The invisible link

A joint project by Lighthouse Reports and the Global Legal Action Network (GLAN)

THE PERCEPTION: Once a weapons system is shipped, the relationship between the arms company and the buyer-state ends.

THE REALITY: When you buy a weapons system, like a fighter jet or a howitzer, you are not just paying for a complex piece of hardware, you also pay for future updates, structural training and a scheme for maintenance.

IN PRACTICE: Post-sale services have created ongoing, extensive and routine dependency-relations between EU supplying states and companies and abusive end-users. Through such ‘invisible links’, European companies and states have contributed to serious violations of international law, including war crimes, and in some cases enabled proxy wars. Despite their scale and significance, such activities remain hidden from the public eye and are under-regulated by both international and domestic law.

Post-sale services, also known as the aftermarket, are a major pillar of the arms industry and a main source of its global revenues.

This new sub-set of investigations undertaken by Lighthouse Reports’ #EUArms newsroom jointly with the Global Legal Action Network (GLAN) reveals the scale of these ongoing and substantial post-sale dealings. The project sheds new light on the shadow world of arms dealings through in-depth investigations of specific cases of post-sales services. Its legal methodology is based on the first comprehensive review of the governing laws and legal practices.

The numbers

There is limited data available on the actual volume of post-sale services provided by the arms industry. Boston University researcher Gizem Kaftan and investigative journalist Matteo Civillini conducted a study (unpublished; available upon request) of the expenditures of MoDs in Europe in which they identify a trend. There was a sharp increase – of almost 20% over six years – in “other” expenditures, including maintenance, in 25 European countries (see chart below).

Between 2006 and 2014, ‘operations and maintenance’ expenses was the second largest area of defense budget expenditures by 27 European Union countries (excluding Denmark) (see pie-chart below). breakdown of the expenditure.

• This data is drawn from a report by Gizam Kaftan (Boston University) and Matteo Civillini (Investigative Reporting Project Italy). The report remains unpublished, but can be made available by the authors upon request.

Post-sale services as unlawful arms transfers: A legal methodology and advice to investigations

The guide can be downloaded here.

The control of post-sale services by both international and domestic arms export control laws is generally weak and unfit for purpose. Even the most rigid national licensing procedures, often grant most original sales contracts one export license that extends to a range of mission-critical post-sale services to be provided by defense corporations for multiple years after the weapons’ delivery. They invariably fail to consider and review the potential liability of corporate and state actors for complicity in serious violations of international humanitarian and human rights law, as well as violations of the UN Charter resulting from breaches, both by arms-suppliers and end-users, of Security Council-imposed arms embargoes.

To effectively address the severe underregulation of these significant forms of military assistance, Lighthouse Reports and GLAN have collaborated from the outset of the investigations. We produced a legally grounded methodology to guide the investigations, and offered legal advice to investigations throughout their fact-finding. The aim was to ensure that the findings identify and evidence the legality of licenses, and the effects of sales in terms of the responsibilities and liabilities of state and corporate arms-supplying actors in international and domestic law.

The investigations, conducted by Lighthouse Reports and media partners (listed below) were advised by Valentina Azarova in the case of Turkey’s A400M and UAE’s Mirage aircrafts, and by Stefano Trevisan in the case of DCI’s training of Saudi Arabia forces. Several NGOs contributed to the investigations, particularly with information on the conduct of relevant weapons end-users, including: Mwatana for Human Rights; Lawyers for Justice in Libya; Human Rights Watch; and Amnesty International. The University of Amsterdam’s Business and Human Rights Law Clinic, under the supervision of Linde Bryk and Alasdair Tyrrell, also provided some input during the investigations as well as written advice that informed the initial legal assessments of the cases.

The reports published by Lighthouse’s media partners (see links below) also benefited from further input on questions of legality from the following legal experts: Dr Annyssa Bellal (Geneva Academy of IHL/SciencesPo); Professor Kevin Jon Heller (Copenhagen University/ Australian National University); Professor Ardi Imseis (Queen’s University/UN GEE on Yemen); and Professor Frederic Megret (McGill University).

The legal methodology, which was prepared ahead of the investigations, is now available in the form of a legal guide for investigators of unlawful arms transfers in the form of post-sale services. The guide offers the first comprehensive account of the laws and regulatory processes that govern weapons-linked post-sale services at the domestic and international levels. It is also a tool for those looking to understand the gaps in the regulatory framework for such dealings, and to pursue state and corporate accountability on behalf of the victims of the illegal use of weapons. The initial analysis of the regulatory deficiencies that enable such military assistance offered by the guide points to the need to ensure that such accountability efforts extend beyond legal advocacy and strategic litigation to promote necessary law and policy reforms.

The guide is authored by Dr Valentina Azarova (Manchester International Law Centre (MILC), University of Manchester/GLAN) and attorney Stefano Trevisan (Lighthouse Reports), based on invaluable expert input on European national laws and procedures from Hans Lammerant (Vredesactie); Aymeric Elluin (Amnesty International); Christian Schliemann (ECCHR); Linde Bryk (University of Amsterdam/ECCHR); and Alberto Estévez (IPIS). The guide also benefited from generous review by Roy Isbister (Saferworld); Dr Stuart Casey-Maslen (University of Pretoria); Linde Bryk (University of Amsterdam/ECCHR); Dr Ioannis Kalpouzos (Boston University/GLAN); and Dr Gearoid O Cuinn (GLAN).

The guide can be downloaded here.

Case 1: Airbus and OCCAR’s services to Turkey’s A400M airbridge with Libya

Ankara's support for the Libyan government of the national accord (GNA) is an official matter and Turkish authorities pay regular visits to Tripoli or Misrata. Turkey’s involvement is based on a defense cooperation agreement with the GNA, signed on 27 November 2019.

The United States and France are vocal in criticizing this interference in the Libyan conflict, with French President Emmanuel Macron even accusing Turkey of using Syrian mercenaries in Libya. Not without consequences, the European Union has sanctioned three companies, including a Turkish one, that are accused of violating the UN embargo in Libya.

However, our research proves that the European company Airbus also supports the Turkish army decisively, partly through the international authority OCCAR (Organization Conjointe de Coopération en matière d'Armement) whose main activity, according to its own website, is the “management of cooperation in defense equipment programs “. Current member states of the OCCAR are Germany, Belgium, Spain, France, Italy and the United Kingdom.

The investigation

We analysed flight radar data and confirmed 10 flights between Turkey and Libya with the Turkish owned A400M in the period between June 24 and August 16. This is not comprehensive, more flights followed later. Below is a screenshot of Flightradar24 with one of the flights we registered.

These flights are problematic because they effectively entail an air bridge between Turkey and Libya. And this airbridge is not possible without a large support scheme to keep the A400M operational, including maintenance by Airbus in Getafe (Spain), maintenance by Airbus in Turkey, training for all pilots involved (including regular refreshment trainings) and a large maintenance deal with OCCAR a transnational organisation counting most EU countries as their members.

In the summer of 2019 Airbus signed a contract with OCCAR member states to provide "a full range of tailored services" for A400M customers, including Turkey, ranging from "ground support to airworthiness" as well as "maintenance "and" material support. " All this "under the direction of Airbus". The agreement, which will last until 2023, meant an extension and extension of a previous agreement signed in 2016.

Since at least 2013, all Turkish soldiers from the 221st squadron of the air forces, who currently fly the A400M between Turkey and Libya, are trained on Spanish soil. The training lasts an average of 52 days and pilots often return to the training center for "recurring" or "refreshment" training.

Spanish Airbus offices are involved in the maintenance of the Turkish A400M-fleet as well, especially the office in Sevilla. For example, at least one Airbus Spain official is responsible for ‘ensur[ing] that the contractual performance related to maintenance services commitments are delivered, locally on [the] Main Operation Base in Kayseri (Turkey)’. Legal experts have maintained that by providing such real-time mission-critical support to the Turkish air force's A400Ms, Airbus and the licensing authorities in Spain, UK, France, and Germany are facilitating Turkey’s serious breaches of the embargo and hence violating their own obligations under said UN Security Council resolution to regulate their corporate nationals to prevent their involvement in such serious violations of international law (see for a detailed legal analysis, here).

Airbus still has to deliver one more A400M to Turkey.

This investigation was published with El Diario (Spain), The Guardian (UK), Stern Magazine (Germany), Tagesschau (Germany) and Arte (France / Germany).

A full report including a methodology and a detailed analysis of the findings is available upon request from Lighthouse Reports.

Case 2: French servicing of UAE Mirage 2000-9 aircrafts involved in Libya

France, Germany, Italy and European diplomacy vehemently criticize the disregard for the UN arms embargo by the foreign powers that have been involved in the Libyan conflict for months.

Our research shows that, contrary to France's political obligations and despite the restrictions imposed by international law, French companies are continuing to supply arms to parties to the ongoing conflict in Libya by providing training and technical assistance to the Emirati armed forces.

The investigation focuses on the Dassault Mirage 2000-9 fighter jet, which several French companies have been servicing until today. This is ongoing in spite of widely available and credible reports that these fighter jets are used in the fighting in Libya in breach of the UN arms embargo and in a manner that contributes to serious violations of international humanitarian law.

The investigation

On July 2, 2019 a migrant detention centre in Tajoura, Libya, was hit by an airstrike. According to HRW, at least 50 people got killed. The UN panel of experts on Libya found it highly probable that a Dassault Mirage 2000-9 was behind the strike. The UN deemed this attack to be in serious violation of international humanitarian law for its indiscriminate use of explosive ordnance:

The identification of the Mirage model - as a Mirage 2000-9 - by the Panel of Experts, narrows down the list of possible users, since this model has only had one customer: the UAE.

Our analysis geolocated the UAE Mirage on a tarmac in Libya on June 10, 2020, when a fighter jet was spotted on the Gamal Abdel Nasser airbase in Tobruk. Based on its colors, it did not appear to be an Egyptian aircraft. An Egypt Mirage has a black nose and a different livery pattern. Apart from Egypt, no other parties in the conflict fly the Mirage 2000 making it highly probable that this is a UAE Mirage.

Satellite image ©2020 Maxar Technologies

The presence of UAE Mirage in the Libya conflict is only one explicit and public example of the UAE’s extensive involvement as a party to the conflict in Libya. Other UAE weapons systems spotted in Libya include the AT-802i Air Tractor, UH-60 helicopters, Wing Loong UAVs and cargo planes, some of which were chartered by the UAE.

Yet, despite widely available and credible reports that these fighter jets are used in Libya in breach of the UN embargo and in attacks that constitute violations of international law, French companies have continued to service the UAE’s Mirage 2000-9 aircrafts.

In November 2019, several months after the Tajoura strike, modernisation contracts for the Emirati Mirages 2000-9, worth a total of several hundred million euros, were signed between the UAE and Dassault Aviation, Thales Group and MBDA.

Our analysis of LinkedIn profiles, annual reports and job offers confirm that Dassault Aviation and subcontractors Novae and AAA employ French staff in the UAE to provide maintenance, training and technical assistance to the UAE army in relation to the Mirage 2000-9.

This investigation is published with Arte Journal and Mediapart.

A full report including a methodology and a detailed analysis of the findings is available upon request from Lighthouse Reports.

Case 3: French artillery training to Saudi Arabia’s warring troops in Yemen

Despite public outcry over the Yemen war, France allowed Caesar howitzers to be sent to Saudi Arabia. But that was not the only aspect of this commercial relationship. When the howitzers arrived, French companies were hired to train the soldiers behind the trigger. They proceeded to undertake such training in France and in Saudi Arabia between - at least - 2016 and 2017. Potentially it is still ongoing as the company and France did not deny ongoing training commitments.

The findings of this investigation show how French companies DCI Groupe, Thales and RUAG (swiss-based with a French branch) continued providing training on mission-critical skills to Saudi Arabia’s military personnel at a time when the humanitarian crisis and protracted armed conflict in Yemen was ongoing and had been raging on for years.

DCI is providing the actual training and personnel, while Thales and RUAG provide the simulation equipment. These training programs focus on different weapons, but most noteworthy is the Caesar howitzer, an artillery system found in a previous EUArms investigation to be used by parties to the conflict in Yemen.

The investigation

On March 26, 2018, DCI published a video of their training activities. Our analysis of that video shows it is held with Saudi military personnel – namely, members of the Saudi National Guard (SANG). The training facility is located at the French military school in Draguignan, where DCI – who is majority-owned by the French state – runs an International Formation Center.

We identified them as being part of the SANG based on their patches. The patches are unique and can be distinguished from other units and armies.

Our Belgian arms investigation has previously found proof of SANGs involvement in the Yemen conflict. Among the evidence was a video of a SANG spokesperson sharing a video of himself from within Yemen.

The French military intelligence is aware of the risk and has concluded, in a leaked document, that the Caesars operated by the SANG have been used to “back up loyalist troops and Saudi armed forces in their progression into Yemeni territory”. The Yemeni NGO Mwatana for Human Rights reported incidents of potential illegal use of artillery. When we cross-referenced the coordinates of these incidents with a leaked map from the French military intelligence (DRM), four of these locations are within the firing range of the Saudi-operated Caesar howitzers on the Saudi side of the border, which were in use in the conflict at the time. The green circles on the French state intelligence map below represent the Caesar howitzer’s firing-range. The yellow pins are the villages where artillery attacks were documented by Mwatana.

From job offer postings and LinkedIn profiles, we were able to deduce that the training was not conducted exclusively in France – part of it was also undertaken by DCI employees in Saudi Arabia. DCI maintains staff in Saudi Arabia until today.

We cannot confirm whether the training commitment is ongoing until today, but other companies do continue to provide training to Saudi Arabia’s armed forces. ISD-SA has staff deployed in Saudi Arabia as well, who are explicitly involved in the Caesar training program.

The investigation’s findings were published by Arte Journal, Mediapart and the EU Observer.

A full report including a methodology and a detailed analysis of the findings is available upon request from Lighthouse Reports.

Initial legal assessments

The following analyses provide initial legal assessments of the responsibilities and potential liabilities of the defence companies and licensing states involved in the three cases this project has investigated (see Part Three above).

Each analysis reviews the obligations of licensing states under international arms export control law, and the responsibilities of companies under international law. In two of the cases we also consider the obligations of states under the UN embargo on Libya. These initial assessments do not provide conclusive determinations about the (il)legality of ongoing dealings, but rather articulate the relevant legal issues and questions for states and companies that arise from Lighthouse’s investigative findings so far. Several of its freedom of information requests, as well as inquiries with governments made by others remain pending.

The analyses draw on the legal framework presented in the legal guide for investigators (see Part Two above), and on advice provided by Amsterdam University’s Business and Human Rights Clinic, under the supervision of Linde Bryk and Alasdair Tyrrell.

Credits

Project lead Lighthouse Reports
Ludo Hekman

Project lead GLAN
Valentina Azarova

Legal advice
Valentina Azarova (lead)
Stefano Trevisan

Investigators
Leone Hadavi (lead)
Maud Jullien
Stefano Trevisan
Hans Martin Tillack
Philipp Gruel
Antton Rouget
Nouska du Saar
Matteo Civilini
Jonas Dunkel
Pol Pareja
Gizem Kaftan

Media partners
Arte
Mediapart
Stern Magazine
ARD
El Diario
IRPI
EU Observer
The Guardian

Supported by:
Open Society Foundations
Nuhanovic Foundation
Stichting democratie and media