The Legality of Italy’s Export of Arms

On 17 July 2017, during a Parliamentary debate on the ongoing war in Yemen, the Sottosegretario di Stato per gli Affari esteri e la Cooperazione internazionale (Undersecretary of State for Foreign Affairs and International Cooperation), Mr. Vincenzo Amendola, presented the stance of the Italian Government vis-à-vis the conflict between the Houthi rebels and the government of President Abdrabbuh Mansur Hadi. The request for military support from President Hadi’s government, which enjoys wide international recognition, has been accepted by a coalition of States, led by Saudi Arabia. Before the Camera dei Deputati (Chamber of Deputies, 835th Meeting, XVII Legislature) Mr. Amendola qualified the government as the legitimate authority in Yemen. He described the situation as follows: 

In 2014, there was a true subversion of the institutional order from the Houthis, carried out by paramilitary militias. The coup interrupted the process of transition that was in place and resulted in the destitution of President Hadi and the fall of the Yemeni Parliament. Given the situation and the worsening of the terrorist threat brought about by Al Qaeda in great part of the Yemeni territory, which took advantage of the power vacuum in the country, a military intervention upon request and sustained by the legitimate government was launched by a coalition of States formed by Saudi Arabia, United Arab Emirates, Bahrain, Qatar, Kuwait, Sudan, Egypt and Morocco. 

Allegations of a violation of international humanitarian law as a result of the bombings carried out by Saudi Arabia led to questioning the export of arms to Riyadh. On this issue, too, the Undersecretary explained the Italian position. The obligations applicable to Italy as to the export of arms derive from domestic, European and international legal instruments. However, Mr. Amendola only mentioned the domestic framework and reminded that: 

The exports of arms are governed by Law no. 185 of 1990 and its subsequent amendments, and the authorizations for licenses involve different Ministries and authorities, as to the analysis of the content of the single operation as well as in terms of opinions for the export to non-EU/NATO countries. 

He also highlighted the fact that Italy coordinates its arms export policies with other countries: 

In the matter of arms policies, Italy operates in strict connection with the partners of the European Union, with whom there are periodical coordination meetings in Brussels, and we operate also in strict coordination with our main allies. 

Indeed, the role played by Italy’s European and extra-European partners is explicitly recognized in Legge 9 luglio 1990, n. 185 (Law no. 185 of 1990).[1] Pursuant to Article 1(6)(c) of that law, embargos imposed by the United Nations, the European Union (EU) or the Organization for Security and Cooperation in Europe are to be taken into account when assessing the legality of arms exports: if such embargos are in place, any exports are prohibited. The importance of such an evaluation was made clear by the Undersecretary, with reference to the Yemeni case: 

I want to remind that there are no embargos or other sanctions adopted on an international and European level towards single members of the coalition [that operates in Yemen]. In the case of specific members of the coalition, which, in addition, are also part of the coalition against Daesh, the requests of Italian companies for obtaining the license for arms export are evaluated in a very rigorous and articulated way, case by case, on the basis of the Italian, European and international rules […]. Obviously, should potential violations be detected in the context of the United Nations or the European Union, Italy would immediately abide by the prescriptions or bans adopted.

The same prohibition is binding upon Italy due to some of the international commitments to which Mr. Amendola referred. Article 2(1)(a) of EU Council Common Position 944/2008 of 8 December 2008 (compliance with which is also demanded by Article 1(11-bis) of Law no. 185 of 1990), as well as Article 6 of the Arms Trade Treaty[2] also ban arms exports when the above-mentioned international organizations set up an embargo. Although Mr. Amendola’s reasoning seemed to rely largely on the absence of any embargo towards Yemen, the “Italian, European and international rules” he hinted at provide for other standards against which the legality of arms exports is to be judged. For example, Article 1(6) of Law no. 185 of 1990 requires the competent national organs to also address other considerations in their assessments. More specifically, 

The export, the transit, the transfer within the European Union and the brokering of armament materials[3] are also prohibited: 

a) towards countries involved in an armed conflict, in contrast with the principles enshrined in Article 51 of the United Nations Charter, without prejudice to compliance with Italy’s international commitments and to the divergent deliberations of the Council of Ministers to be adopted following the opinion of the Chambers [the Chamber of Deputies and the Senate]. […] 

d) towards countries whose governments are responsible of grave violations of international conventions in the matter of human rights, as established by the competent organs of the United Nations, of the European Union or of the Council of Europe […]. 

Further prohibitions are listed under Article 1(5), whereby the export and transit of armament materials are 

prohibited when they contrast with the Constitution, with Italy’s international commitments, with agreements on non-proliferation, with its fundamental interests in the matter of national security, with the fight against terrorism and with the maintenance of good relationship with other nations, as well as when proper guarantees about the final destination of such materials are lacking. 

In turn, according to Article 2(a)(c) of EU Council Common Position 944/2008, Member States shall 

deny an export license if there is a clear risk that the military technology or equipment to be exported might be used in the commission of serious violations of international humanitarian law. 

The same risk-based approach is also adopted by Article 7 of the Arms Trade Treaty, which requires the exporting State to assess whether the arms it is planning to sell could be used to commit or facilitate serious violations of humanitarian law and human rights law or to undermine peace and security. If an overriding risk that this will occur exists, the State must refrain from any arms export. The same is required if, under Article 6 of the treaty, the State has knowledge that the arms would be used to commit an international crime. 

Thus, the legality of arms transfer has to be assessed against a number of parameters that encompass, but are not limited to, arms embargos. The criterion related to grave breaches of international humanitarian law was indeed mentioned in a motion of the Chambers of Deputies (Motion no. 1-01695, first signatories Quartapelle Procopio, Alli, Marazziti, Locatelli) endorsed by the Italian Government (853th Meeting, XVII Legislature) on 19 September 2017, where it was recalled: 

the Resolution of the European Parliament of 25 February 2016 on the humanitarian situation in Yemen (2016/2515(RSP)) calls on the Vice President/High Representative to launch an initiative aimed at imposing an EU arms embargo against Saudi Arabia, given the serious allegations of breaches of international humanitarian law by Saudi Arabia in Yemen and the fact that the continued licensing of weapons sales to Saudi Arabia would therefore be in breach of Council Common Position 2008/944/CFSP of 8 December 2008. 

The motion also warned that 

In December 2016 the US Administration decided to temporarily suspend the provision of some precision ammunitions to Saudi Arabia, specifically the sale by Raytheon of 16.000 kits of guided ammunitions for the value of 350 million dollars, having assessed that the Saudi aviation appears not to have been able to correctly locate its objectives. 

Therefore, the motion committed the Government to 

foster, in the context of the regular consultations promoted by the EU in Brussels, a shared line of action on the matter of arms export, by giving concrete support to international initiatives for the cessation of the hostilities and complying promptly with the prescriptions or bans that were to be adopted in the context of the United Nations or of the European Union. 

A confirmation that the assessment carried out by the Italian authorities as to the legality of arms export does not need to be based solely on the existence of an embargo comes from Italy’s position with regards to the situation in Venezuela. Restrictive measures were adopted at the EU level by means of Council Regulation 2017/2063 of 13 November 2017; however, the Undersecretary of State for Foreign Affairs and International Cooperation, Mr. Benedetto Della Vedova, explained in front of the Chamber of Deputies on 5 December 2017 (897th Meeting, XVII Legislature) that the measures taken by Italy preceded those adopted by the EU: 

In November, at the last Council of Foreign Affairs, a system of individual sanctions was approved that could be applied to those who bear the largest share of responsibility for the current situation, together with a ban on the export of arms and other instruments for the repression of dissent. From the Italian side, however, bilateral restrictive measures for the export of materials for defense had already been adopted in the previous weeks. 

In conclusion, the Yemeni case confirms that the existence of a UNSC embargo or other restrictive measure plays a fundamental role in the legality assessment of arms export carried out by Italy. The other criteria put forth by the applicable rules are not explicitly recalled in the statements. 

However, the Venezuelan case suggests that even in the absence of international restrictive measures, the Italian Government may still be prepared to adopt unilateral sanctions. In this case, political considerations linked to the presence of a large Italian community in Venezuela may have prompted the adoption of measures before concerted action could take place in Brussels. Whether the driving force of this decision is political interest rather than compliance with the other legal obligations applicable to arms exports is unclear. 

[1] Law no. 185 of 1990, as amended by, in chronological order: Law no. 222 of 27 February 1992, Presidential Decree no. 373 of 20 April 1994, Law no. 148 of 17 June 2003, Legislative Decree no. 66 of 15 March 2010, Legislative Decree no. 105 of 22 June 2012, Law Decree no. 114 of 10 October 2013. 

[2] Ratified by Italy by means of Law no. 118 of 2013; ratification deposited on 2 April 2014. 

[3] Armament materials are defined by Art. 2(1) of Law no. 185 of 1990 as follows: “For the purposes of the present law, armament materials are those materials that, for their technical-manufacturing or design requirements or features, are considered to be built for mainly military or police usage”. Art. 2(2) further specifies the categories under which the armament materials are classified. Such classification is wider than the one provided by the Arms Trade Treaty and encompasses also items, such as electronic, electro-optical and photographic systems, that could be classified as non-lethal. 

Minister Amendola, Chamber of Deputies, 17 July 2017.

MPs Quartapelle Procopio, Alli, Marazziti, Locatelli, Chamber of Deputies, 19 September 2017.

Undersecretary Della Vedova, Chamber of Deputies, 5 December 2017.

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