For some campaigners, the acid test of the effectiveness of a putative global arms trade treaty was whether it would prohibit or somehow legitimize the selling of arms to Saudi Arabia. Of course, those who expected a total prohibition on arms trading were always going to be deeply disappointed, but many of us felt it similarly unlikely that an international instrument would ever make it impossible for internally repressive regimes to procure weapons on the open market. Switzerland, among a number of arms-exporting nations that adhered to the 2013 Arms Trade Treaty, did see the text of the ATT as effectively giving a green light for sales to Saudi Arabia, presumably on the basis that the risk of a serious violation of international human rights law (IHRL) was not “overriding” in the sense of Article 7 of the treaty.
But in the words of Bob Dylan, “the times they are a-changin’.” For Saudi Arabia is now engaged front and centre in armed conflict in Yemen. Thus, it is not just the risk of a serious violation of IHRL that is at stake but also the risk of a serious violation of international humanitarian law (IHL) – the law that prohibits certain acts in armed conflict. This has significant implications for those exporting nations that are party to the ATT.
The first test that must be considered in assessing the potential for a serious violation of IHL to occur is easily met: there is clearly an armed conflict affecting a possible recipient of an arms export. Saudi Arabia is party to at least a non-international armed conflict with the Houthis, and arguably it is an international armed conflict against the regime that is, today, in effective control of much of Yemen.
it is not just the risk of a serious violation of IHRL that is at stake but also the risk of a serious violation of international humanitarian law
The second test is to determine what violations might occur. The two customary law rules most relevant to Saudi Arabia’s bombing campaign are distinction and proportionality in attack. These demand, respectively, that Saudi direct their bombs only against lawful military objectives, and in so doing, refrain from launching any attack that may be expected to cause excessive civilian harm in relation to the “concrete and direct military advantage anticipated”. In February 2016, a United Nations panel looking into the bombing campaign concluded that there had been “widespread and systematic” attacks on civilian targets, which violated IHL. Saudi Arabia denied that it was targeting civilians.
For the United Kingdom, which adhered to the ATT on 2 April 2014, provisionally applying from that date the key provisions (articles 6 and 7), a clear and immediate obligation was imposed under international law in relation to any proposed export to anyone, including Saudi Arabia. Prior to authorizing a proposed export, it had to assess whether the arms would contribute to or undermine peace and security. (If they would undermine peace and security this would already preclude export.) But even if this difficult hurdle could be overcome (given the instability and widespread misery inflicted on the Yemeni people by the conflict), the UK then had to assess the potential that they could be used to commit or facilitate a serious violation of IHL and IHRL.
This assessment should have been relatively straightforward to conduct given that UK military personnel have been providing assistance in targeting and its legal aspects to the Saudis. In late July 2016, however, on the final day of Parliament before its closure for the summer recess, the Foreign and Commonwealth Office dropped a bombshell (if you excuse the pun). They announced that, despite earlier unequivocal assurances given to parliament on a number of occasions by senior members of government, no assessment of Saudi compliance with international law had in fact been carried out. This is an astonishing admission of a treaty violation by the UK. For the ATT is unambiguous: an objective and non-discriminatory assessment shall be made prior to authorization of an export.
The second annual session of the Conference of States Parties to the ATT is being held in Geneva on 22–26 August. Based on recent events, states parties will clearly have extra grist to the mill for their review of treaty implementation. And when Parliament reconvenes in London on 5 September, the government surely needs to explain how the House of Commons was not misled, and how openly breaching a core ATT obligation is not somehow a violation of international law. Perhaps someone in Whitehall was listening too closely to the American journalist, Regina Brett, when she said, “Summer is the annual permission slip to be lazy. To do nothing and have it count for something.”
Featured image credit: Remains of the day, by Wajahat Mahmood. CC BY-SA 2.0 via Flickr.