The Lower House requests more transparency in the sale of arms through a new Law of Secrets

Among the countries that buy defense material from Spain are some reliable allies and others that are not so. For example, Saudi Arabia. For example, Iraq. The first bought more than 48 million in pistols for sporting shooting (this is indicated by the report of the Secretary of State for Commerce), grenades or in border surveillance, among other equipment. The second was spent more than 800,000 euros in “aviation bombs”. Yes, bombs. This is what the aforementioned report indicates, which is on the Internet and can be seen by everyone.

Certain parliamentary groups suspect or do not trust that everything is done cleanly and with respect for human rights. United we can registered a proposition not of law at the beginning of the year (it is a petition of political scope, without legislative repercussions) that was debated and voted in committee weeks later. He asked that the weapons that are sold not end up being used in the war that rages Yemen. It was supported by PP, Cs, ERC and EH Bildu. He went ahead.

The PSOE, on the other hand, voted against. He did it not because he wanted to hide anything, sources from this group consulted for this information tell us, but because they maintain that the current model guarantees (if not 100%, at least 90%) that the weapons or defense equipment being sold does not end up in the wrong hands. Spain is one of the countries with the most control over it due to the legislation passed, which requires taking extreme precautions, but also because of a novelty promoted in 2020: ‘ex post’ verification.

Still, Congress wants to go further. The Defense Commission, in compliance with article 16.3 of a 2007 law on the control of foreign arms trade, approved an opinion in mid-November with more than 60 proposals validated by the parliamentary majority, accessed by EL PERIÓDICO DE ESPAÑA. Proposals that seek to improve that control, and also, transparency. The request for a new Law on Official Secrets is framed for this purpose.

The “classified matters”

For years, especially at the request of the PNV, the political debate sometimes revolves around the advisability of changing the law of official secrets, which dates from 1968. Obsolete is little. The Ministry of Defense and the Basque Nationalist Party have been exchanging proposals for months, although not exactly fluently, but between ups and downs. The group led by Aitor Esteban in Congress managed to get the plenary to support the consideration of a proposal almost two years ago. This initiative he’s sleeping in parliamentary limbo of the amendment extensions since March 2020.

Although it does not expressly refer to the need to give more transparency to the sale of weapons, the PNV advocates a modification of the explanatory memorandum which, in turn, promotes a revision of the concept of “classified matter”, including its time of validity: 25 years for “secret graded subjects” and ten for “reserved graded subjects”, unless the Council of Ministers, in an “exceptional and motivated” manner and only for the former, provides an extension of ten years. If the PNV’s approach took hold, core issues of the Transition, especially the 1981 Coup d’état, would be accessible. Right now they are not.

But this is another debate, albeit a related one. For a long time, various groups, including United We Can, have wanted the sale of arms to be regulated in the official secrets law. The Congressional Defense Commission, in the last opinion it has made, in line with previous ones, it requests the Government to continue “advancing in transparency in the arms trade through the approval of a new Law on Official Secrets that guarantees that any restriction of the right of access to information comply with the principles of legality, necessity and proportionality“.

In how these three principles will be articulated will be the key, since they are the ones that delimit the field of action: no right may be violated, and above all, the legal security of the actors involved cannot be put at risk, that is to say, States and companies.

There is a lack of concreteness, no doubt, but it is a step forward, an open door. A proposal that, as a fundamental quality, has the support of the PSOE, the PP and United We Can. Organizations such as Amnesty International have been taking a similar approach for some time. However, according to parliamentary sources, companies in the sector are reluctant. To your competitive success, it is essential to keep the sale of certain components secret. “They say that it is to give advantage to the business rival”, point out the sources. The groups, aware of suspicion, set out to find formulas that satisfy the parties. However, the most important thing remains pending: that the Government agrees to make a new Law of Secrets.

Other demands of Congress: ‘ex post’ verification

In April 2020, the Government approved a royal decree in order to reinforce the control of the export of national weapons, for which it designed a “destination verification” mechanism. This means, as the Executive explains in the explanatory memorandum, “the prior knowledge of governments, recipients and end users of the merchandise “. For a better understanding: know to whom the material goes before authorizing the exit of the material. A note: the material to which it is applied is, generally, ammunition or” lethal material “, in the words of a source consulted.

As stated in the decree, the Government will control the use of this weapon through a new document in the the operations will be listed to which they will go, which the purchasing State must attach. However, “the use of this document must preserve the legal certainty of the companies involved in the transaction” and adapt to regulated transparency, which will be guaranteed through the mandatory public hearing and information processes.

All this documentation will be accompanied by a “certificate of last ex post control destination”, signed by the authorities of the buyer country. This is what the decree calls it. It includes a possibility that might have to be converted into an obligation: “the commitment not to use the product outside the territory of the importing country.” It also incorporates “a verification clause at the destination of the exported product, in the operations in which it is so decided.”

The process will be supervised by the Interministerial Regulatory Board for Foreign Trade in Defense and Dual-Use Material (JIMDDU), which meets once a month, except in August. The ministries of Foreign Affairs, Defense, Industry, Finance and Interior are represented in this body, since the said Board is also responsible for the export of police material.

The Defense Commission has redoubled its demands regarding this mechanism, as stated in the opinion. Thus, facing the report on export statistics for 2021, which in a few months will be presented by the Secretary of State for Commerce, they ask a reference to “number of operations and countries to whom the new certificate of last destination has been required “and a deepening “in detail” about the “real and effective efficiency” of the verification, especially when the recipients are countries that, the signatories emphasize, arouse “sensitivity”. If the product is also sensitive, Congress insists: more detail. Take the example of the beginning of this information: the 800,000 euros that Iraq paid to have “aviation bombs.”

Among that greater detail, would be the review of “the inspections carried out by the Spanish authorities on the final destination of the exported material in the countries subject to verification “, and also, inspections that could not be done because the country you buy does not allow it. This would be essential. In this context, it is worth noting another proposal of the opinion: “Suspend transfers that can be used in Yemen to commit war crimes.”

A parliamentary source that has contributed decisively to the drafting of the opinion stops, in conversation with EL PERIÓDICO DE ESPAÑA, on the importance of this verification mechanism, firstly because it achieves “sustained traceability over time” of the product: from the exporter to the “real user” argues. Second, because it enables the ability to detect “unwanted uses or illicit traffic” of merchandise. And third, in which he places the most satisfaction, which is a system that heneighboring countries are carefully analyzing to imitate it. The United States, Germany, Switzerland have it and many others have shown interest in copying and implementing it.