Berlin/Stuttgart/Tübingen - On February 11, 2021, the German Federal Court of Justice (BGH) will hear the appeal in the case of illegal arms exports by Heckler & Koch (H&K) to Mexico. The trial once again sheds a light on the criminal liability of German arms manufacturers and the serious weaknesses of the German arms export control system.
For Holger Rothbauer, a lawyer for the “Action Outcry – Stop the Arms Trade” campaign, the appeal has fundamental significance for the German arms industry. "Regardless of the outcome, the proceedings already show that the current handling of end-use declarations is not an effective means of arms export control. Legislators must immediately initiate an arms export control law that establishes effective export control," Rothbauer said.
Following a criminal complaint filed by Jürgen Grässlin, spokesperson for the “Action Outcry – Stop the Arms Trade” campaign, the Stuttgart Regional Court in 2018-2019 heard the case concerning illegal arms exports by H&K. The court considered it proven that the license for the export of around 4,500 assault rifles to Mexico had been fraudulently obtained using deliberately false end-user agreements. End-user agreements show the German licensing authorities where the exported weapons are to be used and represent a core element of German and European arms export control.
In the specific case, however, the actual recipients - police and security forces in Mexican provinces of conflict accused of serious human rights violations - did not appear in the end-user agreements. However, in contrast to previous practice, the Stuttgart Regional Court also did not consider the end-user agreements to be part of the export license.
The Regional Court sentenced two former H&K employees to suspended sentences. Around 3.7 million euros were confiscated from the company. However, Peter Beyerle, then export manager and managing director at H&K and former president of the Stuttgart Regional Court was acquitted. Two other managers were also acquitted. Another defendant remains in Mexico and could not be included in the proceedings in Germany. H&K, the two convicted employees and the Stuttgart public prosecutor's office appealed. The question of the joint responsibility of the licensing authorities was not addressed in the trial.
Beyerle's acquittal sparked considerable criticism. He remained unpunished despite the fact that evidence suggested that he knew of the deceptions involved in the application for and the granting of export licences. The BGH now has the chance to shed new light on this aspect of the proceedings. "In these cases of organized illegal arms exports, it is not only the lower-ranking employees of the companies who should be held accountable," says Christian Schliemann-Radbruch, Senior Legal Advisor at the European Center for Constitutional and Human Rights (ECCHR). "In particular, senior management with clear responsibility for exports and constant contacts in the ministries concerned should not simply be let off the hook."
The victims of armed violence in Mexico were not considered in the proceedings up to this point. "In order to really prevent acts of violence and human rights violations from being committed in Mexico with German guns, the weapons should not have been exported to Mexico at all," explains Carola Hausotter from the German Human Rights Coordination Mexico. According to her, legislators must make it clear that arms export controls must also protect the victims of gun violence in the recipient countries. Additionally, they should have a right to be involved in the proceedings. "Those affected are still waiting for the Stuttgart ruling to be published. Only then can they bring those responsible in Mexico to justice," Hausotter said.
The BGH proceedings bear the file number 3 StR 474/19. The hearing is public. Through the main hearing, the BGH will decide on its own jurisdiction. A verdict is expected in the first half of 2021.
