Mainstreaming Gender in EU Arms Export Controls

With the third review of the EU Common Position on Exports of Military Technology and Equipment (EU Common Position) well underway, there is a critical opportunity to align this document with international instruments that incorporate gender considerations in the arms trade. This is particularly relevant given the growing international momentum to address Gender-Based Violence (GBV)¹⁾ in the arms trade, as the recent example demonstrates. In August 2024, at the 10th Conference of State Parties to the Arms Trade Treaty (ATT), 47 States submitted the Joint Working Paper addressing the gender mainstreaming concerning the arms trade. In light of this, the post first highlights the interconnectedness between GBV and the trade of Small Arms and Light Weapons (SALW). It then examines the increasing integration of gender considerations within arms trade legal frameworks. Finally, it calls for the EU Common Position to explicitly reference gender beyond its already present human rights considerations.

Gender-Based Violence and SALW trade

SALWs are used in almost one-third of feminicides worldwide. This data, provided by Control Arms and UNIDIR, aligns with Amnesty International’s suggestion that most armed violence in conflict and non-conflict areas affecting women is committed with SALW, illustrating the intrinsic link between GBV and the trade of SALW.

While the data provided by Small Arms Survey points out that in 2021 women constituted 19% of victims of intentional homicide, the reality is that 55% of those homicides are committed by intimate partners or relatives. However, this data should not lead us to conclude that non-lethal GBV rates are equally low. On the contrary, there is a need to focus on the impact of the arms trade on women in non-conflict areas due to the fact that armed violence has differentiated non-lethal impacts on women, such as sexual violence, psychological violence, or the perpetuation of gender stereotypes associated with notions of manhood based on women’s subordination.

The Human Rights Council has also highlighted that the human rights impact of SALW takes place regardless of whether firearms are discharged. The mere threat of using the weapon and its presence in, say, the household, is enough to impact women’s rights negatively and may lead to the perpetuation of economic violence or domestic violence.

In light of the multifaceted negative impacts on women’s rights that SALW can have, it is not surprising that there have been declarations such as the Joint Statement of 36 states parties to the Arms Trade Treaty,  the Final Report of the 2019 Fifth Conference of State Parties of the ATT, or the more recent Outcome Document of the Fourth Review Conference of the Programme of Action (PoA) on SALW,  all of which point to the need for an increased understanding and implementation of measures to include gender considerations in arms export controls.

Increased gender perspectives in the arms trade legal frameworks

While companies have the responsibility to act diligently before exporting arms, multiple international instruments enshrine the obligation of states to conduct human rights risk assessments before issuing an arms export license to industry players.

Increasingly, international instruments regulating state obligations in the arms trade are incorporating explicit references to gender when defining the arms export assessment criteria. This inclusion of explicit gender references recognises the differentiated impact of SALW exports on women, and acknowledges that legally transferred arms, when diverted, often fuel GBV, as flagged by the Human Rights Council in 2019 and 2020.

For its part, the recently adopted Outcome Document of the Fourth Review Conference of the PoA on SALW, which includes 14 references to gender, is one of the most obvious illustrations of the importance of incorporating gender considerations in risk assessments conducted prior to the issuance of an export license. However, years earlier the ATT was the first legally binding instrument to recognize the interplay between GBV and arms trade in Article 7.4. This provision mandates states to conduct a risk assessment before authorizing the export of conventional arms. By making specific reference to gender, Article 7.4 requires exporting states to consider the risk of conventional arms being used to commit or facilitate serious acts of GBV or violence against women.

The Firearms Protocol, despite its focus on illicit manufacturing and trafficking of firearms, is another example of how gender considerations have emerged in the international discourse. For instance, in the Report of the 2016 Conference of the Parties, states recognized the need to consider the gender dimension of firearms-related crimes.

Furthermore, gender considerations have also gained relevance within soft-law instruments. For instance, Sustainable Development Goals 5.2 and 16.3 establish the target to eliminate all forms of violence against women and girls, and the need to reduce illicit financial and arms flows, respectively. Moreover, the 2024 PoA Outcome Document articulates state’s concerns that gender equality may be hindered by the illicit trade of SALW and highlights the need to take into account the differential impact that illicit trade in SALW has on women.

Why should the EU Common Position include explicit references to gender?

Since December 2008, the EU Common Position has defined the rules governing the export of military technology and equipment, as well as dual-use goods and technology in the EU (Article 6 EU Common Position). While EU Member States retain discretion to determine the means of application of this instrument, the EU Common Position establishes common criteria that states shall consider when deciding whether to grant an export license or not. Amongst those criteria, states are required to consider respect for human rights in the destination state (Criterion 2).

In this sense, the European Court of Human Rights (ECtHR) has ruled that, in certain circumstances, rape can constitute a form of torture (Ayidin v. Turkey), falling under the scope of Article 3 of the European Convention of Human Rights (ECHR); and the Inter-American Court of Human Rights has also ruled that states must adopt integral measures to fulfill their prevention obligation in cases concerning violence against women (Campo Algodonero v. Mexico). Thus, it seems that GBV is already covered by the general reference to human rights under Criterion 2 of the EU Common Position.

In light of that, the question that arises is the following: why should the EU Common Position include explicit references to gender in the criteria for conducting risk assessments prior to granting export licenses, in line with Article 7.4 of the ATT?

Legally, the explicit reference to gender entails the obligation of states to consider specific factors and risks that are uniquely associated with violence suffered by women and girls. For example, an explicit reference to gender in the EU Common Position would require the Member States to consider the GBV records of the importing states and assess whether the importing state has the capacity to prevent and punish those acts. Accordingly, Member States would have to take measures at the national level in order to comply with these criteria set out in the EU Common Position.

Moreover, if Member States would fail to conduct this due diligence, victims of GBV in the importing states might have an opportunity to seek redress against the exporter state for granting export licenses negligently by failing to consider the risk of contribution or facilitation of GBV.  This is key, considering that, in the European context, the ECtHR plays an important role in assessing Member States’ compliance with the ECHR. While the ECtHR has been clear that it applies an autonomous interpretation of the ECHR, it takes into consideration European and international human rights law standards. Thus, when a EU Member State has failed to include gender considerations in the risk assessment prior to granting an arms export license, the possibility that the ECtHR finds a violation of the ECHR could increase if the EU Common Position would made an explicit reference to gender.

More broadly, an explicit reference to gender in the EU Common Position could have implications beyond the legal assessment of arms export licenses. It could enhance states’ efforts towards the compilation of disaggregated data, support the research in this field, and most importantly report on the GBV assessment in the arms control procedures of exporting states. This could lead to a higher level of transparency and accountability, allowing civil society organizations to scrutinize Member States’ decisions and act when they consider that a Member State has failed to comply with such obligations.

From a policy perspective, bringing GBV considerations to arms export decisions could broaden discussions from a supply-centered approach to include a demand-centered approach, as argued recently by Callum Watson and Aline Shaban. While the inclusion of gender considerations in legal instruments cannot directly solve the root causes of GBV, its inclusion could play a part in addressing the contributing factors that perpetuate this particular type of violence. For instance, it could contribute to the shifting of mainstream narratives and roles based on stereotyped conceptions of manhood promoted by arms companies themselves (see para. 18 of the HR Council Report).

Finally, the inclusion of gender in the criteria defined in Article 2 of the EU Common Position would be aligned with the current stance of the EU towards gender. In this sense, during the 8^th Conference on State Parties to the ATT, the EU acknowledged that the effective implementation of Article 7.4 of the ATT can contribute to eliminating violence against women and girls, and stated that the EU Common Position is aligned with the criteria set out with the ATT. Moreover, the EU has a long history of commitment to gender equality and eradication of violence against women (Gender Equality Strategy 2020-2025 or Strategy for equality between women and men 2010-2015). Thus, the inclusion of explicit gender references in the EU Common Position would merely be a continuation of the European Union’s efforts toward gender equality.

I thank Dr. León Castellanos-Jankiewicz and Mr. Antonio Guzmán Mutis for their guidance and support.