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Israel Defense Forces' Givati Brigade in east Rafah, may 2024 [IDF].
On October 7, 2023, Hamas launched an unprecedented surprise attack that resulted in the deaths of over 1,200 Israelis, marking the deadliest attack in Israel's history. This offensive triggered a military operation in response, which has since claimed the lives of more than 43,000 Palestinians. A United Nations report claimedthatduring the first six months of the conflict around 44% of verified victims were children and 26% were women. Following the expansion of operations into Lebanon by the Israeli forces on October 1, 2024, fear has increased among experts regarding a potential escalation that could lead to an even broader regional war.
The bombing of Palestinian civilians, including attacks on schools and hospitals, has drawn global attention and highlighted the inaction of the international community concerning actions taken by Prime Minister Benjamin Netanyahu and his government. In November 2024, the International Court of Justice issued an arrest warrant of Netanyahu, based on the accusation of 'genocidal conduct' formally denounced by South Africa.
Government decisions
Following the beginning of the conflict and in response to average reports concerning Spanish arms sales to Israel, the Spanish Ministry of Foreign Affairs, European Union, and Cooperation issued a communiqué on February 12, 2024, stating that no authorization for any arms sales had been granted to Israel since October 7, 2023. Moreover, on May 21, 2024, Spain denied docking permission at a Spanish port to a Danish vessel believed to be carrying explosives destined for Israel. Similarly, on November 7, 2024, it was revealed that Spain denied docking permission to another vessel in Algeciras under similar circumstances. These events further reinforced the Spanish stance regarding Israel's military action in the Gaza Strip.
Spain and Israel had been close arms trade partners since approximately 2008, when Spain began purchasingweaponsdirectly from Israel, with expenditures reaching up to 10 million dollars. This practice supposedly continued until October 2023, when the conflict in the Gaza Strip began. In response to the escalation, on October 23, 2024, the Spanish Minister of Defense, Margarita Robles, stated that Spain had suspended its arms-purchasing contracts with Israel since the outbreak of the conflict. The Ministry of Defense added that, since the beginning of the conflict, Spain had only agreed to the repair of spare parts, especially aeronautical components. However, this claim was contradicted by an investigation published by some left-wing organizations, which documented the continued purchase of military equipment from Israeli enterprises or their subsidiaries in Spain up until 2024. Accordingly, this paper will examine the arms trade between Spain and Israel following October 7, 2023.
The commercial relationship between Spain and Israel extends beyond the import and export of defense equipment. It also encompasses the awarding of contracts for products and services to Israeli companies for the armed forces, as well as the collaborative ventures between Spanish and Israeli firms aimed at accessing third markets.
Israel's arms exports hold greater significance than those it imports. Alejandro Pozo, a researcher at the Delàs Center for Peace Studies, highlights that large-scale arms exports enable Israel to increase its production capacity, thus reducing the expenses associated with sustaining the military occupation in Gaza. The Israeli government has reportedly increased its monthly military spending from $1.8 billion before the conflict to around $4.7 billion by the end of 2023. Additionally, the Israeli Defense Ministry announced in June 2024, that its exports on defense had hit a record of $13.1 billion.
Legal and regulatory framework
Given Spain's continuation as a trade partner of Israel amid the Israeli-Hamas conflict, understanding the legal and regulatory framework that intervenes in those transactions is crucial. In particular, the Council Common Position 2008/944/CFSP plays a major role in regulating the export of military technology and equipment. This framework takes into account ethical, legal, and strategic considerations.
The Council adopted this framework on December 8, 2008, and it stipulates that each export license application submitted by an EU Member State shall be evaluated based on a case-by-case assessment. Spanish authorities must consider the particular risks posed by every individual export. The scope of this case-by-case assessment covers not only physical exports of military equipment, but also includes brokering licenses granted to those facilitating the transfer of military goods between third parties, transit or transshipment licenses, and intangible transfers of technology or software.
Article 2 delineates eight essential criteria that EU Member States must adhere to when evaluating export license applications for military weapons, guaranteeing compliance with ethical, legal, and strategic factors. Concerning the Israeli-Palestinian conflict, Criteria One through Six of Article 2 are particularly relevant to the analysis of the trade dynamics between Spain and Israel.
Criterion One mandates that export licenses shall be denied when they conflict with international obligations, such as UN or EU sanctions, arms embargoes from organizations like the OSCE, or commitments emanating from non-proliferation treaties. These include the Nuclear Non-Proliferation Treaty (NPT), and agreements primarily aimed at preventing the spread of weapons of mass destruction, such as the Australia Group or the Wassenaar Arrangement. In the Spain-Israel trade dynamics, Spain would need to consider whether its military exports to Israel violate any EU or UN sanctions or arms embargoes.
Criterion Two, on the other hand, states must respect human rights law in the export destination. The export license must be denied if there is a high risk that exported equipment might be utilized for internal repression. Moreover, the transfer must also be refused if the equipment could facilitate serious human rights violations in countries where such violations have already been established.
Criterion Three is especially relevant as it concerns situations where the exported military equipment could exacerbate ongoing conflicts. Licenses shall be denied if there is a risk that the export might trigger, prolong, or aggravate tensions or armed conflicts in the final destination.
Criterion Four places its aim on maintaining regional peace, security, and stability. EU Member States must deny exporting licenses in case there is a clear risk that the military equipment might be used aggressively by the recipient country against another nation or to enforce territorial claims through the use of force.
Criterion Five explores how exports might impact the national security interest of the exporting Member State, other EU members, or allied countries. Considerations must be made regarding the risk that exported military equipment might be used against EU or allied forces. In the context of the Gaza conflict, this criterion remains relevant, though with some nuance. Spain would need to evaluate whether its military exports could contribute to the escalation of Israeli-Hamas tensions, ensuring that the equipment does not increase risks to Spain's national security or its allies.
Criterion Six focuses on the recipient country's behavior regarding terrorism and international law. Israel holds a similar position as many Western countries in its stance against terrorism. However, Spain's main concern may be Israel's military actions, which have been criticized for not always complying with international law and humanitarian law, particularly in its operations in Palestinian territory.
On a more procedural level, Articles 5, 6, and 7 focus on compliance and monitoring. Article 5 states that export licenses can only be granted based on reliable prior knowledge of the end use of the military equipment in the country of final destination, which requires an end-user certificate or official documentation from the recipient country. Article 6 addresses dual-use goods, items with both military and civilian applications, stipulating that goods believed to be used by the importers' armed or security forces must undergo the same scrutiny as military goods. Finally, Article 7 emphasizes the importance of cooperation between EU members to maximize the effectiveness of its arms policies with other EU countries, such as the suspension of arms deals following the escalation in Gaza.
On the other hand, Spain also holds key national laws that regulate arms trade apart from the European Union. Law 53/2007, On 28 December, On The Control Of Foreign Trade In Defence And Dual-Use Material is highlighted, stating that any export of defense material or dual-use goods must be authorized by the Spanish government. Any Spanish dealings with Israel, whether purchasing or exporting, would be subject to this law. Its purpose is to mandate strict evaluation of the risk of human rights violations, conflict exacerbation, and regional instability before granting export licenses.
Furthermore, the Spanish Royal Decree 824/1993, as amended by the Royal Decree 494/2020, establishes thatthe Interministerial Board for the Regulation of External Trade in Defense and Dual-Use Materials (JIMDDU) is responsible for evaluating export authorization requests. This body takes into account the risk assessment of each export, ensuring compliance with legal and ethical standards, including the prevention of human rights violations.
In addition to Spanish and European regulations, Spain is also part of the Arms Trade Treaty(ATT) unlike its trade counterpart, Israel. The ATT imposes binding responsibilities to regulate global trade in conventional weaponry and requires adherents to ensure that arms exports do not contribute to major violations of international law, human rights law, or the escalation of conflicts. According to Article 6 of the ATT, Spain must deny any arms shipment if there exists a substantial risk that the weapons will be used to perpetrate genocide, crimes against humanity, or war crimes. Considering the current circumstances in Gaza and the possibility of military equipment being employed in violations of international law, the ATT further underscores Spain's need to meticulously assess and, if warranted, terminate its weapons supplies to Israel.
Both Spanish and European legislation, alongside international treaties, establish a framework to prevent arms exports from contributing to human rights violations, regional instability, or the escalation of conflict.
Case study: Specific arms trade agreements
The Spanish Minister of Foreign Affairs, José Manuel Albares, stated in February 2024 that the government had not authorized any arms sales to Israel since the beginning of the Israeli-Hamas Conflict. He had previously repeated this same statement on December 5 and on January 29. Months later in October 2024, the Minister of Defense, Margarita Robles, claimed that since the beginning of the conflict, Spain had suspended its arms-purchasing contracts with Israel, and had only approved the repair of spare parts by Israel.
Despite repeated statements by the Minister of Foreign Affairs, asserting that arms exportation to Israel had been suspended, Namno Palencia a subsidiary of Norwegian-finish multinational enterprise Namno, in November 2023, exported ammunition worth €987,000 to Israel. The Secretary of State for Trade stated that this ammunition was destined solely for testing purposes and was not meant for use in the ongoing conflict. However, Spain could probably have revoked this license, as Criterion Two of Article 2 of the Council Common Position 2008/944/CFSP requires denial if there is a 'rational indication' that the military material might be used in actions to trigger conflict or exacerbate tensions.
On the other hand, in relation to the statement by the Minister of Defense that Spain had suspended its arms purchase contracts with Israel and had only approved the repair of spare parts by Israel, the continuation of the purchase of military equipment from Israeli companies or their subsidiaries in Spain was documented until January 2024.
On December 15, 2023, it was adjudicated the awarding to EXPAL, a consortium that includes the Spanish firm Escribano Mechanical and Engineering and the Israeli company Elbit Systems, the contract for the supply of the SILAM high-mobility rocket launcher system, valued at €697,503,425 (including tax). This contract award was based on the assessment that it was "the only company technically qualified for the development of the project from a technical standpoint, and improvements of interest to the administration were negotiated".
Moreover, on November 22, 2023, the contract awarded to the company PAP Tecnos Innovacion SAU, a subsidiary of Rafael Advanced Defense Systems in Spain, was also awarded for the supply of 168 SPIKE LR2 anti-tank missile systems, valued at €287,445,712 (including tax). Again, the motives behind this award were the same as the SILAM high-mobility rocket launcher system.
Furthermore, also on November 22, 2023, it was adjudicated the awarding to Netline Communications Technologies (NCT) Ltd, an Israeli company, for the acquisition of complementary goods for the frequency jamming systems used by the Spanish Armed Forces, valued at €1,592,395 (including tax). The reasons were those already expressed in previous cases.
The awarding of these contracts to Israeli companies or subsidiaries despite public claims of suspension of arms trade, places Spain in an awkward situation where a possible legal, ethical, and strategic conflict is identified. This situation opens a discussion about Spain's compliance with international trade regulations.
Legal obligations and ethical considerations in Arms Exports
Concerning an evaluation of the Spanish Law 53/2007 and the relevant criteria outlined in Article 2 of the Council Common Position 2008/944/CFSP, Spain should possibly have revoked or suspended any remaining arms export licenses to Israel. The Spanish government has previously taken such action, as seen in 2013 when Spain temporarily suspended defense equipment licenses to Egypt following a coup d'état, and in 2011, when Spain also imposed a temporary suspension on arms export licenses to countries in the Middle East and North Africa affected by revolts of the 'Arab Spring'. Additionally, during the mandate of Spanish ex-president Mariano Rajoy, Spain temporarily suspended its military exports in August 2014 following an Israeli military attack in the Gaza Strip that caused the death of over 1,800 Palestinians.
These cases underscore Spain's ability and legal duty to comply with international law and human rights norms by ensuring that military exports do not facilitate ongoing conflicts or aggravate violations of international law. In light of the prevailing circumstances in Gaza and the wider ramifications of Spain's arms trade with Israel, Spain bears a legal and ethical obligation to implement stringent control and guarantee that its arms shipments do not exacerbate violence or instability.