Seeking a Responsible Arms Trade to Reduce Human Suffering in Yemen

ABSTRACT

The war in Yemen has shown inconsistencies in European Union (EU) member states’ arms export control practices: specifically, how they have applied international humanitarian law standards in their arms transfer decisions towards members of the Saudi-led coalition involved in the conflict. While such discrepancies are not new, the ratification of the Arms Trade Treaty by all EU member states, including the United Kingdom (UK) at the time, has provided another framework for bringing these controversies into the spotlight. It has also provided non-governmental organisations (NGOs) in the UK and France with further legal grounds to challenge the legality of these governments’ arms exports to Saudi Arabia and to seek their compliance with their obligations in the field of arms trade. These actions are noteworthy in terms of the information they provide on states’ arms export risk assessment procedures, on how to interpret and implement applicable legislation, and their possible impact on other countries’ decision-making in the same domain.

Keywords:

• arms exports
• Arms Trade Treaty
• European Union
• international humanitarian law
• Yemen

European Union (EU) member states have agreed to abide by a set of legally binding instruments established at the regional and international level, such as the 2008 EU Common Position on Arms Exports (EU Common Position) and the 2013 Arms Trade Treaty (ATT), which aim to prevent the adverse impact that a poorly regulated arms trade has on conflict and development, regional security and stability and, not least, human suffering. The provisions in these tools include inter alia the obligation for states to respect and ensure respect for international humanitarian law (IHL), seen per se as creating the requirement for states to ensure that the weapons they export will not be used in violations of IHL. At both the European and international level, albeit to a different extent, the development of rules promoting a more responsible arms trade has been accompanied by the intent to achieve a certain degree of convergence in the field.¹ This has been the case particularly in the EU, where member states have looked into ways to harmonise their arms export policies since the beginning of the 1990s (Bromley 2012).

Despite having agreed on common and legally binding standards in the field of arms export controls, however, inconsistencies in EU member states’ practices have systematically emerged. These divergences were already noted before the entry into force of the ATT, to which all EU member states are parties. For instance, research on the topic has highlighted how EU member states weighed differently the risk of weapons being used in violation of human rights or for internal repression when assessing arms transfers to countries affected by the events of the Arab Spring (Duquet 2014). Moreover, differences in EU member states’ arms export control practices continued to persist even after these countries restated their commitment through the ratification of the ATT. They became particularly evident in connection with the escalation of the conflict in Yemen. Citing concerns over alleged violations of IHL during the conflict by members of the Saudi Arabian-led coalition militarily engaged in Yemen since 2015, some EU member states (for example, Germany and the Netherlands among others) have halted or restricted exports of military equipment towards Saudi Arabia and its allies, while others (the United Kingdom [UK]² and France) have continued with their arms sales.

Therefore, the entry into force of the ATT does not seem to have contributed to more convergent arms export controls’ practices at the European level and, in this specific case, to a more convergent practice in the way EU member states assess the risk of their weapons being used in violation of IHL. This is not particularly surprising, and the events connected to the war in Yemen confirm what other scholarship has already noted, that a country’s arms export decisions remain strongly affected by its foreign policy objectives, its historical legacy and the influence of the national defence industry or, conversely, interested non-governmental organisations (NGOs).

However, the context of the conflict in Yemen in which EU member states’ inconsistent arms transfers practices are now being observed presents a few new features compared to previous analyses looking at the implementation of arms export control obligations. Above all, the ATT has provided an additional and legally binding tool for seeking EU member states’ compliance with the arms export rules they agreed upon but also for highlighting possible discrepancies between their stated commitments and the way these are being enacted.

The EU member states that have decided to continue their arms transfers to Saudi Arabia and members of its coalition have been widely criticised by parliamentarians, representatives of NGOs and civil society organisations precisely on the basis of their obligation under the EU Common Position and the ATT to embed IHL considerations into their arms transfer decisions. The restraint adopted by other European partners has also been part of the argument used by these actors to advocate a more restrictive approach. In a few cases, including in France and the UK, this has resulted in NGOs challenging the legality of the states’ arms transfer decisions towards Saudi Arabia in court. This is particularly significant in that it could provide alternative tools for demanding compliance in the absence of an enforcement mechanism in the field. Furthermore, it puts governments’ controversial arms exports in the spotlight, keeps the public debate on these issues alive and could serve as a benchmark for policymakers in other EU countries. These legal actions have also forced the states involved to disclose additional information to the general public on the rationale and processes behind their arms export decisions. Not only are these details usually very secretive, but they have contributed further to highlighting gaps, discrepancies and even mistakes in the way relevant obligations have been carried out.

The aim of this article is therefore to contribute to previous research investigating the discrepancies in the way EU member states carry out their arms export control obligations. It will do so by discussing how the war in Yemen has brought to the fore divergences in EU member states’ arms transfers practices and by focusing particularly on their obligation to assess the risk of their weapons being used in IHL violations. It argues that, even if these inconsistent practices could easily have been foreseen on the basis of previous analyses, the context in which they are now being observed has changed, not least in light of the opportunities that the entry into force of the ATT has created to fill the gap between rhetoric and compliance in the arms trade.³

The article will be structured in the following way. It will first give an overview of the instruments and standards – not only those specifically regulating arms transfers – requiring states (including EU member states) to refrain from exporting weapons where there is the risk that these may be used in violation of IHL. It will then look into previous analyses explaining discrepancies between states’ arms export obligations and their actual practices in the field which are still valid for explaining the different approaches that EU member states have adopted towards Saudi Arabia as the leader of the military coalition fighting in Yemen.

The choice of focusing on EU member states is based on the role played by these countries’ arms transfers in Saudi Arabia’s military build-up before and during the conflict, the presence of a discernible public debate on these issues and, not least, these states’ adherence to common obligations compared to other major conventional weapons exporters (for example, Russia and the United States).

Finally, the article will look into the legal actions that NGOs in the UK and France have undertaken to make their governments stop or halt their arms transfers to Saudi Arabia on the basis of their relevant obligations at the national, regional and/or international level. It will argue that these actions represent an element of novelty worthy of consideration.

International humanitarian law and arms transfer decisions

In the 1990s, the humanitarian impact of unregulated arms transfers and their excessive accumulation, with particular reference to small arms and light weapons (SALW), started gaining attention at the international level. A variety of different factors, such as the end of the Cold War and the changing nature of conflicts, with many of them now occurring within states, involving different actors and fuelled by the widespread availability of weapons, especially SALW, contributed to putting this issue high on the international agenda (Laurance 1998, 47). Initial efforts to strengthen regulations and transparency in the field of international arms transfers were also driven by states’ interest in keeping a peaceful and secure international and regional environment, especially in the aftermath of the First Gulf War (Laurance 2011).

More generally, the concept of ‘human security’, intended in this framework as the need to apply restraints on arms transfers or even to ban entire categories of weapons⁴ on the basis of humanitarian concerns, started to enter discussions on arms control and arms export controls (Bromley et al. 2012, 1034-6). A common understanding emerged at the national, regional and UN levels and among NGOs that the uncontrolled spread and availability of weapons were responsible for significant human suffering and violence, with civilians paying the highest price. This was interpreted as particularly detrimental for the effectiveness and relevance of IHL (ICRC 1999a). These concerns were voiced by the states parties to the 1949 Geneva Conventions which, since the end of the 1990s, reiterated the position that states should make respect for IHL one of the fundamental criteria in assessing their arms transfer decisions and that they should incorporate these standards into national, regional and global norms on arms transfers (ICRC 1999b; 2003; 2007; 2011).

IHL is the part of international law concerned with limiting the negative humanitarian impact of armed conflict. As such, the purpose of IHL is to regulate not the legality of the use of force but how force is used. Its ultimate goal is to protect civilians and those who are not or no longer taking part in hostilities. IHL imposes, among other things, restrictions on certain means and methods of warfare which fail to make a distinction between combatants and civilians or may cause unnecessary suffering or severely damage the environment. States’ obligations to comply with IHL stem both from treaty law (such as the four 1949 Geneva Conventions and their Additional Protocols) and customary international law (Henckaerts and Doswald-Beck 2005a; 2005b).

Based on the interpretation advanced by the International Committee of the Red Cross (ICRC), states’ obligation to “respect” and “ensure respect” for IHL “in all circumstances”⁵ creates the requirement to ensure that the weapons that they export will not be used in violation of this body of law (ICRC 2016). The duty to ensure respect, in particular, is considered twofold in nature. On the one hand, this has a domestic dimension as it requires states to ensure that all actors under their authority, including their population, act in compliance with IHL. On the other, this obligation has an external and universal significance in that it requires states to intervene and bring into compliance parties that fail to meet their IHL obligations even if they are not themselves involved in any conflict (Yihdego 2007, 200).

There is a “strong doctrinal opinion”, supported by the ICRC, by states’ practices and rulings of the International Court of Justice (ICJ) and related literature that argue that the obligation to ensure respect shall also extend to third states (Brehm 2007, 370-1). In terms of what this entails practically, the ICRC specifies that this duty generates both a positive obligation for states to do “everything reasonably in their power” to address IHL violations; and a negative obligation not to contribute to, encourage or assist the commission of these acts. In this regard, arms transfers represent a clear example of when states have a negative obligation to ensure respect for IHL. As arms transfers provide the means to engage in armed conflicts and these are subject to IHL, states should refrain from transferring weapons “if there is an expectation, based on facts or knowledge of past patterns” that such weapons would be used by the recipient to violate IHL (ICRC 2016). “Conditioning, limiting or refusing arms transfers” are instead indicated by the ICRC as measures to fulfil the positive obligation to ensure respect for IHL. The obligation is particularly cogent when a state is in the position to influence the behaviour of a party to a conflict as it participates “in the financing, equipping, arming or training of” its armed forces or “even plans, carries out and debriefs operations jointly with such forces” (ICRC 2016; Dörmann and Serralvo 2014, 724). Obligations in the field of arms transfers arising from IHL have progressively been coded in and complemented by a series of international and regional instruments which either set out requirements or provide guidance on how to reflect IHL concerns in states’ arms export decision-making processes.

At the international level, one of the major achievements in terms of efforts to address the human suffering caused by the illicit trade in small arms and light weapons and their excessive accumulation is represented by the 2001 UN Programme of Action on SALW (UNPoA). The UNPoA is a politically binding international agreement which establishes standards that states should adopt to address and prevent the dispersion of SALW at all stages of their life cycle. Although the inclusion of explicit language linking the excessive accumulation of SALW to human rights and IHL violations remained contested during the negotiations of this document, the Preamble of the UNPoA does recognise that the illicit trade in SALW “undermines respect for” IHL (Parker and Wilson 2016, 42-3). In terms of international instruments, the UN Security Council’s (UNSC) arms embargoes can also be established on the grounds of humanitarian law. Notable examples include the arms embargoes imposed on Yugoslavia and Somalia in 1991 and 1992, respectively, when the Security Council expressed concern about the “heavy loss of human life and material damage” in these countries. Violations of IHL were also explicitly indicated by the UNSC as a ground for the decision to impose an arms embargo on Rwanda in 1994 and the Sudan region of Darfur in 2004.⁶

The most notable examples of arms transfer control instruments embedding IHL-related concerns in their provisions, and the ones that are the most relevant for the purpose of this article, are the EU Common Position and the ATT. Under the EU Common Position, EU member states are required to deny an export licence if there is a “clear risk” that the exported military items “might be used” to commit serious violations of IHL. In considering whether a licence should be denied on these grounds, member states should also consider the recipient’s attitude towards relevant IHL principles. The ATT includes additional details on the violations that states have to consider, but it sets a higher threshold on the certainty that states should have with regard to the likelihood that these will occur (Casey-Maslen et al. 2016). Article 6(3) requires a state party to deny a transfer if it has

knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.

If a transfer is not prohibited under these conditions, the state party is still required, under Article 7(1), to “assess the potential” that arms exports could be used to “commit or facilitate” a serious violation of IHL.⁷ Notably, the treaty also includes “respecting and ensuring respect” for IHL among its principles.

The entry into force of the ATT represented the culmination of long-standing efforts to regulate conventional arms transfers in order to ease human suffering and contribute to peace and security at multiple levels, not least by making sure that weapons are not used in violation of IHL. Its obligations complemented standards that EU member states had already agreed upon in the EU Common Position in terms of both the promotion of a more responsible arms trade and the ambition to achieve a certain degree of convergence in the field.

Together, these two instruments represent the main terms of reference of EU member states’ arms export control policies. Yet, EU member states continue to have discretion in the way they translate obligations stemming from these instruments into their national policies and, in any case, in the way they implement them.⁸ This has resulted in the divergent practices that have regularly emerged in connection with particularly controversial arms transfers (Duquet 2014; Bromley 2012). The different responses that EU member states adopted following allegations of IHL violations in the conflict in Yemen is only the most recent example of a pattern of divergence among EU member states’ arms export practices and their stated policy commitments to responsible arms trade.

Explaining the rhetoric-compliance gap in EU member states’ practices

The more or less successful attempt to harmonise EU member states’ arms export control policies and thus practices has already been the subject of numerous analyses, which have sought to explain why EU member states have diverged in their application of common standards and deviated from their policy commitments in this field. Lying at the root of the issue is the ambiguous formulation of the obligations in key documents, such as the EU Common Position. In this specific case, the diverse national positions and interests vis-à-vis the arms trade have contributed to generating this ‘ambiguity’ (Hansen 2016). The EU arms export control regime seems to be the result of a compromise between very different positions on the purposes that a common system of arms export controls should serve. These range from avoiding destabilising accumulations of weapons in third countries that could pose a security threat to the EU (for example, through acts of terrorism), to the need to ensure a level playing field and an environment in which European defence companies can compete fairly and, not least, adhering to the emerging imperative of promoting a responsible arms trade. Consequently, EU member states, which in any case have retained their prerogatives in arms transfer decisions, ended up attaching different meanings to the ultimate scope of the EU Common Position, with some seeing it as a tool for restraint and others as an instrument for promoting arms exports which, in turn, generated inconsistencies in the way its standards are applied.

Similar considerations on the way international obligations in the field of arms trade regulation are formulated and the different significance they are given have also been made with respect to the ATT (Stavrianakis 2020). Particularly, the advocates (mostly exporting states) and the opponents (particularly NGOs) of the arms trade have fundamentally different views on whom such a system should protect, with the former mostly concerned with the reputation of their defence industry and the security of their armies abroad, and the latter with preventing populations in the global South from suffering the consequences of poorly regulated arms trade in terms of IHL and human rights violations. As in the case of the Common Position, the integration into the ATT of human security concerns along with “political economy-based” needs to promote a level playing field limits the ability of this instrument to control “weapons’ circulation” effectively (Stavrianakis 2018, 16-7). As such, the confluence of different agendas is reflected in the different significance that states attribute to the purpose of the treaty and, consequently, the way it is being implemented in practice (Stavrianakis 2016, 843-4).

Despite exporting states’ (including EU member states’) competing national interests and views in the field of the arms trade, but also their disputably (ir-)responsible approach in this domain before the emergence of the regulatory mechanisms discussed in this article (Erickson 2015; Hansen and Marsh 2015; Duquet 2014), many of them nevertheless decided to support and adhere to “multilateral, humanitarian arms export controls” (by ratifying the ATT or, in the case of the EU, by agreeing on the standards included in the Common Position) and agreed to integrate these into their national policies. They decided to do so without any perspective of ‘material gain’ and in spite of the high costs that these instruments, regardless of the limitations outlined above, may still entail in terms of public scrutiny at the international and domestic level, and limitation of sovereignty (Erickson 2015).

This may be because, as Jennifer Erickson argues, states decide to embrace costly international commitments, including in the field of the arms trade, to gain influence and a positive social reputation at home and abroad. At the same time, the difficulty in measuring and assessing non-compliance in a traditionally secretive field (but also the lack of enforcement and accountability mechanisms and a common understanding of what compliance means) may be seen as mitigating the possible costs of committing to their obligations and possibly as weighing in favour of such decisions. These arguments are used by Erickson to explain the discrepancies between states’ commitments to responsible arms trade policies and their practices, with both being more aligned in the presence of factors such as an active NGO community scrutinising the country’s arms export decisions or more government sensitivity to domestic scandals. Finally, Erickson questions whether the ATT, although lacking an enforcement mechanism, could still trigger a “behavioural change” in its states parties. She notes that this was not the case for the EU arms export control regime, which embodied the limited ability of the EU to facilitate the harmonised diffusion of these particular norms from the supranational to the national level and ultimately challenged its role as a normative power (Erickson 2011, 210-3; Hansen and Marsh 2015). However, Erickson also concludes that the legally binding nature of the ATT under international law may potentially provide courts with the formal power to “enforce its provisions”, meaning that “ensuring compliance will have to rely on NGOs” (Erickson 2015).

This is currently the scenario that the war in Yemen has triggered in the EU. It has showcased, yet again, the differences in the way EU member states have applied arms export control standards and obligations, in particular those referring to the need to ensure that exported weapons are not used in violations of IHL by the recipient country. Allegations of violations of IHL during the conflict in which Saudi Arabia and its coalition have been militarily engaged in Yemen since 2015, has led an increasing number of EU member states to halt or restrict exports of military equipment towards this country. On the other hand, the UK and France have continued with their arms sales. The opposition of these countries to applying restraint in their arms transfers to Saudi Arabia has been met by the decision of NGOs to challenge the legality of these transfers in national courts (Maletta 2019). This article focuses in particular on the actions undertaken by such organisations in the UK and France as two of the main arms suppliers to Saudi Arabia in 2015-19 (after the US).

The application of IHL standards in arms exports to Saudi Arabia

The conflict in Yemen and Saudi Arabia’s military build-up

After several years of political instability and growing internal tensions, in 2014 Yemen became the theatre of a civil war between those supporting the internationally recognised government of President Abdrabbuh Mansur Hadi and the forces loyal to the former President, Ali Abdullah Saleh. The conflict escalated and gained an international dimension in 2015, when a military coalition led by Saudi Arabia decided to intervene in support of the Hadi government. Five years of conflict have caused a devastating humanitarian crisis in Yemen, currently the worst in the world according to the UN (United Nations 2019).

Since the beginning of the conflict, international humanitarian organisations, NGOs and UN agencies have repeatedly expressed their concerns over the poor compliance of the warring parties with the international rules governing the conduct of armed conflicts, with episodes of IHL violations perpetrated by both sides widely documented (Amnesty International 2020; Human Rights Watch 2020; UNSC 2020). In addition, the third Report of the UN Group of Eminent International and Regional Experts on Yemen explicitly expressed concern about the role of continued arms transfers (including from the UK and France) to parties involved in the conflict in perpetuating the hostilities and, thus, the suffering of the Yemeni people. The Report states that arms exporting countries are “failing in their responsibilities to ensure respect” for IHL and that some of them “may be violating their obligations” under the ATT. It adds that “such support may amount to aiding and assisting internationally wrongful acts in contravention of international law” (OHCHR 2020). In response to the worsening humanitarian situation in Yemen, in April 2015 the UNSC imposed an arms embargo on the armed rebel groups operating in Yemen, including the Houthis. Yet, no similar restriction has been imposed on any of the members of the Saudi-led coalition thus far, allowing these countries to improve their military capacity through foreign supplies mostly provided by the US and Western European countries.

According to SIPRI’s Arms Transfers Database, in 2015-19, Saudi Arabia was the world’s largest importer of major conventional weapons, and its arms imports in this period were 130 per cent higher than in 2010-14 (Wezeman et al. 2020).⁹ More than half of the major weapons imported by Saudi Arabia during these years were supplied by the US (73 per cent of its total imports), followed by the UK (13 per cent) and France (4.3 per cent). These figures, if read in combination with the limited size and relevance of the Saudi national arms industry, show how the country has relied heavily on imports from these and other suppliers for the modernisation of its air, land and naval armed forces during the years of the conflict in Yemen and even before (Wezeman 2018; Wezeman and Kuimova, 2019).

Restraint vs ‘business as usual’

The conduct of the conflict in Yemen has triggered public debates over the legitimacy of arms exports in EU countries supplying weapons to Saudi Arabia. As a result, some countries have decided to block, suspend or halt certain arms exports to Saudi Arabia (Bromley and Maletta 2020). The Netherlands and the Belgian region of Flanders did so in 2016, and Germany and the Belgian region of Wallonia followed in early 2018 (Tricot O’Farrel and Isbister 2018). In Sweden, the Inspectorate for Strategic Products (ISP) confirmed that “no new military equipment has been sold to Saudi Arabia since 2013” and that deliveries of spare parts continued until 2017 (SVT Nyheter 2019). Following the gruesome killing of the Washington Post correspondent Jamal Khashoggi in the Saudi Arabian consulate in Istanbul in October 2018, other countries followed suit in introducing restrictions or tightening existing ones.

In November 2018, Germany introduced a temporary moratorium on arms exports to Saudi Arabia, which involved a stop on new licences and a call not to use existing ones. This moratorium has been periodically renewed since then, most recently in December 2020 until the end of 2021 (Spiegel 2020). In the same period, the Netherlands established a “presumption of denial” for transfers to Saudi Arabia and other members of the coalition that are party to the conflict in Yemen. This implies that “no export licence for military goods will be issued for these end users unless it can be incontrovertibly demonstrated that these goods will not be used in the conflict in Yemen” (Dutch Ministry of Foreign Affairs 2019, 6-7). In autumn 2018, Denmark and Finland also placed tighter restrictions on arms transfers to Saudi Arabia (Danish Ministry of Foreign Affairs 2018; Finnish Ministry of Foreign Affairs 2018). Finally, in June 2019, Italy – following mounting criticism and allegations that bombs produced and exported by RWM Italia had been used by members of the coalition in connection with episodes of IHL violations in Yemen – decided to suspend the export of aircraft bombs, missiles and their components to Saudi Arabia and the UAE for 18 months (Open 2019). This decision was preceded by a parliamentary motion adopted by the government majority (Camera dei Deputati 2019). In December 2020, the Italian Parliament adopted another motion committing the government to keeping these restrictions and considering the possibility to extend them to other categories of armaments (Camera dei Deputati 2020).

The restraint adopted by some of these countries, like the Netherlands, the Nordic member states and Germany, is not particularly surprising. On previous occasions, such as discussions over the possible lifting of the EU arms embargo on China (Erickson 2011); on arms transfers to Libya (Hansen and Marsh 2015; Bromley 2012) and other countries affected by the Arab Spring (Duquet 2014); or even debates leading to the agreement of the Common Position itself (Hansen 2016), these countries traditionally advocated a more maximalist approach and restraint in selling arms.

In contrast to these positions, the two major EU arms suppliers to Saudi Arabia, the UK and France, have resisted public pressure to reconsider their arms export policies towards Riyadh. In both countries, NGOs have responded by challenging the lawfulness of their respective government’s export-licensing decisions in court.¹⁰ The application of IHL-based obligations in arms transfer decisions has been a key part of the debates. These actions have served to highlight these states’ divergent application of existing IHL obligations in the field of arms trade under international or domestic law. The arguments used by their governments to justify their decisions to continue their arms transfers to Saudi Arabia also provide insight into the procedures, usually very secretive, adopted to assess their arms transfer decisions and, in this particular case, the risk of their items being used in violation of IHL. In the case of the UK, the relevant legal proceedings have also been instrumental in highlighting errors in the way these procedures were conducted. The following sections provide an overview of the key points addressed by legal challenges in the UK and France, the main arguments sustained by the claimants and the defendants, and their outcomes.

Challenging the ‘rationality’ of UK arms export decisions

In 2016, the Campaign Against Arms Trade (CAAT) issued a legal complaint against the British government, challenging the decision to export arms and military equipment to Saudi Arabia that may have been used to commit serious violations of IHL (High Court of Justice 2016). One of the central arguments originally made by CAAT was that the government had failed to address properly the presence of a “clear risk” that arms transferred to Saudi Arabia might be used in connection with such acts in Yemen, in spite of the evidence produced by UN bodies and various international NGOs of a pattern of violations of IHL by the Saudi Arabian-led coalition during the conflict.

These accusations were rejected by the UK government which claimed that the decision to grant arms export licences to Saudi Arabia was the outcome of a careful process that took into consideration all available information and expertise, some of which the claimants could not have access to. In support of this argument, the defendant also noted that the UK had cooperated with the Saudi Arabian government in clarifying incidents of concern and in providing support to improve their processes of investigation of IHL incidents (High Court of Justice 2017). Following a first dismissal of the case by the High Court in London, in June 2019 the Court of Appeal recognised that the process adopted by the UK government to assess the presence of a clear risk of IHL being violated by Saudi Arabia was “wrong in law” (Court of Appeal 2019). The court held, in particular, that the government failed to take into proper consideration the existence of a historical pattern of IHL breaches on the part of the coalition. Notably, the court attached particular importance to the evidence produced by the UN and other agencies in informing the risk assessment process.

Initially, the UK responded by announcing its intention to appeal the ruling and, in the meantime, to suspend the approval of new export licences for transfers of arms to Saudi Arabia that might be used in the conflict in Yemen. However, in July 2020, the Secretary of State for International Trade, Elizabeth Truss, announced the government’s decision to resume arms sales to Saudi Arabia. Truss argued that in order to comply with the Court of Appeal’s judgement the government had “developed a revised methodology” to assess whether the incidents of concern discussed during the court case constituted IHL violations and whether these were indicative of a pattern of non-compliance by Saudi Arabia with this body of law. She stated that analysis had concluded that these episodes were “isolated incidents” and, as such, did not indicate the presence of a “clear risk that the export of arms and military equipment to Saudi Arabia might be used in the commission of a serious violation of IHL” (Truss 2020). In response to the government’s decision to renew arms sales to Saudi Arabia, on 27 October 2020 CAAT decided to launch a new legal challenge (CAAT 2020) but, at the time of writing, no new hearing has taken place as a result of this action.

Challenging French arms transfers compliance with international instruments

The legitimacy of arms exports to Saudi Arabia vis-à-vis IHL and human rights standards was also called into question by NGOs in France. A study commissioned in 2018 by the Action des Chrétiens pour l’Abolition de la Torture (ACAT) and Amnesty International France assessing the legality of French arms transfers to both Saudi Arabia and the UAE concluded that, in authorising these exports, the French government had acted in violation of the provisions of both the ATT and the EU Common Position, as well as its obligations to “ensure respect” for IHL “in all circumstances” (Breham and Greig 2018). Similar arguments formed the basis of a legal action undertaken that same year by the Action Sécurité Ethique Républicaines (ASER), which formally requested the administrative court in Paris to suspend French arms export licences authorising transfers to Saudi Arabia (Bonaglia 2018a). In July 2019, the court dismissed the case arguing that the claimant did not have the legal standing to invoke the violation of “international stipulations, which have the exclusive object of governing relations between states” (Tribunal Administratif de Paris 2019). This decision was confirmed by the administrative court of appeal in September 2019, followed by the announcement of ASER to appeal to the French Council of State (Cour Administratif d’Appel de Paris 2019; ASER 2019).

The Secretariat Général de la Défense et de la Sécurité Nationale – the French licensing authority – and other branches of the French government, have on multiple occasions, both in response to allegations advanced by NGOs and in answering parliamentary questions, defended France’s decision to continue arms sales to Saudi Arabia and its allies. They have, for instance, stressed France’s compliance with relevant national, regional and international arms transfer standards and obligations, including by taking into account risk mitigation measures adopted by the recipients and actively calling on their partners to act in respect of the law of armed conflict (Assemblée Nationale 2018). However, other factors have also contributed to the decisions to authorise these transfers, including the right of Saudi Arabia to acquire weapons for legitimate self-defence and the need to support strategic partners in the region in the fight against terrorism (Landais 2018; Assemblée Nationale 2018). Most importantly, also in this context, arms sales are explicitly described as a tool for supporting the national defence industrial base (Landais 2018), at the very core of France’s policy to maintain its ‘strategic autonomy’ (Béraud-Sudreau 2020, 11-3).

Main considerations

In spite of the differences in proceedings and outcomes, the legal challenges in the UK and France are particularly significant on various levels.

Above all, these cases highlight the importance of increasing transparency in the way arms export decisions are made, particularly when they stir up controversy and legitimate concerns in the public (Maletta 2019). Especially in the legal challenge that CAAT waged against the UK government, the documentation that was made available provided an invaluable source of information on the functioning of the country’s arms exports risk assessment procedures, something which states usually keep confidential. These documents disclosed details on, inter alia, the sources used by the government to inform its assessment of the risk of weapons being used in violations of IHL during the conflict in Yemen, the value it attached to evidence of episodes of concern produced by independent and authoritative international bodies, as well as the weight of the assurances provided by the Saudi Arabian government regarding its willingness to comply with IHL principles. The judgement of the Court of Appeal also clarified how certain key terms, such as “serious violations of IHL”, should be interpreted during such procedures.

Unfortunately, the same amount of information was not provided during the legal challenge undertaken by ASER against France. However, the allegations made in this context did force the French government to justify its position and provide limited details on the type of considerations at play in the assessment of its arms transfer decisions towards Saudi Arabia and others that probably weighed the most in this regard, such as the pursuit of national and regional strategic interests and foreign policy objectives.

The information made public by these governments in response to the alleged unlawfulness of their arms export decisions further highlights the discrepancies between their policy commitments and practices. While these come as no surprise, the entry into force of the ATT and its ratification in all EU member states including, at the time, the UK, did provide an additional ‘hook’ on which to hang the illegitimacy of these countries’ arms transfers to Saudi Arabia. The challenge launched by CAAT, for instance, calls into question the correct application of the UK Consolidated EU and National Arms Export Licensing Criteria, which incorporate obligations under the EU Common Position and the ATT. ASER’s case is built on France’s alleged violations of its international obligations, including those stemming from Article 6 and 7 of the ATT.

These legal challenges raised important questions on how different elements are weighed in states’ risk assessment procedures, particularly when there is the risk of IHL violations, and even highlight possible mistakes in the way the procedures are conducted.¹¹ For instance, in the UK, the Court of Appeal instructed on what an assessment of the risk of exported weapons being used to commit serious IHL violations should take into account in order to be considered lawful. In this regard, the Court stressed the added value of the evidence produced by the UN and international NGOs, evidence which ASER in France presented as part of its argument to demonstrate the serious risk of IHL violations in Yemen (Bonaglia 2018b). The Court of Appeal in London also provided additional clarifications related to the implementation of relevant obligations in the EU Common Position, and, particularly, those regarding the assessment of the recipient’s attitude towards IHL principles, important for the scrutiny traditionally exercised by NGOs in this domain. It also provided additional elements for researchers and academics in formulating a critique of the value and effectiveness of risk assessment as a tool to inform arms export decisions and stressed the discrepancies in the way this is conceived by arms exporting states and opponents to the arms trade (Stavrianakis 2020).

Finally, the proceedings and outcomes of these legal challenges may inform the arms export decisions of other countries and possibly affect the outcome of other ongoing court cases. Notably, the Italian Parliament’s motion adopted by the government on June 2019 and preceding its decision to apply restrictions on certain arms exports to Saudi Arabia and the UAE, referred to the judgement of the Court of Appeal in London. The text of the motion argued in favour of restrictions also on the basis of the relevant decisions taken by other partner countries such as Germany, the Netherlands, Finland and Denmark that are mentioned in the document. These countries’ decisions were also listed by ASER in support of its case (Bonaglia 2018b).

Both legal cases in the UK and France may still undergo further developments. While the UK has decided to resume its arms transfers to Saudi Arabia, which may cast doubts on the long-term and meaningful impact of the decision of the Court of Appeal, CAAT is preparing another legal action. ASER’s attempt to prove that French arms transfers to Saudi Arabia violated the government’s international commitments was dismissed on the basis that this organisation did not have the legal standing to invoke such wrongdoing. However, the case did not address or confute the claimants’ core concerns or the legitimacy of the government’s decisions. The intention to bring the issue before the French Council of State may produce new developments in this regard.

The inherent risk is that these legal challenges can create precedents validating the position of countries arguing that there is no clear risk of their weapons being used to commit serious violations of IHL in Yemen (Stavrianakis 2017). Nevertheless, regardless of the outcome, these actions are crucial for enhancing the role of public scrutiny by keeping the debate on these issues alive. They also represent a potentially effective tool for addressing EU member states’ discrepancies in arms export control practices.

Conclusion

EU member states’ arms export control practices continue to vary even though these countries have adhered to common and legally binding commitments in the field of arms trade, most recently through the ratification of the ATT. The conflict in Yemen has proved this once again, specifically, how EU member states have applied IHL-related standards and obligations differently in their arms transfer decisions. Citing the presence of a risk that the items exported could have been used in connection with breaches of IHL in Yemen, a number of EU member states have decided to adopt more restrictive approaches towards Saudi Arabia and its allies and to suspend or halt arms transfers. On the other hand, the UK and France have decided to continue with their arms sales. The reasons that lead EU member states to diverge in their arms export controls practices and in adopting more or less restrictive approaches – as noted by previous analyses (Erickson 2011; Bromley 2012; Duquet 2014) – remain and are not particularly surprising.

Yet, the most recent examples of discrepancies in arms export decisions among EU member states generated by the conflict in Yemen have occurred in a different context with respect to similar situations in the past (for example, during the Arab Spring). What has changed in particular is that the ratification of the ATT by all EU member states, including the UK at the time, has provided an additional framework for moving these controversies into the spotlight and legal grounds for seeking compliance. Indeed, NGOs in the UK and France have initiated legal challenges against these governments, calling into question the legality of their arms export decisions towards Saudi Arabia vis-à-vis relevant international obligations or national legislation incorporating them.

While this article has focused on cases in the UK and France as they are two of the largest European arms exporters and suppliers to Saudi Arabia, it is worth mentioning that governments in other countries in (for instance, Italy and Belgium) and outside of (for example, Canada) the EU, have faced legal actions for the same reasons (Maletta 2019; Ferro 2019). Regardless of the outcomes, these actions are noteworthy in terms of the information they provide on states’ arms export risk assessment procedures, on how to interpret and implement applicable legislation, and their possible impact on other countries’ decision-making in the same domain. The success and feasibility of these actions rely heavily on whether NGOs have the necessary legal standing to undertake such challenges in their country and on the amount of information on export licences and related procedures to which they have access (Lammerant 2020).

The fact that NGOs are taking the lead in using legal remedies to seek states’ compliance with their arms export control obligations could mean that commitment to responsible arms trade principles may actually come with higher compliance costs than states had originally foreseen. To the extent that exporter states are more or less sensitive to public scrutiny and the risk of domestic scandals, this may lead to a change in their practices (Erickson 2015).

Another factor that could play a crucial role in this domain in the EU context and one that will deserve further attention and scrutiny in the years to come is the Union’s growing support for defence industry cooperation and production. This has prompted calls for further ‘supranationalisation’ of EU member states’ arms export controls and more EU scrutiny of their adherence to the Common Position (Cops 2020; European Parliament 2020), which could entail additional compliance costs in terms of sovereignty.

Finally, seeking and achieving compliance and convergence in states’ arms export control practices, especially those supporting and championing ‘high common standards’ in the field, such as the EU member states and the UK, has an evident value in strengthening the effectiveness and reach of these standards and instruments like the ATT. This is particularly important in the event that other major suppliers decide to adhere to the same principles, as China recently did by ratifying the ATT.¹² Therefore, although this article has focused on the arms export control practices of Western European arms exporters vis-à-vis IHL-related principles, questions remain on how suppliers in different regions of the world will respond when faced with similar situations. In addition, the debates that have surfaced in connection to the conflict in Yemen raise more general questions on the responsibility and accountability with respect to IHL of states engaged in ‘proxy warfare’, intended as the practice of supporting parties to a conflict from afar, including through arms transfers.

Acknowledgments

The author would like to thank SIPRI colleagues Lucie Béraud-Sudreau, Kolja Brockmann, Pieter D. Wezeman and SIPRI Associate Netta Goussac for reviewing an earlier version of this article. The author is also grateful to the three anonymous reviewers for their very helpful comments. All mistakes remain the responsibility of the author. The views expressed in this article are those of the author and do not reflect the views of her affiliated organisation.

Additional information

Notes on contributors

Giovanna Maletta

Giovanna Maletta is a Researcher in the Dual-Use and Arms Trade Control Programme at the Stockholm International Peace Research Institute (SIPRI), Stockholm, Sweden.

Notes

¹ In particular, the Preamble of the Common Position states that EU member states “intend to reinforce cooperation and to promote convergence in the field of exports of military technology and equipment”. In addition, Article 1 of the ATT indicates that to “establish the highest possible common international standards for regulating or improving the regulation of the international trade in conventional arms” is one of the objectives of the treaty.

² At the time of the events described later in this article, with the exception of the most recent developments, the UK was still formally part of the EU, which it left officially on 31 January 2020. The UK arms export control policy still foresees the assessment of arms export licence applications against the Consolidated Criteria, which incorporate both EU and international obligations: https://publications.parliament.uk/pa/cm201314/cmhansrd/cm140325/wmstext/140325m0001.htm.

³ This expression has been used by activists in the context of the ATT to describe the gap between certain states parties’ assertions that they are in full compliance with the obligations of the treaty and their controversial arms transfers. See Acheson (2019).

⁴ For example, cluster munitions, anti-personnel landmines.

⁵ The obligations to respect and ensure respect for IHL are not limited to relevant treaties’ provisions but “are accepted as norms of customary international law that deploy erga omnes effects some of which having jus cogens character”. See Brehm (2007, 369-72) and Henckaerts and Doswald-Beck (2005b, 3289).

⁶ See SIPRI Arms Embargoes Database: https://www.sipri.org/databases/embargoes.

⁷ Article 6 of the ATT refers more broadly to transfers, which under Article 2(2) of the treaty comprise export, import, transit, trans-shipment and brokering. The scope of Article 7 is narrower as it only refers to exports.

⁸ It is worth mentioning in this regard the provisions of Article 29 of the Treaty on European Union (TEU) on the legal significance of Common Positions, stating that “The Council shall adopt decisions which shall define the approach of the Union to a particular matter of a geographical or thematic nature. Member States shall ensure that their national policies conform to the Union positions”. The way provisions of Article 5 of the ATT (on “General implementation”) are framed also suggests that the implementation of the treaty “takes place largely at the national level”: see Parker (2016, 22).

⁹ SIPRI’s Arms Transfer Database only refers to actual deliveries of major conventional weapons. More information on the methodology and coverage of the database can be found at: https://www.sipri.org/databases/armstransfers.

¹⁰ Similar legal actions have also been attempted in Italy and Belgium.

¹¹ Whether the government had considered properly the risk for violations of IHL and human rights was also at the basis of a series of rulings through which the Belgian Council of State suspended a series of arms export licences towards Saudi Arabia issued by the Walloon government. See Lammerant (2020).

¹² China deposited its instrument of accession to the treaty on 6 July 2020.