Germany’s Illegal Arms Trade

Germany is one of the world’s foremost manufacturers for weapons of war such as battle tanks, artillery, ammunition, and hand guns. Although this sector of the German economy has been kept quiet since World War II, recent arms trade deals have given rise to attention to particular weapons manufacturers such as Rheinmetall AG, as well as the German government’s conduct in supporting Rheinmetall’s and the inter-governmental disregard of international law.

Source:  www.tagesschau.de

Source: www.tagesschau.de

RHEINMETALL’S DISOBEDIENCE OF GERMAN AND INTERNATIONAL LAW

Over the last three years, the Rheinmetall AG stock has increased by approximately 180%, almost 80% in 2017 alone[1]. This is, of course, to the satisfaction of CEO Armin Papperger and all stockholders and investors. What should not be satisfactory, and a fact that is often swept under the carpet, is that all these investors profit off of complex weapons trade loopholes, which ultimately kill innocent civilians in war zones without any accountability.

For decades, the German government steered clear from promoting their arms manufacturers abroad. This has now changed, to the joy of the arms industry, and the largest purchasers of German weapons, the United States, the United Arab Emirates, and Great Britain. Saudi Arabia is also among the top purchasers of weapons and military equipment from Germany, including purchases of missiles, machine guns, munitions and artillery.[2] The Düsseldorf company Rheinmetall, and the Munich company Krauss Maffai Wegemann (KMW) are some of the largest war-weapons manufacturers in the world, KMW known best for its “Leopard” and “Gepard” tanks.[3]

Rheinmetall Defence, a branch of the Rheinmetall AG, markets itself as a technology group and the market leader in areas of “environmentally friendly mobility and threat-appropriate security technology.”[4] The Defence Group is a supplier of Military technology, partnering with the armed forces, and distributing weapons, equipment, and technology around the world[5]. About a decade ago, Rheinmetall supplied mostly the German forces, but today, approximately 70% of their products are sold to foreign countries.[6] Germany is the third largest weapons supplier in the world, behind the United States and Russia, and ahead of France and Great Britain. Generally, “almost one-tenth of all the money generated by global weapons exports end up in the pockets of the German defense industry.”[7]

The problem with this growing sector of the economy is that the United Nations, the European Union, as well as the German government impose strict regulations on the export of weapons of war. Regulations for arms exports are found in the German War Weapons Control Act (KWKG)[8] and the Foreign Trade and Payments Act (AWG)[9], which clearly state that weapons exports must mandatorily be approved of by the government and must be granted a license of production.

According to the War Weapons Control Act (KWKG)[10], companies and individuals need a license for every kind of domestic and foreign weapons transaction. The German government has been reluctant to grant a license to Rheinmetall for the manufacturing and export of military equipment to Turkey. Even though Turkey is a NATO ally, Turkey has been using the cover of fighting ISIS to destroy Kurdish strongholds in Syria. Now the Turkish government is pressuring Germany into this weapons deal, by bringing to the table the chance of releasing German journalists imprisoned in Turkey.[11]

But there are loopholes for German manufacturers, to be able to export weapons of war to war zones, as well as to countries which are prohibited to export to under German, and European law. Through international collaborations, which redirect the manufacturing deals through other countries with more liberal export regulations, German companies do not have to get the government’s blessing to export.[12] Rheinmetall for example, has subsidiaries all over the world. One case showing this is the weapons export to Libya during the political uprisings and the Arab Spring. The military transportation Gadhafi’s troops were using at the frontlines, were produced by Mercedes-Benz, as well as his “Milan 3” anti-tank missiles, which were produced in Bavaria, and exported from German companies without licenses from the government. On the other side of the conflict, the Libyan rebel forces used the exact same “Milan 3” anti-tank missiles, which Germany had sold to Qatar, and Qatar supplied the rebels with.[13] Under the KWKG, Germany was not allowed to export weapons to Libya at that time, as it was not clear to the German government at the time, that the weapons would not be used to kill civilians. In addition to that, there were, and still are, trade embargoes in place under European Union and United Nations law, to not export any goods to Libya.[14]

THE GERMAN GOVERNMENT’S DISOBEDIENCE OF INTERNATIONAL LAW

Chancellor Merkel points out that Germany’s foreign policy is committed to values of human rights and democracy, and yet, she allows weapons of war to be exported to unstable regions and regimes whose human rights records have been more than questionable.[15] Israel is a great example here, because Germany will allow any kind of weapons export to Israel, no matter the underlying issues.[16] During uprisings between the Palestinians and the Israelis, the German government publicly condemned the war and the human rights violations, making a stand for the two-state solution and sustainable peace negotiations, but secretly and hypocritically permitted continuous weapons of war exports to Israel.[17]

Weapons exports to countries like Saudi Arabia are highly criticized as well, because diplomats cannot truly assess the stability of the situation in the Middle East. This was a great concern during the Arab Spring, and has remained so for most countries in the Middle East. The concern is that tanks and other weapons could fall into the hands of anti-Western movements, as happened with American weapons during the Iranian Revolution.[18] But despite concerns about weapons falling into the hands of anti-Westerners and corrupt regimes, and despite proof that Middle Eastern governments have been funneling weapons to terrorist organizations like Al-Qaeda or ISIS, KMW, the manufacturer of the “Leopard 2” tank, continues to sell these tanks to the Royal Government of Saudi Arabia.[19]

ANALYSIS

The actions the German government continues to take, regarding weapons exports to unstable regions and regimes, or allowing German companies to export entire manufacturing plants to surpass German and United Nations law, violates various international treaties, embargoes, and the expected moral high ground of a country otherwise known to take humanitarian stands on international crises.

Germany’s actions violate the United Nations Arms Trade Treaty which was put in place under Article 26 of the Charter of the United Nations, seeking and promoting “the establishment and maintenance of international peace and security . . . ” and underlines “ . . . the need to prevent and eradicate the illicit trade in conventional arms and to prevent their diversion to the illicit market, or for unauthorized end use and end users, including in the commission of terrorist acts.”[20] Germany is a ratifying party to this treaty and therefore, acknowledges under the treaty, that “peace and security, development and human rights are pillars of the United Nations system and foundations for collective security and recognizing that development, peace and security and human rights are interlinked and mutually reinforcing.”[21] When performing and allowing weapons exports to unstable regions, it is also to bear in mind, that “civilians, particularly women and children, account for the vast majority of those adversely affected by armed conflict and armed violence.”[22]

One principle of the Arms Trade Treaty is “The responsibility of all States… to effectively regulate the international trade in conventional arms, and to prevent their diversion, as well as the primary responsibility of all States in establishing and implementing their respective control systems.”[23] Germany has these systems in place, as the KWKG shows, but the government does not seem to utilize them. The government watches Rheinmetall build up subsidiaries around the world, so that they can functionally deliver weapons to Iran, Iraq, and other unstable countries. Furthermore, the government allows exports to Saudi Arabia, while knowingly accepting that the Kingdom funnels weapons to terrorist organizations.[24]

The purpose of the United Nations Arms Trade Treaty is to “prevent and eradicate the illicit trade in conventional arms and prevent their diversion.”[25] This applies to battle tanks, armored combat vehicles, combat aircrafts, attack helicopters, warships, missiles and missile launchers, small arms and light weapons, and many more.[26] Germany violates Article 2 in various ways, by exporting missiles, submarines, and tanks to regions of war around the world, especially in the Middle East.

Article 4 tells ratifying parties to establish and maintain a control system for the production and export of individual parts and components, when the export provides the capability to assemble the weapons independently.[27] Germany did not do this, in the case of Rheinmetall, where the German government ignored the fact that Rheinmetall built up entire manufacturing factories as subsidiaries to the German company in Italy, South Africa, and the United Arab Emirates, in order to surpass German regulations.

Rheinmetall Denel Munition (RDM) is one subsidiary company of Rheinmetall Waffe Munition GmbH in South Africa. RDM specializes in development, design, and manufacturing of ammunition, artillery, and infantry systems, which are then exported to countries which Rheinmetall in Germany is not legally able to expand to,[28] as the German government will not allow companies to export weapons of war to certain countries or regions, such as Iran, Iraq, and China.

Rheinmetall’s Italian subsidiary, RWM Italia, which specializes in the development and manufacturing of ammunition, explosives, and warheads,[29] has been connected to many civilian casualties in the current civil war in Yemen. The humanitarian organization Human Rights Watch took pictures of bombshells which could be traced back to RWM Italia. The German government took the position of not having any part in this, as this was a legal transaction between RWM Italia and the Saudi Arabian government, and the responsibility for policing this matter lies exclusively with the Italian government. Italy’s position was similar, saying that because it is a German company, Germany should have policed this transaction.[30] In this situation in Yemen, neither county which is part of the manufacturing process, will take responsibility for the weapons which kill civilians.[31]

According to Article 6 of the Arms Trade Treaty, the trade of weapons and arms cannot violate any United Nations arms embargoes, or other “relevant international obligations under international agreements to which it is a party, in particular those relating to the transfer of, or illicit trafficking in, conventional arms.”[32] Current United Nations embargoes include Iran, Iraq, ISIL, Al-Qaeda and associated individuals and entities, Somalia, and Yemen. European Union embargoes additionally include China, Syria, and Venezuela.[33] By using subsidiaries in countries with less strict export regulations and embargoes, Rheinmetall effectively avoids the restrictions of the German government, and, by default, appears to remove Germany’s responsibilities according to the UN Arms Trade Treaty, the German Foreign Trade and Payments Act (AWG), and the German War Weapons Control Act (KWKG).

Article 7 of the Arms Trade Treaty implements an additional step, which export countries have to take, namely the export assessment. An export state must assess and account for the importing country’s use of the weapons. One may not export if the weapons contribute to undermining peace and security, or could be used to commit or facilitate violations of international humanitarian or human rights law, or if the weapons would facilitate terrorism or organized crime.[34] Germany, by essentially giving all export powers to Rheinmetall, does not perform this assessment. Rheinmetall, because it cannot necessarily be sanctioned by the UN, as it is no ratifying party to the treaty, does not abide by any of the regulations, proven by the list of countries to which Rheinmetall subsidiaries export.

Under Section 4 of the Foreign Trade and Payments Act (AWG), Restrictions and Obligations to Act in Order to Protect Public Security, it says that foreign trade transactions can be restricted in order to “1. prevent a disturbance of the peaceful coexistence of nations or 2. to prevent a substantial disturbance to the foreign relations of the Federal Republic of Germany”.[35]  Section 5 adds that restrictions and obligations under Section 4 can particularly be imposed on transactions in reference to “1. Weapons, ammunition and other military equipment and goods for the development, manufacture or deployment of weapons, ammunition and other military equipment . . . 2. Goods which are designed for the conduct of military actions.”[36]

Restrictions can also be imposed with reference to domestic companies which “manufacture or develop war weapons or other military equipment.”[37] Unfortunately, this does not include the Rheinmetall subsidiary in South Africa or Italy, as these are not domestic in Germany. Sections 4 and 5.1 do, in fact, speak to the case of Rheinmetall’s subsidiaries, as they do disturb the peaceful coexistence of nations, and do include weapons and military equipment, which leaves death tolls in war zones unaccounted for.

CONCLUSION

As one of the world’s foremost weapons manufacturers, Germany must abide by laws regulating the export of weapons of war. Germany should also put tougher, more stringent sanctions on companies who don’t abide by German, nevertheless, European or United Nations laws. Even if this will decrease the production of weapons, the German economy will not be tremendously affected, as all the weapons manufacturers also produce civilian machinery. Additionally, as a ratifying party of the United Nations Arms Trade Treaty, an influential country such as Germany, should be a role model to other countries, showing that humanity and the safe disbursement of weapons to stable countries are more important than the niche economic sector of weapons of war manufacturing. To take a stand on the current questionable morality of the Saudi Arabian Government, Germany has temporarily halted all weapons exports to the Kingdom, after the news regarding Journalist Jamal Khashoggi circulated[38]. This is a good first step in valuing human rights over capital gains, and will hopefully lead to a more humane view on weapons exports.

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Vanessa Jacobsen is a 2L at University of Denver Sturm College of Law and a Staff Editor on the Denver Journal of International Law and Policy.

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[1] Finanzen Rheinmetall Aktie, https://www.finanzen.net/aktien/rheinmetall-Aktie (last visited Jan. 31, 2018).

[2] Dietmar Hawranek, Markus Dettmer & Ralf Beste, A New Arms Race: Exports Booming for German Weapons Manufacturers, Der Spiegel, Jul. 11, 2011, http://www.spiegel.de/international/germany/a-new-arms-race-exports-booming-for-german-weapons-manufacturers-a-773626.html.

[3] Krauss-Maffai Wegemann, http://www.kmweg.de/unternehmen/geschichte.html (last visited Jan. 30, 2018).

[4] Rheinmetall Defence, https://www.rheinmetall-defence.com/en/rheinmetall_defence/index.php (last visited Jan. 30, 2018).

[5] Id.

[6] Hawranek, supra note 2

[7] Hawranek, supra note 2

[8] Kriegswaffenkontrollgesetz [KrWaffKontrG] [War Weapons Control Act], Oct. 11, 2002, BGBL | at 3970, § 1 (Ger.), https://germanlawarchive.iuscomp.org/?p=741.

[9] Außenwirtschaftsgesetz [AGW] [Foreign Trade and Payments Act], Jun. 6, 2013, BGBL | at 1482, § 1 (Ger.), http://www.gesetze-im-internet.de/englisch_awg/englisch_awg.html#p0093.

[10]  KWKG, supra note 8.

[11] Matthias Gebauer & Christoph Schult, Berlin Weighs Tank Deal with Turkey to Free Journalist, Der Spiegel, Jan. 22, 2018, http://www.spiegel.de/international/germany/arms-for-hostage-germany-explores-yuecel-deal-with-turkey-a-1189197.html.

[12] Hawranek, supra note 2.

[13] Id.

[14] Arms embargoes, Stockholm International Peace Research Institute, 2018, https://www.sipri.org/databases/embargoes.

[15] Konstantin von Hammerstein et at., translated by Christopher Sultan, German Weapons for the World: How the Merkel Doctrine is Changing Berlin Policy, Der Spiegel, Dec. 3, 2012, http://www.spiegel.de/international/germany/german-weapons-exports-on-the-rise-as-merkel-doctrine-takes-hold-a-870596.html.

[16] This fact has other historical reasons, which this paper will not investigate.

[17] Hammerstein et al., supra note 15.

[18] Id.

[19] Hawranek, supra note 2.

[20] G.A. Res. 67/234 B, United Nations Arms Trade Treaty, pmbl. (Jun. 3, 2013).

[21] Id.

[22] Id.

[23] G.A. Res. 67/234, supra note 20, at princ.

[24] Hawranek, supra note 2.

[25] G.A. Res. 67/234, supra note 20, at art. 1.

[26] Id. at art. 2.

[27] Id. at art. 4.

[28] Rheinmetall Denel Munition, https://www.rheinmetall-defence.com/en/rheinmetall_defence/index.php (last visited Jan. 30, 2018).

https://www.rheinmetall-defence.com/en/rheinmetall_defence/company/divisions_and_subsidiaries/rheinmetall_denel_munition/index.php.

[29]  RMW Italia, https://www.rheinmetall-defence.com/en/rheinmetall_defence/company/divisions_and_subsidiaries/rwm_italia/index.php (last visited Jan. 31, 2018).

[30] Hauke Friedrichs, Boom mit Bomben, Die Zeit, Oct. 28, 2016, http://www.zeit.de/2016/45/rheinmetall-ruestungskonzern-internationalisierung-export-kontrollen.

[31] Id.

[32] G.A. Res. 67/234, supra note 20, at art. 6

[33] Arms embargoes, supra note 14.

[34] G.A. Res. 67/234, supra note 20, at art. 7

[35] AWG supra note 9, at Sec. 4

[36] Id. at 5.1

[37] Id. at 5.2

[38] Zahl der Rüstungsexporte sinkt erneut, Tagesschau, Jan. 1, 2019, https://www.tagesschau.de/wirtschaft/ruestungsexporte-deutschland-101.html

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