The use of UK-manufactured arms in Yemen Contents

4The UK’s legal obligations

A global leader in the rule of law

78.As a key element of the UK’s global influence to protect and promote our interests and values, supporting our security and prosperity, the SDSR sets out that we “will work with our allies and partners to strengthen, adapt and extend the rules-based international order and its institutions.”130

79.We heard, however, that the UK’s continued authorisation of arms transfers to Saudi Arabia in the face of compelling evidence that they breach the UK’s international obligations like the Arms Trade Treaty (ATT), raises serious questions as to the UK’s commitment to a rules-based international order, and damages the UK’s standing within the international community.131 The UK Working Group on Arms argued that the UK, by appearing to be ready to breach its international obligations, sent a message to other states that they could do the same.132

80.Professor Philippe Sands QC told us about the importance of the leadership position the UK holds internationally with regards the rule of law:

If I were a legal adviser to this Government, I would be saying, “It is time to start asking yourselves the right questions as to what your responsibilities and obligations are. Why, Minister? Because the United Kingdom is a global leader on the rule of law” [ … ] I think that what the United Kingdom does really matters, because the United Kingdom plays a leadership role on a lot of these issues. When the United Kingdom takes a lead in a certain area, many others will often follow.133

The UK Government has been at the forefront of work to establish systems of rules to regulate arms exports, our own national system of rules in the EU and, importantly, the ATT. Work to secure this was described as “at risk of unravelling by the current policies towards Saudi Arabia and the supporting coalition”.134

81.Dr Anna Stavrianakis told us that the conflict in Yemen has put the UK Government in a very difficult position regards its international obligations and its leadership in the rule of law:

The UK Government put themselves in a position of moral leadership by pressing for the arms trade treaty during the negotiating phases. Now that it has entered into force, there is a whole series of reputational politics associated with it, in being seen to lead and to uphold it in terms of implementation[ … ]The current situation in Yemen is quite unfortunate for the UK Government, because it has put them into a trap. They are caught in a trap that sets large swathes of domestic public opinion, and their legal obligations, against their relationship with Saudi Arabia, so they are now in quite a tricky position.135

82.The argument that the UK Government is trapped was also made to us by Dr Robert Dover and Professor Mark Phythian, who contended that “the UK Government has placed itself in an invidious position of fighting a proxy war in Yemen alongside the Saudis, and thus has tied its own hands: it has virtually no choice but to supply military equipment into that theatre at ongoing reputation cost.”136

83.The UK’s support for the Saudi-led coalition in Yemen, primarily through arms sales in the face of evidence of IHL violations, is inconsistent with the UK’s global leadership role in the rule of law and international rules-based systems. The very rules the UK championed—represented by the Arms Trade Treaty—are at risk of unravelling. As an instigating member of the ATT, the UK should not set the example to other signatories that it is not bound by its obligations. This puts the UK’s own international reputation at risk and we are concerned that the UK’s voice will ring hollow in advocating for compliance with IHL on global platforms.

A robust licensing regime

84.In response to questions on arms transfers to Saudi Arabia, the Government has repeatedly insisted that the UK operates one of the most robust arms export control regimes in the world137. Paul Everitt, Chief Executive of ADS, argued that the UK’s licensing regime was held up as a benchmark for international best practice, and stressed the importance of the public availability of information.138 Mr Everitt explained that arms exports are a regulated sector—once a company decides to sell overseas and applies for a licence, it is then up to Government to make the judgements and decisions about whether that licence would comply with our legal obligations. Accordingly, once the licence has been applied for, the individual company has “crossed a line where responsibility has to sit with the Government and those who are making the key decisions.”139

85.The Government assesses licence applications for compliance with arms trade law which, Professor Philippe Sands QC explained to us, operates in three distinct levels: the Arms Trade Treaty at the international law level; the EU common position at the European Union law level; and the consolidated EU and UK arms export licensing criteria at the domestic, UK law level.140 Although Professor Sands and his colleagues from Matrix Chambers looked at all three levels when producing the legal opinion on the lawfulness of the authorisation by the United Kingdom of weapons and related items for export to Saudi Arabia in the context of Saudi Arabia’s military intervention in Yemen,141 Professor Sands confirmed that the three levels do overlap:

Having concluded that both article 6 and article 7 [of the ATT] are not being complied with, you can effectively piggyback your way on to violations of the EU common position and the UK criteria, because both require, among other things, a commitment to meet your international standards. If you are failing to meet your international standards, it follows that you are failing to meet your EU standards and failing to meet your domestic standards.142

86.We have received much evidence concerned with the UK Government’s compliance with articles 6.3 and 7 of the Arms Trade Treaty, articles 2 and 6 of the EU common position, and criterion 2c of the UK’s arms export licensing criteria, all of which refer to the respect of the recipient country for international law and require that the Government not grant a licence where there is a clear risk that the items might be used in the commission of a serious violation of IHL.143 This evidence has questioned the robustness of the licensing regime.

Assessing risk

87.In judging whether an export of defence equipment is compliant with the obligations above, the Government is required to carry out a risk-based assessment, looking at all available evidence. Oliver Sprague, of Amnesty International, told us that there was evidence of unlawful strikes by the Saudi-led coalition “in spades” in Yemen, where we know UK-supplied equipment is being used and could be used in future combat144.Dr Stavrianakis argued that the UK Government, by ignoring evidence of breaches of IHL and failing to conduct its own investigations, was setting “the bar for the risk assessment impossibly and inappropriately high”.145

88.The concerns we heard about how the UK Government is investigating violations of IHL were widespread. Many witnesses argued that there is a considerable body of reliable evidence of such violations by the Saudi-led coalition, which indicated that there is an appreciable risk of defence equipment supplied by UK manufacturers being used in contravention of international law and the UK’s international obligations.

89.The UK Government operates a risk-based arms export licensing regime, requiring Government to assess the risk that arms exports might be used in violation of IHL. In the face of widespread allegations of violations of IHL in Yemen, it is difficult for the public to understand how a reliable licence assessment process would not have concluded that there is a clear risk of misuse of at least some arms exports to Saudi Arabia. At present, the Government’s export licensing policy towards Saudi Arabia could be interpreted as not living up to the UK’s robust and transparent regulations, nor upholding the UK’s international obligations.

90.The credibility of the Government’s policy and practice of its arm export licensing regime has been called into question. In response, we recommend it issue a public explanation of its risk assessment process and what level of risk would trigger the refusal of a licence.

A chain of responsibility

91.We heard concerns regarding the Government’s understanding of the end-use of the equipment we supply to Saudi Arabia. Our attention was drawn to a parliamentary response by the Defence Secretary that “the use of equipment and weapons supplied to the Saudis is an operational matter for the Saudi military authorities. The Saudis have assured us that British-supplied munitions will be used in compliance with international humanitarian law and we continue to engage with them on these assurances.”146

92.Professor Philippe Sands QC raised this reliance on assurances from the Saudis as particularly problematic. He said that between June and October 2015, the Foreign and Commonwealth Office made a number of statements which had in common that they relied on assurances given to us by the Saudi authorities. He advised that governments could not simply rely on the reassurances of others, but that article 6 of the ATT imposed an explicit obligation on signatories to form a view.147

93.Dr Stavrianakis described this as a chain of responsibility, which “links the responsibility of the exporter to the behaviour of the importer, because it is incumbent on the exporter to assess the risk of how that equipment might be used—not will be used but might be used.”148 Oliver Sprague from Amnesty International further clarified:

In order to establish a risk-based analysis of a licence, they [MoD] have to have an indication about how that weaponry is used to discharge that function. If they are genuinely saying that how Britain’s weapons are going to be used is not a matter for them, it is impossible for a decision to be made to authorise those weapons lawfully on the basis of the relevant articles in the Arms Trade Treaty. They have to have some assessment of the prior knowledge on the uses to which the weaponry would be put. It is absolutely fundamental.149

The FCO written statement on 21 July 2016, however, corrects statements made by Ministers from the FCO, including the Foreign Secretary, to clarify that the Government has not made assessments of any breaches of IHL by the Saudi-led coalition in Yemen. This raises serious concerns regarding the Government’s assessment of the risk that arms sold to Saudi Arabia might be used in the commission of a violation of IHL.

94.According to Professor Philippe Sands QC, the chain of responsibility could be extended to individual ministers:

If I were a legal adviser to a Minister, I would say, “Minister, there is a reason, beyond this, why you need to look at this matter, which is that beyond international humanitarian law and international human rights law, there is now also international criminal law. International criminal law imposes responsibilities not on states but on individuals. If it turns out that the United Kingdom is supplying weapons in a conflict that is giving rise to systematic violations of international humanitarian law, I cannot exclude the possibility that, on some day in the future, you, as the person who supplied the weapons, could be hauled before some foreign national court, some domestic UK court or some international court.” If I were a Minister, I would want my legal adviser to say that.150

A lack of transparency

95.The Government publishes the licensing statistics for UK arms exports on a quarterly basis.151 We heard from Roy Isbister of Saferworld that the UK Government deserves credit for the timeliness of the information made available which allows observers to investigate what has been licensed for transfer up to the start of the previous quarter. He also raised the UK parliamentary oversight system as a model other countries might like to follow.152 That said, there are limits to the information which can be extracted from the licensing statistics.

96.There is no public discussion about what happens within Government during the assessment of licence applications. For Dr Stavrianakis, the challenges this creates in examining arms exports has been further exacerbated since the start of the conflict in Yemen by the shortening of the processing time for licences to Saudi Arabia as follows:

97.At a time when the body of evidence to consider in assessing licence applications to Saudi Arabia and in measuring risk against licensing criteria was growing, the processing time for applications was in fact reducing. As Dr Stavrianakis told us:

If you look at the most recent licensing statistics, the median processing time has come down and the proportion of export applications completed within 20 working days has gone up. I am sure the Government would say, “See, everything is working fine,” but now I have even less idea of what is happening within that process. If the Government are so sure that what they are doing is fine, why have they not responded to any of the criticisms.156

98.The Government points to its robust licensing regime as evidence that its arms export practices are responsible. However, by failing to provide persuasive evidence to support this statement or to respond to reports of IHL breaches, the Government is preventing scrutiny of its practices. It is problematic that, at the very time the Government was in receipt of reports documenting violations of IHL by the Saudi-led coalition the processing times for those licence applications were speeded up. The Government should provide a detailed explanation for those licensing decisions rather than a simple assertion that we have a rigorous licensing regime.

99.We are grateful for the former Foreign and Business Secretaries’ respective offers for CAEC members to have regular meetings with ministers and to visit the Arms Export Policy Department in the FCO and the Export Control Organisation in BIS. However, we recommend that the Government implement greater transparency in the policy and practice of its arms exports. As a first step towards this, it should provide further details on the following:

Suspending licences

100.In coming to the conclusion that arms export licences to Saudi Arabia are compliant with the UK’s commitments, Professor Philippe Sands QC suggested the Government had been “misdirecting” themselves:

The essential problem that we have identified is that the United Kingdom has not made the inquiries that it should have been making. If it makes those inquiries properly, fairly and independently, we think that it is likely that it will come up with a particular conclusion, but we cannot say that for certain. We have to assume that those inquiries will be made in good faith, on the basis of the facts that are available. The essence of the problem is a failure of the Government to direct themselves to the right questions. Having asked the wrong questions, they have reached answers that are implausible.157

101.For example, we have heard from the Government that the Saudi-led coalition are not targeting civilians and as such, the Government is currently satisfied that extant licences for Saudi Arabia are compliant with the UK’s export licensing criteria.158 As we set out in paragraph 36, it is unlikely the coalition are identifying civilians as targets, however; coalition airstrikes have resulted in a very high number of civilian casualties, whether intentional or not. The UN has attributed 60 per cent of civilian casualties to Saudi-led coalition airstrikes.159 That, Professor Sands told us, becomes an issue of intent:

Are they intending to target civilians? We do not have any evidence that, in their terms of engagement—rules of engagement—that is what they are doing, but it is what they are doing inevitably, as a consequence of the kinds of activities they are engaging in. It is not appropriate to look to the issue of intent in terms of the obligation. The authority for that is a judgment of the International Court of Justice—[The Bosnia v. Serbia case] [ … ] it makes it very clear that the question of what you intend to do is not dispositive in avoiding a wrongdoing by that particular state.160

102.The then Business Minister, Anna Soubry, clarified that the Government must consider each licence, for each type of weapon, on its own merit and “if it is found that there has been a breach of those criteria with an export licence, the answer is a very clear yes. We will revoke licences. We will suspend licences, if there is evidence.”161

103.Professor Sands and his colleagues at Matrix Chambers in their legal opinion argued that, in light of the evidence of violations of IHL by the Saudi-led coalition and in the absence of any credible investigations into those violations by Saudi Arabia, “it is reasonable to conclude that in such circumstances future transfers by the UK of weapons or items capable of being deployed against civilians or civilian objects would be used in a manner that is internationally unlawful.” They further concluded that “the UK has - or should be recognised as having - knowledge that weapons or related items exported to Saudi Arabia would be used in future attacks directed against civilian objects or civilians protected as such, or in the commission of war crimes in Yemen.”162 On the basis of the evidence available, they added that the UK Government would have had knowledge that transfers of arms to Saudi Arabia would have constituted a breach of its obligations as early as May 2015.163 As such, any arms exported to Saudi Arabia which could be used in the conflict in Yemen and for which their end-use is not restricted, they concluded, would constitute a breach of the UK’s legal obligations under domestic, European and international law.164 In order to bring the UK into compliance with its legal obligations, they recommended that the UK:

should halt with immediate effect all authorisations and transfers of relevant weapons and items to Saudi Arabia, capable of being used in the conflict in Yemen, pending proper and credible enquiries into the allegations of violations of IHL and IHRL [International Human Rights Law] that have arisen and that could arise in the future.165

104.Professor Sands is joined by the European Parliament, which passed a resolution to this effect, Human Rights Watch, Amnesty International, Saferworld and Save the Children, among others, who have called for a suspension of arms exports to Saudi Arabia. The Netherlands and Germany halted arms sales to Saudi Arabia in early 2016.

105.Foreign Office Minister Tobias Ellwood pointed out that the UK has revoked or suspended licences, for example to Russia, Egypt and Yemen, where other aspects of the bilateral relationship continues, including a human rights dialogue.166 Philip Dunne reminded us of the wider consequences of suspending licences:

We routinely assess—not constantly, but routinely—that certain applications for new arms exports do not meet the clear criteria that have been set. The criteria have different levels. As a result of those refusals, from time to time we lose defence business with a whole host of countries, including some of our closest allies.167

106.Saudi Arabia is one of our closest allies. However, the weight of evidence of violations of IHL by the Saudi-led coalition in Yemen is now so great that it is very difficult to continue to support Saudi Arabia while maintaining the credibility of our arms licensing regime. The failure of the Government to support the establishment of an independent international investigation to provide conclusive evidence on IHL violations in Yemen, on which to base arms export licensing decisions, has allowed for the transfer of items to Saudi Arabia very possibly in contravention of the UK’s legal obligations. We believe it is in the interests of all those involved in arms exports that arms transfers are seen as responsible. While such doubt and uncertainty about IHL compliance in Yemen exists, the default position of the UK Government should not be to continue to sell weapons but to pause until it is satisfied that allegations have been properly investigated.

107.In the case of Yemen, it is clear to us that the arms export licensing regime has not worked. We recommend that the UK suspend 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 IHL, and issue no further licences. In addition, the UK Government should investigate whether any licences so far issued have led to the transfer of weapons which have been used in breach of IHL. This suspension must remain in place until such time as the UN-led inquiry can provide evidence that the risk that such exports might be used in the commission of serious violations of IHL has subsided.

A role for development

108.There are undeniable costs of conflict on a country’s development. The UK Working Group on Arms explained that these costs were both direct and indirect, including dealing with refugees and IDPs, as well as loss of development and economic decline. They continued, “Oxfam has calculated that armed conflict cost African countries as a whole an average of $18bn each year between 1990 and 2005.”168

109.Yemen faced a range of deep-seated development challenges prior to the current crisis including rapid population growth, gender inequality, poor provision of basic services, a weak economy, corruption and youth unemployment. As a result of a cycle of conflicts and political crises, both poverty and inequality had increased over the last 15 years, making Yemen the poorest country in the Middle East. DFID has had a long-standing presence and commitment to tackling poverty in Yemen, which included £247.8 million in aid to the country between 2011 and 2014.169 However, the current conflict forced the Department to withdraw its staff from Yemen and suspend its longer-term development programmes170, seriously threatening any progress that had been made.

110.The use of UK arms transfers to Saudi Arabia in Yemen has exposed a weakness in the laws which regulate the arms trade, in that the impact on development is only considered in the context of the recipient country. Criterion 8 of the consolidated EU and UK arms export licensing criteria states that:

The Government will take into account, in the light of information from relevant sources such as United Nations Development Programme, World Bank, IMF and Organisation for Economic Co-operation and Development reports, whether the proposed transfer would seriously undermine the economy or seriously hamper the sustainable development of the recipient country.

111.When licence applications are considered by the Government, the Export Control Organisation circulates the applications to the FCO and the MoD, and where there are development concerns, DFID is consulted solely in relation to criterion 8. As Roy Isbister from Saferworld told the International Development Committee:

To my mind, the exports to Saudi, which might be used in Yemen, of all UK arms exports are those that are having the most impact on development, and yet DFID has no formal role. It is excluded from any formal role in giving an opinion on those arms exports, because the arms exports are to Saudi, which is a non-ODA-eligible country, so DFID has no say [ … ] To me, that is a fundamental problem. It is easy enough to address, but it is something that should be looked at.45

112.We heard from Tim Holmes from Oxfam that the situation in Yemen presents a strong case for expanding the scope of criterion 8:

In this particular case, there is a very strong justification for looking not just at the recipient country but where those arms would be used and the impact it would have on its development. As we all know, the right to development is a well-known right and is agreed across the UN, and it is very important to consider that. It is also important in terms of coherence across the UK Government. A risk assessment that would involve formal consultation with DFID would prevent undermining UK development policy, or the contradiction between development policy and wider security and foreign policy. Therefore, formal involvement is vital and should be seen as an equal voice, not a subsidiary one to other conversations.171

113.We were told by the then DFID Minister Desmond (now Sir Desmond) Swayne that his Department was only required to consider whether the recipient country can afford the arms export and whether purchasing the arms would seriously undermine their development effort. He advised that any involvement of DFID in considering the end-use of weapons would intrude on criterion 4 (“Preservation of regional peace, security and stability”) which is the preserve of the FCO.172

114.Concerns were raised with us that the arms transfers to Saudi Arabia were undermining DFID’s response to the humanitarian crisis in Yemen. The UK Working Group on Arms made this link clear by contending that “as more arms have been transferred to the conflicting parties in Yemen, the worse the humanitarian situation has become.”173 Tim Holmes from Oxfam talked of a “multi-paradox” created by a “push for peace, humanitarian assistance and the provision of licences for arms.”174 As Roy Isbister told us, the situation in Yemen has not been helped by different government departments working at cross-purposes:

It would be good if all the different policies of the Government could be facing in the same direction, and that is where there is a lack of coherence between feeding the fire on the one hand and saying that we need to put out the fire.175

115.Our predecessor Committees welcomed the Government’s commitment to consider periodically whether DFID should be involved formally in arms export licence assessments in addition to those under Criterion 8, for example those under Criterion 3 (“Internal situation in the country of final destination”) and Criterion 4 (“Preservation of regional peace, security and stability”). It also welcomed the Government’s policy decision to strengthen the application of Criterion 8 by excluding countries considered particularly low risk from the analysis to allow DFID to focus on the higher risk licences in greater detail.176

116.The transfer of arms to Saudi Arabia for use in Yemen has highlighted the limited role of DFID in arms licensing decisions which can ultimately have a significant impact on development and the work of the Department. It is clear that the humanitarian crisis which DFID is working to address in Yemen has been exacerbated by the flow of arms to Saudi Arabia which other government departments have licensed. This has created an incoherence between the Government’s development policy and its wider security and foreign policy.

117.We do not support the exclusion of DFID from licence decisions beyond those for ODA-eligible countries, and from considering the end-use of weapons, as a result of which DFID has had no formal role in assessing arms export licences to Saudi Arabia for use in Yemen. We recommend that the Government reassess whether DFID should be involved formally in arms export licence assessments in addition to those under Criterion 8, for example those under Criterion 3 (“Internal situation in the country of final destination”) and Criterion 4 (“Preservation of regional peace, security and stability”) giving regard to the use of UK-manufactured arms in Yemen. We also recommend that Criterion 8 be expanded to consider whether the proposed transfer would seriously undermine the economy or seriously hamper the sustainable development of the recipient country, and the country or countries where the proposed transfer might ultimately be used.

130 National Security Strategy and Strategic Defence and Security Review 2015, cm 9161, November 2015, para 5.2

131 The UK Working Group on Arms (UKY 0012) para 3

132 The UK Working Group on Arms (UKY 0012) para 9

133 Q79

134 Q1 [Mr Sprague]

135 Q136

136 University of Leicester (UKY 0001) executive summary

137 For example: PQ 36869 [on Saudi Arabia: Arms Trade], 11 May 2016; PQ 33214 [on Saudi Arabia: Arms Trade], 14 April 2016; PQ 28765 [on Arms Trade: Saudi Arabia], 2 March 2016; HC Deb, 27 January 2016, col 262 [The Prime Minister]

138 Q98

139 Q121 [Mr Everitt]

140 Q57

142 Q63

143 The UK Working Group on Arms (UKY 0012) para 26; Mwatana Organization for Human Rights (UKY 0011), para 23; Dr Anna Stavrianakis (UKY 0003) para 5; Q23 [Mr Sprague]; Q57 and Q63 [Professor Sands]

144 Q27

145 Dr Anna Stavrianakis (UKY 0003) para 10

146 PQ 7824 [on Yemen: Military Intervention], 27 July 2015

147 Q60

148 Q150

149 Q32

150 Q79

151 Department for Business, Innovation and Skills and the Export Control Organisation, Strategic Export Controls: licensing data

152 Q39

153 Department for Business, Innovation and Skills, Strategic Export Controls: Country Pivot Report 1st April 2015 - 30 June 2015, 20 October 2015, pp 262 - 265

154 Department for Business, Innovation and Skills, Strategic Export Controls: Country Pivot Report 1st July 2015 - 30 September 2015,19 January 2016, pp 249 - 254

155 Department for Business, Innovation and Skills, Strategic Export Controls: Country Pivot Report 1st October 2015 - 31 December 2015, 19 April 2016, pp 265 - 270

156 Q151

157 Q76

158 Foreign and Commonwealth Office (UKY 0013) para 45

160 Qq91-2

161 Q187

166 Q187

167 Q187

168 The UK Working Group on Arms (UKY 0012) para 32

169 Department for International Development (YEM 0011) para 8

170 Department for International Development (YEM 0011) paras 9 and 24

171 Q50

172 Qq 225 and 227

173 The UK Working Group on Arms (UKY 0012) para 2

174 Q50

175 Q53

176 Committees on Arms Export Controls, Second Joint Report of the Business Innovation and Skills, Defence, Foreign Affairs and International Development Committees of Session 2014–15, Scrutiny of Arms Exports and Arms Controls (2015): Scrutiny of the Government’s Strategic Export Controls Annual Report 2013, the Government’s Quarterly Reports from October 2013 to June 2014, and the Government’s policies on arms exports and international arms control issues, HC 608, paras 47 and 48

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15 September 2016