In 2020, the interest – from a legal viewpoint – in Italy’s position on arms export stemmed from what the Country’s representatives omitted to say rather than from the explicit content of their declarations.
By way of introduction, it is worth recalling the legal framework applicable to arms exports in the Italian legal system. In line with all other EU Member States, Italy is subject to the obligations deriving from the Arms Trade Treaty (ATT), which was ratified by means of Law no. 118 of 4 October 2013, and from Council Common Position 2008/944/CFSP (hereinafter, CCP944), as recently amended.[1] There is a high degree of complementarity between the ATT and the CCP944: the latter is explicit when it demands in its Article 2(1)(bb) that “[a]n export licence shall be denied if approval would be inconsistent with, inter alia: […] the international obligations of Member States under the Arms Trade Treaty”. In similar terms, Article 6(2) of the former foresees that a “State Party shall not authorize any transfer of conventional arms […] if the transfer would violate its relevant international obligations under international agreements to which it is a Party, in particular those relating to the transfer of, or illicit trafficking in, conventional arms”. In addition to the supranational framework, Italian arms export is governed by a national law – Law no. 185 of 9 July 1990 – as subsequently amended.[2]
A trait common to these three legal acts is the existence of criteria that an export shall satisfy to be authorized. The two criteria that are of main relevance for the purpose of this commentary are the respect for human rights law and the respect for international humanitarian law. In this regard, both the ATT and the CCP944 provide for a similar, although not identical, wording and require national authorities to perform a risk assessment as to the possibility that the exported arms could be used to commit (or even to facilitate, in the case of the ATT) a serious violation of human rights law and/or humanitarian law. In contrast, in the Italian legal order, the domestic criterion on human rights law diverges from this forward-looking perspective and mandates an assessment of the past conduct of the recipient country. More specifically, Article 1(6)(d) provides that “the export shall be denied to countries whose governments are responsible for serious violations of international human rights conventions, ascertained by the competent bodies of the United Nations, the European Union or the Council of Europe”. As to the criterion on international humanitarian law, the ATT and the CCP944 are to a large extent similar, in that the relevant provisions of both acts require an assessment of the possibility that the arms could be used to commit a serious violation of international humanitarian law in the future. Conversely, Law no. 185[3] focuses on already existing situations when it requires to deny authorizations to export to “countries in a state of armed conflict, contrary to the principles of Article 51 of the Charter of the United Nations” or to “countries whose policies are in contrast with the principles of Article 11 of the Constitution”.[4]
This premise allows us to better understand the problematic approach that emerges from the written response of the Undersecretary of State for Foreign Affairs and International Cooperation, Mr Manlio Di Stefano, to the questions raised at the Senate of the Republic on the arms export to Egypt, also in connection with the death of the Italian student Giulio Regeni and Egypt’s insufficient cooperation on that matter. In his reply dated 24 July 2020 to parliamentary questions nos. 4-02924 and 4-03750, Mr Di Stefano stated that
The issue of arms sales to Egypt must be approached bearing in mind two assessments, both important: the rules and political sensitivity. On the basis of Law no. 185 of 1990, the Government, through the national authority UAMA, examines case by case the requests of Italian companies for authorization to negotiate supply contracts and then to export. In addition to national legislation, the deliberations of the European Union concerning relations with Egypt are naturally looked at. The Government evaluates the specific nature of materials, the recipient, the user, their possible use. The control is carried out also through the contribution of technical-military opinions. The granting of authorizations is subject to the strict application of these criteria. The inexistence of impediments is also ascertained, both with regard to the companies involved, and with reference to possible declarations of total or partial embargo of war supplies by the UN, the European Union and the OSCE.[5]
Three comments are warranted vis-à-vis the above statement. Firstly, the legal framework referred to by the Undersecretary of State is prima facie incomplete. If it is true that the notion of “national legislation” also encompasses Law no. 118 of 4 October 2013, through which Italy incorporated by reference the ATT, it is still questionable whether Mr Di Stefano actually meant to include in its reply such an international treaty, as he only quoted explicitly Law no. 185. Secondly, the European legal framework is missing – at least in part – from the statement, as reference is made only to the “deliberations” of the EU. It is also unclear in this regard whether the generic term “deliberations” alludes to restrictive measures adopted by the Council or to a more general political evaluation. A third point, which logically follows the previous ones, is the incomplete enumeration of the criteria. In this respect, it must be recalled that under both the ATT and the CCP944, national authorities must also consider, inter alia, the impact that the exported arms would have on peace and security,[6] regional stability,[7] as well as the internal situation of the country of destination.[8] In addition, as seen above, the assessment required under national and supranational rules differ as to the nature of the evaluation requested. On the one hand, Law no. 185 mandates an enquire into the past behavior of the recipient country and, in the field of human rights, further necessitates a formal ascertainment of grave violations by the competent organs of the UN, the EU or the Council of Europe. On the other hand, the ATT and the CCP944 center on the danger that the arms would be used to commit serious violations and the evaluation represents, therefore, a prognostic risk assessment where the past conduct of the recipient is only one of the elements to be considered. Both approaches present shortfalls but, taken together, they can be read as mutually reinforcing. The strength of the domestic criterion lies in the fact that a past grave violation is sufficient in itself to block an export, even if the attitude of the recipient has changed. In other words, a past violation already implies an overriding risk that grave human rights violations may be committed again. The strength of the supranational rules is apparent if viewed from the opposite angle: the fact that grave violations have not been committed so far is not sufficient per se to authorize an export, but a broader evaluation is warranted.
As seen, the above statement by Mr Di Stefano was issued in the context of a case centered on respect for human rights, but a similar position was taken in relation to situations that involve the respect for international humanitarian law. In replying to a question on the authorization for arms exports to Turkey, Saudi Arabia and the United Arab Emirates, Mr Di Stefano failed to mention the existence of EU and international rules applicable to Italy. On 11 June 2020, before the Commission on Foreign and European Affairs (III) (386th Meeting, XVIII Legislature) of the Chamber of Deputies, the Undersecretary of State replied as follows:
The Government, through the National Authority-UAMA, scrupulously applies Law no. 185 of 1990 and examines the requests of Italian companies following all the indications provided by the regulation currently in force.
Differently from the statement analyzed above, in this reply, the only reference made is to Law no. 185, and the Government failed to mention both the broader concept of “national legislation”, which, as seen, would formally include Law no. 118, and EU rules. As has been seen, with regard to international humanitarian law, the omission can be troublesome. A clear-cut reference to the need to respect humanitarian law is missing in Law no. 185, even if, according to its Article 1(5), arms export shall be denied if contrary to Italy’s international commitments. Given that humanitarian law forms part of these commitments, the view can be taken that an authorization must be denied if it undermines the performance of the obligations under common Article 1 of the four Geneva Conventions.[9] The other two criteria of Law no. 185 that specifically apply to exports to States in situations of conflict are those provided for by Article 6(1)(a)-(b). Yet, in fact, these criteria deal with questions of jus ad bellum rather than jus in bello, as underlined by the reference to Article 51 of the UN Charter and Article 11 of the Italian Constitution. This implies that, set aside the indirect reference to international commitments, Law no. 185 lacks a criterion devoted to compliance with humanitarian law. In contrast with the case of respect for human rights law examined earlier, where the evaluation is limited to the past track record of the recipient, in this case there is no specific assessment to be performed. It is, therefore, surprising that the Undersecretary of State omitted any references to the supranational rules, as these are filling a void left by domestic legislation. In particular, both Article 7(1)(b)(i) of the ATT and Article 2(2) of the CCP944 require national authorities to assess the risk that the arms would be used to commit a serious violation of humanitarian law. Moreover, Criterion 6 of the CCP944 also imposes to assess the recipient’s “compliance with its international commitments, in particular on the non-use of force, and with international humanitarian law”.[10]
As seen throughout this commentary, the position of Italy vis-à-vis arms export and the criteria for authorization sparks interest more for its omissions than for what it actually states. In the two excerpts analyzed, the legal references made by the Government are limited to domestic legislation and, within this remit, to Law no. 185. Not only is Law no. 118, which incorporates the ATT, not mentioned, but the EU legal framework is entirely missing, save for a vague reference to EU “deliberations”. The legal significance of the omission lies in the fact that the criteria included in both the ATT and the CCP944 should always form part of the assessment performed by every EU Member State’s national authority for the authorization of arms export. In the case of Italy, Law no. 185 alone does not account for all relevant supranational criteria and this incompleteness is reflected in the position taken by the Government.
Iotam Lerer
A quotable version of this post was published in the Italian Yearbook of International Law: Lerer, “Arms Export to Some Near- and Middle-Eastern Countries”, IYIL XXX (2020), 2021, pp. 534-539; available here.
[1] Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment. The last amendment was enacted through Council Decision (CFSP) 2019/1560 of 16 September 2019 amending Common Position 2008/944/CFSP defining common rules governing control of exports of military technology and equipment.
[2] Law no. 185 was amended by: Law no. 222 of 27 February 1992, Decree of the President of the Republic 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, and Decree-Law no. 114 of 10 October 2013.
[3] Respectively, paras. 6(a) and 6(b) of Art. 1.
[4] According to Art. 11 of the Italian Constitution, “Italy rejects war as an instrument of aggression against the freedom of other peoples and as a means for the settlement of international disputes. Italy shall agree, on conditions of equality with other States, to such limitations of sovereignty as may be necessary to ensure peace and justice among Nations. Italy shall promote and encourage international organizations pursuing such a goal”.
[5] Although the Undersecretary clarified that, under Law no. 185, the authorization to negotiate is distinct from the authorization to export, the fact that the assessment is conducted against the same parameters implies that a denial of export after the negotiations have been authorized will only occur because of a change in the conditions of legal or political relevance during the period of the negotiations. As to these political conditions, Mr Di Stefano mentioned the importance of Egypt for the Lybian conflict, for the fight against terrorism and trafficking, for the management of migration flows and for cooperation in energy matters. Answers along the very same lines were given by the Government on other occasions, in 2020. However, on 16 July, in his reply before the Senate (241st Meeting, XVIII Legislature) to an analogous parliamentary question, the Minister for Parliamentary Relations, Mr Federico D’Incà, added an obscure sentence whose meaning may be debated but whose potential wrongness from a legal point of view deserves to be noted. Indeed, Mr D’Incà stated that “no other European country has adopted restrictive measures on this kind of armaments so far, as any reference to possible violations committed during law-and-order activities is missing” (in the relevant legal framework – it might be presumed). Unsurprisingly, in her rejoinder, the interrogating MP remarked that violating human rights is not a matter of domestic law and order.
[6] Art. 7(1)(a) ATT.
[7] Art. 2(4) CCP944.
[8] Art. 2(3) CCP944.
[9] Art. 1 reads: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances”. On the relationship between this provision and arms export see Brehm, “The Arms Trade and States’ Duty to Ensure Respect for Humanitarian and Human Rights Law”, Journal of Conflict and Security Law, 2007, p. 359 ff.
[10] Art. 2(6)(b) CCP944.
Italy's Diplomatic and Parliamentary Practice on International Law 