DEFENCE EXPORT PETITIONS – A POST MORTEM REVIEW
Eitay Mack
The author of this article, Eitay Mack, is an Israeli human rights lawyer based in Jerusalem, who filed the mentioned petitions with a group of Israeli human rights activists.
On June 27, 2021, the judges Alex Stein, David Mintz, and Anat Baron rejected outright a petition (case 1942/21) requesting the High Court of Justice (HCJ) to order the Director General of the Ministry of Defense to exercise his powers set forth in the Commodity and Services Supervision Order (Practice of Encryption), 1974, and stop the defence exports of Cellebrite’s system to the Investigative Committee of the Russian Federation. This includes disabling Cellebrite’s devices already available in Russia, revoking the devices’ operating licenses, and refraining from providing any services and updates that are essential for their day-to-day operation. On that occasion, the judges also decided to put an end to the petitions regarding Israel’s defense export policy.
Russia’s Investigative Committee, which serves as a key tool for the country’s internal repression and political persecution, makes massive use of Cellebrite’s forensic system called UFED, which can hack mobile phones, collect information from them and recover deleted information. In July 2020, the head of the commission of inquiry said that in the past year the system had been used to hack into 26,000 cell phones. This is despite the fact that there are embargo decisions and sanctions in place, by the United States, the European Union and the United Kingdom, as to the export of weapons and of such technologies to Russia, which also include personal sanctions against the head of the Investigative Committee and a ban on transactions with him.
Among other things, the petition was accompanied by evidence that Cellebrite’s system was used to hack into the mobile phones of Lyubov Sobol and other activists in the anti-corruption organization (FBK), headed by opposition leader Alexei Navalny, who has been poisoned and imprisoned by Putin. Lyubov Sobol was a candidate in the Duma elections (Russia’s House of Representatives), and her incrimination – with the help of Cellebrite and the Director General of the Ministry of Defense – was intended to halt her political career and undermine her ability to speak out for masses of Russian citizens who oppose Putin’s corrupt dictatorship.
This is the second petition we filed about Cellebrite activity in Russia. Following the filing of the first petition in the Tel Aviv District Court in September 2020, regarding the export of the company’s system to Russia (Case 51811-09-20), just before the deadline for filing the state’s response to the petition, a staff meeting was held at the Ministry of Defense. It was decided that the Director General of the Ministry of Defense would be the official monitoring systems of the type produced by the Cellebrite, by virtue of the Supervision of Commodities and Services Ordinance (practice of encryption), 1974. The jurisdiction was transferred to the High Court of Justice and a second petition was filed on 18.3.2021.
The US, EU and UK embargoes, the first petition and the six months’ repeated warnings from the petitioners that the UFED system is being used and / or likely to be used against opposition activists who support Navalny, seemed not to interest or particularly concern the Ministry of Defense and Cellebrite. However, the conclusive evidence of the use of the system against Sobol attached to the petition to the High Court must have embarrassed the company, and a few hours after a copy of the petition was handed to Cellebrite and journalist Oded Yaron (Haaretz) asked the company for a response, Cellebrite announced it would cease operations in Russia, and re-examine the export policy under which it operates, in a manner that will ensure its compliance with accepted international rules and regulations in matters of defence export.
Since the system had already reached many of the district units of the Investigative Committee all over Russia, we could not settle for a Cellebrite announcement which meant the company would not sign new contracts. We insisted on the legal remedy requested regarding the cessation of updates and the shutdown of the company’s devices already in Russia, as they can continue to be used for an extended period of time to incriminate opposition activists. For example, although Cellebrite has stopped exporting to the Maduro dictatorship in Venezuela, the investigation units there continues to use the company’s devices (without updates, the system may not work for new mobile phones and for some updated software and apps, but for Maduro dictatorship it still serves as an essential tool).
Exceptionally, although the petition led to a change in the export policy of the Cellebrite system to Russia, the judges Alex Stein, David Mintz and Anat Baron rejected outright the petition, on grounds that would not allow further petitions to be filed. This is the only ruling on the issue of defence exports that has not been placed under a gag order. It may have been important for the judges to convey a message to the petitioners and to the public.
In all other proceedings on the issue of defence exports (so far 11 petitions have been filed for the revocation of export licenses, besides two regarding Russia and further petitions seeking other remedies), the link between defence exports and Israel’s foreign affairs and national security has been the basis for prudent judicial scrutiny. In all previous proceedings, the judges heard the parties’ arguments and held a comprehensive and lengthy ex-parte hearing with representatives of the Ministries of Foreign Affairs and Defense. However, in this second petition about Russia, for the first time, it was determined that similar to the Temple Mount issue, the Ministry of Defense’s decisions on the issue of defence exports are not subject to judicial review, except for highly special cases. The judges ruled that “The discretion afforded to state authorities is particularly broad. In these matters this court does not intervene except for very special cases such as officials exceeding their authority, officials applying irrelevant considerations and extremely unreasonable conduct which goes to the root of the matter.”
Accordingly, for the first time the petition was rejected outright without the court conducting a hearing and reviewing the classified material and the substance of the State’s position (as opposed to what was done in all previous petitions). This is despite the fact that the State submitted an open response in exactly the same wording as the standard version it had filed in the previous 11 petitions, without reference to the substance of the allegations as to the exports to Russia, which the State sought to present in an ex-parte hearing.
The judges ruled that the decisions of the supervisory organs are made in accordance with legal norms that guide defence exports and are enshrined in legislation, based on considerations of national security and the international obligations of the State of Israel.
Unfortunately, defining Israeli legislation as “legal norms” goes a step too far: The judges referred to the Defense Export Control Law, 2007, which includes a restriction on defence exports only when there is an embargo of the UN Security Council – a very rare thing due to the veto power granted to the world superpowers. The meaning of this single “restriction” is that the Ministry of Defense may approve exports in the service of almost any dictatorship, genocide, crime against humanity and civil war around the world; The judges also referred to the Commodity and Services Supervision Order (Practice of Encryption), 1974, which was worded anachronistically in the 1970s when the Ministry of Defense approved defence exports to almost all military dictatorships across Latin America, Africa, and Asia. The provision of section 5 of the Supervision Order is very laconic and only stipulates that “The Director is entitled to grant, refuse to grant, stipulate conditions for, suspend or revoke a license, as he/she may deem fit.” It is hard to regard “as he/she may deem fit” as a legal norm; Therefore, it comes as no surprise that the judges did not mention in the “legal norms” international human rights conventions or considerations pertaining to human rights and international law. In the case of Russia, as mentioned, despite the fact that there are embargo decisions and sanctions in place, imposed by the US, the EU and the UK, regarding weapons and technologies of the Cellebrite type, which the Ministry of Defense ignores, the judges ruled that the export of Cellebrite’s system to Russia is subject to “broad discretion” of the Ministry of Defense. From the point of view of the Ministries of Defense and Foreign Affairs, “the international obligations of the State of Israel” do not refer to the International Convention against Torture, but to the contractual obligations to dictatorships and murderous regimes.
Precisely due to the difficulty of defining existing Israeli legislation as “legal norms”, legal petitions on the issue of defense exports was of great importance: The petitions allowed the courts to supervise and hold hearings with representatives of the Ministries of Foreign Affairs and Defense, including about their compliance with norms such as the international law prohibiting aiding in genocide, crimes against humanity, war crimes, torture, enforced disappearances, rape, extrajudicial executions and the arbitrary deprivation of liberty of citizens. Although in all cases, gag orders were issued at the request of the Ministry of Defense, from our inquiries with international sources and public statements of the Ministry of Foreign Affairs (which the ministry was forced to publish under public and media pressure), it appears that soon after the filing of our petitions and appeals – among other things, a decision was made to stop the export of lethal weapons to South Sudan, to make it more difficult to export arms to Burundi, to stop all defense exports to Burma, to stop issuing weapon licenses to the dictator’s commando unit in Cameroon, to stop the flow of Tavor guns into the hands of neo-Nazi militias in Ukraine, and to stop selling Cellebrite;s system to the dictatorships in Belarus, China, Hong Kong and Russia.
Although the petition led this time to a change in the export policy of Cellebrite’s system to Russia, the judges ruled that it was appropriate to rule that the petitioners pay the legal fees of the Ministry of Defense and Cellebrite, but “assuming that the petitioners act with good intentions, and to a large extent in exception to the law, this time we will refrain from obliging them to pay the legal fees”. That is, if the public does not understand the message conveyed by the ruling, in the future petitions, the petitioners will be forced to pay the legal fees of the Ministry of Defense and the companies.
The ruling comes as no surprise. Over the years, the attitude towards petitions on the issue of defence exports has varied from judge to judge. Although the petitions brought about a positive change in reality, there were of course judges who were not enthusiastic about dealing with the issue. For example, during the discussion on the export license of a surveillance system for Mexico, Justice Menachem Mazuz said that in his opinion this is an issue that should not be the subject of any public discussion, but only in a secret committee. Justice Mazuz suggested to the Ministry of Defense that the petitions be stopped and that instead, a secret subcommittee of the Foreign Affairs and Defense Committee in the Knesset be the one to discuss the issue. The Ministry of Defense rejected the proposal. (To our understanding, the refusal to accept the proposal stemmed from the Ministry of Defense’s principled position that no discussions should be held in the Knesset regarding specific defence exports to a specific country, for fear of leaks and a desire for Knesset members not to intervene. According to what we know, indeed, there have never been any discussions in the Foreign Affairs and Security Committee regarding a specific export to a specific country, but only on general issues such as regulations). Furthermore, after five petitions had been heard in the High Court, Justices Noam Solberg, David Mintz and Alex Stein suddenly ruled in the third petition, filed as to the South Sudan case, and contrary to the State Attorney’s position, that there is parallel jurisdiction to the Tel Aviv District Court, and therefore the petitions should be heard there (the State Attorney was of the opinion that since this is a matter of policy, it is appropriate that the issue be discussed in the High Court).
The cessation of court hearings on the issue of defence exports is, of course, not the end of the struggle. We intend to act in additional and public ways to thwart the involvement of Israeli defence exports in genocide, crimes against humanity, war crimes and severe human rights violations, in Russia, Bangladesh and other countries. We will have more time to research, expose and publish information.
Many thanks to all the petitioners who joined the petitions, came to the hearings, assisted in raising funds to pay fees or the expenses that the judges ruled we had to pay the Ministry of Defense, and also to all those who supported and encouraged from the sidelines, distributed the articles and petitions, and most importantly – talked to friends and family about this silenced issue.
The winds of change are already blowing, and it may even be better for them not to be confined to the halls of the courts or by gag orders.
Link to the ruling, in Hebrew:
Link to the petition, in Hebrew:
Link to the State’s response, in Hebrew:
IN THE NEWS
UNITED NATIONS
SEVENTH BIENNIAL MEETING OF STATES TO CONSIDER THE IMPLEMENTATION OF THE PROGRAMME OF ACTION TO PREVENT, COMBAT AND ERADICATE THE ILLICIT TRADE IN SMALL ARMS AND LIGHT WEAPONS IN ALL ITS ASPECTS (BMS7), 26 JULY – 30 JULY 2021
EU joint reply in response to UNGA Resolution 74/60
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GENERAL
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IHL/HR
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AFRICA
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AMERICAS
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ASIA
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A new interactive online platform by Forensic Architecture, supported by Amnesty International and the Citizen Lab, maps for the first time the global spread of the notorious spyware Pegasus, made by cyber-surveillance company NSO Group.
Pakistan Army inducts first batch of China-made VT-4 battle tanks | 1 July 2021 | IndiaTV
Produced by Chinese state-owned armoured vehicle manufacturer, Norinco, the delivery of VT-4 tanks from the manufacturer began in April last year.
Govt. signs $ 49 m jet upgrade deal with Israel Aerospace Industries | 1 July 2021 | DailyFT
The Ministry of Defence in May signed a $ 49 million deal with Israel Aerospace Industries (IAI) to upgrade five Kfir fighter jets of the Sri Lanka Air Force (SLAF) No. 10 Squadron, it has been revealed.
Arming the Philippines: It’s a Duterte job, but does Britain have to do it? | 1 July 2021 | Daily Maverick
Thousands of people have been killed in the Philippines under President Rodrigo Duterte, but the UK has massively increased arms exports to his authoritarian regime and is prioritising trade and investment with the country — partly as a post-Brexit bulwark against China.
Israel arms sales: Court decision ends hopes for transparency | 1 July 2021 | Middle East Eye
A legal campaign to expose details about Israeli arms exports came to an end this week, as the country’s Supreme Court not only rejected a petition regarding tracking technology made by an Israeli cyber company, but also shut the door on all future petitions.
Indonesia’s opportunistic approach to arms procurement | 1 July 2021 | East Asia Forum
The first-ever bilateral defence agreement between Indonesia and Japan was signed on 30 March 2021, which paves the way for Japanese arms exports to Indonesia, including the potential sale of up to eight Mogami-class frigates. The agreement focuses on maritime security with ‘shared serious concerns about the continued and strengthened unilateral attempts to change the status quo’ in the East and South China Seas.
China’s New Anti-Foreign Sanctions Law: Understanding Its Scope and Potential Liabilities | 30 June 2021 | Morrison & Foerster LLP
China’s new Anti-Foreign Sanctions Law (AFSL) (中华人民共和国反外国制裁法) achieves two goals. First, it creates a menu of countersanctions available to Chinese authorities—visa restrictions, asset and transaction blocks within China—taken straight from the U.S. sanctions playbook. Second, it creates a formal statutory basis for the kinds of Chinese sanctions measures that have already been put in place over the past 12 months.
Ordinary goods can be war goods under Australia’s export controls | 29 June 2021 | Moulis Legal
For the most part, tangible signposts guide decision making on Australian export controls by the government agency that has that responsibility, Defence Export Controls (DEC). The most significant of these is the Defence Strategic Goods List (DSGL). The DSGL lists the munitions and dual-use goods, technologies and software that are export-controlled.
EUROPE
HSW from Poland delivers more RAK 8×8 120mm mortar carriers to Polish army | 28 July 2021 | ArmyRecognition
The Polish company Huta Stalowa Wola S.A (HSW) has delivered eight RAK 120mm 8×8 self-propelled mortar carriers and four 8×8 command post armored vehicles to the 12th mechanized brigade of the Polish army.
French armed forces have already taken delivery of 53,000 HK416 F assault rifles | 25 July 2021 | ArmyRecognition
French armed forces continue the process for the replacement of its old FAMAS assault rifle. The DGA (French Army procurement agency) has just received 2,000 new HK416 F assault rifles for the Army, Navy and Air Forces, bringing the number of assault rifles delivered to date to 53,000 units. A total of 117,000 units will be delivered to the French armed forces by 2028, including 93,000 units by 2025.
Mit Gewehren für Spezialeinheiten gut im Geschäft: Waffenhersteller C.G. Haenel | 24 July 2021 | MDR
Die Südthüringer Waffenfirma C.G. Haenel ist ins Gerede gekommen in den vergangenen Monaten. Grund: Der “Underdog” hatte den großen Konkurrenten Heckler & Koch bei der Ausschreibung für die neuen Sturmgewehre der Bundeswehr zunächst ausgestochen, war dann aber aus dem Vergabeverfahren ausgeschlossen worden. Haenel-Chef Sauer nennt die Vorbehalte und Vorwürfe gegen das Unternehmen ungerechtfertigt und zeigt sich bei einem Werksbesuch recht aufgeschlossen.
Comment les armes européennes alimentent la guerre dans le monde | 23 July 2021 | Euronews
n mai dernier, le conflit israélo-palestinien s’est de nouveau embrasé : pendant onze jours, Israël a mené 1500 frappes aériennes, terrestres et maritimes et les Palestiniens ont tiré 4000 roquettes.
Neue Runde im Streit um Sturmgewehr-Auftrag: C.G. Haenel geht vor Gericht | 22 July 2021 | MDR
Neue Runde im Streit um den prestigeträchtigen Millionenauftrag der Bundeswehr für neue Sturmgewehre: Der Südthüringer Waffenhersteller C.G. Haenel wehrt sich vor Gericht gegen seinen Ausschluss aus dem Vergabeverfahren. Man habe Beschwerde am Oberlandesgericht Düsseldorf eingelegt, hieß es aus Suhl. Der Rechtsstreit dürfte einige Monate dauern.
UK military unit in Colombia ‘assisted’ police force that killed 63 protesters | 22 July 2021 | Daily Maverick
As Colombian police killed dozens of protesters in May, a UK military team of up to nine soldiers was assisting them in a secret programme, Declassified has found.
Five countries interested in Russia’s state-of-the-art Su-57 fifth-generation fighter | 15 July 2021 | TASS
The Su-57 fighter jet features stealth technology with the broad use of composite materials, is capable of developing a supersonic cruising speed and is furnished with the most advanced onboard radio-electronic equipment
British arms sales to Saudi Arabian regime three times higher than previously thought, investigation finds | 15 July 2021 | The Independent
Britain has exported around three times as much weaponry and military equipment to fuel Saudi Arabia’s war in Yemen than previously thought, according to a groundbreaking new investigation.
Poland to buy 250 M1 Abrams tanks from US | 15 July 2021 | Army-Technology
Poland plans to buy 250 M1 Abrams tanks from the US as part of a deal worth approximately $6bn, announced the country’s Defence Minister Mariusz Blaszczak.
How Scotland’s arms dealers held thousands of meetings with UK Government behind closed doors | 14 July 2021 | The Ferret
Five private companies who employ around three quarters of the workforce in Scotland’s arms industry had thousands of closed door meetings with the UK Government between 2011 and 2020.
Schweiz exportiert im ersten Halbjahr 2021 Waffen für 357 Millionen – hierhin gingen sie | 13 July 2021 | Watson
Hauptabnahmeland (insgesamt) war Rumänien mit einem Volumen von gut 73 Millionen Franken, wie das Staatssekretariat für Wirtschaft (Seco) am Dienstag mitteilte. Gegenüber der Vorjahresperiode gingen die Waffenexporte um 40 Prozent zurück. Mit einem Volumen von 240 Millionen Franken gingen die meisten Exporte von Kriegsmaterial an Länder in Europa.
Cellebrite Used to ‘Violate Human Rights,’ Stop Their IPO, Rights Groups Urge | 13 July 2021 | Haaretz
Access Now and other rights groups are trying to prevent Israeli phone-hacking firm from going public due to ‘urgent concern over unresolved human rights risks linked to the sales history of Cellebrite’.
UK government refuses to reveal details of its support for the Saudi war machine | 12 July 2021 | World Socialist Web Site
The UK government has refused to provide any substantive answers to questions about secret meetings with major arms suppliers to advise them on policy towards Saudi Arabia and the Gulf States. These reactionary and corrupt monarchies, notorious for their crushing of all opposition to their policies at home and abroad, are major purchasers of British weapons and military materiel.
Uralvagonzavod starts the supply of serial production of BMPT-72 Terminator 2 fire support vehicle | 9 July 2021 | ArmyRecognition
According to information published by the Russian press agency TASS on July 8, 2021, Russian company Uralvagonzavod that is a subsidiary of Russia’s Rostec state hi-tech corporation has started serial supplies of BMPT-72 Terminator-2 tank fire support vehicles, Enterprise CEO Alexander Potapov told TASS at the INNOPROM international exhibition.
Sig Sauer muss Umsatz des illegalen Kolumbien-Deals an Staatskasse abführen | 8 July 2021 | Blickpunkt Lateinamerika
Der deutsche Waffenproduzent Sig Sauer hat 38.000 Pistolen illegal nach Kolumbien geliefert. Nun muss das Unternehmen den Erlös von 11,1 Millionen Euro an den kolumbianischen Staat abgeben, wie der Bundesgerichtshof entschied. Menschenrechtsorganisationen begrüßen das Urteil, doch Kolumbiens Regierung setzt ganz andere Prioritäten.
Blackwater founder Erik Prince had plans to create a $10 billion private army in Ukraine, Time reports | 8 July 2021 | Business Insider
In 2020, Blackwater founder Erik Prince pitched plans to hire Ukrainian combat veterans and buy into the country’s military-industrial complex in order to create a $10 billion private army, according to a new Time investigation.
Trafficking of firearms: Commission launches public consultation to review EU rules on imports and exports of weapons | 7 July 2021 | EUReporter
The Commission has launched a public consultation on the review of EU rules governing exports, imports and transit of civilian firearms, with the objective to close possible loopholes, which traffickers can use, and to simplify the legal framework for legal traders. All interested parties are invited to contribute until 11 October 2021. The results of the consultation will feed into the review of the rules, to improve traceability and exchange of information, and to increase the security of export and import control procedures.
Albania to buy Turkish-made combat drones | 6 July 2021 | DefenceBlog
Albania has decided to purchase armed Bayraktar TB2 unmanned aircraft, which has been used to great effect in various recent conflicts, including in Syria, Libya and Nagorno-Karabakh region.
Kartellamt kritisiert Sturmgewehr-Auftrag der Bundeswehr | 4 July 2021 | Frankfurter Rundschau
Kartellamt kritisiert offenbar Vergabe des neuen Sturmgewehrs | 4 July 2021 | Der Spiegel
Das Beschaffungsamt der Bundeswehr ist eine große Behörde, Tausende Menschen kümmern sich um den Kauf von Gütern für die Truppe. In einem prestigeträchtigen Großauftrag machte die Behörde keine gute Figur.
French tech firm charged over Libya cyber-spying | 1 July 2021 | RTL
French prosecutors have charged a French IT company that allegedly helped the regime of Libyan dictator Moamer Kadhafi spy on opposition figures who were later detained and tortured, sources close to the inquiry said Thursday.
Defence Industry: the Commission kick-starts the European Defence Fund with €1.2 billion and awards 26 new industrial cooperation projects for more than €158 million | 1 July 2021 | The European Sting
The Commission adopted today a package of decisions supporting the competitiveness and innovation capacity of the EU defence industry. The adoption of the first European Defence Fund (EDF) annual work programme paves the way to the immediate launch of 23 calls for proposals for a total of €1.2 billion of EU funding in support of collaborative defence research and development projects.
Weniger Rüstungsexporte genehmigt | 1 July 2021 | Tagesschau
Deutschland fährt seine Rüstungsexporte ins Ausland weiter herunter. Schon 2020 waren weniger Ausfuhren genehmigt worden, in diesem Jahr setzt sich der Rückgang fort – vor allem beim Verkauf an Drittstaaten.
Sig Sauer muss Millionenbetrag zahlen | 1 July 2021 | Tagesschau
Über den Umweg der USA nach Kolumbien: Eine nicht genehmigte Ausfuhr von 38.000 Pistolen kommt den Waffenhersteller Sig Sauer teuer zu stehen. Der Bundesgerichtshof billigte die Einziehung von rund 11 Millionen Euro.
