Military equipment trade: export licences in criminal defence
As the movement to hold corporations to account for their participation in human rights violations grows, one sector in particular is at risk: the defence industry. Under the impulse of human rights organisations, several investigations and prosecutions are already ongoing to identify the role played by corporations and their executives in the war crimes and crimes against humanity allegedly perpetrated with equipment they sold to state and non-state actors. A number of factors explain the lack of readiness amongst legal departments facing such challenges. The main one seems, however, to reside in the overconfidence provided by the export licences delivered by their state. Corporations assume, mistakenly, that the licence to export awarded by the state shields them and their executives from criminal accountability.
France’s export control system is a good example. The defence industry plays an essential role in the country’s economic fabric, admittedly representing more than 200 000 jobs. Military equipment exports participate significantly and positively to the trade balance, with more of half of its production being sold to allies, for more than 9 billion euros in 2018. Being a leader of the defence industry also provides diplomatic leverage, and allows to exert influence on world politics by providing and denying nations from course-altering technologies.
Links between the state and the defence industry are therefore tight and probably explain the assumptions corporations and their executives hold that the licence the former grants to the latter could shield them from criminal prosecutions.
Licence to export: what and why?
Over the past 50 years, states have unanimously admitted, although at varying degrees, the need for them to play a part in the trade and exports of military material. Rationale behind this intervention is virtuous, to prevent excessive flows of weapons that may be detrimental to human rights. It is also self-serving, with the wish to monitor trade, to hinder other states in the growth of their military capabilities and to protect intellectual property. European and international regulations, implemented by domestic legislations, thus provide a framework for the export of military equipment and dual-use goods.
To take France’s example, two frameworks regulate the export of, on the one hand military material, and, on the other hand, of dual-use goods. France’s control over dual use goods comes implementing Regulation 2021/821, that openly aims at aims at tackling considerations including “human rights, and considerations about intended end-use and the risk of diversion.” The control mission is exercised by the Dual-Use Goods Bureau, under the auspices of the Minister of the Economy. On the other hand, two instruments oversee the control of military equipment export. Common Position 2008/944/pesc and the Arms Trade Treaty. Their implementation in France amounts to a principle of prohibition of export of military equipment. A corporation willing to do so may thus request an export licence. Delivered by the Prime Minister, upon hearing an interministerial commission’s opinion, the granting of export licence therefors is a matter for the executive power.
These regulations thus create two duty bearers. On the one hand, European and international regulations mandate the state to come up with and implement processes to control the export of sensitive products. A mistake on the part of the delivering authority could result in a number of outcomes, including recourse before administrative courts to rescind the authorisation, state responsibility and the individual responsibility of the person who delivered the licence, as was the case in RWM Italy case. On the other hand, domestic legislations impose corporations wishing to export military equipment and dual-use goods to request administrative authorisations ahead of their export.
Licence to export as a shield against prosecutions: limitations
The reasoning relying on export licences to deny any involvement in the perpetration of international crimes made possible with the materials object of the authorisation is flawed on two grounds mainly.
The justifying nature of the licence
While not aiming at being exhaustive, the Rome Statute provides in its Article 31 and 33 for a set of applicable defences, namely insanity, intoxication, self-defence, duress, necessity, superior orders and prescription of law. Similarly, French criminal law provides for justifications, including the order of the law, a command of legitimate authority, the state of necessity and self-defence. Outside of these specific grounds, it is hard to conceive of a defence that would rely on an administrative authorisation to provide the author with the weapons.
The closer the licence would come to a justification would be to view it as an order of the law. That would be, however, would the licence to export mandate the corporation to proceed with the export. That is, evidently, not the case.
Division of powers
The other deep flaws in considering export licence as a shield against prosecutions lies in the principle of separation of powers. Export licences are granted by the executive, that cannot, without breaching the principle, hinder the judicial one in its mission. It is therefore hard to conceive of the licence as some blank cheque that would shield the licence holder of subsequent prosecutions would the licence be used to aid or assist the perpetration of international crimes. Trivially, that would be similar to admitting the issuing of a driving licence prevents any prosecutions against the driver in case they are involved in a car accident.
Conclusion
Leaving aside the fact that the rationale behind arms export control was never to protect corporations, even if it was willing to, there seems to be little the state could do to hinder the course of justice with a licence to export. There seems to be a deep misunderstanding of the rationale behind weapons export controls on the part of corporations, that place too much expectations on the framework. A solid defence may incorporate the licence, in particular to dilute the corporation’s and its executives’ role in the violations. However, a strategy that would consist in relying solely on the export licence and refrain from implementing robust risk management processes will quickly show its limitations. Licences also undoubtedly have a role to play in crisis management and politics. In case media scrutiny arise, it will be a valuable asset to put forward for optics. No further weight should however be expected. Other, more compelling legal and factual arguments will find their way to defend companies and executives accused of aiding or abetting international crimes. Amongst them, most compellingly will undoubtedly be the intent requirement, or mens rea, object of Article 30 of the Rome Statute and to be found universally in domestic jurisdictions.