Defence in Arms Embargo Cases

By Dr. Julius Hagen, Attorney at Law

When section 17 AWG applies

Section 17 AWG criminalises specified sanctions breaches involving military goods. An investigation may affect suppliers, traders, brokers or logistics personnel. Whether the product is capable of military use is only one of the questions that needs to be answered.

Section 17(1) AWG requires a national prohibition that refers to this criminal provision and concerns items in Part I, Section A of the German Export List. Section 17(1a) AWG covers specified directly applicable EU sanctions prohibitions concerning the military goods and technology identified there. The defence needs to establish which prohibition the authorities rely on and whether it covers the alleged conduct involving this product.

Classification as military goods

Whether a product is listed depends on its technical characteristics. Its design, particular performance specifications or military adaptation may be relevant. Components in particular need to be compared with the list entry in the precise version supplied. Possible civilian uses do not rule out classification as military goods.

We compare the authorities' classification with technical specifications, bills of materials and manufacturers' records. Earlier assessments are useful only insofar as they reflect the relevant stage of development and the version delivered. An expert may be needed to resolve technical questions. The distinction from dual-use items also requires examination, as may Germany's War Weapons Control Act.

Liability without exporting the goods yourself

An embargo can affect people who do not export goods themselves. Depending on the provision, trading or brokering may also be prohibited. Where several companies are involved, we examine who agreed the deal and arranged transport, and who knew about the recipient or end use.

A recipient in a third country or an end-use certificate needs to be examined alongside any indications of onward shipment. For each person, the questions are what they knew and what part they played. Orders, freight records and messages about changes to the route may provide the answers.

Potential sentences under section 17 AWG

The basic offences in section 17(1) and (1a) AWG carry one to ten years' imprisonment. Different ranges apply to less serious cases and grossly negligent conduct; aggravated offences carry higher penalties. The applicable range depends on the statutory conditions, rather than the transaction's value alone.

Gross negligence, or Leichtfertigkeit, requires a particularly serious failure of care. Relevant questions include which warning signs were apparent, what checks the person was responsible for and what information was available to them.

Authorisations in embargo cases

We also examine whether an authorisation covered the transaction. Under section 17(6) AWG, an authorisation obtained through false or incomplete information can be treated as equivalent to acting without one.

Defending an arms embargo case

The investigation file shows what the authorities rely on, such as a particular list entry, knowledge of end use or involvement in the transaction. We test those allegations against the technical and business records and prepare the defence.

Seized goods

If goods, vehicles or equipment have been seized, we also establish who owns them and whether the legal requirements for seizure are met. This is particularly important where the property belongs to the company or an uninvolved third party. The conditions for eventual confiscation differ in some respects from those for punishing the person accused.