Categories: Arms Trade Treaty, Saudi Arabia

Might the Arms Trade Treaty be useful in stopping the worst arms exports?

Two members of the Control Arms campaign – Amnesty International and Saferworld – are to be congratulated on commissioning an expert legal opinion to assess the lawfulness of the authorisation by the United Kingdom of weapons and related items for export to Saudi Arabia in the context of Saudi Arabia’s military intervention in Yemen.

The opinion is a very thorough piece of work and well worth reading for anyone interested in how the Arms Trade Treaty might be used in practice by those, like me, who would like to see a great reduction in global arms sales, and an end to arms exports to repressive regimes like Saudi Arabia.  The team of three lawyers from Matrix Chambers are recognised authorities in international law as academics and also practitioners.  Pending publication of what one assumes will be the authoritative legal commentary on the Arms Trade Treaty by Oxford University Press in June this year, this opinion is an invaluable commentary on the Arms Trade Treaty and how it should be interpreted.

I have been sceptical all along whether the much celebrated Arms Trade Treaty would serve any useful purpose, mainly because, in my view, the text of the Treaty is so weak (see here and here.  At the time I last wrote about the Arms Trade Treaty, in January 2015, I had no inkling that two months later Saudi Arabia and a number of other states, many of them with vile regimes, would start a military intervention in Yemen.

In their legal opinion (see paragraph 2.3), Philippe Sands QC and his colleagues consider that the Saudi-led military intervention in Yemen is unlikely to be considered a breach of the UN Charter, because the Yemeni President Hadi, despite his apparent loss of territorial control to, among others, the Houthis, had requested assistance in repelling the Houthi forces who had ousted him.

The Saudi-led intervention in Yemen might be legal, but the impact of the Saudi-led coalition’s actions, along with the actions of others, has resulted in appalling suffering in the country.  The most recent estimates from the World Health Organisation are that

From 19 March to 20 December, 34,066 casualties, including 5,955 deaths and 28,111 injuries have been reported by health facilities from conflict-affected governorates.

According to the most recent UN estimates at least 2.5 million Yemenis (almost 10 per cent of the population) are internally displaced because of the fighting.  Over 80 per cent of the population are in need of humanitarian assistance, 55 per cent are food insecure and 1.8 million children are at risk of malnutrition.  Much of the responsibility for this appalling situation lies at the hands of the Saudi-led Coalition which imposed a naval blockade on a country relying on imports for 90 per cent of its food (though the blockade appears to be easing and the situation improving somewhat now).

A report from the UK-based NGO Action on Armed Violence and the UN Office for the Coordination of Humanitarian Affairs says that between January 2015 and the end of July 2015:

  • 86 per cent of those killed and injured in “incidents of explosive violence in Yemen” were civilians;
  • when explosive weapons were used in populated areas, civilians made up 95 per cent of reported deaths and injuries; and
  • air strikes have killed and injured the most civilians (accounting for 60% of civilian deaths and injuries).

The report concluded that “more civilian deaths and injuries from explosive weapons were recorded in Yemen during the first seven months of 2015 than in any other country in the world”.  A number of reports from well-established NGOs have demonstrated air-launched explosive weapons have caused damage to civilian homes, hospitals, markets, schools and civilian infrastructure.  See for example here, here, here and here.

As is well known the UK Government is a major supplier of military equipment to the Saudi armed forces, and, in particular military aircraft.  The Royal Saudi Air Force still uses the Tornado aircraft sold under the Al Yamamah deal (the on-going support for the Tornados is now called the Saudi British Defence Co-operation Programme) in the 1980s, and the Eurofighter aircraft sold under the Al Salam deal in the last ten years.  The Campaign Against Arms Trade has calculated that the current Conservative Government has approved arms export licences worth up to £5.6 billion to Saudi Arabia since 2010.

And the Saudis are using the weapons.  As the FCO Minister of State Tobias Ellwood MP explained to Parliament:

Munitions are supplied to the Saudi Air Force under pre-existing contractual arrangements. UK companies are providing precision guided Paveway weapons. The Royal Saudi Air Force is flying British built aircraft in the campaign over Yemen.

The UK is not supplying any arms to the Houthis, nor should they.   That is why UK arms exports to Saudi Arabia, the UK’s most important arms customer by far, are my focus.  The UK is not the only state that supplies arms to Saudi Arabia, but as I am a UK national, UK supply is something I could potentially influence.

Article 6(3) of the Arms Trade Treaty

In Article 6(3) of the Arms Trade Treaty, arms sales are prohibited if, the exporting State

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.

I had thought that the wording “has knowledge at the time of authorisation that the arms or items would be used…” would make it impossible to justify refusing a licence for breaches of international humanitarian law.  But in their legal opinion (see paragraphs 5.6 to 5.25) Sands and his colleagues set out their view of how this Article should be interpreted.  They point out that:

  • “Knowledge” should be taken to mean if the UK was aware, or should normally have been aware that, in the circumstances, arms exports would be used in attacks on civilians or in war crimes.
  • The standard of proof required to satisfy the test “would be used” is a reasonable likelihood, a real possibility or a real risk. This is much lower than the criminal standard (in UK law) of “beyond reasonable doubt” and the civil standard of the “balance of probabilities”.

There are other aspects of their interpretation that mean the scope of the wording is wider than might appear to the lay person:

  • “Attacks directed against civilian objects or civilians protected as such” include not only deliberate attacks of this kind, but indiscriminate attacks which fail to discriminate between military objectives and civilians, or the use of weapons which are not discriminating.
  • “Other war crimes” would include all those defined by agreements to which the UK is a party, for example the International Criminal Court statute.

The UK Government has publicly stated, many times, that the Saudis have

assured us of their commitment to comply with IHL. We continue to engage with them on those assurances.

In their legal opinion Sands and his colleagues explain that the UK is required to ensure that the Saudi assurances are “sufficiently supported by other materials.  This means affording appropriate weight to materials originating from the UN and reputable NGOs”.

It is plain from the many reports from UN spokespersons, international organisations and NGOs that there is strong prima facie evidence of war crimes being committed by the Saudi-led coalition in Yemen.  Further, the UK Government has not provided evidence of any explanation of these incidents by Saudi Arabia or any general willingness to permit any independent inquiry into these incidents (note the UK Government has reported to Parliament that the Saudis have agreed to “establish a fact finding committee” to look at one strike).  Indeed, reports suggest Saudi Arabia has blocked an attempt by the UN High Commissioner for Human Rights to send experts to Yemen to investigate the conduct of the war.

Based on the interpretation of Sands and his colleagues, it is plain that the UK Government, when it is authorising the sale of military equipment to Saudi Arabia that could be used in Yemen

has knowledge at the time of authorization that the arms or items would be used in the commission of… 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.

Thus the UK Government appears to be in breach of the Arms Trade Treaty.  Sands and his colleagues consider the UK Government has “almost certainly” breached Article 6(3) of the Arms Trade Treaty (paragraph 5.28).

Article 7 of the Arms Trade Treaty

If arms exports are not prohibited under Article 6, the exporting State must then consider Article 7 which says it must take

  1. …into account relevant factors, including information provided by the importing State in accordance with Article 8 (1), assess the potential that the conventional arms or items:
    1. would contribute to or undermine peace and security;
    2. could be used to:
      1. commit or facilitate a serious violation of international humanitarian law;
      2. commit or facilitate a serious violation of international human rights law;
      3. commit or facilitate an act constituting an offence under international conventions or protocols relating to terrorism to which the exporting State is a Party; or
      4. commit or facilitate an act constituting an offence under international conventions or protocols relating to transnational organized crime to which the exporting State is a Party.
  2. The exporting State Party shall also consider whether there are measures that could be undertaken to mitigate risks identified in (a) or (b) in paragraph 1, such as confidence-building measures or jointly developed and agreed programmes by the exporting and importing States.
  3. If, after conducting this assessment and considering available mitigating measures, the exporting State Party determines that there is an overriding risk of any of the negative consequences in paragraph 1, the exporting State Party shall not authorize the export.
  4. The exporting State Party, in making this assessment, shall take into account the risk of the conventional arms covered under Article 2 (1) or of the items covered under Article 3 or Article 4 being used to commit or facilitate serious acts of gender-based violence or serious acts of violence against women and children.

In their legal opinion (see paragraphs 5.32 to 5.55) Sands and his colleagues set out how this Article should be interpreted.  Sands and his colleagues consider there is a two-stage test.  The first test involves an assessment of whether or not the proposed export would undermine peace and security.  Sands and his colleagues interpret the word “would” to mean there is a “real possibility”.  As they point out there is a strong argument that peace and security would be undermined by UK arms sales to Saudi Arabia given the current situation in Yemen.

As I have said on a previous occasion the fact there is no established definition of a “serious violation of international human rights law” is a problem for the Arms Trade Treaty but Sands and his colleagues draw attention to a further problem.  This is that “overriding risk” is not a concept established in international law, nor does it have a clear, precise and generally understood meaning.  Sands and his colleagues consider that the second stage of the test in Article 7 obliges the UK Government and other states to consider whether, having already (in the first test) determined the proposed export would not undermine peace and security, the possible risk of a serious violation of international humanitarian or human rights law would not be so grave as to override the positive contribution the proposed export might make to peace and security.

So in the case of UK arms exports to Saudi Arabia, Sands and his colleagues consider that because there is prima facie evidence of violations by the Saudi-led coalition, a risk these could occur in the future, and no evidence that the exported weapons would make a contribution to peace and security to override the risk, then the UK Government is in breach of Article 7 of the Arms Trade Treaty.

The Arms Trade Treaty in UK law

Section 9(2) of the Export Control Act 2002 provides that “the Secretary of State may give guidance about any matter relating to the exercise of any licensing power”.  The Secretary of State for Business, Innovation and Skills, issued the Consolidated European Union and National Arms Export Licensing Criteria in March 2014.  This is the guidance UK officials must follow because Section 9(5) of the Export Control Act 2002 says “any person exercising a licensing power or other function to which this section applies shall have regard to any guidance which relates to that power or other function”.

Criterion 1 says “the Government will not grant a licence if to do so would be inconsistent with, inter alia:..(b) the UK’s obligations under the United Nations arms trade treaty”.  As Sands and his colleagues say Criteria 1 gives legal effect to the Arms Trade Treaty in UK law, thus the UK Government’s apparent breach of Articles 6(3) and 7 of the Arms Trade Treaty are “open to legal challenge” by Judicial Review action.

What can those who want to enforce the Arms Trade Treaty ask for?

What is the remedy proposed?  Sands and his colleagues say (paragraph 9.3) the UK has to “halt with immediate effect all authorisations and transfers of relevant weapons and items to Saudi Arabia, pending proper and credible enquiries into allegations of serious violations of [International Humanitarian Law] and [International Human Rights Law] that have arisen and could arise.”

Campaign Against Arms Trade have launched a Judicial Review of UK arms export licensing decisions with regard to Saudi Arabia in the context of the Saudi-led intervention in the Yemen.  Interestingly their lawyers Leigh Day do not appear to be relying much, if at all, on the provisions of the Arms Trade Treaty.  The remedy proposed is similar to that suggested by Sands and his colleagues: suspension of licences and a bar on future licences, pending a review.

This gets to the heart of the matter.  It is encouraging that leading lawyers believe that the Arms Trade Treaty could be enforced in the UK courts, and, further, that the text is not as weak as I had supposed, so that in this particular situation it might be possible to stop UK arms exports to Saudi Arabia.  Of course, most decisions about arms exports are made when destination countries are not conducting bombing campaigns in other countries, with heavy loss of life, and so the Arms Trade Treaty has the potential to stop very few arms exports.

How useful is the Arms Trade Treaty?

But, and it is a very big but, this does not really tackle the problem.  For military equipment sold to Saudi Arabia has a shelf-life of years and, in the case of Tornado and Eurofighter aircraft, decades.  The Royal Saudi Air Force are almost certainly using Tornado aircraft supplied in the 1980s and 1990s, and Eurofighter aircraft supplied in the last ten years.  At the time these decisions were made, of course, it was not possible to foresee the use to which the Saudis might put these weapons.

In the realm of Weapons of Mass Destruction Governments, including the UK’s, take a very precautionary approach.  It is considered undesirable to allow any Government to boost its Weapons of Mass Destruction capability, for the very good reason that the potential consequences might be unforeseen now but could be grave.  No such thinking applies to conventional weapons, despite the obvious fact that they are responsible for far more deaths and suffering in war than Weapons of Mass Destruction.

This is the key flaw at the heart of the Arms Trade Treaty.  It can, as Sands and his colleagues show, potentially be used to stop arms exports for a short period during a crisis situation, in other words to stop the very worst arms exports.  But in all probability the crisis will be exacerbated by arms exported years and possibly decades previously, and for which the Arms Trade Treaty is useless.  So the Arms Trade Treaty might have some use, but not, in my opinion, very much.

1 comment to Might the Arms Trade Treaty be useful in stopping the worst arms exports?

  • Nicholas in the past public pressure and MP/MEP common sense also stopped arms trade for a while when the situation ran out of hand. I myself remember very well the halt on the granting of licenses for Indonesia by the EU-member states just after the violence on East Timor started. Sept 1999-January 2000. The deliverances however started the day the embargo ended, or better said they continued. It was how far pressure could come. In your blog the pressure takes another form. But without nothing would happen.

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