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EU arms exports to Saudi Arabia in the context of the war in Yemen are illegal

18 December 2015 - Kloe Tricot O'Farrell, Roy Isbister

As Saferworld publishes a legal opinion from renowned firm Matrix Chambers, Kloe Tricot O’Farrell and Roy Isbister say EU Member States that are supplying arms to Saudi Arabia that could be used in Yemen are complicit in the catastrophe unfolding in the country.

A legal opinion from eminent international law experts from Matrix Chambers commissioned by Saferworld and Amnesty International UK has concluded that the UK Government is breaking national, EU and international law by supplying weapons to Saudi Arabia in the context of its military intervention and bombing campaign in Yemen. Although it only assesses UK actions, the opinion’s damning findings are relevant to all EU Member States that have supplied arms that are at risk of being used in the conflict, or have allowed transit of other States’ arms through their territory. This is because all EU Member States are bound by the EU Common Position and almost all by the international Arms Trade Treaty (only Cyprus and Greece have yet to ratify the treaty, although they have signed it), both of which forbid the transfer of weapons if there is a clear risk that items might be used in the commission of serious violations of International Humanitarian Law (IHL) or International Human Rights Law (IHRL).

Since the Saudi-led intervention began in late March 2015, more than 5,800 people are reported to have been killed, and tens of thousands injured as of December 2015. In particular, 60 per cent of the 2,500 civilian casualties are reported to have been killed by the Saudi-led coalition airstrikes. There are multiple reports that airstrikes have hit civilian targets, including hospitals, schools, markets, grain warehouses, ports and a displaced persons camp, while Houthi and Saleh forces stand accused of indiscriminate shelling in residential areas and numerous human rights abuses. A naval blockade of Yemeni ports imposed by the Coalition is contributing to severe food and fuel shortages in the country, which is facing one of the world's worst humanitarian crises. In August, the head of the International Committee of the Red Cross (ICRC), Peter Maurer, declared after visiting the country: "Yemen after five months looks like Syria after five years."

The UK has issued more than 100 licences for arms exports to Saudi Arabia since the State began bombing Yemen in March 2015. For the period January to June 2015, licences for exports to Saudi Arabia were worth more than £1 ¾ billion, the vast majority of which (by value) appear to be for combat aircraft and air-delivered bombs for the use of the Royal Saudi Air Force.

By continuing to authorise transfers of weapons and related items to Saudi Arabia capable of being used in Yemen, the legal opinion concludes that the UK Government is acting in breach of its obligations arising under the UK’s Consolidated Criteria on arms exports, the EU Common Position on Arms Exports and the Arms Trade Treaty (ATT). It concludes that “any authorisation by the UK of the transfer of weapons and related items to Saudi Arabia […] in circumstances where such weapons are capable of being used in the conflict in Yemen, including to support its blockade of Yemeni territory, and in circumstances where their end-use is not restricted, would constitute a breach by the UK of its obligations under domestic, European and international law.” It also notes that the UK Government can properly be deemed to have "actual knowledge [...] of the use by Saudi Arabia of weapons, including UK-supplied weapons, in attacks directed against civilians and civilians objects, in violation of international law", since at least May 2015 – by which time entire Yemeni cities had been designated as military targets and were subjected to aerial bombardments.

The case made by the legal opinion clearly has implications for other EU Member States. Indeed, whereas confirmed sales of equipment in 2015 are limited due to the retrospective nature of reporting on arms exports and licensing – typically the latest information currently available from Member States is for 2014 – some transfers, or decisions to approve transfers, by EU Member States have been identified.

Italy

There have been at least three shipments of Mark 80-series bombs to Saudi Arabia since their airstrikes on Yemen began in March. The last known shipment was sent in November 2015. At least some of these bombs have been used in Yemen.

Germany

The German Government reported in October that, in the first six months of 2015, Saudi Arabia was its third most valuable arms export market. Licences to a value of €178 million were authorised for arms and military goods, including military vehicles and parts therefor, target simulation drones, parts for combat aircraft and in-flight refuelling equipment.

Saudi Arabia has also produced HKG36 rifles under licence since 2008. Older models of HK rifles, the G3, have been diverted without permission from Saudi Arabia to Yemen where many rifles and their ammunition have fallen into the hands of Houthi fighters and to Al Qaeda in the Arabian Peninsula. Alongside IHL and IHRL breaches, this diversion would be reason to refuse current and future supply under both the ATT and the EU Common Position.

France

On 15 October 2015, France announced that several contracts, notably in the maritime and armament sectors, had been signed with Saudi Arabia. These contracts are said to be valued at over €10 billion. The Government further announced that Saudi Arabia is expected to order fast patrol boats by the end of 2015, reportedly worth €600 million. These boats could be used in support of the blockade of Yemen – which the legal opinion identifies as a breach of IHL. It also worth noting that France signed in May 2015 a €6.3 billion contract for the sale of Rafale fighter jets with Qatar, which is among the members of the Saudi-led coalition engaged in Yemen.

In addition, transfers authorised in 2014 by different Member States may well remain relevant in terms of deliveries still taking place in 2015 (and beyond). For example, in 2014 the Walloon region of Belgium authorised the transfer of turrets and cannons for armoured vehicles valued at €3.2bn to Canada, with Saudi Arabia as the end-user. Deliveries against this contract are ongoing. This takes place in the context of a recently burgeoning arms-supply relationship between Wallonia and Saudi Arabia, with a 300 percent increase from 2013 to 2014 in the value of arms licences, primarily for small arms and light weapons and their ammunition. The Czech Republic is also reported as having recently intensified efforts to sell arms and military equipment to Saudi Arabia. In 2014, Saudi Arabia was a major market for Czech arms producers, with exports worth over €70 million, primarily for ground vehicles and components. This amounts to around 16 per cent of total Czech arms exports and constitutes a 520 percent increase from 2013. Czech company Tatra also signed a partnership agreement with the Saudi military in 2013 that includes the construction of an armament plant in the Kingdom.

Given the unfolding tragedy in Yemen, the paucity of up-to-date information from EU Member States about their transfers into the conflict is simply not good enough. Member States need to go on record about what arms they have supplied or agreed to supply to Saudi Arabia and coalition partners, especially since the conflict began, that could have been used in Yemen and explain how these transfers are consistent with their legal obligations. Looking forward, EU Member States should immediately suspend arms shipments and military support to Saudi Arabia and its coalition partners which could be used in the bombing campaign on Yemen – at least until thorough and independent investigations into arms sales and reported war crimes in Yemen are carried out.

The Council of the EU, in its April 2015 conclusions on Yemen, recognised that only a political agreement could provide a sustainable solution and restore peace in Yemen. The Council should also issue an immediate suspension of all arms exports to Saudi Arabia. EU Member States must make every possible diplomatic effort to help bring the conflict to an end and continue to push for an end to the de facto blockade so that vital humanitarian and commercial supplies can freely enter Yemen and reach those most in need. Finally, they must fully implement the provisions of the EU Common Position and ATT, and encourage other arms exporters to do the same. The moral case has been obvious for months, and now the legal case is clear: EU Member States that are supplying arms to Saudi Arabia that could be used in Yemen are complicit in the catastrophe unfolding in the country, and they need to stop.

Kloe Tricot O'Farrell is EU Advocacy Officer, Roy Isbister is Team Leader, Small Arms and Transfer Controls.

Read the legal opinion here.

Watch a Channel 4 news report on UK arms exports.

Image copyright Amnesty International

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EU Member states that are supplying arms to Saudi Arabia that could be used in Yemen are complicit in the catastrophe unfolding in the country, and they need to stop

Kloe Tricot O'Farrell, Roy Isbister