All parties involved in the war in Yemen continue to plunge the population into what the United Nations Secretary General has denounced as « the planet’s worst humanitarian crisis.” One estimate put the death toll at nearly 60,000 since 2016. Hostilities between the Saudi Arabia-led Coalition and the Houthi and other armed groups, have become increasingly muddled as loyalties have shifted, armed groups and militia proliferated and factions fragmented. The Coalition includes Bahrain, Egypt, Jordan, Kuwait, Morocco, Saudi Arabia, Sudan, and the United Arab Emirates. It supports the beleaguered Yemen government and its militia.Despite a fragile ceasefire agreed in December, clashes have continued, as have attacks on civilians by Yemeni government militia, the Coalition forces and the armed groups.
Mobilization by civil society and calls by parliamentarians in many countries following reports of civilian atrocities by NGO, media and UN experts of atrocities have put pressure on governments to stop the flow of all arms that would be used in Yemen. Shock at the brazen assassination of exiled Saudi Arabian journalist, Jamal Khashoggi, by a Saudi state murder squad on 2 October 2018 heightened such calls. In response, States such as Austria, Denmark, Finland, Flanders, Germany, the Netherlands, Norway and Switzerland have announced they will suspend arms exports to Saudi Arabia. This suggests that some governments are beginning to accept responsibility to take measures to ensure respect of international law, particularly that of human rights and international humanitarian law (IHL). However, the United States, France, Italy, Canada and the United Kingdom governments continue as the main suppliers of war material to the Saudi Arabia-Led Coalition and the United States and the United Kingdom, among other States, continue to advise the Coalition.
According to a detailed report by the UN High Commissioner for Human Rights Group of Experts in August 2018, the Coalition has continued a pattern of air strikes and military operations causing most of the documented civilian casualties in Yemen. In the past three years, such air strikes using precision munitions have hit residential areas, markets, funerals, weddings, detention facilities, civilian boats and even medical facilities. The use in some cases of “double strikes” close in time, which affect first responders, raises grave concern. The UN Experts Group report accused the Saudi-led coalition of routinely having failed to consult its own “no-strike list” of more than 30,000 sites in Yemen, including refugee camps and hospitals. The Group also said the Saudi Air Force had not cooperated with investigators about its targeting procedures. Similar findings were reported from a UN Security Council panel of experts on Yemen in January 2018.
The mounting evidence indicates that these actions are repeatedly violating the fundamental principles of distinction, proportionality and precaution when conducting hostilities, acts which constitute serious violations of the 1949 Geneva Conventions, and may amount to war crimes and even crimes against humanity. Unicef’s Middle East and North Africa director, Geert Cappelaere, said: “Not enough has changed for children in Yemen since the Stockholm agreement on 13 December 2018. Every day since, eight children have been killed or injured. Most of the children killed were playing outdoors with their friends or were on their way to or from school” (The Guardian, 26 February 2019).
At the same time, the UN calculated that in 2018 nearly 60% of the aid to alleviate suffering in Yemen came from Saudi Arabia, the UAE and the US. The UK is also now stepping up its aid to Yemen. The UN says about 22 million people out of a population of 29 million need help to secure food this year in Yemen, including nearly 10 million who are just a step away from famine. Nearly 240,000 are facing “catastrophic levels of hunger.” More than 250 humanitarian organisations are operating in the country.The UN Experts Group said that millions of civilians were also suffering “devastating effects” from the coalition’s arbitrary restrictions on shipping and air travel because food, medicines and fuel were needed to fend off starvation and diseases. The Coalition’s screening of ships was supposed to prevent arms smuggling to the armed groups but had become a “de facto blockade’ while the UN searches had found no weapons on ships.
The United States, France, Italy, and the United Kingdom are signatories to the Arms Trade Treaty (ATT). As such they are obliged to respect its object and purpose which is to establish the highest possible common international standards for improving the regulation of the international trade in conventional arms, and to reduce human suffering. Moreover, France, Italy and the United Kingdom are legally bound as State Parties to the ATT to respect all the obligations under the Treaty. Those legal obligations include a duty to prohibit any arms transfers if their State knows that the arms would be used for such violations or international crimes. They and the Saudi Coalition blame the government of Iran for continuing to arm the Houthi forces, as if two wrongs make a right. The UN Expert Group accused Houthi fighters and their allies of violating IHL, including by shelling residential areas, impeding humanitarian aid and using child soldiers. Houthi and other armed groups appear to have acquired most of their arms from Yemeni government stocks and from illicit markets in the region.
The UN Security Council has been slow and one sided. In 2013 the Council had condemned the illicit transfer, destabilizing accumulation and misuse of small arms and light weapons in Yemen, and in April 2015 imposed an arms embargo only targeted on the Houthi armed opposition. Total embargoes had been imposed on UN-designated terrorist groups such as Al-Qaida in the Arabian Peninsula (AQAP) and the Islamic State in Iraq and the Levant (ISIL) affiliate in Yemen, which have become actively engaged in attacks on Coalition as well as armed opposition forces and civilians. In January 2018 the Security Council’s expert panel accused Iran of transferring some missiles and unmanned aerial vehicles used by Houthi forces, although it also reported that been no reported maritime seizures of weapons and ammunition during 2017, and only very limited seizures of arms-related material have been identified on the main land supply route. However, the Security Council has not imposed an embargo on arms transfers to Yemen as such.
Civil society organizations, parliamentarians and governments that respect the international rule of law can further step up political pressure as well as take legal actions to compel arms supplying States to implement their ATT obligations and suspend transfers to the Saudi Coalition. Some NGOs have attempted to challenge their home governments in the courts.
In the case of France, Article 55 of the Constitution gives supra-legislative status to treaties ratified by Parliament. In the 2018 complaint filed by Action Sécurité Ethique Républicaines (ASER) against the French government’s continued arms exports to the Saudi Arabian-led Coalition, the General Secretariat for Defence and National Security disputed the direct effect legal status of the ATT in its defence brief.
A decisive point in the case remains the choice of which article of the ATT applies to the transfer of arms to the Saudi Arabia-led Coalition given the strong prima facie evidence of atrocities being committed with those arms in Yemen. Should the case be based first and foremost on Article 6, which prohibits a potential arms transfer if the State Party “has knowledge” that the arms would be used for the commission of serious violations of IHL or war crimes? Or should the case first rest on Article 7, which requires the exporting State Party to assess whether there is an “overriding risk” that the potential arms export would be used to commit or facilitate serious violations of IHL or of international human rights law, despite “available mitigation measures” first taken by the exporting and importing States?
ATT Article 6, paragraph 3 specifies that: « A State Party shall not authorize any transfer of conventional arms or items…[covered by the Treaty] if it has knowledge at the time of authorization that such arms or items would be used to commit genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilians or civilian objects and protected as such, or other war crimesas defined by international agreements to which it is a Party.”
ASER’s opinion is that before the start of full-blown hostilities in March 2015, litigation based upon the risk assessment procedures required by ATT Article 7 to approve or deny arms exports to Saudi Arabia could have been justified. Each exporting State Party to the ATT had to assess the risks of using potential exports of weapons in the light of the information it was then aware of.
However, Article 7 only applies if a potential export is not prohibited by Article 6, and since 2015, factual evidence of the Coalition’s flawed ‘rules of engagement’ in this armed conflict had quickly become a proven reality. Repeated cases pointing to serious violations of human rights and international humanitarian law have been widely documented in United Nations and NGO reports. In particular the UN reports of January 2017, January 2018 and August 2018 provide details of air strikes on civilian targets and other attacks on civilians by Saudi Arabian-led Coalition forces, as well as by Houthi and other armed groups. It is therefore Article 6 of the ATT that must first be applied in litigation efforts in countries that are ATT States Parties.
Some NGOs in the European Union began their litigation efforts over the past two years in a general way by referring to ATT Articles 6 and 7 as well as to the EU Common Position on arms exports. Criterion 2 of the Common Position requires that Member States deny an arms export licence “if there is a clear risk that the military technology or equipment to be exported might be used in the commission of serious violations of international humanitarian law.” Although the wording in the Common Position and the ATT is slightly different, Criterion 2 presents similar challenges to ATT Article 7. Neither should be the starting point of litigation ahead of Article 6.
Such legal action by NGOs should of course be accompanied by a mobilisation of civil society at the political level. The French Government’s refusal to allow the judiciary any right of scrutiny over the regularity and conformity of French arms export procedures is essentially political and in ASER’s view it contravenes the French Constitution. It reveals a vision of the 19th Century in which citizens were not allowed to speak or question decisions of government that appear illegal or immoral.
ASER is determined to convince the judge of the direct effect of the ATT in domestic law and of the illegality of the arms transfers that the government could foresee would be used for atrocities in Yemen. France’s foreign policy affects all citizens living in France, particularly in terms of security and respect for human rights, and that policy must not blatantly violate and be seen to blatantly violate, relevant international law.
ASER’s action sets a precedent in France. So far no other French NGO has launched a legal challenge to the State concerning arms export authorisations.
For ASER :
Jean Claude Alt
Benoît Muracciole
Armer Désarmer 