The PILP (Public Interest Litigation Project) case against arms trade

Can the Dutch government license a Dutch arms trader to ship EUR 35 million worth of arms to Egypt, knowing these arms will most likely be used by the Egyptian navy in the blockade of Yemen? What human rights and international law criteria apply here? How has the Dutch state implemented these criteria and how could this have resulted into licensing the arms trade? Furthermore, do human rights and peace organisations have the right to fight this shipment and the trade license in court?

These questions define one of the cases of the PILP, a Dutch project that explores and aims to expand strategic litigation on human rights issues in the Netherlands. In this blog we will first explain what PILP is about, after which we will discuss the arms trade export case.

PILP and strategic litigation on human rights in the Netherlands

The Public Interest Litigation Project (PILP) was started in 2014 by the Dutch section of the International Commission of Jurists (NJCM) with the intention to explore the possibilities of strategic litigation in the field of human rights in the Netherlands. The NJCM has a long history of defending human rights in the Netherlands. They review the compliance of new policies and legislative proposals with international and European human rights standards, and report thereon. They also organise meetings on human rights affairs whereby they aim to enhance the knowledge of students and professionals.

Sometimes this is not enough. In the last couple of years, the NJCM felt that the political attitude in the Netherlands towards human rights was deteriorating and human rights were becoming more and more politicized. On issues such as privacy, racism, islamophobia and the rights of refugees, human rights and civil rights NGOs, international human rights institutes and the EU Commissioner on Human Rights have expressed serious critique. At the same time, the government appears much less willing to listen to and act on these criticisms. This prompted the NJCM to work on the possibility of strategic litigation on human rights.

Unlike other tools for achieving social and legal change, such as campaigning, advocacy, lobby and mobilising, the strategic use of litigation in the Netherlands is relatively new. Incidentally some lawyers or organisations may have used strategic elements when addressing legal and social issues. PILP however is the first NGO to start the strategic process from the beginning, together with grass-roots organisations, lawyers and NGOs. We ask them: Where does it hurt?

We examine for which issues litigation could be a possible tool. Furthermore, for each case PILP sets up or is involved in, the best timing, the best claim, the best claimants and the best way of framing the procedure are taken into account. In all cases, we have involved law clinics, legal scholars, lawyers, NGOs, experts and grass-roots organisations or activists.

Our adopted cases will always involve one or more infringements of human rights and have the purpose of serving the general interest. We have taken up 10 cases so far, and are investigating about 15 more. The topics vary: from sexism in commercials and the CEDAW, to ethnic profiling by the police and privacy and the European Data Retention Directive (2006/24/EC).

Arms Trade and Human Rights

The Netherlands is one of the biggest arms exporting countries in the world. Some of the arms trade exports caused for severe political discussions and media attention. For instance, a majority of our members of Parliament were opposed to shipping arms to Saudi Arabia in 2011, but the government decided to license the export anyway.

When deciding on licensing arms trade, the Dutch government claims to conduct a human rights and humanitarian law test, and is obliged to do so by EU law, human rights and international law.

Relevant international treaties are, amongst others, the Arms Trade Treaty and the EU Common Position 2008/944/CFSP. The Campaign Against Arms Trade (Comité Stop Wapenhandel), a small but expert NGO, asked us to investigate what international, human rights and humanitarian law standards specifically apply, and whether litigation would be of added value.

We involved several students and legal scholars to examine 10 research questions on arms trade export in relation to national, international and human rights law. Eight of the students were PILPG members, a law clinic and pro bono law firm connected to Utrecht University. The students presented their research during a meeting, which was attended by several NGOs and lawyers.

Strategic litigation on arms trade

In September 2015, the government wrote a letter to Parliament announcing the granting of a license to a Dutch company to export € 35 million worth of arms to Egypt. In the letter, the government is very negative about the general human rights situation in Egypt and the possible involvement of the army in human rights violations. However, since this shipment is meant for the Egyptian navy, the government expects no problems with the use of the arms.

Just two weeks after this letter was sent, an article appeared in a national newspaper on how the Egyptian navy was violating human rights by: 1) joining the blockade of Yemen; and 2) shooting at vessels with refugees.

Knowing this, we organised a legal brainstorm session with lawyers and NGOs. PAX, a big peace NGO in the Netherlands, and NJCM decided to join the Campaign against Arms Trade and they filed a notice of objection against the permit and started a procedure against the government.

What are the legal arguments in this case?

We stated that the decision is flawed, because the government did not take the role of the marine in Yemen, nor their actions against refugee vessels into account. We have also stated that the decision is in violation of several human rights and international and humanitarian law. We expect, among others, violations of the Arms Trade Treaty, the EU Common Position 2008/944/CFSP, international humanitarian law and the 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea (San Remo Manual), EHRM, ICCPR, ICESCR and CRC. Furthermore we have also filed a request to the government to withdraw the permit.

The government declared the three organisations inadmissible, because their interests were not directly affected by the order in this administrative procedure. Interestingly enough though, PAX and the Campaign against Arms Trade were previously declared inadmissible in a civil procedure because, as the civil judge and the government put forward, it was an issue for the administrative court. Now the government wants to close off this route as well.

What is our intention with litigating this arms trade licence?

The organisations believe it should be possible to have a legal discussion when the government is considering licensing arms trade whilst human rights are at stake. For this reason they have appealed the decision and are asking the court for a provisional remedy to suspend the license and freeze the delivery of the military material until a final decision has been made on the admissibility.

With this case we hope to show the public, politicians, media and the arms trade companies the rules that are installed to prevent weapons from being shipped to countries where human rights are violated on a daily basis and ensure the government’s compliance with those rules. We want to help the government in fine-tuning their human rights tests before granting a license.

There are a lot of campaigns against arms trade in the world, but none have achieved a victory through strategic litigation. We hope to change this and positively impact the worldwide campaign against arms trade to countries that violate human rights.

The court hearing is planned for 15 August 2016.

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