European Union (EU) member states have committed themselves to a set of rules, agreed both at the regional and international level, which are meant to prevent and address the diverse effects of unregulated or poorly regulated arms trade on conflict, regional security and stability and, ultimately, human suffering. These standards are grounded in—among other things—the application of international humanitarian law (IHL). However, there have always been differences in the way EU member states have interpreted these rules, depending on their national laws, decision-making processes and political and economic interests. These differences have become particularly evident in the escalation of the conflict in Yemen. While some EU states have halted or restricted exports of military equipment to the Saudi Arabian-led coalition actively engaged in the conflict—due to IHL and concerns over human rights—others have continued with supplies.1
In Italy and the United Kingdom, parliamentarians have responded by tabling motions and publishing reports aimed at pressuring their governments to change or reassess their decision-making processes. In addition, civil society organizations in several EU member states—including Italy and the UK—have responded by questioning the legality of these exports vis-à-vis agreed regional and international standards, and by challenging them in court. On 20 June 2019, the verdict of the Court of Appeal in London accepted one of the grounds put forward by the Campaign Against Arms Trade (CAAT) against the British Government. This judgement, in particular, questioned the lawfulness of the process adopted by the government to assess the risk that the exported weapons and military equipment to Saudi Arabia may have been used to commit serious violations of IHL in Yemen.
The aim of this backgrounder is to analyse these two cases and assess the potential significance of the actions on the implementation of international and regional standards regulating arms trade. First, it provides a brief overview of the scope of IHL and how related concerns are embedded in instruments regulating arms transfers, such as the Arms Trade Treaty (ATT) and the EU Common Position on arms exports. It then looks at how EU member states have interpreted these provisions differently when assessing transfers to members of the coalition involved in the Yemen conflict—in particular, Saudi Arabia—and the implications of these divergences in policy. Finally, it looks closely at on what grounds the arms exports of two of the EU member states that have decided to keep supplying Saudi Arabia—the UK and Italy—are being legally challenged, and the potential impact of these actions.
International humanitarian law and the arms trade
IHL, also known as the law of war, is concerned with the ‘protection of certain vulnerable individuals’ in international or non-international armed conflicts and with making the fighting ‘more humane’.2 IHL does not regulate the legality of the use of armed force but only how it is used. States’ obligations to comply with IHL stem from both treaty law, such as the four Geneva conventions, their Additional Protocols and other treaties prohibiting or restricting the use of certain types of weapons, and customary international law.
According to the International Committee of the Red Cross (ICRC), ‘serious violations’ of IHL are ones that endanger protected persons and objects or breach important universal values. Serious violations of IHL include ‘grave breaches’ of the four Geneva conventions, meaning acts such as wilful killing, torture, inhuman treatment, biological experiments, wilful infliction of great suffering or serious physical or mental injuries, and unlawful destruction of property. Additional Protocol I complements this list by adding an additional range of actions that count as ‘grave breaches’ of this protocol. These include, among others, indiscriminate attacks against civilian populations and objects.3
Grave breaches of the Geneva conventions and Additional Protocol I fall within a broader category of serious violations of IHL. In particular, the Statute of the International Criminal Court (ICC) is seen as contributing to the enlargement of this category. In fact, the statute includes a number of serious violations of treaty law (including grave breaches of the Geneva conventions and Additional Protocol I) and customary IHL applicable in both international and non-international armed conflict, and which it defines as ‘war crimes’.4
Under Article 1—common to all Geneva conventions—all states have an obligation to ‘respect and ensure respect’ for IHL. This is seen as creating the requirement for states to ensure that their arms exports will not be used in violations of IHL. It is complemented by regional and international provisions regulating arms trade, such as the EU Common Position and the ATT to which all EU member states are parties. The EU Common Position requires EU member states to deny an export licence if there is a ‘clear risk’ that the items ‘might be used’ to commit serious violations of IHL. It also prescribes that member states, in considering whether a licence should be denied on these grounds, should also assess the recipient’s attitude towards relevant IHL principles.
The ATT is more detailed about the range of violations that need to be considered, but it sets a higher threshold in terms of the amount of certainty a state needs to have with regard to the likelihood that a violation will take place. Article 6 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 to ‘assess the potential’ that it could be used to ‘commit or facilitate’ a serious violation of IHL.
EU member states’ arms exports to Saudi Arabia
Based on the latest figures from the SIPRI Arms Transfers Database, Saudi Arabia was the world’s largest recipient of major conventional weapons in 2014–18 and its imports increased by 192 per cent between 2009–13 and 2014–18. This data also shows that EU member states are involved in Saudi Arabia’s increase in arms acquisition. After the United States, EU member states were among its main suppliers, with the UK and France, in particular, being the 2nd and 3rd largest ones in 2014–18.
European arms exports have been contributing to the modernization of Saudi Arabia’s air, land and naval forces. For example, deliveries of combat and tanker aircraft from the UK and Spain, respectively, have contributed to increasing the range and strike power of the Saudi Arabian Air Force. More specifically, A-330 MRTT tanker aircraft produced by the trans-European Airbus Consortium were delivered from Spain in 2011–15. In 2007–13, some of the Tornado combat aircraft that the UK had already supplied to Saudi Arabia in the 1990s were upgraded to allow them to carry cruise missiles and new guided weapons systems. Guided weapons delivered by the UK have been deployed in Yemen since 2015. In 2009–17, the UK supplied Saudi Arabia with Typhoon combat aircrafts.5In 2014–18, French and Austrian armoured vehicles, among many others, were delivered to Saudi Arabia. Notably, a recent leak of classified French Defence Ministry documents reported the use of French-made weapons, including armoured vehicles, in the ongoing conflict in Yemen. Since 2014, the Saudi Arabian Navy, which is involved in the naval blockade of Yemen, has ordered at least 33 patrol boats from Germany (of which 13 have been delivered to date), 2 patrol boats from France and 5 frigates from Spain. Finally, in 2015–18, Italy licensed arms exports to Saudi Arabia to the value of more than 700 million euros. These included, among others, aircraft bombs under category ML4 of the EU Common Military List. The export of MK80 aircraft bombs produced by RWM Italia S.p.A. have proved particularly controversial in light of the allegation they have been used in military operations that caused civilian casualties in Yemen.
The figures above mask substantial differences in the policies of EU member states towards arms exports to the Saudi Arabian-led coalition. Citing concerns about violations of human rights and IHL, some EU member states have indicated that they would deny arms exports to members of the coalition. The Netherlands has 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 exports of military goods are denied unless there is irrevocable proof that the goods will not be used in the conflict.6 Restrictions have also been applied by the Belgian regions of Flanders and Wallonia. In 2018, the Belgian State Council suspended eight licences for transfers to Saudi Arabia granted by the Walloon Government. According to the State Council, the Walloon Government failed to properly consider the common exporting criteria, especially as regards human rights. This decision was then confirmed and the licences were cancelled in June 2019. More recently, allegations that Belgian weapons might have been used in Yemen have triggered a public debate on whether Belgium should consider suspending exports to Saudi Arabia altogether. In 2018, Germany also significantly changed its export control policy towards Saudi Arabia, with restrictions announced already in January as part of the government’s coalition agreement. In November, following the murder of the journalist Jamal Khashoggi, Germany established 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 was extended in March 2019 for another six months. As the Khashoggi case was unfolding, Denmark and Finland also announced the adoption of restrictions on their arms exports to Saudi Arabia.
In contrast, countries like the UK, France and Italy have been resisting public pressure to reconsider their arms export policies towards members of the coalition. For example, in the UK, negotiations for the purchase of 48 BAE Typhoon fighters by Saudi Arabia made further progress in March 2018. In France, the value of licences issued for arms exports to Saudi Arabia increased by 50 per cent during 2018 and the Saudi Arabian Government ordered patrol boats to the value of around one billion euros. In Italy, licensed arms exports to Saudi Arabia were actually valued lower in 2018 than in previous years, nevertheless, the latest reported customs data shows that deliveries continued to be carried out. At the end of 2018, the Italian Prime Minister stated that the Italian Government was against the sale of weapons to Saudi Arabia in light of its role in the Yemen conflict. However, this statement was not followed by any change in the country’s export control policy. In the UK and Italy, non-governmental organizations (NGOs) and civil society organizations have responded by seeking to challenge the lawfulness of their respective government’s export-licensing decisions in court.
Arms exports and serious violations of IHL: The British case
In 2016, CAAT issued a legal complaint against the British Secretary of State for International Trade, challenging his decision to export arms and military equipment to Saudi Arabia that may be used to commit a serious violation of IHL.7
CAAT claimed that the British Government had failed to properly apply Criterion 2(c) of the Consolidated EU and National Arms Export Licensing Criteria when assessing export authorization for Saudi Arabia, which requires the denial of a licence if there is a ‘clear risk’ the items might be used to commit a serious violation of IHL. CAAT’s argument was that the process adopted by the Secretary of State to assess the presence of such a risk was flawed for a number of reasons. First, a wide range of publicly available reports, produced for example by the United Nations Panel of Experts on Yemen and various NGOs, provided evidence of a pattern of violations of IHL, including serious violations by the Saudi Arabian-led coalition in Yemen. According to the claimant, the existence of this material created an obligation for the government to explain if and how its own risk analysis could contradict the conclusions made by such reports. CAAT also stressed that the British Ministry of Defence (MOD), which tracks possible IHL breaches in Yemen, was unable to identify a ‘legitimate military target’ in a large number of incidents involving the coalition, especially those concerning dynamic targeting where the targets are not pre-planned. This element was used by the claimant to further demonstrate gaps in the government’s risk assessment procedure. CAAT’s position was therefore that, given these assumptions, the Secretary of State could not rationally conclude that there was no clear risk British arms exports could lead to a serious violation of IHL.
The Secretary of State rejected all accusations and defended the rationality of the government’s decision as the outcome of a careful process that took into consideration all relevant information. One of the central arguments was that the government’s risk analysis could draw on a variety of unique sources of information and expertise on Saudi Arabia that the claimant did not have. These included, for example, advice from regional experts within the Foreign and Commonwealth Office as well as from diplomats and MOD personnel in contact with their Saudi Arabian counterparts. The Secretary of State also argued that even in a situation in which a violation of IHL has been established, this might not automatically trigger Criterion 2(c) if mitigation measures have been taken by the recipient country. In this regard, he positively noted the cooperative attitude of the Saudi Arabian Government in clarifying incidents of concern and in seeking support to improve investigation processes.
Following a hearing in February 2017, the High Court delivered its judgement in July of the same year. The judges rejected CAAT’s claim and substantially accepted the arguments advanced by the Secretary of State. Notably, the court, in response to the allegation that the government had failed to properly consider the publicly available evidence of Saudi Arabia’s pattern of IHL violations, stated that it would have been impractical and unnecessary to make a judgement about every one of these incidents in order to assess the recipient’s past and present record of such violations. The court also stressed the qualitative difference between the government’s risk assessment and that of NGOs, the UN and the media. In response, CAAT challenged the judgment. It argued that both the government and the court made a fundamental error in their approach to such material. More specifically, CAAT argued that the existence of this evidence would have rationally required the Secretary of State to reach a conclusion on whether a pattern was shown—and assess the existence of a clear risk accordingly—or not. This did not mean judging every single incident of an IHL breach, but a sufficient number of them. CAAT successfully obtained permission to appeal in May 2018, as the presence of an obligation for the government to ‘make some realistic overall assessment’ of whether a historic pattern of serious violations of IHL by the coalition in Yemen had taken place was recognized as ‘arguable’.
Following the appeal hearing in April 2019, a new judgement was issued on 20 June, which partially overturned the High Court’s decision. The Court of Appeal reached the conclusion that the government’s decision-making process ‘was wrong in law’ in one significant aspect, that is in properly assessing the presence of a clear risk of serious violations of IHL. More specifically, the court argued that the question of whether there was a historic pattern of IHL breaches on the part of the coalition was crucial to the estimation of the risk of future violations. The government’s reliance on its close engagement with Saudi Arabia and its stated willingness to avoid future incidents, without producing an overall assessment of whether there had been violations in the past, was not sufficient for the court to rationally conclude that there was no clear risk of serious IHL violations. In addition, the court stressed that, although the reports produced by the UN and other agencies were not ‘wrongly discounted’ by the government, such compelling evidence did require the formulation of a valid conclusion on it. As a consequence, the government’s decision-making process in this regard was ‘irrational’ and ‘unlawful’.
This decision will not, however, automatically lead to an immediate suspension of arms export licences to Saudi Arabia. The judges ordered the government to retake the decisions on extant licences using the correct legal basis and not to issue new ones until this process is completed. The government has responded by announcing its wish to appeal. In addition, it may decide to apply for a stay of execution, meaning the suspension of the enforcement of a judgment until the appeal is heard.
As a result, this case highlights a number of key issues. For example, it raises important questions about how certain elements are weighted in a state’s risk-assessment process, particularly when the risk that exported material may be used to commit serious violations of IHL is considered. In this regard, the Court of Appeal offers some clear guidance on what constitutes a crucial aspect of Criterion 2 of the EU Common Position, that is the consideration of the recipient’s attitude towards relevant IHL principles. In addition, the open documents produced in conjunction with the case help shed some light on how certain key terms, such as ‘serious violations of IHL’, should be interpreted during such processes. The case also highlights the importance of transparency in the way certain decisions are made. Finally, it stresses the added value of reports and evidence produced by the UN and international NGOs, and their role in providing useful sources to make an informed assessment. Although at a different stage, a similar case in Italy is currently raising some of the same issues.
The arms trade and violations of national criminal law: The Italian case
On 17 April 2018, the ECCHR, Rete Italiana per il Disarmo and Mwatana filed a criminal complaint to the Italian Public Prosecutor’s Office in Rome against both the Italian export licensing authority (Unita’ per le autorizzazioni dei materiali d’armamento, UAMA) and the arms manufacturer RWM Italia, a subsidiary of German Rheinmetall, for arms exports to members of the Saudi Arabian-led coalition. The case was triggered by the discovery of the remnants of MK80 bombs and a suspension lug manufactured by RWM Italia at the site of an airstrike in the Yemeni village of Deir Al-Hajari—allegedly carried out by the Saudi Arabian-led coalition in October 2016—which killed six civilians. The legal intervention against UAMA and RWM Italia calls for the prosecutor to investigate their criminal liability for the export to Saudi Arabia, or members of its coalition, of systems used in this deadly airstrike and possibly others.
The claimants explained that this action was initiated on two different grounds. First, similar to the British case, it is based on the allegation that the government failed to comply with both national and international law regulating arms exports. Compliance was contested on the basis that the weapons exported to Saudi Arabia and the members of its coalition might have been used in violations of human rights and IHL. In this regard, the ECCHR specified that the attack in Deir Al-Hajari is part of a wider assessment considering other cases of possible violations involving members of the coalition. Further, the ECCHR clarified that the claim not only refers to exports to Saudi Arabia but also to other coalition members, such as the United Arab Emirates (UAE).8 Second, this action is based on an alleged violation by both UAMA and RWM Italia of Italian national criminal law. The claimants argue that UAMA abused its power in the exercise of its functions and, as a consequence, advanced the financial benefit of RWM Italia and caused unfair damage to others.9 In addition, UAMA officials and RWM Italia managers are accused by the claimant of complicity in murder through gross negligence as well as complicity in inflicting physical injury.10 Hence, both are alleged to have been part of the chain of events that contributed to the incident in Deir Al-Hajari: UAMA as the entity that authorized the exports and RWM Italia as the physical implementer of the transfer.
The attempt to hold an arms manufacturer criminally liable for the physical damage caused by its material adds another layer of complexity to the case. Although ‘cases against corporate managers for their involvement in international crimes remain comparatively rare’, there have been some situations in the past where individuals or companies have been persecuted for being accomplices in ‘war crimes for providing arms or dual-use goods’ to conflicting parties, as in the Van Anraat and the Kouwenhoven cases.11 More recently, a Palestinian family filed a criminal complaint against the French company Exxelia Technologies. The complaint alleged the company’s criminal responsibility in manslaughter and complicity in war crimes because one of its sensors was found on the site of an airstrike that killed civilians in Gaza. However, the notion of corporate criminal liability under international law still remains an unexplored concept, as corporations cannot be held liable for international crimes and the ICC does not have jurisdiction over them.
Preliminary investigations into the responsibilities of UAMA and RWM are still ongoing and, depending on their outcome, they could lead to charges of intentional complicity in murder and physical injury. If the case ends up in court, this could also provide additional details about the Italian Government’s risk-assessment procedures—as happened in the UK. In addition, this case may have a significant impact on the responsibilities expected of exporters.
On 26 June 2019, the Italian Parliament approved a motion—presented by the government’s majority—which commits the government to adopting the necessary acts to ‘suspend’ the export of aircraft bombs, missiles and their components to Saudi Arabia and the UAE that may be used against civilians in Yemen. Notably, the motion also includes the commitment to consider initiatives aimed at establishing an arms embargo at the EU level on Saudi Arabia and the UAE, and to consult with other EU partners involved in trans-national defence production programmes. At the time of writing, it is still uncertain how these commitments will be implemented and how this is going to concretely affect the export-licensing process in Italy in the near future. Furthermore, it is unclear to what extent the legal challenge by the ECCHR, Rete Italiana per il Disarmo and Mwatana has contributed to informing this decision. The text of the motion does not include any direct reference to it, although it does, significantly, refer to the verdict of the Court of Appeal in London.
Conclusions
EU member states are clearly struggling to find a common European approach to the question of whether they should adopt more restrictive export policies towards countries involved in the conflict in Yemen on the basis of the EU Common Position. The variety of practices demonstrates the obstacles in promoting a common approach in the field and how the types of considerations and risk analyses that countries make when authorizing transfers are still very much rooted in national interests and positions. The existence of divergent approaches also challenges the ability of the EU to speak as a common voice and to put pressure on all the warring parties in the Yemen conflict. Finally, these different practices are likely to affect the efforts to build a consolidated European industrial base.
In this context, NGOs and parliamentarians have called for a stricter implementation of export control guidelines by EU member states while, in certain cases, NGOs have resorted to legal tools to push for this result. The adoption of legal remedies may be useful for these actors in order to highlight possible discrepancies between existing legal provisions and the way governments apply them. In the UK, this has proved successful so far, as the latest judgement provided specific instructions on what a lawful assessment of the risk that exported weapons may be used to commit serious IHL violations must take into account. Such decisions could also serve as a benchmark for policymakers in other EU countries and, possibly, affect the outcome of other ongoing court cases.
Regardless, by putting governments’ controversial arms exports under the spotlight, these actions serve to keep the public debate on these issues alive. Whatever their outcome, the process can force governments to explain to the general public the rationale behind their export practices and may—in the long term—lead to changes in policy. However, a legal procedure may not always represent the most feasible context in which to discuss policy goals and their implementation. Moreover, the decision to challenge the legality of a state’s arms exports in court may lead to the unintended consequence of creating a precedent and even legitimizing the status quo if the process results in upholding the government’s existing position.
1 The Saudi Arabian-led coalition now consists of Bahrain, Egypt, Jordan, Kuwait, Senegal, Sudan and the United Arab Emirates. Qatar participated until June 2017 and Morocco until Feb. 2019. On allegations of violations of human rights and IHL by the members of the coalition, see e.g. United Nations, Security Council, ‘Final report of the Panel of Experts in accordance with paragraph 6 of resolution 2402 (2018)’, S/2019/83, 25 Jan. 2019; Human Rights Watch, ‘World Report 2019: Yemen’; and Amnesty International, ‘Human Rights in the Middle East and North Africa: Review of 2018’, 26 Feb. 2019.
2 See e.g. Borda, A. Z., ‘Introduction to International Humanitarian Law’, Commonwealth Law Bulletin, vol. 34, no. 4 (2008), pp. 739–48; and International Committee of the Red Cross (ICRC), ‘What is international humanitarian law?’.
3 For a complete list of ‘grave breaches’ see articles 50, 51, 130, 147 of conventions I, II, III and IV respectively; and articles 11 and 85 of Additional Protocol I of 1977.
4 This specifically refers to Article 8(2) of the statute.
5 Tornado aircraft were built by a consortium from the UK, Germany and Italy. Typhoon aircraft are built by Germany, the UK, Italy and Spain in the Eurofighter consortium of which BAE, Airbus and Leonardo are part.
6 Dutch MFA official, Communication with author, 4 June 2019.
7 When the legal challenge was formally submitted, the Secretary of State for Business, Innovation and Skills was responsible for export control. After a change in the government departments and their responsibilities in July 2016, this is now the Secretary of State for International Trade.
9 Under Art. 323(2) of the Italian Criminal Code, including provisions on the abuse of power of public authorities.
10 Under articles 589, 590, 61(3) of the Italian Criminal Code. These articles cover provisions for involuntary murder, involuntary physical damage and aggravating circumstances, respectively.
11 ECCHR (note 8). The Van Anraat case involved a businessman charged of conspiracy to commit genocide and war crimes for supplying Iraq with a key chemical component of the mustard gas that the regime employed during the Iran–Iraq War; the Kouwenhoven case involved a Dutch individual accused of illicitly smuggling weapons into Liberia (which was subject to a UN arms embargo) that were used by Liberian troops and militia to commit war crimes.
ABOUT THE AUTHOR(S)
Giovanna Maletta is a Senior Researcher and Acting Programme Director for the Dual-Use and Arms Trade Control Programme at SIPRI.
Introduction
European Union (EU) member states have committed themselves to a set of rules, agreed both at the regional and international level, which are meant to prevent and address the diverse effects of unregulated or poorly regulated arms trade on conflict, regional security and stability and, ultimately, human suffering. These standards are grounded in—among other things—the application of international humanitarian law (IHL). However, there have always been differences in the way EU member states have interpreted these rules, depending on their national laws, decision-making processes and political and economic interests. These differences have become particularly evident in the escalation of the conflict in Yemen. While some EU states have halted or restricted exports of military equipment to the Saudi Arabian-led coalition actively engaged in the conflict—due to IHL and concerns over human rights—others have continued with supplies.1
In Italy and the United Kingdom, parliamentarians have responded by tabling motions and publishing reports aimed at pressuring their governments to change or reassess their decision-making processes. In addition, civil society organizations in several EU member states—including Italy and the UK—have responded by questioning the legality of these exports vis-à-vis agreed regional and international standards, and by challenging them in court. On 20 June 2019, the verdict of the Court of Appeal in London accepted one of the grounds put forward by the Campaign Against Arms Trade (CAAT) against the British Government. This judgement, in particular, questioned the lawfulness of the process adopted by the government to assess the risk that the exported weapons and military equipment to Saudi Arabia may have been used to commit serious violations of IHL in Yemen.
The aim of this backgrounder is to analyse these two cases and assess the potential significance of the actions on the implementation of international and regional standards regulating arms trade. First, it provides a brief overview of the scope of IHL and how related concerns are embedded in instruments regulating arms transfers, such as the Arms Trade Treaty (ATT) and the EU Common Position on arms exports. It then looks at how EU member states have interpreted these provisions differently when assessing transfers to members of the coalition involved in the Yemen conflict—in particular, Saudi Arabia—and the implications of these divergences in policy. Finally, it looks closely at on what grounds the arms exports of two of the EU member states that have decided to keep supplying Saudi Arabia—the UK and Italy—are being legally challenged, and the potential impact of these actions.
International humanitarian law and the arms trade
IHL, also known as the law of war, is concerned with the ‘protection of certain vulnerable individuals’ in international or non-international armed conflicts and with making the fighting ‘more humane’.2 IHL does not regulate the legality of the use of armed force but only how it is used. States’ obligations to comply with IHL stem from both treaty law, such as the four Geneva conventions, their Additional Protocols and other treaties prohibiting or restricting the use of certain types of weapons, and customary international law.
According to the International Committee of the Red Cross (ICRC), ‘serious violations’ of IHL are ones that endanger protected persons and objects or breach important universal values. Serious violations of IHL include ‘grave breaches’ of the four Geneva conventions, meaning acts such as wilful killing, torture, inhuman treatment, biological experiments, wilful infliction of great suffering or serious physical or mental injuries, and unlawful destruction of property. Additional Protocol I complements this list by adding an additional range of actions that count as ‘grave breaches’ of this protocol. These include, among others, indiscriminate attacks against civilian populations and objects.3
Grave breaches of the Geneva conventions and Additional Protocol I fall within a broader category of serious violations of IHL. In particular, the Statute of the International Criminal Court (ICC) is seen as contributing to the enlargement of this category. In fact, the statute includes a number of serious violations of treaty law (including grave breaches of the Geneva conventions and Additional Protocol I) and customary IHL applicable in both international and non-international armed conflict, and which it defines as ‘war crimes’.4
Under Article 1—common to all Geneva conventions—all states have an obligation to ‘respect and ensure respect’ for IHL. This is seen as creating the requirement for states to ensure that their arms exports will not be used in violations of IHL. It is complemented by regional and international provisions regulating arms trade, such as the EU Common Position and the ATT to which all EU member states are parties. The EU Common Position requires EU member states to deny an export licence if there is a ‘clear risk’ that the items ‘might be used’ to commit serious violations of IHL. It also prescribes that member states, in considering whether a licence should be denied on these grounds, should also assess the recipient’s attitude towards relevant IHL principles.
The ATT is more detailed about the range of violations that need to be considered, but it sets a higher threshold in terms of the amount of certainty a state needs to have with regard to the likelihood that a violation will take place. Article 6 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 to ‘assess the potential’ that it could be used to ‘commit or facilitate’ a serious violation of IHL.
EU member states’ arms exports to Saudi Arabia
Based on the latest figures from the SIPRI Arms Transfers Database, Saudi Arabia was the world’s largest recipient of major conventional weapons in 2014–18 and its imports increased by 192 per cent between 2009–13 and 2014–18. This data also shows that EU member states are involved in Saudi Arabia’s increase in arms acquisition. After the United States, EU member states were among its main suppliers, with the UK and France, in particular, being the 2nd and 3rd largest ones in 2014–18.
European arms exports have been contributing to the modernization of Saudi Arabia’s air, land and naval forces. For example, deliveries of combat and tanker aircraft from the UK and Spain, respectively, have contributed to increasing the range and strike power of the Saudi Arabian Air Force. More specifically, A-330 MRTT tanker aircraft produced by the trans-European Airbus Consortium were delivered from Spain in 2011–15. In 2007–13, some of the Tornado combat aircraft that the UK had already supplied to Saudi Arabia in the 1990s were upgraded to allow them to carry cruise missiles and new guided weapons systems. Guided weapons delivered by the UK have been deployed in Yemen since 2015. In 2009–17, the UK supplied Saudi Arabia with Typhoon combat aircrafts.5 In 2014–18, French and Austrian armoured vehicles, among many others, were delivered to Saudi Arabia. Notably, a recent leak of classified French Defence Ministry documents reported the use of French-made weapons, including armoured vehicles, in the ongoing conflict in Yemen. Since 2014, the Saudi Arabian Navy, which is involved in the naval blockade of Yemen, has ordered at least 33 patrol boats from Germany (of which 13 have been delivered to date), 2 patrol boats from France and 5 frigates from Spain. Finally, in 2015–18, Italy licensed arms exports to Saudi Arabia to the value of more than 700 million euros. These included, among others, aircraft bombs under category ML4 of the EU Common Military List. The export of MK80 aircraft bombs produced by RWM Italia S.p.A. have proved particularly controversial in light of the allegation they have been used in military operations that caused civilian casualties in Yemen.
The figures above mask substantial differences in the policies of EU member states towards arms exports to the Saudi Arabian-led coalition. Citing concerns about violations of human rights and IHL, some EU member states have indicated that they would deny arms exports to members of the coalition. The Netherlands has 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 exports of military goods are denied unless there is irrevocable proof that the goods will not be used in the conflict.6 Restrictions have also been applied by the Belgian regions of Flanders and Wallonia. In 2018, the Belgian State Council suspended eight licences for transfers to Saudi Arabia granted by the Walloon Government. According to the State Council, the Walloon Government failed to properly consider the common exporting criteria, especially as regards human rights. This decision was then confirmed and the licences were cancelled in June 2019. More recently, allegations that Belgian weapons might have been used in Yemen have triggered a public debate on whether Belgium should consider suspending exports to Saudi Arabia altogether. In 2018, Germany also significantly changed its export control policy towards Saudi Arabia, with restrictions announced already in January as part of the government’s coalition agreement. In November, following the murder of the journalist Jamal Khashoggi, Germany established 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 was extended in March 2019 for another six months. As the Khashoggi case was unfolding, Denmark and Finland also announced the adoption of restrictions on their arms exports to Saudi Arabia.
In contrast, countries like the UK, France and Italy have been resisting public pressure to reconsider their arms export policies towards members of the coalition. For example, in the UK, negotiations for the purchase of 48 BAE Typhoon fighters by Saudi Arabia made further progress in March 2018. In France, the value of licences issued for arms exports to Saudi Arabia increased by 50 per cent during 2018 and the Saudi Arabian Government ordered patrol boats to the value of around one billion euros. In Italy, licensed arms exports to Saudi Arabia were actually valued lower in 2018 than in previous years, nevertheless, the latest reported customs data shows that deliveries continued to be carried out. At the end of 2018, the Italian Prime Minister stated that the Italian Government was against the sale of weapons to Saudi Arabia in light of its role in the Yemen conflict. However, this statement was not followed by any change in the country’s export control policy. In the UK and Italy, non-governmental organizations (NGOs) and civil society organizations have responded by seeking to challenge the lawfulness of their respective government’s export-licensing decisions in court.
Arms exports and serious violations of IHL: The British case
In 2016, CAAT issued a legal complaint against the British Secretary of State for International Trade, challenging his decision to export arms and military equipment to Saudi Arabia that may be used to commit a serious violation of IHL.7
CAAT claimed that the British Government had failed to properly apply Criterion 2(c) of the Consolidated EU and National Arms Export Licensing Criteria when assessing export authorization for Saudi Arabia, which requires the denial of a licence if there is a ‘clear risk’ the items might be used to commit a serious violation of IHL. CAAT’s argument was that the process adopted by the Secretary of State to assess the presence of such a risk was flawed for a number of reasons. First, a wide range of publicly available reports, produced for example by the United Nations Panel of Experts on Yemen and various NGOs, provided evidence of a pattern of violations of IHL, including serious violations by the Saudi Arabian-led coalition in Yemen. According to the claimant, the existence of this material created an obligation for the government to explain if and how its own risk analysis could contradict the conclusions made by such reports. CAAT also stressed that the British Ministry of Defence (MOD), which tracks possible IHL breaches in Yemen, was unable to identify a ‘legitimate military target’ in a large number of incidents involving the coalition, especially those concerning dynamic targeting where the targets are not pre-planned. This element was used by the claimant to further demonstrate gaps in the government’s risk assessment procedure. CAAT’s position was therefore that, given these assumptions, the Secretary of State could not rationally conclude that there was no clear risk British arms exports could lead to a serious violation of IHL.
The Secretary of State rejected all accusations and defended the rationality of the government’s decision as the outcome of a careful process that took into consideration all relevant information. One of the central arguments was that the government’s risk analysis could draw on a variety of unique sources of information and expertise on Saudi Arabia that the claimant did not have. These included, for example, advice from regional experts within the Foreign and Commonwealth Office as well as from diplomats and MOD personnel in contact with their Saudi Arabian counterparts. The Secretary of State also argued that even in a situation in which a violation of IHL has been established, this might not automatically trigger Criterion 2(c) if mitigation measures have been taken by the recipient country. In this regard, he positively noted the cooperative attitude of the Saudi Arabian Government in clarifying incidents of concern and in seeking support to improve investigation processes.
Following a hearing in February 2017, the High Court delivered its judgement in July of the same year. The judges rejected CAAT’s claim and substantially accepted the arguments advanced by the Secretary of State. Notably, the court, in response to the allegation that the government had failed to properly consider the publicly available evidence of Saudi Arabia’s pattern of IHL violations, stated that it would have been impractical and unnecessary to make a judgement about every one of these incidents in order to assess the recipient’s past and present record of such violations. The court also stressed the qualitative difference between the government’s risk assessment and that of NGOs, the UN and the media. In response, CAAT challenged the judgment. It argued that both the government and the court made a fundamental error in their approach to such material. More specifically, CAAT argued that the existence of this evidence would have rationally required the Secretary of State to reach a conclusion on whether a pattern was shown—and assess the existence of a clear risk accordingly—or not. This did not mean judging every single incident of an IHL breach, but a sufficient number of them. CAAT successfully obtained permission to appeal in May 2018, as the presence of an obligation for the government to ‘make some realistic overall assessment’ of whether a historic pattern of serious violations of IHL by the coalition in Yemen had taken place was recognized as ‘arguable’.
Following the appeal hearing in April 2019, a new judgement was issued on 20 June, which partially overturned the High Court’s decision. The Court of Appeal reached the conclusion that the government’s decision-making process ‘was wrong in law’ in one significant aspect, that is in properly assessing the presence of a clear risk of serious violations of IHL. More specifically, the court argued that the question of whether there was a historic pattern of IHL breaches on the part of the coalition was crucial to the estimation of the risk of future violations. The government’s reliance on its close engagement with Saudi Arabia and its stated willingness to avoid future incidents, without producing an overall assessment of whether there had been violations in the past, was not sufficient for the court to rationally conclude that there was no clear risk of serious IHL violations. In addition, the court stressed that, although the reports produced by the UN and other agencies were not ‘wrongly discounted’ by the government, such compelling evidence did require the formulation of a valid conclusion on it. As a consequence, the government’s decision-making process in this regard was ‘irrational’ and ‘unlawful’.
This decision will not, however, automatically lead to an immediate suspension of arms export licences to Saudi Arabia. The judges ordered the government to retake the decisions on extant licences using the correct legal basis and not to issue new ones until this process is completed. The government has responded by announcing its wish to appeal. In addition, it may decide to apply for a stay of execution, meaning the suspension of the enforcement of a judgment until the appeal is heard.
As a result, this case highlights a number of key issues. For example, it raises important questions about how certain elements are weighted in a state’s risk-assessment process, particularly when the risk that exported material may be used to commit serious violations of IHL is considered. In this regard, the Court of Appeal offers some clear guidance on what constitutes a crucial aspect of Criterion 2 of the EU Common Position, that is the consideration of the recipient’s attitude towards relevant IHL principles. In addition, the open documents produced in conjunction with the case help shed some light on how certain key terms, such as ‘serious violations of IHL’, should be interpreted during such processes. The case also highlights the importance of transparency in the way certain decisions are made. Finally, it stresses the added value of reports and evidence produced by the UN and international NGOs, and their role in providing useful sources to make an informed assessment. Although at a different stage, a similar case in Italy is currently raising some of the same issues.
The arms trade and violations of national criminal law: The Italian case
On 17 April 2018, the ECCHR, Rete Italiana per il Disarmo and Mwatana filed a criminal complaint to the Italian Public Prosecutor’s Office in Rome against both the Italian export licensing authority (Unita’ per le autorizzazioni dei materiali d’armamento, UAMA) and the arms manufacturer RWM Italia, a subsidiary of German Rheinmetall, for arms exports to members of the Saudi Arabian-led coalition. The case was triggered by the discovery of the remnants of MK80 bombs and a suspension lug manufactured by RWM Italia at the site of an airstrike in the Yemeni village of Deir Al-Hajari—allegedly carried out by the Saudi Arabian-led coalition in October 2016—which killed six civilians. The legal intervention against UAMA and RWM Italia calls for the prosecutor to investigate their criminal liability for the export to Saudi Arabia, or members of its coalition, of systems used in this deadly airstrike and possibly others.
The claimants explained that this action was initiated on two different grounds. First, similar to the British case, it is based on the allegation that the government failed to comply with both national and international law regulating arms exports. Compliance was contested on the basis that the weapons exported to Saudi Arabia and the members of its coalition might have been used in violations of human rights and IHL. In this regard, the ECCHR specified that the attack in Deir Al-Hajari is part of a wider assessment considering other cases of possible violations involving members of the coalition. Further, the ECCHR clarified that the claim not only refers to exports to Saudi Arabia but also to other coalition members, such as the United Arab Emirates (UAE).8 Second, this action is based on an alleged violation by both UAMA and RWM Italia of Italian national criminal law. The claimants argue that UAMA abused its power in the exercise of its functions and, as a consequence, advanced the financial benefit of RWM Italia and caused unfair damage to others.9 In addition, UAMA officials and RWM Italia managers are accused by the claimant of complicity in murder through gross negligence as well as complicity in inflicting physical injury.10 Hence, both are alleged to have been part of the chain of events that contributed to the incident in Deir Al-Hajari: UAMA as the entity that authorized the exports and RWM Italia as the physical implementer of the transfer.
The attempt to hold an arms manufacturer criminally liable for the physical damage caused by its material adds another layer of complexity to the case. Although ‘cases against corporate managers for their involvement in international crimes remain comparatively rare’, there have been some situations in the past where individuals or companies have been persecuted for being accomplices in ‘war crimes for providing arms or dual-use goods’ to conflicting parties, as in the Van Anraat and the Kouwenhoven cases.11 More recently, a Palestinian family filed a criminal complaint against the French company Exxelia Technologies. The complaint alleged the company’s criminal responsibility in manslaughter and complicity in war crimes because one of its sensors was found on the site of an airstrike that killed civilians in Gaza. However, the notion of corporate criminal liability under international law still remains an unexplored concept, as corporations cannot be held liable for international crimes and the ICC does not have jurisdiction over them.
Preliminary investigations into the responsibilities of UAMA and RWM are still ongoing and, depending on their outcome, they could lead to charges of intentional complicity in murder and physical injury. If the case ends up in court, this could also provide additional details about the Italian Government’s risk-assessment procedures—as happened in the UK. In addition, this case may have a significant impact on the responsibilities expected of exporters.
On 26 June 2019, the Italian Parliament approved a motion—presented by the government’s majority—which commits the government to adopting the necessary acts to ‘suspend’ the export of aircraft bombs, missiles and their components to Saudi Arabia and the UAE that may be used against civilians in Yemen. Notably, the motion also includes the commitment to consider initiatives aimed at establishing an arms embargo at the EU level on Saudi Arabia and the UAE, and to consult with other EU partners involved in trans-national defence production programmes. At the time of writing, it is still uncertain how these commitments will be implemented and how this is going to concretely affect the export-licensing process in Italy in the near future. Furthermore, it is unclear to what extent the legal challenge by the ECCHR, Rete Italiana per il Disarmo and Mwatana has contributed to informing this decision. The text of the motion does not include any direct reference to it, although it does, significantly, refer to the verdict of the Court of Appeal in London.
Conclusions
EU member states are clearly struggling to find a common European approach to the question of whether they should adopt more restrictive export policies towards countries involved in the conflict in Yemen on the basis of the EU Common Position. The variety of practices demonstrates the obstacles in promoting a common approach in the field and how the types of considerations and risk analyses that countries make when authorizing transfers are still very much rooted in national interests and positions. The existence of divergent approaches also challenges the ability of the EU to speak as a common voice and to put pressure on all the warring parties in the Yemen conflict. Finally, these different practices are likely to affect the efforts to build a consolidated European industrial base.
In this context, NGOs and parliamentarians have called for a stricter implementation of export control guidelines by EU member states while, in certain cases, NGOs have resorted to legal tools to push for this result. The adoption of legal remedies may be useful for these actors in order to highlight possible discrepancies between existing legal provisions and the way governments apply them. In the UK, this has proved successful so far, as the latest judgement provided specific instructions on what a lawful assessment of the risk that exported weapons may be used to commit serious IHL violations must take into account. Such decisions could also serve as a benchmark for policymakers in other EU countries and, possibly, affect the outcome of other ongoing court cases.
Regardless, by putting governments’ controversial arms exports under the spotlight, these actions serve to keep the public debate on these issues alive. Whatever their outcome, the process can force governments to explain to the general public the rationale behind their export practices and may—in the long term—lead to changes in policy. However, a legal procedure may not always represent the most feasible context in which to discuss policy goals and their implementation. Moreover, the decision to challenge the legality of a state’s arms exports in court may lead to the unintended consequence of creating a precedent and even legitimizing the status quo if the process results in upholding the government’s existing position.
1 The Saudi Arabian-led coalition now consists of Bahrain, Egypt, Jordan, Kuwait, Senegal, Sudan and the United Arab Emirates. Qatar participated until June 2017 and Morocco until Feb. 2019. On allegations of violations of human rights and IHL by the members of the coalition, see e.g. United Nations, Security Council, ‘Final report of the Panel of Experts in accordance with paragraph 6 of resolution 2402 (2018)’, S/2019/83, 25 Jan. 2019; Human Rights Watch, ‘World Report 2019: Yemen’; and Amnesty International, ‘Human Rights in the Middle East and North Africa: Review of 2018’, 26 Feb. 2019.
2 See e.g. Borda, A. Z., ‘Introduction to International Humanitarian Law’, Commonwealth Law Bulletin, vol. 34, no. 4 (2008), pp. 739–48; and International Committee of the Red Cross (ICRC), ‘What is international humanitarian law?’.
3 For a complete list of ‘grave breaches’ see articles 50, 51, 130, 147 of conventions I, II, III and IV respectively; and articles 11 and 85 of Additional Protocol I of 1977.
4 This specifically refers to Article 8(2) of the statute.
5 Tornado aircraft were built by a consortium from the UK, Germany and Italy. Typhoon aircraft are built by Germany, the UK, Italy and Spain in the Eurofighter consortium of which BAE, Airbus and Leonardo are part.
6 Dutch MFA official, Communication with author, 4 June 2019.
7 When the legal challenge was formally submitted, the Secretary of State for Business, Innovation and Skills was responsible for export control. After a change in the government departments and their responsibilities in July 2016, this is now the Secretary of State for International Trade.
8 ECCHR, Communication with author, 22 May 2019; and ECCHR, ‘European responsibility for war crimes in Yemen—Complicity of Italian subsidiary of German arms manufacturer and of Italian arms export authority’, Case Report, Apr. 2018.
9 Under Art. 323(2) of the Italian Criminal Code, including provisions on the abuse of power of public authorities.
10 Under articles 589, 590, 61(3) of the Italian Criminal Code. These articles cover provisions for involuntary murder, involuntary physical damage and aggravating circumstances, respectively.
11 ECCHR (note 8). The Van Anraat case involved a businessman charged of conspiracy to commit genocide and war crimes for supplying Iraq with a key chemical component of the mustard gas that the regime employed during the Iran–Iraq War; the Kouwenhoven case involved a Dutch individual accused of illicitly smuggling weapons into Liberia (which was subject to a UN arms embargo) that were used by Liberian troops and militia to commit war crimes.
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