Geographical distance does not eliminate legal proximity: criminal liability in the export of armaments
In an international context that has changed dramatically in recent years, the strategic distance of countries in matters of security and defence has greatly narrowed in comparison with geographical and political distance. And while a coincidence of interests has progressively replaced a commonality of values, the system of international law and the fora for the settlement of disputes and conflicts now appears unable, in the short and medium term, to guarantee safeguards and deterrence.
The action and leverage of nations in foreign and defence policy today find, even more than in the past, an indispensable strategic asset in industrial policy and, in particular, in the defence industry.
The increasingly pressing presence of armed conflicts with a twentieth-century character, yet fought with new weapons, with conventional capabilities able to overcome enormous geographical distances or with technical and technological capabilities capable of posing a concrete local threat, turns national borders into an anachronistic Maginot Line.
Hence the need to extend the concept of national defence and security within a stable perspective of international relations, also based on multilateral programmes and industrial cooperation in the defence sector, in a delicate balance between constitutional and legal compatibility and reliability among governments.
Peace in action is optimism of the will, a value that cannot be obliterated. However, the pessimism of reason requires us to consider that international stability, at this moment, also needs armed deterrence.
The impassable line is nevertheless represented by that set of human rights that can never be derogated from, even in the most severe armed conflicts, whose immanence is independent of geostrategic complexity and reasons of State which, if they have relativised conflict prevention in international law, cannot erase or circumvent the system of international criminal law and domestic criminal law in the face of war crimes, crimes against humanity and genocides, which are not protections of virtue but the conventional and natural discipline of human communities before they are international ones.
When a war is fought far away, it is easy also to perceive responsibility for what happens in those places as distant. On the contrary, when conflicts generate systematic atrocities, responsibility for those deaths and that devastation may also move back towards countries not directly involved in the conflict but which have fuelled the armaments system of belligerent countries. In the international arms trade, the distance between the place of conflict and the place of decision may in fact be only apparent: an explosive device used in a conflict may have been produced in Italy; a component may have left a domestic plant; a supply may have been preceded by a licence application, an end-user certificate, an administrative investigation, and an Italian assessment of the recipient country and of the risk of use.
It is within this sequence that the export of military equipment ceases to be merely an industrial, commercial or diplomatic matter. The existence of a strict authorisation regime is not accidental: it stems from a precise choice of principle within the Italian legal system, which in Article 11 of the Constitution repudiates war as an instrument of offence and of settlement of international disputes, and from the obligations undertaken by Italy at international and European level. The United Nations Charter prohibits the use of force except in cases permitted by international law; international humanitarian law requires the protection of civilians and civilian objects in armed conflicts; the Arms Trade Treaty and the European Common Position on military exports require States to deny or not authorise transfers where there is a risk that weapons, components or technologies may be used to commit or facilitate serious violations of human rights, international humanitarian law or international crimes.
This does not mean that every export to a crisis area is equivalent to participation in an international crime. It is nevertheless necessary to understand when the supply of weapons, components, technologies or services, even if formally authorised, may become relevant for Italian criminal law because it is inserted into a foreseeably unlawful chain of use.
The International Court of Justice and the International Criminal Court provide the framework within which, respectively, State responsibility and individual criminal responsibility are discussed for the most serious international crimes committed by those who choose to use armaments in violation of international law. But this framework does not exhaust the analysis of responsibilities. When part of the conduct takes place in Italy – in production, contracting, brokering, the request for or the granting of authorisation – the Italian criminal court may also be called upon to consider the relevance of what occurred before the war became a theatre of atrocities.
In order to understand whether and when this may occur, it is necessary to start from the most concrete fact: the weight of the Italian war industry, its international projection and the geography of export authorisations.
The figures of the Italian war industry and its foreign projection
The first step is almost obvious, but necessary. For weapons produced in Italy, public sources do not provide a simple and immediate accounting comparable to that for other industrial products. Official reports, clearly, do not list how many individual bombs, individual missiles or components have left domestic plants. Instead, they provide the value of authorisations, the types of materials, the recipient countries and the structure of the transactions. This information is of great value for understanding the phenomenon: the arms trade is more correctly read through licences, final recipients and the political-military risk that accompanies every supply.
The Government Report for 2025[1] shows a further strengthening of the foreign projection of the Italian military industry. The total value of authorisations for movements of military equipment reached EUR 11.141 billion, up from EUR 8.44 billion in 2024; of these, EUR 9.164 billion concerned outbound movements from Italy. Individual export authorisations amounted to EUR 7.72 billion, with 2,576 measures issued, while the cumulative value of global project licences and global transfer licences was EUR 1.374 billion.
The main destination countries, by authorised value, were Kuwait, Germany, the United States, Ukraine[2], France, the United Kingdom, Turkey, NATO countries[3], India and Brazil. The most significant figure, however, is geographical: in 2025 the North Africa and Near and Middle East area once again became the main destination for Italian military exports, with 37.03% of the total, surpassing the area of EU countries and European NATO members, which stood at 31.73%. This distribution confirms that Italian arms exports are not merely an industrial phenomenon, but a segment of foreign and security policy projected into strategically sensitive areas. [4]
The international comparison helps to measure Italy’s weight more accurately. According to data from the Stockholm International Peace Research Institute (SIPRI) for the five-year period 2021-2025, the United States remains the world’s leading exporter of armaments, with 42% of international transfers, up from 36% in the 2016-2020 period. France ranks second, with 9.8% of global exports, while Germany has risen to fourth place, with 5.7%, partly as a result of supplies to Ukraine. In this context, Italy recorded particularly marked growth: its exports of major armaments increased by 157% compared with the previous five-year period, moving it from tenth to sixth place among world exporters. The most relevant figure for the purposes of the issue addressed here, however, concerns geographical destination: more than half of Italian exports in the period considered were directed to the Middle East, equal to 59% of the total, while 16% went to Asia and Oceania and 13% to Europe[5]. It should be noted, however, that the SIPRI figure does not measure the economic value of authorisations, but the volume of transfers of major weapons systems; it is therefore useful for placing Italy in the global market, but it is not perfectly comparable with the financial values in the Government Report.
The figure becomes even more significant when one looks at the composition of exports. In 2025 the category of “materials” continued to represent the main share, with EUR 4.491 billion, equal to 58.17% of the total, although with a lower weight than in 2024. By contrast, the item “services” grew sharply, reaching EUR 2.68 billion, equal to 34.71% of the total. As for the most relevant categories, exports mainly concerned aircraft, for EUR 3.214 billion; missile systems, for EUR 820 million; land vehicles, for EUR 783 million; ammunition, for EUR 604 million; weapons and weapons systems, for EUR 529 million; electronic equipment, for EUR 507 million; software, for EUR 359 million; and technologies for development and production, for EUR 264 million. These are not marginal supplies or simple technical small parts, but materials, services and technologies capable of directly affecting the operational, logistical and industrial capability of purchasers[6].
From here comes the inevitable move from numbers to responsibility. In the armaments sector, quantity is never merely quantity. It is an indicator of the degree of exposure to risk: the more significant the supply, the more necessary it becomes – in a democratic legal system – to ask who is buying, who the end user is, what guarantees have been offered and, above all, what use was concretely foreseeable at the time of authorisation and performance of the contract.
E ciò perché dalle risposte a tali interrogativi possono derivare delle responsabilità precise e anche molto gravi tanto di chi produce e vende, quanto di chi ha autorizzato e supervisionato la fornitura. Infatti, soprattutto nei periodi di tensioni e crisi geopolitiche, diventa particolarmente delicato il tema della possibile fornitura di materiale bellico (o funzionale ad impieghi bellici) a Paesi che lo utilizzano o possono utilizzarlo per commettere crimini internazionali, come crimini di guerra, contro l’umanità o crimine di aggressione.
In this context, it is appropriate to distinguish between the different types of authorisations for the supply of weapons that may be granted in our legal system. Without being able to analyse in detail here the highly complex general and implementing legislation, the aim will be to provide at least a useful reference framework for the reader, examining in particular Law No. 185 of 1990 (and the related implementing regulation), which governs control over the export, import and transit of military equipment and distinguishes between different types of authorisations[7].
An individual authorisation concerns a single transaction: the transfer (if the recipient is located in the European Union or the European Economic Area) or the export (if the destination is outside the EU) of a specific quantity and value of specific military equipment to an already identified recipient.
A global transfer authorisation is different: it operates within the EU/EEA area and permits the transfer of specific military equipment, without predetermined quantity and value, to authorised recipients located in one or more Member States. A global project licence is different again: it concerns operations included in broader programmes, namely joint intergovernmental programmes or industrial research, development and production programmes carried out with companies from EU, EEA or NATO countries with which Italy has signed specific agreements.
There are also general transfer authorisations, which allow suppliers established in Italy, when the relevant conditions are met, to transfer predetermined materials to recipients located in one or more Member States, and brokering activities, which do not necessarily coincide with the physical passage of materials through Italian territory, but include negotiation, the organisation of the transaction, purchase and sale, or transfer from one third State to another third State. The distinction is not only technical, but also affects how the data in the Government Report must be read: an individual authorisation captures a specific supply, whereas global licences and general authorisations may reflect industrial programmes, military cooperation or more complex ongoing flows[8].
However, one clarification is appropriate: Law No. 185 of 1990 does not cover the entire universe of exportable weapons. Its rules concern military equipment in the technical sense, including automatic weapons, medium- and large-calibre armaments, military ammunition, weapons systems, vehicles, aircraft, ships and equipment built for military use. By contrast, various common firearms, sporting and hunting weapons, related ammunition and non-automatic handguns remain outside its perimeter and follow the different regime of Law No. 110 of 1975. These weapons do not fall within the stricter regime of Law No. 185/1990 and may nevertheless be exported, circulate, be diverted and end up in contexts marked by internal repression or human rights violations[9].
Two courts, two functions: the International Court of Justice and the International Criminal Court
Before entering into the merits, it is necessary to clarify that the aim here is not to reconstruct the system of international justice in full. The objective is instead to provide certain essential coordinates, needed to distinguish the role of the International Court of Justice from that of the International Criminal Court and, consequently, to understand what space may then remain for the Italian criminal court.
In public debate, the two Courts are often confused. The International Court of Justice and the International Criminal Court are both based in The Hague, but they respond to different logics and needs. The former decides disputes between States and gives advisory opinions to authorised United Nations organs; the latter judges natural persons accused of the most serious international crimes. In one case the issue is State responsibility; in the other, individual criminal responsibility. [10]
Italy participates in the system of the International Court of Justice because it is bound by the United Nations Charter and by the Statute of the Court itself, which is an integral part of the Charter. It follows that the Italian State may be a party to proceedings before the Court or may be involved, within the United Nations framework, in the functioning of that jurisdiction. [11]
The function of the International Criminal Court is different. The Rome Statute gives it jurisdiction over the crimes of genocide, crimes against humanity, war crimes and, under certain conditions, the crime of aggression. However, it is not a jurisdiction designed to replace States always and in any event: it operates according to the principle of complementarity and intervenes when the State that should proceed is unwilling or unable to do so. [12]
To give greater prominence to the current and concrete nature of the Courts’ work, the following cases may be considered.
The International Court of Justice has been seised of the proceedings Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), brought by South Africa before the International Court of Justice for the alleged violation by Israel of the Genocide Convention in relation to military operations in the Gaza Strip[13]: “In the Court’s view, at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the Convention”[14].
Another recent example is the case Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation brought by Ukraine against the Russian Federation after the invasion of February 2022, concerning the use of the accusation of genocide as a justification for Russia’s armed intervention [15]: “The Court considers that the right of Ukraine that it has found to be plausible […] is of such a nature that prejudice to it is capable of causing irreparable harm. Indeed, any military operation, in particular one on the scale carried out by the Russian Federation on the territory of Ukraine, inevitably causes loss of life, mental and bodily harm, and damage to property and to the environment ” [16].
As stated, the International Court of Justice does not judge individuals, but verifies the international responsibility of the individual State.
On the other hand, a recent example of the exercise of the jurisdiction of the International Criminal Court is represented by the proceedings Situation in the State of Palestine (ICC-01/18)Dall’altro lato, un esempio recente di esercizio della giurisdizione della Corte penale internazionale è rappresentato dal procedimento Situation in the State of Palestine (ICC-01/18)[17] in which, on 21 November 2024, the ICC Pre-Trial Chamber issued arrest warrants for Benjamin Netanyahu, Yoav Gallant (respectively Prime Minister and Minister of Defence of Israel) and Mohammed Deif (commander of Hamas’s al-Qassam Brigades), finding that there were reasonable grounds to proceed in relation to war crimes and crimes against humanity committed in the context of the conflict that began on 7 October 2023: “the Chamber found reasonable grounds to believe that Mr Netanyahu […] and Mr Gallant, […] each bear criminal responsibility for the following crimes as co-perpetrators for committing the acts jointly with others: the war crime of starvation as a method of warfare; and the crimes against humanity of murder, persecution, and other inhumane acts. The Chamber also found reasonable grounds to believe that Mr Netanyahu and Mr Gallant each bear criminal responsibility as civilian superiors for the war crime of intentionally directing an attack against the civilian population”[18].
“The Chamber found reasonable grounds to believe that Mr Deif, […] at the time of the alleged conduct, is responsible for the crimes against humanity of murder; extermination; torture; and rape and other form of sexual violence; as well as the war crimes of murder, cruel treatment, torture; taking hostages; outrages upon personal dignity; and rape and other form of sexual violence”[19]. As regards the latter, the proceedings were closed following the news of his death[20].
Likewise, in the context of the Situation in Ukraine proceedings, in March 2023 the International Criminal Court issued arrest warrants for Vladimir Putin and Maria Lvova-Belova (respectively President and Commissioner for Children’s Rights of the Russian Federation) for the war crime of unlawful deportation and transfer of Ukrainian children from occupied territories to Russia. In this case too, the Court does not judge the international responsibility of the Russian Federation as a State, but the individual criminal responsibility of identified persons.
Italy signed the Rome Statute on 18 July 1998 and ratified it by Law No. 232 of 12 July 1999; it subsequently regulated cooperation with the Court through further legislative measures. Italy’s accession to the Arms Trade Treaty[21] also falls within the same horizon of accountability for military trade, requiring States to assess the risk that transferred materials may be used for serious violations of international humanitarian law or human rights.
From this perspective, the issue of the knowability of the risk cannot be confined to the domestic administrative investigation alone. In its report of 16 September 2025 (Legal analysis of the conduct of Israel in Gaza pursuant to the Convention on the Prevention and Punishment of the Crime of Genocide), the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel recommended that Member States cease transferring weapons, equipment and other goods, including jet fuel, where there is reason to suspect their use in operations that have entailed or may entail – in that case – the commission of genocide. It also called on States to ensure that individuals and companies present in their territory or subject to their jurisdiction are not involved in the commission, assistance or facilitation of international crimes. [22]
The Italian jurisdiction
The fact that the International Criminal Court is the judicial body intended to try the most serious international crimes does not mean that the Italian court must necessarily stop at the threshold of the Rome Treaty and cannot find itself judging the conduct of those – suppliers or national authorities – who knowingly contributed to the commission of those crimes.
Our legal system may intervene whenever even only part of the conduct takes place within the territory of the State. Pursuant to Article 6 of the Italian Criminal Code, it is not only the place where the final event occurs that is relevant, but also the place where the acts contributing to produce it are carried out.
Applied to arms exports, this criterion can change the perspective. One should not look only at the bombing carried out abroad, but also at the origin of the means used and therefore at the possible “Italian passages” in the sequence: the decisions of corporate top management, the licence application, interactions with the administrative authority, possible reticence regarding decisive information, and the continuation of supplies while the war situation worsens. Geographical distance, therefore, does not eliminate legal proximity.
The point, naturally, is not to assert that every sale to a crisis area automatically amounts to participation in an international crime. Such an automatic conclusion would be legally unsustainable and not in tune with the logic of legitimate defence and deterrence, especially in the current international situation. Instead, it is necessary to verify whether – in the presence of domestic and supranational prohibitions – the export was authorised or carried out despite a concrete risk of use in the context of serious violations of international law (for example against civilians) or in any event of destination to persons involved in such violations[23]. Alongside this step, it is appropriate to understand on what basis and for which offences liability may be found in respect of the persons who operated within our country.
The liability of producers, directors or intermediaries certainly does not arise from the fact, lawful in itself, of operating in the armaments market. It may arise, instead, from the knowing introduction of goods, components or services into a chain of use that is foreseeably unlawful (where the available elements signalled the risk and required a more serious check) or – worse still – certainly unlawful, with full knowledge of the probable destination and operational scenarios.
At the same time, a breach of the criteria governing the export of military equipment does not, in itself, determine criminal liability for international crimes, but it may constitute an autonomous criminal offence. First of all, it is necessary to verify whether the transaction was carried out without authorisation, in breach of the title issued, through untruthful representations, or despite the presence of prohibitions that would have required refusal or reassessment of the licence. In this first case, the special offences provided for precisely by Law No. 185/1990 come into consideration. 185/1990.
In particular, the first safeguard concerns the truthfulness of the documentation. Art. 23 punishes anyone who, in the documents produced, intentionally provides untrue indications relevant to obtaining authorisation for export, import, transit or renewal of the title: if authorisation is actually obtained, the penalty is imprisonment from two to six years, or a fine from one tenth to three tenths of the value of the contract [24].
Art. 24, by contrast, concerns non-compliance with administrative requirements: this is the case of those who carry out exports or transits in breach of the delivery or destination conditions indicated in the authorisation issued, punishable by imprisonment of up to five years, or by a fine from two tenths to five tenths of the value of the contracts.
The most serious conduct is punished by Article 25: the export, import or transit of military equipment without authorisation. In this case, the penalty is imprisonment from three to twelve years, or a fine from EUR 25,822.84 to EUR 258,228.45[25].
The framework is completed by Article 26, which requires the judicial authority proceeding for the offences referred to in Articles 23, 24 and 25 to notify the Ministers of Foreign Affairs and Defence immediately.
More delicate is the position of the public official who unlawfully grants the authorisation. As will be seen below, in the past Italian judges were able to base liability on the offence of abuse of office, when it was still in force, in relation to the granting or maintenance of export authorisations.
However, the repeal of that offence no longer allows it to be used as the natural residual offence for every unlawful authorisation. For subsequent facts, therefore, the liability of the public official will have to be brought within more specific offences, where applicable: falsity in the investigation or in the measure, corruption or other forms of undue influence, unlawful trading in influence, criminally relevant omissions where there is a specific duty to act, or participation in the unlawful transaction. In truth, it cannot be excluded that abuse of office may again be applicable in the future, in light of the obligation to criminalise the unlawful exercise of public functions provided for by the proposed Anti-Corruption Directive approved by the European Parliament in March 2026[26].
Finally, the most complex level remains that of possible participation in offences committed abroad, pursuant to Article 110 of the Criminal Code[27]: the producer, the intermediary or, in theory, the public official could be liable not because they materially committed the attack, but where they may have provided a causally relevant contribution to its realisation. In such cases, the difficulty is mainly evidentiary. It will therefore be necessary to prove that the specific supply, in the given context, strengthened or made possible the unlawful conduct of others, and that whoever exported or authorised was aware, at least in terms of dolus eventualis, of the destination, the concrete risk of use and the international framework within which the transaction was situated.
From this perspective, depending on the case, various serious ordinary offences may come into consideration – such as murder, bodily injury, massacre, devastation and looting – where the principal act may fall within provisions of our legal system, in which, moreover, at present there are no specific provisions that have directly and systematically implemented Articles 6, 7 and 8 of the Rome Statute (which govern the crime of genocide, crimes against humanity and war crimes). One exception – although it is a provision introduced before and independently of the Rome Statute – is the Italian legislation that punishes acts aimed at committing genocide under Law No. 962 of 9 October 1967 (Prevention and Punishment of the Crime of Genocide). Certain conduct referable to war crimes may also find a place in the Military Criminal Code of War, in particular in the provisions on offences against the laws and customs of war[28].
In this regard, supplies are referred to in general because the same reasoning may concern not only the finished weapon, but also components, technologies, software, maintenance services, technical assistance or so-called dual-use goods (products used in the civilian sphere but also usable for military applications). In these cases, alongside Law No. 185/1990, the European and national rules on dual-use products[29], as well as rules on embargoes and restrictive measures, may become relevant. Liability, therefore, does not depend on the category to which the good belongs, but on its concrete function in the military supply chain and on the knowability of the final destination.
On this point, a 2021 order of the Court of Rome is particularly significant today, concerning the case that involved a supply of components for explosive devices to the Saudi-led coalition in the Yemeni conflict[30], a proceeding that was then archived in 2023 following further investigations.
With the 2021 order, the Judge for Preliminary Investigations did not establish specific liability, but rejected the Public Prosecutor’s request for dismissal and ordered the entry in the register of reported offences of the pro tempore directors of UAMA (the Unit for Authorisations of Military Equipment of the Ministry of Foreign Affairs) and of the managing directors of the supplier company, ordering further investigations.[31]
The most relevant passage of the order concerned the knowability of the risk. According to the judge, as early as 2015 the conflict in Yemen and the possibility of unlawful use of the armaments could not be considered unknown or unforeseeable facts. Moreover, during the same authorisation procedure, the end user of the supply (the Saudi air force) was asked to provide an addition to the End User Certificate (the document issued by the government authorities of the recipient country certifying that the military equipment is imported for the end user’s own use and will not be re-exported without prior authorisation from the competent Italian authorities), consisting of an undertaking to use the armaments in compliance with the principles of international humanitarian law and human rights. UAMA had also expressed the intention to issue a licence broken down into annual supplies, so that the situation on the ground could be periodically reassessed.[32] According to the Judge, “There was therefore awareness of a potential risk of use of the armaments against civilian targets, a risk which, if it materialised, would have entailed, without any discretion, a clear violation of the rules of international humanitarian law”[33].
It was also, as reported in the same order, a conflict in respect of which there were several resolutions of the European Parliament and of the United Nations Security Council attesting to the involvement of civilians in attacks by the actors involved, including the recipient State of the supply.
Even if the war is fought abroad, therefore, the Italian court may verify the lawfulness of what occurred in Italy: how the authorisation procedure was formed, what information was available, what precautions were required, and what contribution the administration and the industrial supply chain made to the construction of the risk. Jurisdiction does not follow only the place of the explosion; it also follows the place where the supply was decided, authorised and made possible.
From the United Kingdom to the Netherlands: what happens in other countries
Outside Italy, the United Kingdom has also provided a significant example in a similar direction. In particular, the proceedings brought by Campaign Against Arms Trade concerning exports precisely to Saudi Arabia showed how judicial review can focus not on the authorisation decision as such, but on the quality of the investigation. In 2019, the Court of Appeal held that the Government’s decision to continue granting licences without an adequate assessment of previous violations of international humanitarian law by the Saudi coalition in Yemen was unlawful. Here too, the point was not an automatic link between the existence of a conflict and an export ban, but the duty to assess the risk seriously in light of the available information[34].
IIn Spain, in 2025, the investigation by the Audiencia Nacional into the company Sidenor hypothesised the liability of certain executives for smuggling and complicity in crimes against humanity or genocide, in relation to the sale of steel to an Israeli arms producer. The case is still open and has not yet resulted in a final finding, but it is of particular interest because, according to the judge’s initial approach, the material had allegedly been exported without the necessary authorisation and with awareness of its destination for the production of weapons in the context of the Israeli offensive in Gaza[35].
In the Netherlands, the Court of Appeal of The Hague ordered in 2024 the suspension of the export of F-35 components destined for Israel, finding a clear risk of their use in serious violations of international humanitarian law in Gaza. The Dutch Supreme Court, in 2025, then held that it was for the Government to carry out a new assessment, but the case remains significant because it shifts the focus from the sale of the complete weapon to the supply of components inserted into a complex international military supply chain[36].
In France, where, unlike Italy, the crimes of the Rome Statute have been codified (punishable also by life imprisonment)[37], in 2025 the Ligue des droits de l’homme filed a complaint with the Paris Court against the French company Eurolinks and the Israeli company IMI Systems, alleging complicity in war crimes, crimes against humanity and genocide in connection with alleged supplies of components intended for ammunition or weapons used in the conflict in Gaza. The matter arises from journalistic investigations and concerns, once again, not the sale of the complete weapon, but the supply of components inserted into a war supply chain[38].
Granting the licence: administrative authorisation and consequent liability
At this point, the most delicate question remains: what happens if the sale has been formally authorised? The issue cannot be resolved by an automatic rule. The administrative licence cannot, by itself, become a safe conduct. First of all, because – as mentioned – the liability of the person who granted the authorisation may come into consideration: the order of the Court of Rome already cited, for example, considered it necessary to examine further the role of UAMA’s top officials in the authorisation sequence.
However, it must again be recalled that that measure was also situated on the terrain of Article 323 of the Criminal Code, now repealed; for subsequent facts, any liability of the public agent will therefore have to be brought within other offences that may be concretely applicable, at least until the possible future reintroduction of abuse of office. [39]
The principle, however, remains. If an authorisation is issued in breach of legal prohibitions, on the basis of an incomplete investigation, or despite subsequent information such as to require a reassessment, the administrative procedure too may become the subject of criminal inquiry. The intention is not to turn the criminal court into a judge of the political expediency of exports (on this point, the Court of Cassation recently excluded such a possibility with respect to the administrative court[40]), but to verify whether the legal prerequisites that permit, or conversely prohibit, the transfer of military equipment have been complied with. This is even more relevant in relation to crisis areas where the risk that serious international crimes may be committed is high – or at least cannot be excluded – and from which multiple responsibilities may arise: that of the Italian State and criminal liability (individual and corporate), both for offences relating to deficient investigations and for offences committed abroad whose commission or facilitation of commission occurred thanks to arms supplies from Italy.
The same applies to the company: on the basis of the approach that is slowly forming in European courts, the producer cannot rely on the mere formal existence of the licence if, by reason of its professional role and access to information, it knew or should have known of elements that made that supply problematic. Operators know what material they sell, to whom they sell it, through which intermediaries, with what declared end user, on the basis of what clauses in the End User Certificate and in what operational scenario that material may be used. If those very elements indicate that the licence should not have been granted, or that the situation required at least a new assessment, the authorisation does not exhaust the problem. On the contrary, the presence of requests for further clarifications by the competent authority may bring more clearly to light the presence of an anomaly, sometimes not curable by the end user’s assurances alone.
Pursuant to Article 1 of Law No. 185/1990, in detail, authorisation cannot be granted when the operation conflicts with the Constitution, with Italy’s international obligations, with UN or EU embargoes, or when it concerns countries in armed conflict in violation of the principles of Article 51 of the UN Charter[41], countries whose policy conflicts with Article 11 of the Constitution (which repudiates war as an instrument of offence against the freedom of other peoples and as a means of settling international disputes), or governments responsible for serious violations of international human rights conventions[42].
The question to be asked, therefore, certainly does not concern the presence of a licence that authorised the supplier. Instead, one must ask about the lawfulness of the operation in light of the qualified information available to that supplier. When the answer is negative, the administrative title becomes an element of context which – indeed – raises the further question of responsibility on the part of the public counterpart.
Naturally, criminal law cannot become the instrument through which every foreign-policy choice and every industrial relationship in the defence sector is reviewed. Export to a crisis area is not necessarily complicity in an international crime, nor is an error of assessment in itself an offence. At the same time, in the current world of tension, the opposite idea cannot hold either: namely, that the distance of the conflict, the complexity of the supply chain or the existence of an administrative measure are always sufficient to break the link between those who supply and the violations of international law that may be committed with the supplied material.
In a global armaments market, responsibility does not stop at the customs border and does not dissolve when the material leaves national territory. It may follow the path of the decision, knowledge, omission and accepted risk. For those who produce and sell, as for those who authorise, it is no longer sufficient to ask whether the operation may be formally permitted, but whether it is still legally sustainable when its possible unlawful (and dramatic) consequence is knowable, documented and foreseeable.
Prof. Avv. Roberto De Vita
Avv. Antonio Laudisa
References
[1] Presidency of the Council of Ministers, Report on authorised and completed operations for the control of the export, import and transit of military equipment, relating to the year 2025, Doc. LXVII, No. 4, 25 March 2026, https://www.senato.it/leggi-e-documenti/attivita-non-legislative/documenti-non-legislativi?documentoId=53552.
[2] As regards Ukraine, the Report specifies that supplies managed by the Ministry of Defence do not require
UAMA authorisation and therefore fall outside the reported statistics; see Report, p. 6. 6.
[3] The item “NATO countries” does not indicate a recipient State, but cumulative licences relating to cooperation programmes towards multiple countries of the Atlantic Alliance.
[4] Presidency of the Council of Ministers, Report on authorised and completed operations for the control of the export, import and transit of military equipment, relating to the year 2025, cited above.
[5] SIPRI, Global arms flows jump nearly 10 per cent as European demand soars, 9 March 2026,
[6] Presidency of the Council of Ministers, Report on authorised and completed operations for the control of the export, import and transit of military equipment, relating to the year 2025, cited above.
[7] In this regard, Bill C. 1730 is under discussion in Committee at the Chamber of Deputies (already approved by the Senate on 21 February 2024), precisely for better coordination of decision-making processes, through the reinstatement, “in forms updated to the new structure of Government, of the interministerial committee originally provided for by Law No. 185/1990”, as well as certain simplifications concerning companies’ documentary burdens. However, the last Committee sitting in which the bill was discussed dates back to 6 February 2025; see https://www.camera.it/leg19/126?leg=19&idDocumento=1730.
[8] Law No. 185 of 9 July 1990, Arts. 1, 2, 5, 9 et seq. and 13; Ministerial Decree No. 19 of 7 January 2013, https://www.esteri.it/mae/resource/doc/2016/10/dm_19_17gennaio2013.pdf ; Presidency of the Council of Ministers, Report on authorised and completed operations for the control of the export, import and transit of military equipment, Doc. LXVII, submitted annually to Parliament pursuant to Art. 5(1) of Law No. 185/1990. 185/1990.
[9] Precisely on this point, in 2024 a weakness in the Italian system was reported in the context of the UN Universal Periodic Review. The Asser Institute and Global Rights Compliance observed that the regime for firearms governed by Law No. 110/1975 would be less stringent than that for military equipment: control would not be concentrated with the central authority competent for military licences, with the support of ministerial assessments, but would pass through local authorities, customs and local bodies. According to that submission, there is no centralised assessment of the final recipient, the political context and the risk of diversion; consequently, control risks stopping at the formal regularity of the operation, without sufficiently verifying the actual use of the weapon once it has left national territory. See https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://uprdoc.ohchr.org/uprweb/downloadfile.aspx%3Ffilename%3D13678%26file%3DEnglishTranslation&ved=2ahUKEwjD1v2O29SUAxUb_rsIHTJTF48QFnoECBcQAQ&usg=AOvVaw32i4QXI-z5NV-KbF8FsN_9.
[10] United Nations Charter, Arts. 92-96; Statute of the International Court of Justice, Art. 1; International Court of Justice, How the Court Works and Contentious Jurisdiction, official websites.
[11] Law No. 848 of 17 August 1957, Art. 1, which implements the United Nations Statute as from 14 December 1955, the date of Italy’s admission to the UN.
[12] Rome Statute of the International Criminal Court, Arts. 5 and 17; International Criminal Court, Rome Statute and How the Court Works, official websites.
[13] The Court has not yet ruled on the merits and therefore has not established that genocide was committed; however, it has adopted provisional measures, ordering Israel to prevent acts contrary to the Convention, prevent and punish incitement to genocide, allow humanitarian assistance and preserve evidence of what is occurring; see Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Overview, https://www.icj-cij.org/case/192.
[14] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, I.C.J. Reports 2024, p. 16, https://icj-web.leman.un-icc.cloud/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf.
[15] It must be specified, in fact, that the case does not concern the ascertainment of genocide committed by Russia, but the use of the allegation of genocide as a justification for Russia’s armed intervention; see Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Overview, https://www.icj-cij.org/case/182.
[16] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022, p. 211, https://icj-cij.org/sites/default/files/case-related/182/182-20220316-ord-01-00-en.pdf.
[17] Situation in the State of Palestine, https://www.icc-cpi.int/palestine.
[18] Situation in the State of Palestine: ICC Pre-Trial Chamber I rejects the State of Israel’s challenges to jurisdiction and issues warrants of arrest for Benjamin Netanyahu and Yoav Gallant, 21 November 2024, https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-rejects-state-israels-challenges.
[19] Situation in the State of Palestine: ICC Pre-Trial Chamber I issues warrant of arrest for Mohammed Diab Ibrahim Al-Masri (Deif), 21 November 2024, https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-issues-warrant-arrest-mohammed-diab-ibrahim.
[20] Deif, ICC, https://www.icc-cpi.int/defendant/deif.
[21] Adopted by the United Nations General Assembly on 2 April 2013 and entered into force on 24 December 2014, https://thearmstradetreaty.org/treaty-status; see also Law of 4 October 2013, Ratification and implementation of the Arms Trade Treaty, adopted in New York by the United Nations General Assembly on 2 April 2013, https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:2013;118.
[22] Legal analysis of the conduct of Israel in Gaza pursuant to the Convention on the Prevention and Punishment of the Crime of Genocide. Conference room paper of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel , 16 September 2025, https://www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/sessions-regular/session60/advance-version/a-hrc-60-crp-3.pdf.
[23] Law No. 185 of 9 July 1990, Art. 1; Council Common Position 2008/944/CFSP, Art. 2, https://eur-lex.europa.eu/legal-content/IT/ALL/?uri=CELEX:32008E0944; Arms Trade Treaty, cited above, Arts. 6 and 7.
[24] The same provision also sanctions, albeit differently, untrue information decisive for entry in the national register of companies or for the issuance of clearance for negotiations. See Art. 23(2), Law No. 185 of 9 July 1990, See Art. 23(2), Law No. 185 of 9 July 1990, https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1990;185
As regards, instead, the “illegal trafficking” of weapons of war, ammunition and explosives, the weapons-control legislation under Law No. 895 of 2 October 1967 may become relevant, https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1967-10-02;895.
[25] The same provision also sanctions, with imprisonment of up to four years or a fine from EUR 25,822.84 to EUR 258,228.45, negotiations carried out outside the prior communication and control system provided for contractual operations. Confiscation is also provided for military equipment intended for export when it is not accompanied by the required authorisations. See Art. 25(2), Law No. 185 of 9 July 1990, https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1990;185
[26] European Parliament legislative resolution of 26 March 2026 on the proposal for a directive of the European Parliament and of the Council on combating corruption, replacing Council Framework Decision 2003/568/JHA and the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union, and amending Directive (EU) 2017/1371 of the European Parliament and of the Council (COM(2023)0234 – C9-0162/2023 – 2023/0135(COD)), https://www.europarl.europa.eu/doceo/document/TA-10-2026-0094_IT.html.
[27] “When more than one person participates in the same offence, each of them is subject to the penalty established for that offence, without prejudice to the provisions of the following articles.”
[28] Military Criminal Code of War, Title IV, Arts. 165 et seq.
[29] In particular, Regulation (EU) 2021/821 (https://eur-lex.europa.eu/legal-content/IT/TXT/?uri=CELEX%3A32021R0821) and Legislative Decree No. 221 of 15 December 2017 (https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2017-12-15;221!vig=).
[30] Save the children, Guerra in Yemen: origini ed evoluzioni di un conflitto che dura da anni, https://www.savethechildren.it/blog-notizie/guerra-yemen-origini-ed-evoluzioni-di-un-conflitto-che-dura-da-anni.
[31] Court of Rome, GIP section, order of 22 February 2021, proceeding n. 80418/2018 R.G.N.R. (filed on 23 March 2021), pp. 6-11, https://www.sistemapenale.it/pdf_contenuti/1620291779_-gip-roma-esportazione-armi-arabia-saudita-crimini-internazionali-abuso-ufficio.pdf.
[32] Court of Rome, GIP section, cited order, pp. 7-11.
[33] Court of Rome, GIP section, order of 22 February 2021, cited above, p. 8.
[34] Court of Appeal, R (Campaign Against Arms Trade) v Secretary of State for International Trade, [2019] EWCA Civ 1020, 20 June 2019, https://www.judiciary.uk/wp-content/uploads/2019/06/CAAT-v-Secretary-of-State-and-Others-Open-12-June-2019.pdf.
[35] I. Vega, E. Hernandez Ojeda, Un juez de la Audiencia Nacional imputa al presidente de Sidenor por complicidad con el genocidio de Gaza por vender acero a la industria militar israelí
[36] G. Wright, Dutch court orders halt to F-35 jet parts exports to Israel, BBC, 12 February 2024,
https://www.bbc.com/news/world-europe-68272233.
[37] Code pénal, https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000006070719/LEGISCTA000006149876/
[38] A. Michel, France: La Ligue des Droits de l’Homme saisit la justice contre Eurolinks et IMI Systems pour complicité présumée de crimes contre l’humanité et de génocide à Gaza, 12 July 2025, https://www.business-humanrights.org/fr/dernières-actualités/france-la-ligue-des-droits-de-lhomme-saisit-la-justice-contre-eurolinks-et-imi-systems-pour-complicité-de-crimes-contre-lhumanité-et-complicité-de-génocide/.
[39] Court of Rome, GIP section, cited order, pp. 5-7 and 11; Law No. 114 of 9 August 2024, Art. 1(1)(b), which repealed Art. 323 of the Criminal Code.
[40] Court of Cassation, United Sections, order No. 34688 of 29 December 2025; for further detail, see L. Marilotti, Divieto di esportazione di armi in caso di violazioni del diritto umanitario e sindacato giurisdizionale. Nota a Cass., Sez. Un., ord. 29 dicembre 2025, n. 34688, Giustizia Insieme, 25 March 2026, https://www.giustiziainsieme.it/articolo/3901-divieto-di-esportazione-di-armi-in-caso-di-violazioni-del-diritto-umanitario-e-sindacato-giurisdizionale
[41] ““Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” “.
[42] ““The export, import and transit of military equipment, as well as the transfer of the related production licences, must comply with Italy’s foreign and defence policy. These operations are regulated by the State according to the principles of the republican Constitution, which repudiates war as a means of resolving international disputes.
- 2. The export, import and transit of military equipment referred to in Article 2, as well as the transfer of the related production licences, are subject to State authorisations and controls
- 3. The Government shall prepare suitable measures to support the gradual productive differentiation and conversion to civilian purposes of industries in the defence sector.
- 4. Export and transit operations are permitted only if carried out with foreign governments or with companies authorised by the government of the recipient country.
- 5. The export and transit of military equipment, as well as the transfer of the related production licences, are prohibited when they conflict with the Constitution, with Italy’s international commitments and with the fundamental interests of State security, the fight against terrorism and the maintenance of good relations with other countries, and when adequate guarantees regarding the final destination of the materials are lacking.
- 6. The export and transit of military equipment are also prohibited:
- (a) to countries in a state of armed conflict, contrary to the principles of Article 51 of the United Nations Charter, without prejudice to Italy’s international obligations or to different resolutions of the Council of Ministers, to be adopted after obtaining the opinion of Parliament;
- (b) to countries whose policy conflicts with the principles of Article 11 of the Constitution;
- (c) to countries against which a total or partial embargo on arms supplies has been declared by the United Nations or the European Union (EU);
- (d) to countries whose governments are responsible for serious violations of international human rights conventions, as established by the competent bodies of the United Nations, the EU or the Council of Europe;
- (e) to countries which, receiving aid from Italy under Law No. 49 of 26 February 1987, allocate to their military budget resources exceeding the country’s defence needs; the provision of aid under that law is suspended for such countries, except for aid to populations in cases of disasters and natural calamities. […] ”
