II. The RWM Italia Case: An Overview

Based on the evidence collected on the Deir Al-Hajari airstrike, in April 2018, human rights organizations filed a criminal complaint in Italy, alleging the responsibility of the directors of the Italian Unit for the Authorization of Armament Materials (UAMA) and the managers of RWM Italia for abuse of office, multiple homicides and personal injury.Footnote ⁶ Following this complaint, the prosecutor opened an investigation into the sole allegation of abuse of office against UAMA’s directors.Footnote ⁷ In February 2021, the Judge for Preliminary Investigations (GIP) in Rome denied the prosecutor’s request to dismiss the case and ordered further investigations.Footnote ⁸ The GIP rejected the claims that UAMA had no autonomy in deciding to grant arms export authorizations and that the safeguarding of employment in the defence sector could justify granting licenses contrary to the applicable regulatory framework.Footnote ⁹ In March 2023, the GIP ultimately granted the prosecutor’s request to discontinue the case, arguing the impossibility of establishing UAMA’s directors’ intent to procure a pecuniary advantage (to RWM Italia) or cause unjust damage (to the Yemeni victims).Footnote ¹⁰

Despite finding the defendants had violated ‘at least’ the relevant provisions of the Arms Trade Treaty (ATT) by releasing export licenses knowing the arms could have been used unlawfully, the GIP (arguably illogically) concluded they had nonetheless procedurally complied with the applicable arms export control legislation and acted in line with Italy’s foreign and defence policy.Footnote ¹¹ In July 2023, the complainants filed an application to the ECtHR.Footnote ¹²

III. Limited Accountability for Violations of Arms Export Control Legislation

The RWM Italia case provided claimants unprecedented access to key documents and information regarding UAMA’s risk assessment and decision-making process, unveiling critical gaps in the implementation of the Italian arms transfer regulatory framework, including the influence of economic interests and foreign policy concerns.

In Italy, arms exports are governed by a multi-layered regulatory framework comprising the ATT, European Union (EU) Common Position 944/2008 and Italian law 185/1990. In addition to absolute prohibitions,Footnote ¹³ the ATT and EU Common Position require different prognostic assessments of the ‘potential’ or ‘clear risk’ that weapons could be used to commit serious violations of IHL and IHRL and demand denying export licenses accordingly.Footnote ¹⁴

Besides forbidding the export of arms in specific circumstances and, notably, to countries engaged in armed conflict contrary to Article 51 of the United Nations (UN) Charter or whose governments are responsible for serious IHRL violations,Footnote ¹⁵ law 185/1990 lays down a two-stage arms export authorization process. First, arms companies must communicate the start of contractual negotiations for exporting military material to the Ministers of Foreign Affairs and Defence, who can prohibit the negotiations’ continuation or establish conditions and limitations thereto.Footnote ¹⁶ Second, arms companies must apply for and receive an export license.Footnote ¹⁷ A case-by-case assessment must be carried out with the involvement of various ministries and governmental bodies, including UAMA, which bears the final responsibility for issuing the export authorization. Licenses must be suspended or revoked, should the conditions prescribed for their release cease to exist.Footnote ¹⁸

As emerged during the criminal proceeding, in assessing RWM Italia’s requests for export licenses to the Saudi-led coalition, UAMA appears to have ignored multiple qualified sources of information which, as early as 2015, warned of the risk the arms could have been used unlawfully.Footnote ¹⁹ Based on the ATT, EU Common Position 944/2008 and law 185/1990, if adequately considered, this information should have led UAMA to deny RWM Italia export authorizations. By contrast, at least on one occasion in 2016, in seeking its opinion, UAMA brought to the attention of the Foreign Affairs Ministry that the decision to grant RWM Italia an export license to Saudi Arabia would have allowed the company to double its turnover.Footnote ²⁰

By knowingly providing the Saudi-led coalition with arms used to commit serious IHL and IHRL violations, Italy appears to have breached its international law responsibilities, including the obligation not to aid or assist in those violations and not to render aid or assistance in maintaining ius cogens offences.Footnote ²¹ Italy also likely failed to take reasonable steps to prevent the foreseeable risk of harm arising from arms transfers (through either denying or suspending and revoking export licenses) and respond to the materialization of such harm (through conducting an effective criminal investigation). Finally, Italy arguably fell short of its business and human rights (BHR)-related obligations by failing to (i) effectively implement the existing arms export regulatory framework, including in order to prevent undue corporate influence; and (ii) regulate the arms sector, particularly by introducing mandatory human rights due diligence (HRDD) legislation.Footnote ²²

For its part, RWM Italia allegedly did not conduct appropriate HRDD to assess and address the (inherent) human rights risks posed by its activities, as would be required by global, authoritative BHR standards.Footnote ²³ Furthermore, the fact that it received licenses following the state’s flawed risk assessment processes does not absolve RMW Italia from non-compliance with its own, standalone human rights duties arising from the UN Guiding Principles on Business and Human Rights (UNGPs).Footnote ²⁴ The UNGPs treat a company’s responsibility to respect human rights as independent from a State’s duty to protect rights holders from human rights violations.Footnote ²⁵

The RWM Italia case has enhanced transparency around UAMA’s risk assessment and licensing process, despite secrecy having been a barrier to establishing full accountability throughout the criminal proceeding.Footnote ²⁶ The case also led to the explicit recognition of the ATT violation and, arguably, contributed to the Italian government’s decision in January 2021 to permanently revoke export licenses to the Saudi-led coalition.Footnote ²⁷ Yet, the case faced significant obstacles, which prevented the victims from receiving justice and effective remedy.Footnote ²⁸ The state’s approval of arms exports and the absence of HRDD requirements for arms companies have arguably enabled RWM Italia to shield itself from accountability for assisting in serious IHL and IHRL violations. Additionally, the criminal nature of the proceeding imposed a high evidentiary standard and left the victims with limited control over the case and its ultimate dismissal. This raises important questions about the suitability of criminal complaints to seek state and corporate accountability for internationally unlawful arms transfers. The proceeding was also marked by the Italian judiciary’s failure to investigate the homicide allegations and the role of the private corporate actors.Footnote ²⁹ These deficiencies are central to the application filed to the ECtHR.

IV. The Case Before the European Court of Human Rights

The GIP’s 2023 decision to discontinue the case could not be further appealed. Therefore, all possible domestic remedies were exhausted as required under the European Convention on Human Rights (ECHR) to submit applications to the Court.Footnote ³⁰ The claimant’s application to the ECtHR addresses the responsibility of the Italian state for the alleged breach of its positive obligations under Article 2 ECHR on the right to life, as to both its substantive and procedural ‘limbs.’Footnote ³¹

With regard to the competence of the ECtHR to examine the complaint, the applicants argue that the conduct leading to the alleged Article 2 violation (i.e., the issuance of a license for the export of the MK80 bomb used in the Deir Al-Hajari airstrike) took place in Italy. Additionally, the fact that Italy instituted an investigation into the events is another relevant factor, a ‘special feature’ establishing a ‘jurisdictional link’ between the Yemeni victims and Italy and, therefore, the latter’s ‘procedural control’ and jurisdiction under Article 1.Footnote ³²

From a substantive viewpoint, the applicants allege that, while Italy does provide a framework regulating arms trade,Footnote ³³ it failed to adopt, in a timely manner, reasonable and appropriate measures such as promptly suspending and revoking arms export licenses to the Saudi-led coalition. This would have ensured the effective functioning of that framework and prevented the threats to the right to life from materializing. The delay in adopting the suspension or revocation decisions allegedly resulted from the Italian government’s precise and deliberate choice to prioritize economic and political interests over human rights protection.

From a procedural perspective, the applicants claim that Italy violated Article 2 ECHR by failing to conduct an effective criminal investigation into the Deir Al-Hajari airstrike. Article 2 requires states to investigate alleged violations of the right to life, including life-threatening injuries, to establish the facts, hold those responsible accountable and provide redress to the victims.Footnote ³⁴ This obligation also applies when there has been a non-intentional interference with the right to life in the context of inherently hazardous activities, where civil remedies would be insufficient. Such an obligation arises if the events occurred under public authorities’ responsibility and negligence went beyond a mere error of judgment or carelessness.Footnote ³⁵ The ECtHR has extended the obligation to conduct an effective criminal investigation to the voluntary and reckless conduct by private actors leading to right-to-life violations.Footnote ³⁶

In this case, the alleged violation occurred under the responsibility of Italian authorities, which authorized the export of the weapons used in the airstrike and also failed to deny, suspend or revoke licences to the Saudi-led coalition despite knowing the arms could have been used in unlawful attacks against the civilians. Notwithstanding these facts, Italy’s judicial authority continued inquiring into the abuse of power allegations only, unduly restricting the focus of the criminal investigation to a minor criminal offence and neglecting the role of private corporate actors in the events. The complainants allege that this limited inquiry was inadequate for establishing the circumstances of the deaths and life-threatening injuries and ensuring full accountability, as required by the ECtHR.Footnote ³⁷ Additionally, the prosecutor’s choice not to investigate the homicide and personal injury allegations appears to violate the principle of mandatory prosecution enshrined within the Italian Constitution.Footnote ³⁸

The case is ongoing, pending—as of the time of writing—the Court’s decision on admissibility. With this case, the ECtHR will have the chance to provide critically needed interpretation as to the scope of states’ extraterritorial positive human rights obligations in the arms sector, including with respect to the conduct of defence companies. Yet, if the case proceeds to the merits stage and the ECtHR finds a violation of Article 2 ECHR, important questions will arise about the remedy (‘just satisfaction’) the Court will grantFootnote ³⁹ and the means to implement the judgment at the domestic level.