Western Gunrunners, (Middle-)Eastern Casualties: Unlawfully Trading Arms with States Engulfed in Yemeni Civil War?

Abstract

According to the United Nations Secretary-General, Yemen today constitutes the worst man-made humanitarian crisis in the world. It is fuelled by extensive third-state involvement, with none of the warring parties championing respect for international human rights and humanitarian law (to put it mildly). Conversely, primary rules of international law already prohibit arms transfers from the moment there is a significant risk that they could be used to commit or facilitate grave breaches, with the recipient’s past and present record of respect for international law qualifying as the crucial factor to predict future transgressions. From that perspective, it appears deeply disingenuous for western states to continue transferring military equipment to members of the multilateral coalition in Yemen while maintaining adherence to the international legal framework. This article thus aims to examine whether the legal framework lives up to its noble goals or rather serves to defend state decisions that primarily serve their economic interests. It is structured as follows: Section 1 starts with an overview of the facts, and the focus and aim of this article. Section 2 then sets out the international legal framework as it applies to the trade in conventional arms with states that are involved in a non-international armed conflict. Section 3 analyses key domestic judgments (in the UK, Canada, Belgium and France) to test the available facts against the legal framework as elaborated. Finally, Section 4 concludes.

Seeking a Responsible Arms Trade to Reduce Human Suffering in Yemen

“…While this article has focused on cases in the UK and France as they are two of the largest European arms exporters and suppliers to Saudi Arabia, it is worth mentioning that governments in other countries in (for instance, Italy and Belgium) and outside of (for example, Canada) the EU, have faced legal actions for the same reasons (Maletta 2019;Ferro 2019). Regardless of the outcomes, these actions are noteworthy in terms of the information they provide on states' arms export risk assessment procedures, on how to interpret and implement applicable legislation, and their possible impact on other countries' decision-making in the same domain.…”

The arms trade treaty and illicit trade under international humanitarian law

“…Of the causalities, 27% were caused by SALW and 24% by heavy weapons and explosive ammunition (figure 4) (UN, 2021). There is growing public and international body recognition, including UNSC and UNGA (UN, 2000;UN, 2018b), that the proliferation of weapons, especially small arms and light weapons (SALW) 5 , has profound impacts on the enjoyment of human rights by women and children, as exemplified by the conflicts in Yemen and Syria and the actions of Boko Haram in Africa and international criminal organizations in Latin America (CONTROL ARMS, 2020B;FERRO, 2019;MUSA, 2017). In this sense, Musa (2017) points out that: "The lack of cohesion between the law and the practice is evident from arms transfers [from USA and UK] to Saudi Arabia, where violations of human rights and humanitarian law have meant the loss of countless innocent lives" (p. 462).…”

No common position! European arms export control in crisis

“…Media and NGO reports revealed the magnitude of European arms being used in the Yemen war and the IHL violations committed with them. NGOs issued legal complaints in different EU countries such as France, Italy and the UK, challenging their governments' decision to export arms and military equipment to Saudi Arabia that may be used to commit serious violations against IHL (Ferro 2019). In Italy and the UK, the claimants argued that the government had failed to comply with national and international law regulations citing the EU Common Position and the ATT (Maletta 2019).…”