A case for justice? : reflections on the foundations and perspectives of the German arms export politics

Abstract

German arms export policies have proved to be an eternally emotive issue in political and social debate. Although the controversy does not, in the long run, illuminate, the vehemence with which it is time and again conducted indicates that all is not well. In a democracy based on the rule of law, should we not be able to assume that the apparent collisions between accepted norms and vested interests are governed by the law in a way that political and administrative actions do not produce any fundamental contradictions in terms? To meet this objective, the law must be universally valid and achievable, to ensure the maintenance of peace under the law. In reality, a glance at the system of legal norms and procedures that shape current German arms export politics leaves an impression of “extraordinary complexity” and reflects “an extremely unclear and interlocked structure of legal rulings with numerous origins” candidly admits a legal commentator. This judgement is confirmed when these legal foundations, as they appear in their German sources, are considered in the context of the European Union and in view of the general global situation. Therefore, it is not surprising that the German political and administrative handling of arms exports gets tangled in inconsistencies that feed the controversy. In view of this awkwardness, the situation should be reviewed from the perspective that maintenance of the peace nationally also demonstrates the state’s ability to maintain peace at an international level, particularly if that state is a democracy. Difficulties already start with the effort to define, in detail, what is meant by the phrase “arms exports.” Currently, a distinction is drawn between the cross-border transfer of arms, defence equipment, goods that promote war and dual-use goods. Most recently, the term “military equipment” has been used to summarise all these different categories of items. As a consequence, the Arms Control Law (Kriegswaffenkontrollgesetz) and the law ruling commercial relations with other states (Law for Foreign Trade, Außenwirtschaftsgesetz), including their detailed administrative regulations, apply. However, intervention is repeatedly required to ensure harmony between administrative acts and the changing parameters of political actions. This is demonstrated by the various editions of the “Principles of Government Policy in Relation to Arms Export,” the most recent of which was published in January 2000. German law only applies, however, where it has not been superseded or complemented by EU regulations. This is true for the treatment of dual-use goods and for the growing consolidation of cooperation in arms manufacture within Europe. While decisions about arms export issues in the context of the EU still fall under the ultimate sovereignty of individual states, the EU member states agreed, in 1998, to a code of conduct concerning arms transfers. This agreement contains criteria to be applied to the decision making process of the individual member states. Special emphasis is given to the human rights standards, social and economic aspects of development and the regional and domestic stability of the receiver states. Also, the code of conduct commits EU member states to present a report annually on the previous year’s arms export activities to the European parliament and requires the member states to provide each other with information about their arms trade. II The EU code of conduct incorporates aims, formulated by the Organisation for Security and Cooperation in Europe (OSCE) at the beginning of the nineties, that also relate to the adjustment of export policies of Central and Eastern European states. The idea of agreeing to a code of conduct, when legally binding arrangements do not seem possible, also formed the basis of an agreement between the EU and the USA in December 2000, the goal of which was the realisation of a global code of conduct. In this context, the EU and the USA can make reference to similar initiatives of other regional alliances, in particular the Organisation of American States (OAS), the Organisation of African Unity (OAU) and some groups of states in South Asia. All these initiates demonstrate that the international arms trade has become part of arms control politics. In addition to being influenced by regulations within individual states and newly agreed political understandings, arms export politics takes into consideration informal consultation and coordination mechanisms, which are treated as “gentlemen’s agreements”. The best known of these is the 1994/5 ”Wassenar Arrangement,” which followed the earlier Coordination Committee for Multilateral Exports Controls (COCOM). It aims to regulate the export of conventional arms and equipment, sensitive dual-use goods and plant. The arrangement has more than thirty participant states, including Russia and other states that formerly belonged to the Warsaw Pact. Despite the informal nature of this agreement, the resulting regime has a strong influence on national and European export controls. The legal and political situation can, thus, be summarised as consisting of a “hard” core surrounded by “soft” regulations, instructions and procedures that together form the basis of decisions and are open to interpretation. Decisions are often made in an inconsistent manner, as political recommendations are influenced by conflicting economic and technological interests, not to mention cases of political opportunism with regard to the granting or refusal of individual arms export licences. Different levels of law, national, international and trans-national, are entwined, often leaving legislative loopholes and creating contradictions in terms. While lawyers might be used to dealing with different levels of law, politicians and the public find it much more difficult to cope with the resulting dilemmas. Exaggeratedly, the situation in Germany can be characterised as follows: 1. the prohibition versus the allowance of cross-border trade in defence equipment; 2. qualitative criteria for the decision making process versus lists of countries; 3. national versus international or trans-national restrictions; 4. governmental agreements versus cooperation in the private sector; 5. secrecy versus transparency. The current state of affairs casts doubt on whether the general validity, clarity and enactment of present laws can be sufficiently guaranteed. This rocks the foundations of the legitimacy and legality of arms export politics – a situation or constellation that calls for a fundamental examination and reorientation of arms export politics, down to its very roots. III The plea for a revision of the foundations of the arms export politics and for a search for alternatives, aims to reconcile the legal norms and procedures with the political requirements and central trends of the social debate, which could remedy the deficits that can, in the long run, damage a democracy based on the rule of law. This should also include changes in the global arms market that have occurred in the meantime. This market can be divided into different segments: The first segment relates to the predominantly uncontrolled distribution of the means of mass destruction, in the form of a multitude of so-called small arms. These can be characterised as being easy to transport, easy to handle without previous knowledge, low cost and long-lived. They are produced in many places and are available on open, grey and black markets. The second segment relates to the transfer of technologically advanced and very expensive weapons systems, the purchase and deployment of which is only sensible in cooperation with modern, highly qualified forces. In between these two segments exists a third segment that relates to the trade of weapons and defence equipment that are considered outdated by industrial states but which still have high value as status symbols or as part of the military politics of less demanding prospective buyers. A German contribution to the first segment of the global arms market exists in form of German licences, which are openly used to produce and distribute weapons in an uncontrolled way, not to mention the transfer of plant of German origin that can be used to produce those weapons or their ammunition. Conventional legal instruments have become virtually ineffective for monitoring, as this segment is becoming more and more mixed up with cross-border criminal acts, international drugs trade and money laundering. Therefore, national as well as international measures are required to put an end to illegal deals. Also, in order to decrease demand for these weapons, it is imperative to strengthen international criminal law, cooperation between police and customs and initiatives in development policy regarding violent conflict-zones in the Third World. As a consequence of the increasing integration of the foreign and security policies of the European Union, of the restructuring of the armed forces in many countries and the increasing cooperation or even merger of European defence industries, it will not be possible to control the second and third segment except in a European context. The six most important arms producing states in the European Union settled on a skeleton agreement in July 2000 that creates the basic conditions for such a European endeavour. It would be anachronistic if arms export politics continued as a remnant of national sovereignty, rather than becoming a component of this political and economical process. It would be consistent to restrict the transfer of weapons and defence equipment to the circle of states that are part of these developments. Also, the norms and qualitative criteria that are valid here should govern decisions about transfer of surplus weapons to countries that are not part of military or security alliances. If it were possible to reconcile the procedures involved in political direction setting with decisions about arms export, then the law would no longer have to serve as workshop, repairing the faults caused by political omissions and failures. IV Although all options so far discussed assume that some form of arms export will continue to be carried out, the alternative of living without such deals should also be considered. This would place considerable emphasis on the proclaimed aim of a democracy to be recognised as a ‘civil power’ (Zivilmacht), including in their behaviour to other states. However, the most important suppliers of arms are still democracies that provide arms to the rest of the world. Without the supply of weapons and other defence equipment, the intensity with which brute force is used in the violent conflicts in which democracies are involved, would decrease. Thus, the costs of such a sudden change in policy need to be weighed against the burdens imposed by the current situation. This comparison might also reveal connections that would cast a different light on the pros and cons of arms transfer and might even convince current advocates of arms trade. One example of such a process is the successful campaign, 150 years ago, for the abolition of slavery. If democracy, law and peace are to go hand in hand, then the rejection of arms export is a good example to test this cause and a global advertisement for it