Blog AnalysisArms export, disarmament

Khashoggi case. Are Europeans required to stop exporting arms to Saudi Arabia?

(B2) The Europeans are trying to impose a suspension of arms exports to Saudi Arabia after the assassination of journalist Jamal Khashoggi, and especially the absence of any intelligible clarification from Riyadh. 

Germany, through the voice of Angela Merkel, the Chancellor, has taken a position in this direction. Wallonia is hesitant to take the plunge. Other countries are quieter. The European position in this very sensitive area is indeed very delicate to handle: neither totally disinterested, nor totally imperative.

Is there a European rule codifying the export of arms?

Yes. It results from a common position adopted almost ten years ago, on December 8, 2008 (under the French presidency). It enshrines in law what was previously covered by a code of conduct dating from June 8, 1998 (1).

What does this decision say?

It establishes eight main criteria against which an arms export decision must be assessed. These criteria must be taken into account in any grant of an arms export license by a Member State.

Is it binding on Member States?

Yes and no. It is obligatory in the sense that it is a legal decision. But it is up to the Member States to assess whether the criteria are met or not. In complete sovereignty. No need for public motivation exists. No control or sanction system exists. Neither the European Commission, nor the High Representative or the European Court of Justice have thus received a mandate to verify whether a State has failed to comply with these criteria. Nor is there a common, systematic assessment of whether in each conflict situation a suspension of arms exports is necessary.

Do other instruments exist?

Yes. This is a notable exception to the lack of obligation in the common position. It is taken in another capacity when the Member States decide together to put in place restrictive measures for a country. This sanctions instrument is commonly used. The European Union thus established, autonomously (without a United Nations resolution), an arms embargo towards Russia (in the conflict in Ukraine) or towards Syria. Other embargoes exist following United Nations resolutions: Somalia, Central Africa, etc.

In the Khashoggi case, would the common position impose the suspension of arms sales?

No a priori. Among the criteria, the most applicable is the second criterion on the “ respect for human rights in the country of final destination ". Exports must be suspended “ if there is a clear risk that the technology or military equipment planned for export will be used for internal repression "or serve" to commit serious violations of international humanitarian law ". NB: It can be estimated (by having a rather strict broad appreciation) that the equipment sold (for example guided laser bombs, artillery pieces, planes or tanks) does not " not serve » to commit attacks, at least were not used to commit the assassination of the journalist in Istanbul. Assuming that certain means (communications, planes, etc.) were not used…

Is caution necessary?

Yes a priori. The same criterion of the common position enjoins States to show " exercise particular caution with regard to the issuance of authorizations to countries where serious violations of human rights have been noted by the competent bodies of the United Nations, by the European Union or by the Council of the Europe ". NB: even if we can debate whether a formal 'report' has been made by one of the three bodies cited, caution could be called for. Does a declaration from the High Representative or the European Parliament, for example, represent an observation by the European Union?

Are there other reasons for suspending arms sales?

This is undoubtedly the situation in Yemen, where the coalition led by Saudi Arabia is carrying out a military intervention, which could be a serious reason for suspending arms sales. The same second criterion recommends the suspension of weapons when this equipment “ are used to commit serious violations of international humanitarian law ". NB: The commission of acts contrary to humanitarian law is obvious. It would still be necessary to demonstrate a causal link between the equipment used and these acts.

Another criterion that can be used, the fourth criterion aiming at the " preservation of regional peace, security and stability ". This criterion aims to prevent equipment from being used “ aggressively against another country or to enforce a territorial claim by force ". NB: here again it’s all a question of appreciation. Is Saudi Arabia waging a war of conquest in Yemen and is there “ significant damage to regional stability » (knowing that Yemen, even without Saudi intervention, is not a country of pure stability)?.

(Nicolas Gros-Verheyde)

Read our detailed sheet: Arms export rules (decision of 2008)

  1. common position 2008/944/CFSP of 8 December 2008 defining common rules governing the control of exports of military technology and equipment – ​​European Union code of conduct on arms exports adopted by the Council on 8 June 1998.

Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).