Since the outset of Saudi Arabia’s intervention in Yemen, the UK has demonstrated that it is willing to go to great lengths to maintain its arms sales to Saudi Arabia.  This includes contorting the language of the UK’s own arms export control regime, and possibly even revising the regime, to allow for the provision of arms to a state against whom the evidence of widespread breaches of international humanitarian law (IHL) is mounting. This is possibly unsurprising even if it does fly directly in the face of public opinion (demonstrated most recently during the Saudi coalition spokesperson Maj Jen Ahmed al-Asiri’s visit to London). Saudi Arabia is a crucial market for UK defense exports (and has been for over 40 years), with more than £3.3 billion ($4,120,380,000) of exports since the outset of the Saudi-led coalition’s intervention in Yemen. For U.S. and European countries, the British case foregrounds what steps, noble and ignoble, government officials and politicians are willing to take in this space.

UK Arms Export Control Regime

The UK’s Export Control Act 2002 controls the export of various goods, including arms. Arms and other specified products can only be legally exported under a license issued by the Secretary of State.  Section 9 of the 2002 Act allows the Secretary of State to give guidance about any matter relating to his licensing powers and requires him to set out general principles to be followed. The current guidance on arms exports was laid before Parliament on March 2014, called the Consolidated EU and National Arms Export Licensing Criteria (Consolidated Criteria). The Consolidated Criteria incorporates EU export control law including the EU’s adoption of Council common position 2008/944/CFSP on December 8, 2008, and the International Arms Trade Treaty, ratified by the UK on June 3, 2013. Although the incorporation of these international developments in export control law did not constitute any substantive change in the UK’s arms export policy as set out in previous guidance, explicit reference to international humanitarian law was incorporated into criterion 2(c) of the Consolidated Criteria, which sets out that the UK shall not grant an export license if there is “a clear risk that the items might be used in the commission of a serious violation of international humanitarian law.”

Separately, following a review of defense and security export policy by the then-Foreign Secretary in 2011, and in order to further strengthen what was assessed to be an already-strong strategic export licensing system,  a “suspension mechanism” was introduced to allow for the immediate suspension of pending licence applications to countries “experiencing a sharp deterioration in security or stability,” to be triggered on a case-by-case basis where, for example, “conflict or crisis conditions change the risk suddenly, or make conducting a proper risk assessment difficult.”

The Saudi Intervention in Yemen: UK Support and Possible IHL Violations

Saudi Arabia intervened in the conflict in Yemen on March 26, 2015, with the aim of restoring President Abd Rabbuh Mansour Hadi, who had been ousted by the Houthi rebels and forces loyal to former ruler Ali Abdullah Saleh. The UK strongly supported the Saudis from the outset, then-Foreign Secretary Philip Hammond promising support “in every practical way short of engaging in combat.” In fact, the UK’s support for the Saudi-led intervention in Yemen is such that Professor Philippe Sands QC has argued (para. 78) that the UK is effectively involved in the conflict.

The Saudi intervention in Yemen is backed by UN Security Council Resolution 2216 and at the invitation of the recognized government still led by President Hadi.  However, since the start of the conflict, there have been widespread reports of potential IHL violations by the Saudi-led coalition (as well as the Houthis) in Yemen.

Consider the following record at the time:

  • In April 2015, Amnesty International called for the urgent investigation of “the killing of hundreds of civilians” by “relentless” coalition airstrikes.
    In June 2015, Human Rights Watch (HRW) identified subsequent coalition airstrikes in apparent violation of the laws of war and denounced Saudi Arabia’s designation of the entire Yemeni city of Saada as a military target.
    In August 2015, Amnesty International called on the international community to “halt arms transfers to any parties to the conflict where there is a risk that the arms could be used to commit or facilitate serious violations of human rights or international humanitarian law.”
    In October 2015, another report repeated that call, this time specifically for the benefit of the UK and the US on the basis of specific “serious violations of international humanitarian law, including war crimes.”
    In November 2015, Amnesty and HRW found the remains of a UK-made cruise missile among the rubble of a civilian factory hit by the Saudi-led coalition.

In addition to these reports from NGOs, concern at the Saudi-led coalition’s indiscriminate bombing in Yemen was also expressed by the UN High Commissioner for Human Rights (June 15, 2015), the UN Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator (August 19, 2015), the European Parliament (July 27, 2015).

Despite all this, in October 2015, the UK Minister for Middle East and Africa, Tobias Ellwood MP, on behalf of the government, denied that he was aware of any evidence of human rights violations on the part of the Saudi-led coalition in Yemen.  Then, in January 2016, a leaked report by a UN panel investigating the Saudi campaign confirmed a pattern of “widespread and systematic” attacks on civilian targets and documented “119 coalition sorties relating to violations of international humanitarian law.”

The UK Continues to Export Arms to Saudi Arabia Despite Calls for Suspension

In February 2016, the European Parliament voted for an immediate arms embargo for Saudi Arabia on the basis that the export of arms to the Saudis for use in Yemen violated Common Position 2008/944/CFSP (incorporated into the UK’s Consolidated Criteria).

Yet the UK government essentially did nothing, despite calls from major opposition parties for a full review of arms sales to Saudi Arabia and the suspension of sales while that review was ongoing, maintaining that there “has not been a breach of IHL by the coalition.”

On February 2, the Parliament’s International Development Committee called for the suspension of arms sales to Saudi Arabia. As it turns out, around that time the head of the UK’s Export Control Organisation warned then-Business Secretary Sajid Javid that arms sales to the Saudis should be suspended over IHL concerns, a warning Javid decided to disregard pending “new” evidence of a “clear risk” of IHL breaches. He asked for the support of the then-Foreign Secretary and then-Defense Secretary, bearing in mind that an upcoming judicial review would likely scrutinize the government’s decision-making process.

In addition, the House of Commons Business, Innovation and Skills and International Development Committee’s September 15, 2016 report, “The Use of UK-Manufactured Arms in Yemen,” called for the suspension of licences for arms exports to Saudi Arabia capable of being used in Yemen “pending the results of an independent, United Nations-led inquiry into reports of violations of IHRL” (para 107). Foreign Secretary Boris Johnson, then-Defense Secretary Michael Fallon, and Trade Secretary Liam Fox issued a joint statement  in response to this, pledging to continue to supply arms to Saudi Arabia and pointing to the Saudi-led coalition’s own Joint Incident Assessment Team, set up to investigate allegations of breaches of IHL made against the Saudi-led coalition itself, as sufficient response to those allegations.

However, there was hardly consensus that arms sales to Saudi Arabia should be suspended.  The House of Commons Foreign Affairs Committee published a separate report, with the same title and on the same day, which did not recommend a suspension of export licences (but did say that the courts were the best place to test whether the government is compliant with the law). Explaining the decision on the BBC’s Newsnight, the chairman of the Committee, Crispin Blunt MP, insisted that it would be an act “close to insanity” to enact a blanket ban on arms exports to Saudi Arabia. When asked about selective suspension of those weapons known to have been dropped by Saudi Arabia on civilian targets in Yemen, he suggested that if the UK stopped arming Saudi Arabia, the Saudis would be left to turn to less advanced weaponry from other sources and expose themselves to an even greater likelihood of IHL breaches. He was also quite clear that, if it turned out that the UK was contravening its own export licencing laws, those laws might have to be changed for the sake of the wider context of the UK’s relationship with Saudi Arabia: “if it turned out that the courts decided we were in breach of our law we would have to look – we should then look at the legal framework.”

Potential IHL Violations Mount

The bombing of a funeral home in Yemen in October 2016 that left more than 140 people dead was cited as an “apparent war crime” by HRW, which again called for the immediate suspension of arms sales while the coalition conducted a credible investigation. In January 2017, UN sanctions monitors mandated by the Security Council reported that the Saudi-led coalition had carried out attacks in Yemen that “may amount to war crimes.” “For all 10 investigations” carried out by the monitors, the report said, “the panel considers it almost certain that the coalition did not meet international humanitarian law requirements of proportionality and precautions in attack.”

In the courts, the Campaign Against Arms Trade, a UK-based NGO, meanwhile brought a legal action. The NGO is challenging the Secretary of State’s failure to suspend existing export licences for the sale or transfer of arms and military equipment to Saudi Arabia for possible use in the Yemen conflict, and the government’s decision to continue to grant new licences, despite mounting allegations – including UN findings – that the Saudi coalition has perpetrated serious violations of IHL in Yemen using UK arms. The court has recognized the organization’s standing to bring suit, and litigation on the merits of the case is ongoing.

A “Clear Risk” that Arms Exported to Saudi Arabia Will be Used in “Serious Violations” of IHL

Arguments in the court case have focused on the definition of “clear risk” and of “serious violation” of IHL in the context of Criterion 2(c) of the consolidated criteria. According to the Secretary of State, the threshold for engaging a suspension—the trigger of a “clear risk”—was not met by the outside reports of possible breaches of IHL on the part of the Saudi-led coalition, which are relevant only as one element of the assessment undertaken by the Secretary of State based on both open source and confidential material.

James Eadie QC on behalf of the Secretary of State, told the court that establishing whether a nation has committed “serious violations” of IHL “may be extremely difficult and indeed possibly inappropriate” and proving wrongdoing at this level requires “focus on the importance of intention or wilfulness.” Even then, he said, it would be impossible to prove Saudi Arabia’s attitude without access to its internal military records.

Yet, with reference to the User’s Guide to Council Common Position 2008/944/CFSP, which also contains the phrase “serious violations of international humanitarian law,” the Secretary of State acknowledged in his skeleton argument that “serious violation” includes “war crimes” as defined in Article 8 of the Rome Statute of the International Criminal Court (ICC), and that, “as is evident from these provisions of the ICC Statute and as indicated by international case law, war crimes generally require intentional or reckless conduct” (para 40, emphasis added).

On March 2, the House of Lords Select Committee on International Relations asked the Minister for Middle East and Africa, Tobias Ellwood MP, about the UK government’s response to growing pressure from NGOs, the UN, within Parliament itself, and from the general public, to suspend arms sales to Saudi Arabia in light of mounting evidence of Saudi Arabia’s IHL violations in Yemen.  The Minister suggested that, to meet the threshold for suspension under the UK’s arms export control regime, a breach of IHL has to be “deliberate.”  It has been the UK government’s “consistent” view that Saudi Arabia is not “deliberately” breaching IHL, Ellwood said, but he did acknowledge there have “absolutely” been “grave errors.”  This response begs the question of whether there is a distinction to be drawn between “deliberate” and “reckless” breaches of IHL, and why the latter would not be met by “grave errors.” It seems that through a tortured interpretation by the government, the requirement to suspend arms sales per the UK’s export licencing criteria would not be triggered.  While a grave error may not be the same as recklessness each time, how many honest mistakes can one make before one’s actions become reckless? It would presumably be reckless to maintain a system of military targeting that produces civilian casualties as result of frequently repeated “grave errors.”

Since then, HRW has reported that an apparent Saudi-led coalition helicopter attack on a boat carrying Somali refugees, which killed at least 32 civilians, was “the latest likely war crime” in Yemen’s war.

On April 2, the Guardian revealed that the Metropolitan police (London’s police force) is “examining allegations of war crimes by Saudi Arabia in Yemen” in order to “assess whether a full-scale investigation is justified.”  Law firm Hickman & Rose reportedly precipitated this “scoping exercise” – per the Crown Prosecution Service’s War Crimes/Crimes Against Humanity Referral Guidelines – to assess whether a full-scale criminal investigation is justified. Lawyer Daniel Machover explained that “the prosecuting authorities are legally obliged to seek out and, where the evidence permits, prosecute (or extradite for prosecution) those in their jurisdiction who are suspected of war crimes.”

The Met’s announcement came as Prime Minister Theresa May prepared for her visit to Saudi Arabia, which she has explained on the basis that UK-Saudi ties are important for security and prosperity, and during which “she will make clear that [Saudi Arabia is] a close and important ally” and work to “deepen true strategic partnerships.”   The question remains as to what costs and legal contortions need to be sustained as the price for this relationship.

Photo: (L-R) King Salman bin Abdulaziz of Saudi Arabia; British Prime Minister, Theresa May and King of Bahrain, Hamad bin Isa Al Khalifa pose for a group photo on the second day of the Gulf Cooperation Council summit, on December 7, 2016-Carl Court/Getty