In Italy, as in several other countries, the debate on the legality of arms transfers to Israel assumed considerable political importance in late 2023 and early 2024.[1] After an initial period of shock over the Hamas attack on Israeli territory on 7 October, public and parliamentary attention to arms transfers to Israel increased in parallel with the growing number of Palestinian civilian casualties caused by the Israeli army’s actions in the Gaza Strip. Between November 2023 and April 2024, the Italian Government had to address the issue on at least five occasions during parliamentary debates.
In order to understand the Government’s position, before analysing the relevant statements, it is important to outline the Italian legal framework governing arms exports, which is characterized by considerable complexity, as national legislation includes additional and sometimes divergent criteria with respect to the international legal instruments binding on the country.[2]
Like all other European Union (EU) Member States, Italy is bound by the obligations of the Arms Trade Treaty (ATT), ratified through Law No. 118 of 4 October 2013, and of the EU Council Common Position 2008/944/CFSP (CCP 944). The ATT provides for cases of absolute denial of arms export licenses if, inter alia, the export involves a violation of the country’s international obligations or if the country has knowledge that “the arms or items would be used in the commission of genocide, crimes against humanity, serious breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party”.[3] CCP 944, adopted in 2008, establishes eight common criteria for the assessment of applications for export licenses of military technology and equipment. It also imposes an obligation to notify license denials and to initiate bilateral consultations if a Member State intends to grant an export license that is “substantially identical” to one already denied by another Member State. Both the ATT and CCP 944 require national authorities to assess the risk that the exported arms might be used in the future to commit or, in the case of the ATT, to facilitate serious violations of human rights and/or humanitarian law.[4]
In addition to these international instruments, Italian arms exports are also regulated by national legislation, i.e., Law No. 185 of 9 July 1990.[5] Unlike the ATT and CCP 944, the Italian law does not refer to violations of international humanitarian law, but rather to a series of criteria ranging from “the existence of a state of armed conflict in violation of the principles of Article 51 of the Charter of the United Nations” (UN), to “the principles of Article 11 of the Italian Constitution”, and again to “serious violations of international human rights conventions as determined by the competent bodies of the United Nations, the EU or the Council of Europe”. Moreover, Law No. 185 differs from the international and EU legal framework not only because it does not mention international humanitarian law as a legal parameter, but also because it focuses on the recipient country’s past actions rather than on future risks.[6] In other words, the Italian legislation takes into account current circumstances rather than future risks, requiring the denial of export licenses, for example, to countries engaged in armed conflicts in violation of Article 51 of the UN Charter, or to countries that seriously violate human rights conventions.
Against this legal background, the issue of arms supplies was first raised before the Chamber of Deputies on 15 November 2023 (196th Meeting, XIX Legislature), when the former President of the Council of the Ministers, Mr. Giuseppe Conte, accused the Government of “cowardice” for not taking concrete measures – including the suspension of arms supplies to Israel – to achieve a ceasefire in the Gaza conflict. On that occasion, Mr. Conte’s accusation provoked a reaction on the social network X from the Minister of Defence, Mr. Guido Crosetto, who announced that the arms supplies had been “suspended after 7 October”, while before that date “21 licenses for 9.9 million […] almost all parts of communication systems” had been approved.[7]
Subsequently, on 13 December 2023, the President of the Council of the Ministers, Ms. Giorgia Meloni, briefly confirmed before the Senate of the Republic (136th Meeting, XIX Legislature) that Italy “was not supplying arms to Israel”, but she implied in her statement that the supply of arms stemming from licenses approved before 7 October continued.
The first major statement on the issue of the supply of arms to Israel took place on 14 December by the Undersecretary for Foreign Affairs and International Cooperation, Ms. Maria Tripodi, before the Committee on Foreign and European Community Affairs (III) of the Chamber of Deputies. Ms. Tripodi began by stating that the Government “condemns the brutal attack by Hamas” and “reaffirms Israel’s right to defend itself in accordance with international humanitarian law”. She then addressed the issue of the legality of supplying arms to Israel from the perspective of the national arms export legislation. She stated:
Law No. 185 of 1990 – as mentioned by the questioner – indicates among the prohibitions provided for in Article 1, paragraph 6, the one to countries in a state of armed conflict, contrary to the principles of Article 51 of the United Nations Charter. In this case, there is no doubt that the Israeli army’s intervention in Gaza falls within the exercise of the right to self-defence. The other case concerns possible export bans as a result of gross violations of human rights and international humanitarian law. Article 1, paragraph 6, of the aforementioned Law No. 185 of 1990 stipulates that such violations must be established by the competent bodies of the United Nations, the European Union or the Council of Europe. A condition, once again, that has not been met. Nevertheless, no new licenses for arms sales to Israel have been issued since 7 October of last year. Instead, it is worth mentioning that the peak of sales was reached under the Governments headed by Hon. Giuseppe Conte. A value of 28 million in 2019 and 21 million in 2020, compared to 9.9 million authorized this year before 7 October (almost all of which consisted of parts of communication systems).
The Undersecretary’s statement contains an obvious non sequitur, because while it excludes that the main hypotheses for the export ban provided for by Law No. 185 apply in this case, it nevertheless concludes that no new licenses for the export of arms to Israel have been issued since 7 October. Apart from the political confrontation with the previous Conte Government, which was accused of authorizing the export of a large number of weapons to the Jewish State, it is therefore unclear from this statement what is the reason for the suspension of licenses.
Clearer indications emerge from a later statement by Mr. Crosetto, who more directly addressed the legal basis for the suspension of exports. On 14 March 2024, before the Senate (169th Meeting, XIX Legislature), he reiterated:
After 7 October – I repeat – no new authorizations were granted by UAMA [the Armaments Authorization Unit of the Ministry for Foreign Affairs] pursuant to Law No. 185 of 1990, resulting in a suspension that continues to this day. […] Contrary to allegations, in recent meetings of the Geneva Arms Trade Treaty Working Groups, Italy was mentioned, along with Belgium and Spain, as having adopted a policy of timely and forceful suspension of arms transfers to Israel after 7 October. Italy was cited positively. The export licenses to Israel approved before 7 October have already been largely used, while those not used yet, i.e. those approved prior to 7 October, were assessed by UAMA on a case-by-case basis and did not involve material that could be used to affect the civilian population in Gaza.
The Minister then elaborated on the legal basis and reasons for the suspension decision:
[…] both the European Union Common Position No. 944 of 2008 and the Arms Trade Treaty require that the decision to authorize or not to authorize an export be based on an assessment of the risk that individual items may be used to commit human rights violations, international crimes or crimes against civilian populations. Even where the treaty explicitly provides for an export ban in the most serious cases, this is in relation to the specific materials to be exported and not to general assessments or predictions about the behaviour of a State.
A subsequent statement by the Undersecretary of State for Defence, Mr. Giorgio Silli, is largely convergent, echoing the arguments proposed by Minister Crosetto, but adding some important details about the Government’s position on licenses issued before 7 October. On 11 April 2024, before the Committee on Foreign and European Community Affairs (III) of the Chamber of Deputies, Mr. Silli stated:
On the issue of arms exports to Israel – a country with which there was well-established cooperation in the military sector – Italy adopted a policy of extreme caution after 7 October. And it did so in a timely manner, as recognized by all our international partners.
He then went on to address the legal status of the existing licenses:
After 7 October – I repeat what has already been said in Parliament, first by Undersecretary Tripodi and then by Minister Crosetto – no new licenses were granted by the Italian Government under Law No. 185 of 1990. The suspension continues to this day. Most of the export licenses to Israel granted before 7 October have already been used. For the portion not used, we have conducted a case-by-case assessment in accordance with the provisions of EU Common Position 944 of 2008 and the Arms Trade Treaty. These stipulate that decisions on whether to approve an arms export must be based on a precise assessment of whether the equipment could be used to commit human rights violations or international crimes, or to target the civilian population. Even when the treaty provides for an export ban, it refers to the specific materials to be exported, not to general assessments of the conduct of the recipient State. In the case of export licenses to Israel approved prior to 7 October, it was determined that the materials in question could not be used against the people of Gaza.
In summary, the statements indicate that the Italian Government did not approve any new licenses for arms transfers to Israel after 7 October. The Government also stated that existing licenses were reviewed on a case-by-case basis, and it was determined that they did not cover weapons used in the ongoing conflict in the Gaza Strip. Doubts have been raised on the accuracy of these assurances.[8] Research by independent media outlets and non-governmental organizations, based on analysis of Customs Agency data, shows that, between December 2023 and January 2024 alone, Italy exported arms and ammunition worth more than two million euros to Israel.[9] Certainly, the Administration’s decision not to issue new licenses did not mean that arms exports to Israel under existing licenses were stopped.[10] According to the Government, the decision not to issue new licenses was not based on the criteria of Law No. 185, but on the application of the ATT and CCP 944. As we have seen, the Italian law provides in particular for verification that the country to which the export is to be made is responsible for a serious violation of human rights, as established by the competent bodies of the UN, the EU or the Council of Europe, or that this country is in a state of armed conflict in violation of Article 51 of the UN Charter. According to the Italian Government, none of these circumstances apply in the present case. In particular, the Government considers that the actions taken by Israel in the Gaza Strip are a case of self-defence, i.e., they do not constitute a violation of the UN Charter.
In terms of human rights violations, however, it should be noted that, on 26 January 2024, the International Court of Justice issued an order for precautionary measures in the case of South Africa v. Israel, finding that there was a plausible risk of genocide in Gaza.[11] Citing the Court’s order, the UN Human Rights Council then adopted a (non-binding) resolution calling on all States “to cease the sale, transfer and diversion of arms, munitions and other military equipment to Israel, the occupying power, in order to prevent further violations of international humanitarian law and human rights violations and abuses”.[12] Contrary to the Italian Government’s position of 14 December 2023, it could perhaps be argued that with these new developments in 2024, there is now a determination of human rights violations by UN bodies that could be considered relevant to the application of Law No. 185.
Another important aspect of the Italian position is that, in applying the criteria set forth in the ATT and CCP 944, the Italian Government emphasized that such criteria involve an assessment of the potential of the transferred equipment to be used for the commission of human rights violations and international crimes, rather than a general assessment of the conduct of the recipient State. While these statements are politically understandable, they do not appear to be entirely correct from a legal point of view. Indeed, also the prognostic assessment required by international and EU norms cannot but include an assessment of the conduct of the receiving State as one of the elements on which to base the relevant risk analysis. This is shown by the text of Article 7 of the ATT, which requires the licensing authorities of the State parties to take into account “in an objective and non-discriminatory manner […] relevant factors, including information provided by the importing State”. It seems clear that such a broadly-worded text also includes the analysis of the receiving State’s conduct as one of the relevant criteria. Similarly, the EU User’s Guide to CCP 994 explicitly clarifies through a set of questions when “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”.[13] Such questions include:
Have violations been committed by any actor for which the State is responsible? […]; Has the recipient country failed to take action to prevent and suppress violations committed by its nationals or on its territory?; Has the recipient country failed to investigate violations allegedly committed by its nationals or on its territory?; Has the recipient country failed to search for and prosecute (or extradite) its nationals or those on its territory responsible for for violations of international humanitarian law?; Has the recipient country failed to cooperate with other states, ad hoc tribunals or the International Criminal Court in connection with criminal proceedings relating to violations of international humanitarian law?[14]
In conclusion, despite the assurances of the Italian Government that the decision to suspend the issuance of new licenses for the supply of arms was based on the potential of such arms to violate relevant international obligations, the risk analysis carried out should have been based, at least in part, on the conduct of Israel, the recipient State.
Marco Pertile
A quotable version of this post was published in the Italian Yearbook of International Law: Pertile, “The Legality of Arms Transfers to Israel after 7 October: The Relationship Between the International Legal Framework on Arms Trade and Law No. 185 of 1990”, IYIL XXXIII (2023), 2024, pp. 538-544; available here.
[1] For an overview of the debate, see “For Many Western Allies, Sending Weapons to Israel Gets Dicey”, The New York Times, 13 April 2024; “Arms exports to Israel must stop immediately: UN experts”, UN Press Release, 23 February 2024; Brooke-Holland, “UK Arms Export to Israel”, House of Commons Research Briefing, 22 May 2024.
[2] On the application of Law No. 185 to a number of cases in the past, see Lerer, “The Position of Italy on the Cases of Arms Exports to Turkey, Saudi Arabia and the United Arab Emirates”, IYIL, Vol. XXIX, 2019, p. 495 ff.; Id., “Arms Export to Some Near- and Middle-Eastern Countries”, IYIL, Vol. XXX, 2020, p. 534 ff.
[3] Art. 6 ATT. See also Art. 2, Criterion One, CCP 944.
[4] Art. 7 ATT; Art. 2, Criterion Two, CCP 944.
[5] A courtesy translation of Law No. 185 is available on the website of the Ministry for Foreign Affairs.
[6] A bill of reform of Law No. 185 is now under discussion before Parliament and was approved by the Senate on 21 February 2023: see Senate of the Republic, Bill No. 855 (“Modifiche alla legge 9 luglio 1990, n. 185, recante nuove norme sul controllo dell’esportazione, importazione e transito dei materiali di armamento”).
[7] Mr. Crosetto’s statement on X is available here.
[8] “Export di armi da guerra italiane a Israele dopo il 7 ottobre. La conferma delle Dogane”, Altrɘconomia, 22 May 2024.
[9] Ibid.
[10] On this point, see the annual report for the year 2023 sent by UAMA to Parliament: “[r]egarding Israel, the value of authorized exports in 2023 (9.9 million) remained unchanged from the previous year, while the granting of new arms export licenses was suspended following the start of operations in Gaza in response to the Hamas-led attack on 7 October 2023” (Senate of the Republic, “Relazione sulle operazioni autorizzate e svolte per il controllo dell’esportazione, importazione e transito dei materiali di armamento (Anno 2023)”, Doc. LXVII No. 2, Vol. 1, 25 March 2024, p. 5).
[11] International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Order of 26 January 2024, para. 54.
[12] Human Rights Council, Resolution 55/28, 5 April 2024, para. 14.
[13] User’s Guide to Council Common Position 2008/944/CFSP defining common rules governing the control of exports of military technology and equipment, 10858/15, 20 July 2015, p. 42.
[14] Ibid., p. 51.
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