On 9 October 2019, Turkey launched “Operation Peace Spring” in North-East Syria with the twofold stated aim of removing “all terrorist elements in north-eastern Syria” and fighting the “Kurdistan Workers’ Party, the terrorist organization known as the PKK, along with its Syrian affiliates and Islamic State”.[1] Turkey’s military move was met by fierce criticism in Europe:
on the same day the operation was launched, the High Representative of the Union for Foreign Affairs and Security Policy called for an immediate cessation of the hostilities;[2] a few days later, on 14 October 2019, the Council of the European Union (EU) urged Turkey to cease its unilateral military action and to withdraw its forces.[3] On the same occasion, the Council also highlighted that some EU Member States had halted arms export licensing to Turkey, while all Members committed to take resolute national positions regarding their arms export policies to Turkey on the basis of the provision of Common Position 2008/944/CFSP on arms export control, including the strict application of its Criterion 4 on regional stability. The inclusion of the latter point was urged by the Italian Government, which was amongst the EU Member States that had decided to stop the arms export to Turkey.
On 15 October 2019, speaking before the Chamber of Deputies (239th Meeting, XVIII Legislature), the Minister of Foreign Affairs and International Cooperation, Mr Luigi Di Maio, stated:
yesterday, at the Council of Foreign Affairs of the European Union, we raised the need, on behalf of the Italian Government, for all 28 Member States to open a profound reflection on the blocking of arms exports to Turkey; a reflection that has been welcomed, and which, in this regard, will lead me in the next few hours, as Minister of Foreign Affairs and International Cooperation, to formalize all the acts necessary for Italy to block the export of armaments to Ankara.
The Minister referred solely to the domestic law governing arms export, namely Law No. 185 of 1990, when he stated the need to have a formal declaration on the existence of an armed conflict between Syria and Turkey in order to halt the Italian export. On 30 October 2019, speaking before the Senate of the Republic (160th Meeting, XVIII Legislature), the Minister affirmed:
from the formal point of view of Law No. 185 of 1990, which we refer to for blocking the export of armaments (both new authorizations and those in progress), we need international organizations to declare the conflict, that is, to formally tell us that Turkey and Syria are in conflict.
This statement, however, appears to be scarcely compatible with both Law No. 185 and the European and international obligations by which Italy is bound. From the point of view of domestic law – the only legal framework explicitly mentioned by the Minister – Article 1(5) of Law No. 185 merely states that arms export is forbidden when it runs against the international commitments of Italy (which include the Arms Trade Treaty[4]), whereas Article 1(6)(a) extends the ban to arms sale to countries engaged in armed conflict other than self-defense as per Article 51 of the Charter of the United Nations (UN). This requirement can, however, be derogated from in order to comply with existing international obligations or through a decision by the Council of Ministers. It is worth noting that such a decision can be adopted only after a previous opinion of the houses of Parliament and that it is not linked to a previous determination by an international organization on the existence of an armed conflict. In addition, Article 1(6)(b) states that arms export is forbidden if the importing country’s foreign policy is contrary to the principles enshrined in Article 11 of the Italian Constitution, which can be deemed applicable to the Turkish case.[5] Moreover, and still from the point of view of domestic law, there are only two instances where a previous declaration from an international organization is formally required for blocking the export. According to Article 1(6)(c), arms export is prohibited to countries subject to sanctions established by the UN, the EU, or the Organization for Security and Co-operation in Europe, whereas Article 1(6)(d) prohibits to export arms to countries whose governments committed grave violations of human rights, as previously ascertained by the UN, the EU or the Council of Europe.
The Minister also added:
The object of our investigation, which is not a formal investigation, is to find all the legislative footholds to ensure that the halt to export is effective and not one which is then unlocked with appeals based on the fact that the United Nations Security Council met, but reached no conclusion on what I consider to be a Turkish–Syrian conflict.
On 15 October, the Minister also informed the Chamber of Deputies that he had ordered to re-assess existing contracts. According to the Italian law, the blocking of new licenses and the re-assessment of old ones follow different administrative procedures: for new licenses the procedure appears swifter, while, in contrast, the evaluation of existing licenses entails a more complex procedure. As to the latter, at the abovementioned meeting of 30 October 2019 of the Senate, Mr Di Maio made reference to a precedent occurred a few months before, when the Italian Government had given a favorable opinion to a parliamentary motion (No. 1/00204, first signatory Cabras) that committed the Government itself “to evaluate the launch and implementation of initiatives aimed at the future adoption by the European Union of an embargo on the sale of armaments to Saudi Arabia and the United Arab Emirates”, “to continue to ensure strict application of the provisions of Law No. 185 of 9 July 1990, and to take the necessary steps to suspend exports of airplane bombs and missiles that can be used to target the civilian population, as well as their components, to Saudi Arabia and the United Arab Emirates until there are concrete developments in the peace process with Yemen”.[6]
In contrast to what was stated by the Minister in the case of Turkey, in the case of Yemen the re-assessment of existing licenses did not follow a decision of an international organization, but solely an internal political act, as underlined by the Undersecretary of State for Foreign Affairs and International Cooperation, Mr Manlio Di Stefano, on 26 June 2019 before the Chamber of Deputies (197th Meeting, XVIII Legislature). He explained that the Government needed to be politically supported by the Parliament in order to proceed with the suspension of the sale of some specific armaments, but he did not mention any decisions of international organizations.
Similarly to the course of action taken vis-à-vis Saudi Arabia and the United Arab Emirates due to their conduct in Yemen, also with regard to Turkey the decision on arms export was taken at the level of individual States rather than through the adoption of EU legal measures. The rationale for pursuing individual solutions, although within the context of a concerted European action, was predicated upon the need for quick results. This line of reasoning was clarified by the Minister of Foreign Affairs, in an audition before a joint session (7th Meeting, XVIII Legislature) of the Commission on Foreign and European Affairs (III) of the Chamber of Deputies and the Commission on Foreign Affairs, Emigration (3rd) of the Senate of the Republic on 13 November 2019:
we blocked arms exports; we made sure that other European countries did it too; we asked individual countries to do it on their own account so as not to embark on a European procedure, which would have required who knows how long.
The same concept was already contained in an earlier statement made by the Minister of Foreign Affairs on 15 October 2019 before the Chamber of Deputies (239th Meeting, XVIII Legislature), in which he expressed concerns over the length of the procedure for a European arms embargo, which, in turn, determined the need for individual actions:
The blocking of exports is a decision that we take as individual States of the European Union, in line with the position already taken by other Member States in the last days, because we want to take immediate action, given that the planning of a European embargo would have required months.
In his speech before the Senate of 30 October 2019, Mr Di Maio admitted that, in addition to the delays of the European procedure, the Italian legislation on arms export also has room for improvement, including compared to other European States. He highlighted that some States have laws that allow them to swiftly block existing as well as future exports, and noted that a discussion on reinforcing the relevant Italian domestic legislation is ongoing:
on the issue of arms exports we must not wait for other European countries to take initiatives, it being understood that two European countries have internal regulations that enabled them to block without any doubt both future and existing exports. One thing that I think is desirable – there is parliamentary autonomy, but I know there is an ongoing discussion – is to strengthen Law No. 185 of 1990. This is not a way to say that we have to wait for that strengthening of the legislation – I am waiting for some preliminary details and then we hope to be able to proceed – but on that front some European rules [i.e., rules of other EU Member States] are far ahead in that they allow Member States of the European Union to act more quickly on these decisions.
Hence, according to the Minister, the existing domestic legislation does not allow to take quick action even when there are States that are openly in conflict; thus, a reform of the law should remedy this shortcoming:
There is the question of the reform of Law No. 185 of 1990, the one on armaments, which I hope will have a broad consensus in Parliament in its reform process, because it is very important for us to be able to strengthen the State’s ability to intervene in the export of armaments, especially when we have countries in blatant conflict, and today the legislation does not always allow it.
Overall, as the statements above have shown, the Italian position with respect to arms export is narrowly focused on its domestic legal framework. Even if the Council Conclusions on “Operation Peace Spring” mentioned the European legal framework applicable to arms exports – namely, Council Common Position 2008/944/CFSP – and even if Law No. 185 refers to such Common Position, Italy seems to consider solely the export criteria explicitly enshrined in the text of its domestic legislation, without duly considering that these are complemented by the criteria envisaged by both European and international law. However, even though the criteria of the Arms Trade Treaty are not explicitly considered, the Italian position reflects the encouragement under Article 7(7) to re-assess previously issued licenses when “new information” becomes available.[7] One could argue that, by itself, resort to an unlawful use of force by Turkey would qualify as “new information”, therefore allowing a re-assessment of export licenses by Italy. It is in this light that the call for reform of Law No. 185 can be read. The need to have a swift procedure for blocking existing licenses, as opposed to the case of issuing new ones, seems to be the rationale for the reform of that law. Considering its inconsistent interpretation, as shown by the different approaches adopted in the cases of Saudi Arabia and the United Arab Emirates (where the Government sought a political endorsement from the Parliament in order to re-assess existing licenses) and Turkey (where the Government required a previous determination of an international organization), such reform would be welcome.
Iotam Lerer
A quotable version of this post was published in the Italian Yearbook of International Law: Lerer, “The Position of Italy on the Cases of Arms Exports to Turkey, Saudi Arabia and the United Arab Emirates”, IYIL XXIX (2019), 2020, pp. 495-500; available here.
[1] See the opinion published by the President of Turkey, Mr Recep Tayyip Erdoğan, on a well-known newspaper: “Turkey Is Stepping Up Where Others Fail to Act”, The Wall Street Journal, 14 October 2019.
[2] Speech by High Representative/Vice-President Federica Mogherini at the European Parliament plenary session on the situation in northern Syria, available here.
[3] Council of the European Union, “Outcome of the Council Meeting. 3720th Council meeting – Foreign Affairs”, 14 October 2019.
[4] Arms Trade Treaty, 2 April 2013, entered into force 24 December 2014.
[5] According to Article 11, “Italy repudiates war as an instrument of offense against the freedom of other peoples and as a means of resolving international disputes”.
[6] On the same occasion, more restrictive motions were also tabled, but they did not receive the endorsement of the Government. According to Motion No. 1/00198 (first signatory Fornaro), the Government should have “adopt[ed] initiatives to immediately suspend any export of military materials and related items produced in Italy and destined for Saudi Arabia and the United Arab Emirates that could be used by the two countries in the conflict in Yemen”, “promote[d] at the Council of the European Union level a strong political initiative leading to the embargo of military material from all over the European Union towards the countries involved in the conflict in Yemen” and, importantly, “take[n] initiatives not to authorize the transit and use of ports and airports of Italy by air and naval cargo carrying armament materials destined for Saudi Arabia and all the countries involved in the armed conflict in Yemen, in consideration of the serious accusations of violation of international humanitarian law by Saudi Arabia and its allies in Yemen, as required by all applicable national and international regulations”. Motion No. 1/00202 (first signatory Quartapelle Procopio) called the Government, amongst others, to “take the necessary steps to suspend all supplies of weapons and armaments, which can be used in the conflict, to the countries directly involved in the war in Yemen, as already decided by the United Kingdom, Germany, Sweden, Denmark, Finland, Norway, Switzerland, Belgium, Austria and the Netherlands and as in discussion in other parliaments of EU Member States”, and to “make a multilateral political and diplomatic effort to recognize the state of armed conflict in Yemen for the purposes of international humanitarian law and the rigorous application of the provisions of Law No. 185 of 9 July 1990, of Common Position 2008/944/CFSP and of the international treaty on the arms trade, already ratified by Italy”.
[7] According to Art. 7(7) of the Arms Trade Treaty, if, after an authorization has been granted, an exporting State Party becomes aware of new relevant information, it is encouraged to re-assess the authorization after consultations, if appropriate, with the importing State.
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