <\/span><\/p>\n Zambia is the largest recipient of Chinese loans for military procurement in Africa, according to a new study.<\/span><\/p>\nGENERAL<\/span><\/h1>\n
INTERNATIONAL (HUMANITARIAN) \/ HUMAN RIGHTS LAW<\/span><\/h1>\n
AFRICA<\/span><\/h1>\n