The Council’s Common Position on Weapon Exports (2008) ─ What is it Good For?

In times of crisis even reactions of usually more prudent (opinion) leaders often show a touch of recklessness. Deeply worrying are the increasing calls for an export of armour-piercing weapons to Ukraine, as prominently expressed by US senator McCain or the former US Secretary of State Madeleine Albright at the Munich Security Conference; an idea even German Foreign Minister Steinmeier seems not fundamentally opposed to. However, many experts argue against it. Already in June 2014 Eugene Rumer, the Director of the Carnegie Endowment for International Peace’s Russia and Eurasia Program, wrote that the export of weapons to Ukraine would probably worsen the situation rather than solve anything. The question whether to export weapons into a conflict zone or not is not new and is not only debated in the current case of Ukraine. Just recently this has been the case when Kurdish Peshmerga forces in Iraq called on Germany to supply them with weaponry (a request which was granted by the German government). There are many examples in history where weapon exports turned out to be a wrong decision. Generally it can be said that weapon exports are no useful tool to calm conflicts in the long run, they rather tend to worsen the situation. This can also be said about Ukraine as Sven Biscop, the Director of the Egmont Royale Institute of International Relations, argues rightly in his comment “Thou shalt not arm those who cannot win”.

When facing challenges like these Europe has to decide what role it wants to play internationally. To start with European leaders should take a step back and look at the values and aims agreed at EU level like the Common Position concerning weapon exports (CP) adopted by the Council in 2008. This CP lists eight criteria guiding national arms export decision making, when not to export weapons; they concern e.g. human rights, the internal situation in the recipient country and region or the question whether allies are endangered by these exports. These criteria look good on paper and might prove the EU’s intention to be a ‘force for peace’, however, do the actions of the EU and its Member States live up to this claim? To be fair, everyone has a different understanding of the words “peace” and “force” (or power) and the combination of both words does not necessarily make their meaning any clearer. Still, claiming moral high ground requires the setting and respecting of high standards.

In a nutshell, defence (as part of Foreign Policy) is historically at the core of national self-conception and states are very reluctant to give up any of these powers. Defending their land and their citizens has always been the main concern of emperors and kings, and today it is still the heads of government and their foreign ministers who mostly decide in this policy field. It therefore comes as no surprise that at European level the Council of the European Union decides unanimously on foreign affairs. Even though the defence sector is among the least integrated policy fields in the EU, in recent decades it has taken some significant steps towards a more European approach. After the Cold War there was a window of opportunity to ‘Europeanise’ Foreign Policy, which resulted in the partially successful Common Foreign and Security Policy (CFSP). Nevertheless, national interests have persistently dominated this policy field up to the present day. Hence, academics locate CFSP somewhere in the mix between intergovernmental and supranational structures. These developments resulted in 1998 in a Code of Conduct regarding weapon exports, which ten years later was transformed by the Council into the legally binding Common Position 2008/944/CFSP. The revision of the Common Position started in 2012 and we are still awaiting the final results of the review. (1)

What does ‘legally binding’ exactly mean?

First we need to reflect on the term ‘legally binding’, which is the main difference between a Code of Conduct and a Common Position. Ostensibly it means that governments can be taken to court if they do not follow the Common Position, but in reality, as Sara Depauw, researcher at the Flemish Peace Institute explains, that is not possible. The European Court of Justice (ECJ) has no power to take decisions in CFSP matters and European decisions on CFSP have to be translated into national legislation to become legally binding. In that sense it does not matter much if it is a Common Position or a Code of Conduct. Nevertheless the wording ‘legally binding’ gives civil society a tool to reprimand Member States if they do not follow the decisions taken at EU level. The criteria of the Common Position and the user’s guide are quite vague and offer much scope for interpretation; this is where much room to manoeuvre exists for the Member States. The core problem is that there is no common understanding. ‘The Common Position is the minimum they agreed on and Member States mostly see it as the maximum they can do,’ Kloé Tricot O’Farrell, advocacy officer at Saferworld, says. She summarises the situation as follows: in the end national interests tend to cloud the interpretation of the criteria of the Common Position and economic reasons make up a large part of national interest, especially in times of financial and economic crisis. Furthermore, the Common Position focuses mainly on state-to-state conflicts, Tricot O’Farrell explains, meaning that the Common Position has changed very little since its adoption after the Cold War. Internal conflict is mentioned but does not necessarily include crime, organised crime or armed violence. In other words, the Common Position is in a dire need of an update.

Are weapon exports a strategic foreign policy instrument to gain influence or are they part of trade and economy?

Pierre-Arnaud Lotton, chair of the Council Working Party on Conventional Arms Exports (COARM), argues that arms exports are usually part of a foreign policy package. He claims that in the case of the Middle East, which is a major recipient of EU arms exports, the reason why so many licences are approved is that Iran is a threat to EU Member States and in order to offset its power Member States strengthen Iran’s opponents in the region. For Sara Depauw it depends on individual Member States whether weapon exports are part of foreign policy or trade. For her the biggest weapon exporting countries of the EU ─ France, Germany and the UK ─ use weapon exports as a foreign policy tool, whereas for others, such as Belgium, it is more of a trade issue. So it is not clear in which policy field weapon exports are located. In most cases the export of weapons is an instrument to create status for Member States and to give a privileged status to certain relationships. Nils Duquet, also a researcher at the Flemish Peace Institute, adds: ‘Weapon exports are a very strong instrument, but not necessarily one to change countries in a good direction,’ Frank Slijper, researcher at PAX says, ‘(they) can be seen as ‘icing on the cake’ offered to the importing country,’ meaning that weapon exports are mostly accompanied by trade agreements on other products or even function as a door opener for trade per se.

If we look at Germany we cannot find a clear security policy on weapon exports. According to Tobias Heider, advisor to The Greens/European Free Alliance on Security and Defence, the problem is that recent German governments decided to allow certain weapon exports (such as the Rheinmetall Combat Training Centre to Russia) without realising their geopolitical and security impact. ‘This is the worst of all possibilities when dealing with weapon exports,’ Heider complains. To be clear, the way other countries such as the UK and the USA sell weapons to “partner countries” is also highly questionable, but at least they have an open and rigorous debate about their security policy which governs export decisions, which Germany lacks. All we witness is great confusion with little peaks of indignation. Heider would even prefer something like a “Merkeldoktrin”, as the German weekly Der Spiegel labelled Merkel’s approach to weapon exports in 2012. In short, the ‘Merkeldoktrin’ is based on her statement that she prefers exporting weapons rather than sending troops into a conflict zone, which was applied in 2014 when Germany exported ‘massive amounts of arms’ to the Peshmerga forces to fight ISIL in northern Iraq. But even that recent incident, which by the way broke with a long tradition of restraint, did not create serious and continued discussions with Merkel about how to handle the collapse of Iraq in the long-run or the export of modern tanks to Saudi Arabia.

How efficient is the Common Position?

The original goal of the Code of Conduct was to strengthen responsibility and transparency by harmonising national practices. The wording ‘responsible’ includes restrain and according to Nils Duquet also restriction, what contradicts with Lotton’s interpretation. In this minor differentiation we can sense the problems of interpretation the Common Position contains. Personally, I go along with Duquet’s interpretation, because it fits the mood after the 1st Gulf War, when the Code of Conduct was created. The Member States did not want to end up fighting an enemy who used the weapons they had sold him earlier. This sounds familiar. Maybe we will hear these words again in a few years’ time when the weapons Germany sent to the Peshmerga forces emerge in other conflicts and other hands. One might well remember that they signed an Endverbleibserklärung (end-use-certificate) which limits the use and the distribution of the weapons. However, according to Tagesschau reports, the Bundeswehr confirmed that they do not know exactly which of the Peshmerga are using the weapons or where. This is just one current example. Unfortunately, so Frank Slijper concludes, the Code of Conduct and the Common Position did not generally succeed in limiting European weapon exports. Despite this major non-achievement, the Common Position brought limited improvements; it helped to establish practices in the EU on cooperation and information sharing and contributed greatly to enhanced transparency within the EU. Although it is still not powerful enough to stop weapon exports if a Member State is determined to go ahead with it.

The main improvement is that generally there is more information available for the public, for instance the annual report by the Council Working Party on Conventional Arms Exports (COARM). However, we still see a reluctance to share this information, and public discussions only follow the decisions which were already taken by politicians or bureaucrats years before. Frank Slijper observes that some countries have even lowered the bar compared to the situation before the Common Position. One clear example of the countries which have lowered their “restrictive policy” is Germany. This observation is supported by the data provided by the Stockholm International Peace and Research Institute (SIPRI), which ranked Germany from 1995 to 1999 in 5th place of the largest weapon exporting countries of the world. It rose to 3rd position in the period 2003 to 2007 where it remains until today. In recent years German weapon export licences have risen from around 3.6 billion Euros in 2007 to 5.8 billion Euros in 2013. In 2013 62 percent of total German weapon exports went to third countries and developing countries. An even more shocking figure is that 51 percent of small arms, such as rifles and pistols, went to third countries as well. This is especially alarming as the value of exported small arms rose from around 30 to 40 million Euros between 2004 – 2007, to 76 and 82 million Euros in 2012 and 2013 respectively. In 2013 the primary recipient of small arms was Saudi-Arabia with licences worth 35 million euros, as stated in the German Annual Report on Weapon Exports from 2013 on pages 19 to 29. These figures support Slijper’s claim that Germany lowered the bar and this is especially worrisome as German exports are going more and more to non-EU or non-NATO states. On top of this small arms are being exported to fragile regions and to undemocratic states, such as Saudi-Arabia. We should bear in mind, that, according to claims by Amnesty International, small arms are accountable for the most deaths by weapons.

So why is it possible to export weapons to regions which are clearly undemocratic, severely violate human rights and are unstable? The case-by-case-approach is a major reason why most Member States grant licences to countries which violate the eight criteria of the Common Position. Nils Duquet explains the bizarre logic of the case-by-case approach. It starts with the question ‘whether the specific weapons directly violate the criteria of the Common Position.’ If this is not the case, weapon exports can be (and most of the time will be) allowed. ‘If you look at Saudi Arabia, there are regional problems and there are human rights abuses, but is the export of tanks going to aggravate that directly? Will these specific tanks be used in human rights violations? These are the questions which are asked under the case-by-case licensing. And as long as you cannot make that direct link, unfortunately, exports are possible.’
 
Another example is Egypt. Lotton argues that the issue of weapon exports is not as clear cut or simple as it might at first appear. He emphasises that there are many good reasons not to export weapons to Egypt, such as the severe repression in that country, but at the same time the Egyptian army is fighting terrorists in the Sinai. Hence one option is not to export weapons, whilst another is to impose conditions on the exports, e.g. that the use of the weapons has to be restricted to the military or police fighting terrorists. Both versions are applied by Member States. However, many experiences show that these restrictions are not functioning well. Just think about the current Mexican case where G-36 were evidently used in provinces in which this was forbidden according to the Endverbleibserklärung, or Syria, where G-36 were used even though the German government had sanctioned their export. It is said that they stem from Libya and Gaddafi’s arsenal. At least one might have expected a reduction in the value of weapon export licences to Egypt since the Arab Spring of 2011, says Kloé Tricot O’Farrell, but on the contrary, weapon exports have increased until 2013. In that year the EU Council suspended all licences to Egypt given the situation on the ground. Until 2013 the biggest exporting countries were France, Spain, Bulgaria and the United Kingdom and many of them, e.g. the United Kingdom, do not publicise the volume of their actual exports. For these reasons, Saferworld has built up a database showing the different levels of transparency of the Member States in the hope of creating some peer-pressure among the Member States and sharing information among the NGOs and in the end to bring about more transparency.

Proposals to improve the Common Position and to create a more reliable and more restrictive weapon export policy

The database of Saferworld is one attempt, but what other ways are there to create a more reliable and more restrictive weapon export policy? NGOs struggle with their strategy: as long as it is not possible to say whether or not harmonisation will bring about more restrictions, they are not sure whether they should promote harmonisation or not. Nevertheless, a re-nationalisation would evaporate the little we have achieved during recent years. Supranationalisation applied to arms exports is a dream which is unlikely to come true in the near future, because we have already reached the maximum of harmonisation possible among the Member States. Therefore we will have to work on concrete solutions and proposals at a lower level, such as suggested by Frank Slijper, who prefers overall stricter arms export rules and more pressure, especially on the large export countries such as Germany, France and the United Kingdom. The report “Lessons from MENA” that he co-authored with An Vranckx and Roy Isbister in 2011 is even more valid today, as the last three years have seen no policy changes.
 
Tobias Heider advocates a standing rapporteur in the European Parliament Subcommittee for Security and Defence (SEDE) who drafts the Parliament's response to the Council's annual arms exports report. Such a regular reporting existed already from 2004 to 2009 and which he believes would improve public debate. A standing rapporteur would raise the awareness within the Parliament, increase the Parliaments level of expertise in the field, and provide a platform for in depth discussions with all kinds of actors.  Kloé Tricot O’Farell focuses also on information sharing with the public: in her opinion the COARM report should include comparative analysis, not merely data. In order to serve the goal of informing the public, the COARM should report consistently and timely to the respective committee of the EP. Small things such as a press release for the annual COARM Report could help to create greater awareness. However, the foremost request is for an honest interpretation of the criteria by all Member States. The quality of interpretation is most important, not necessarily harmonisation. In Depauw’s and Duquet’s words: ‘It is not the wording which has to change, it is the practice.’

One way of changing the practice would be for better end-user-control of weapon exports (especially of small and light weight weapons), which is eminently needed and could be the corner stone of a more credible EU foreign policy. The European External Action Service (EEAS) would be suited for that job, and could work together with national embassies. Depauw points out that this would especially help smaller Member States which do not necessarily have an embassy in every country. Greater harmonisation and a higher frequency of controls would have an impact on the ground and not only on EU procedures. In this particular aspect the USA could be a role model as they already practice stronger end-user-controls.

COARM should play a stronger role, for instance it could create a black list of problematic end-users, generally expand information sharing among Member States and become more active, for instance in observing and analysing weapon exports to countries which have been subjected to an embargo. Playing a more powerful role would have to go along with more transparency about the COARM meetings and its work.

In summary, it can be said that the export of weapons does not help in the long run, because they tend to fall into the wrong hands, especially weapons with a long durability. Also it should be obvious that Member States, such as Germany, contradict the peace approach they agreed on at EU level by selling so many weapons to non-reliable regions and actors. This shows the weakness of the EU institutions in this policy field: it is because of the intergovernmental structure of the CFSP that decisions are still taken by the Member States. Although the proposals I have outlined are important and developments at EU level could trigger national reforms, the focus of reform has to be the structures and procedures in the Member States themselves, which can only be achieved through persistent and growing public pressure demanding restrictive and transparent export policies and overall credible actions by the governments of Member States.