The announcement on August 17 of final US approval for the $3.5 billion deal to sell Germany the Arrow 3 missile system serves as a fresh reminder of Israel's global prowess in a sector of which it may not always be easy to feel proud. "It's no secret that Israel is one of the largest arms exporters in the world, and it steadily maintains its place among the world’s ten largest exporters," says Dr. Yehoshua Kalisky, a senior researcher at the Institute for National Security Studies (INSS), in conversation with "Globes". These exports, Kalisky notes, have grown by leaps and bounds; between 2000 and now, they have increased almost six-fold. Indeed, according to Stockholm Peace Research Institute (SIPRI) data, in 2022, Israel was the ninth largest defense exporter in the world, with a 2.6% share of global defense exports.
Is this bad? Not necessarily, but as the saying goes, with great power comes great responsibility. The achievements of the Israeli defense industry are accompanied by difficult ethical dilemmas. What is Israel doing to deal with these, and is it enough?
The US imposes the law
Israel's first steps in the defense exports came in the 1960s. In an article by Brigadier General Uzi Elam for the INSS, he notes that over the years there have been several cases in which defense procurement preceded the establishment of diplomatic relations (Sri Lanka for example). Israel has almost never rejected a client: countries considered off-limits by the international community (e.g., Chile, South Africa); South American countries suspected of illicit drug activity; African countries associated with genocide; and various Arab countries- all have received weapons from Israel. In fact, until the early 2000s there was no law in Israel that defined to whom, and under what circumstances, it was permissible to sell weapons.
The change was actually imposed on Israel. The Israeli modus operandi of getting a foot in the diplomatic door through defense and security deals, was also a way of reaching an important country like China. But then a problem arose. The Americans did not view these deals favorably, and Israel found itself in political hot water with the Phalcon crisis of the 90s (an Israel Aerospace Industry contract to supply its Phalcon AWACS aircraft to China that was ultimately canceled), and the 2004 Harpy deal (to supply and upgrade Israeli drones). After the latter deal, the US imposed severe sanctions on Israel, forcing it to reorganize control of defense exports. Since 2007, Israel has had a Defense Export Control Law, which includes certain international standards for the control of arms sales.
So, what does the law say? First, it requires any person who wishes to engage in the marketing or export of defense equipment, defense know-how, or a defense service, to obtain an appropriate license from the Defense Export Controls Agency (DECA) at the Ministry of Defense. Someone who receives DECA approval is defined as a defense exporter, and will be required to obtain a license for every marketing and export activity to any foreign entity, in Israel or abroad. Exporters must also obtain a license for the marketing of any specific product they wish to sell. According to Dr. Natalie Davidson of the Tel Aviv University Buchmann Faculty of Law, "This stage of regulation is unique to Israel and does not exist in other countries such as the US, Great Britain, France, Germany, the Netherlands or Sweden." Finally, in order to obtain approval for a specific transaction, a statement must be attached detailing the limits of the use of the systems, so that the purchasing country is required to ensure, for example, that the procurement will not be directed against opponents or critics of the government. A unit within DECA is responsible for ensuring that these obligations are indeed fulfilled, and in 2016 the law was even amended to give DECA additional powers.
While these conditions might initially appear stringent, upon closer examination of their global application spanning several decades, it becomes evident that Israel has typically shown a tendency not to adhere to them fully. For example, Israel is not a full member of the Wassenaar Arrangement, which was established in 1996 and deals with the control of the export of conventional weapons and dual-use technologies The arrangement currently includes 42 member states (the US and Russia among them), but Israel has only adopted parts of it and is therefore treated as a "compliant state". Dr. Davidson notes, in this context, that the Wassenaar Arrangement is, in any case, "not a treaty or a legal document, but a political agreement that does not include legal evaluations or legal enforcement. Beyond that, the Arrangement states only that certain products must be supervised, but it does not stipulate the supervision mechanism."
A more significant measure that came into force in 2014 was the Arms Trade Treaty (ATT), which obliges member states to establish a national control system for regulating defense exporters, and assessing the risks of violation of human rights and international humanitarian law after export. Again, Israel is not among the 113 member states, but joined the 28 other countries that signed the ATT without being members.
Holes in the oversight net
That brings us to the myriad reports in the global and local media about Israeli weapons finding their way to entities that are "controversial", to put it mildly. For example, reports about Israeli surveillance technologies being used by the government of South Sudan against its citizens; Israeli weapons used by the government in Myanmar in its violent persecution of the Rohingya minority; and Israeli guns used in the killing of thousands of civilians in the Philippines.
"The main problem here is leakage of weapons," Dr. Kalisky says, adding that that Israeli weapons may not be reaching those "dark forces" via direct transactions, as many changes of hands are often involved in the process. This is made possible because the above-mentioned regulations are vague about such processes. "Herein lies the main failure of the supervisory mechanism," he says.
Dr. Davidson enumerates other weak points. "There is no explicit reference in the law to safeguarding human rights or to humanitarian issues. The first part states that its goals relate to national security, the international obligations of the state, and its foreign relations. It can be argued that the international obligations also include an obligation to prevent the leakage of weapons if there is a fear of a violation of human rights, but it seems from the facts on the ground that a stricter approach may be required in the law."
Another weakness, Dr. Davidson points out, concerns the lack of transparency and information to the public. DECA discloses data about its activity, including numbers of applications for marketing and export licenses, audits conducted, and license suspensions following adverse changes in aspects of human rights and political stability. But in fact, she says, "there is no way to cross-check the data and verify it."
Finally, she notes, the Ministry of Defense operates at cross-purposes: it supervises export transactions, but is also directly involved in them, sometimes even as owner of the exporting companies (some of Israel’s largest arms producers are state-owned), and promotes such transactions through another department in the ministry, SIBAT- International Defense Cooperation, which is dedicated to this activity. On the other hand, Dr. Kalisky believes that, possibly, these functions actually complement one another: "One part takes care of developing the defense industry and another part takes care that its products are used appropriately. It makes a lot of sense, as long as these components work in harmony."
The Ministry of Defense stated in response: "The purpose of the Defense Export Control Law is to regulate the state's supervision of the export of defense equipment for reasons of national security, foreign relations and international obligations, and safeguarding other essential interests of the state. By law, the Ministry of Defense officials are the 'designated authority'. The representatives of the Ministry of Foreign Affairs are members of the advisory committees to the designated authority and there is an obligation to consult them before granting a marketing or export license. Marketing or export licenses are granted only after all relevant considerations have been considered, including considerations of safeguarding human rights and compliance with the international obligations of the State of Israel.
"Considerations for safeguarding human rights as mentioned above are part of the defense export control mechanism and are already integrated into the procedures conducted within its framework. This is also found, among other things, in the section stating the law’s objectives, in the light of which inspection and licensing procedures are implemented.
"SIBAT is a separate department from DECA and its involvement in the supervision mechanism, as well as that of the other relevant departments of the Ministry, is carried out in an orderly, businesslike, and professional manner, under clear procedures, within the framework of advisory committees. Decisions on granting licenses are made after an orderly procedure by the designated authority only".
Published by Globes, Israel business news - en.globes.co.il - on August 28, 2023.
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