On 25 February, the European Parliament adopted a Resolution on the humanitarian situation in Yemen which includes a historic call for an EU arms embargo to be imposed against Saudi Arabia. While the resolution is non-binding, Kloé Tricot O’ Farrell argues it is significant for a number of reasons, not least for reminding EU Member States of their legal responsibilities and calling them to order over their arms transfer practices.
First of all, the European Parliament resolution and related coverage has raised awareness about the unfolding humanitarian catastrophe in Yemen and the serious breaches of International Humanitarian Law (IHL) and International Human Rights Law (IHRL) committed by all parties to the year-long conflict.
Since the Saudi-led intervention began in Yemen in late March 2015, both sides of the conflict have carried out indiscriminate attacks which are reported to have killed over 3,200 civilians and injured thousands. The fighting has also left over 21.2 million people in need of humanitarian aid. The Saudi-led coalition airstrikes are reported to being responsible for a majority of the civilian casualties. Notably, in February 2016, at least 168 civilians were killed and 193 injured, around two-thirds of them by Coalition airstrikes according to the UN High Commissioner for Human Rights. On 15 March, 106 civilians were killed by airstrikes on a market in Hajja province in what the UN describes as one of the deadliest incidents since the start of the conflict. In addition, fighting and indiscriminate shelling in residential areas by Houthi and Saleh forces have caused numerous civilian casualties.
Second, the European Parliament – the only directly elected EU institution, which represents over 500 million citizens – has brought much needed attention and scrutiny to the role of EU Member States in the Yemen conflict. Indeed, in spite of the paucity of publicly-available information, a number of reports (for instance, this legal opinion by Matrix Chambers, this Amnesty International and Human Rights Watch report and this Control Arms report) have highlighted that EU Member States have sold weapons to Saudi Arabia and coalition members that are at risk of being or have been used in Yemen. The legal opinion by Matrix Chambers concludes that transfers of weapons and related items to Saudi Arabia capable of being used in Yemen are in breach of both the EU Common Position on Arms Exports and the Arms Trade Treaty (ATT), to which 26 EU Member States are a party (and with Greece about to become so). It is important to note that there is no evidence that Houthi forces and their allies are currently being supplied with arms from States Parties to the ATT.
While the European Parliament has a rather limited role in EU foreign policy, by calling EU Member States to order over their arms transfer practices it has demonstrated a welcome commitment to scrutinising the implementation of the EU Common Position on arms exports. And although the Common Position notes that “the decision to transfer or deny the transfer of any military technology or equipment shall remain at the national discretion of each Member State”, it creates a legal obligation on Member States to ensure the conformity of their national policies with its provisions (see Article 29 of the Treaty on European Union).
Therefore, while some EU Member States have supplied and continue to authorise arms transfers to Saudi Arabia and coalition countries that are at risk of being used in the conflict, the EP Resolution recognises that “such transfers are in violation of [EU] Common Position 2008/944/CFSP on arms export control, which explicitly rules out the authorising of arms licences by Member States if there is a clear risk that the military technology or equipment to be exported might be used to commit serious violations of international humanitarian law and to undermine regional peace, security and stability.”
In addition, the Resolution’s call for the establishment of an EU arms embargo was supported by a majority of Members of the European Parliament (359 voted in favour, 212 against and 31 abstained) and received significant cross-party and cross-country backing, in spite of intense Saudi lobbying against the resolution. What’s more, while initiatives at the European level are often removed from the public sphere, EU civil society and citizens mobilised around this process, including through a petition calling for an arms embargo against Saudi Arabia and organised by the campaign group Avaaz which garnered over 750,000 signatures, thereby highlighting growing awareness about the conflict in Yemen and the role of EU arms exports therein.
While the European Parliament demonstrated that it would not turn a blind eye to EU countries lending a hand—or weapon—in support of a war that is killing and injuring civilians as well as harming prospects for peace in Yemen, some national parliaments have also raised questions around their governments’ arms export policies in the current context.
For instance, in the UK, the Parliamentary International Development Committee, following oral evidence sessions with non-governmental representatives and Government Ministers, sent a letter to the Secretary of State for International Development to ask the Government to suspend all arms sales to Saudi Arabia. The Committees on Arms Exports Controls has also just launched an inquiry into the use of UK-manufactured arms in the conflict in Yemen. The inquiry will examine if there have been any infringements of the UK Government’s arms export licensing criteria and discuss what action should be taken in such cases. In the Flemish region of Belgium, several discussions pertaining to arms exports to Saudi Arabia in the framework of the war in Yemen have taken place – with the cross-party support for the European Parliament Resolution being used to call for a Flemish arms embargo. In Italy as well, arms exports to Saudi Arabia have been discussed in Parliament. Notably, a senator from the ruling Democratic Party asked whether the government intended, following the adoption of the European Parliament Resolution, to halt all transfers to Saudi Arabia and to push for an arms embargo at the EU level.
Third, the numerous questions raised around the conduct of the war in Yemen and arms exports to Saudi Arabia are a reminder of EU Member States’ legal responsibilities and the fact that it now falls on them to act. While none of them have so far suspended their transfers to Saudi Arabia, some have defended their permissive export policies, notably on geostrategic and commercial grounds. For instance, in the context of a burgeoning arms-supply relationship between the Belgian region of Wallonia and Saudi Arabia, with a 300 percent increase from 2013 to 2014 in the value of approved arms licences, the Minister-President of Wallonia prioritised the thousands of high-value jobs he claims the arms industry provides – an argument which the Green Party criticised for putting human rights on the back-burner. In the UK, the Government has defended its sovereign right to sell weapons to Saudi Arabia, claiming that, on the basis of the information available to them, there is no evidence that the Saudi-led coalition has acted in breach of IHL in Yemen and that they are satisfied that all extant UK licences for export to Saudi Arabia are compliant with EU and national Arms Export Licensing Criteria. France has provided little by way of commentary on its export policies towards Saudi Arabia, however its practice, including the recent decision to supply the Saudis with €3 billion worth of inter alia combat vehicles, helicopters, warships, anti-tank guided missiles and surveillance equipment, is an obvious pointer to how it is approaching the issue.
This level of permissiveness is far from universal among Member States, however. Germany’s decision-making, for example, has been somewhat schizophrenic. Since Sigmar Gabriel became Vice Chancellor and Economy Minister in 2013, Germany appears to have exercised caution regarding arms exports to Saudi Arabia, notably by refusing the delivery of tanks and assault rifles. In January, Gabriel stated that Germany would take a more cautious approach to licensing arms exports for Saudi Arabia. Yet, he recently announced the approval of several arms export deals with Saudi Arabia as well as the United Arab Emirates, the second-most active member of the coalition in Yemen.
Other States are following a much more restrictive path. The Dutch Government is now applying a presumption of denial on arms transfers to Saudi Arabia, meaning that only if it is clearly established that goods cannot be used in the conflict in Yemen or to commit human rights violations can a licence be issued. In Flanders, while no decision has of yet been taken to systematically refuse arms exports to Saudi Arabia, the government announced that there is a consensus that they will not be authorised given the situation in Yemen and the broader region. In Sweden, according to official statistics, no licences were issued for arms exports to Saudi Arabia from the start of the Saudi-led attacks until the end of 2015, and discussions with Swedish officials suggest that any supply of ‘offensive equipment’ is highly unlikely in the current circumstances.
This wide variation in national approaches and the contradictions between some export licensing decisions and the spirit and letter of the Common Position are undermining the very notion of an EU Common Position and risk undermining confidence in and implementation of the ATT. However, ironically, this situation demonstrates that the content of the Common Position and the ATT are perfectly well-suited to deal with the situation in Yemen; when they are implemented with due rigour, they do prevent irresponsible transfers. It therefore falls to all States to meet their own legal arms transfer obligations but also to challenge other States who are not meeting theirs.
With every weapon sold taking us further from a political solution to the conflict, EU Member States must immediately suspend arms shipments which could be used in Yemen, and head the calls of the European Parliament by supporting the establishment of an EU embargo. 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. As such, rather than feeding the conflict, Member States should be pursuing every diplomatic avenue to help achieve a sustainable and inclusive political agreement.
This piece was orginially featured on Saferworld’s website