A Hard Sell? Arms Export Licensing and International Responsibility for Unlawful Arms Transfers – Part I

[Valentina Azarova is an international law practitioner and academic currently Visiting Academic at the Manchester International Law Centre, University of Manchester, and Legal Advisor to the Global Legal Action Network (GLAN). She is co-author of an expert opinion on legality of arms transfers in the Yemen context, and has advised a number of domestic cases in this area.]

Domestic licensing procedures implementing the international legal obligation to ban weapons transfers that are likely to provide assistance to serious violations of international law have failed to do so. States continue to sell weapons where there is a voluminous record attesting to the buyer’s structural inability to comply with key international legal principles, to their past record of serious violations of international law and thus to the eventuality that the arms sold will be used for the perpetuation of serious violations. What does it take, then, to bring about the revocation of such arms licenses, or hold to account the licensing authority or company benefiting therefrom? Thousands of arms are sold every day, but regrettably only spectacular conflicts, such as the one in Yemen, have helped bring some of the human consequences of such well-oiled supply chains to light.

In both its 2018 and 2019 reports, the UN Group of Eminent Experts on Yemen called for a cession of all transfers of arms that could be used by the parties to the conflict, including Saudi Arabia and the UAE, due to apparent patterns of serious violations, including war crimes. Yet arms-supplying states, including the UK, Italy, Spain and France, continue to authorize arms transfers by their corporate nationals destined to be used by perpetrators of international law violations in Yemen. For years now, leading human rights organizations have scrutinized the complicity of States engaged in such sales and called for their embargo. A legal opinion released on 10 December 2019 by the International Peace Information Service (IPIS), to which I contributed, sets out the international responsibility of arms-supplying states that provide military support to parties in the Yemen conflict. A communication to the ICC submitted on 11 December 2019 by Mwatana for Human Rights, the European Centre for Constitutional and Human Rights (ECCHR), Amnesty International, and CAAT, argues that government and corporate officials involved in such transfers should be investigated and prosecuted for aiding and abetting international crimes.

These recent interventions are part of a years-long effort by practitioners and NGOs to challenge ongoing arms transfers linked with the Yemen conflict. The scale and diversity of the proceedings brought before domestic judges to question the legality of Yemen-linked arms licenses presents an occasion to investigate the accountability gaps for arms-supplying states and corporate actors in domestic and international law. This two-part post is an initial reflection on the limits of international arms control law, as highlighted by Yemen, and on how practitioners might chart a way forward. The Global Legal Action Network (GLAN) and its partners are engaged in a project to study the revelations of the ongoing challenges to arms transfers in the context of the Yemen conflict as regards to international responsibility and international arms-export control law.

Arms Export Control in the Yemen Context

In October 2019, researchers at the University of Amsterdam International Law Clinic, commissioned by GLAN and the International Commission of Jurists and supported by Oxfam and Saferworld, began investigating the state of international arms export control law, with a focus on domestic practitioners who have challenged Yemen-related arms transfers in six jurisdictions in Europe and North America. States have taken a narrow view of this multifaceted international law regime by focusing on the apparent incorporation of some of its provisions into states’ highly routinised and immensely opaque licensing procedures for defense sector corporations seeking approval for a particular sale, which thus evidently do not take seriously enough the policy or legal implications of such sales for the supplying state.  So much so that prior to the Court of Appeal’s decision in the CAAT case, the UK was subtly making licensing related assessments that fell afoul even of the “deliberately high threshold” of the UK public law doctrine of irrationality that must be surmounted before a UK court can interfere in the decision of a public body.

Domestic challenges against arms sales to parties to the Yemen conflict have revealed a good deal about the arms licensing framework, domestic laws implementing the Arms Trade Treaty (ATT), and the indeterminacies of substantive and evidentiary standards regarding the definition of an ‘unlawful transfer’ under both international and domestic laws. The mercantile and hence seemingly benign nature of these domestic licensing processes distract from the considerably more consequential questions of international responsibility that unlawful weapons transfers raise. These include questions of complicity under the law of state responsibility, the obligation to ensure respect for international humanitarian law (IHL) under common article 1 of the 1949 Geneva Conventions, the international human rights law-based supplying state’s duty to protect the right to life affirmed in General Comment 36 (para 65), or the threshold for aiding and abetting in international criminal law. A closer look reveals how domestic licensing procedures serve domestic economic and political interests (as reflected in the UK Foreign Secretary’s claim that a halt to UK arms sales would diminish its influence on the Yemen peace process) and are ill-equipped to prevent assistance to serious violations, as presumed by what is arguably the core policy objective of international arms-export control law.

ATT-based Domestic Law and Procedure

The most intricate set of ongoing proceedings to challenge arms sales is the CAAT judicial review litigation against the UK defense sector’s supply of weaponry to its most prominent client and key political ally, Saudi Arabia. These proceedings show how political and economic considerations, and close relations with the buying state such as defense cooperation and privileged access to information, can influence the application of the UK law that incorporates the ATT and the EU Common Position on arms exports, the Consolidated Criteria on Export Control.

Procedural and substantive hurdles disadvantage practitioners, who bear the evidentiary burden of proving that the state had not adequately reviewed the buying state’s behavior to establish clear risk of the weapons supplied being used in serious violations of IHL or IHRL; or indeed the much higher threshold of the supplying state’s actual knowledge at the time of the authorization that the weapons would be used in such violations . Even if the latter higher threshold is met, the UK licensing authorities, for instance,  enjoy broad discretion with regards to the manner in which they are required to conduct due diligence (including through assurances of reforms from the buying state) and thus can ensure that, at least in domestic legal terms, neither ‘clear risk’ of misuse, nor ‘actual knowledge’ thereof, could be adduced to argue that a suspension of the license was warranted. Similar features of the domestic legal regime for arms export control can be observed in other jurisdictions as well, where practitioners have limited access to information and thus effectively denied access to judicial review. In Belgium, practitioners have struggled to access the government’s assessments of and rationale for maintaining licenses, whereas in France, Spain and Canada even the licenses themselves, let alone the deliberation behind them, are kept away from the public as well as from legal practitioners.

Without access to the evidence available to the supplying states, or to their criteria for assessing buying states’ conduct and the kind of circumstances that would mandate the suspension of a license, the supplying state can plausibly claim that it appropriately relies on assurances from the buying state that certain procedures or attacks will not recur. In the CAAT case, for instance, the High Court held that the UK government knew more than NGOs about Saudi Arabia’s (and other coalition members’) targeting processes and practices without needing to explain the information available to the government or what assessments the government had made of Saudi Arabia’s attitude towards international law. Notwithstanding the opacity that supplying states effectively maintain while purporting to implement the ATT, an even more demanding burden is that the person or organization attempting to challenge these sales typically must show the transfer was made in ‘actual knowledge’ of the likely use of the arms in serious violations. These hurdles of the licensing process significantly alleviate the need that governments feel to adopt preventive measures to end arms sales that risk complicity, and provide supplying states with counter-arguments to deflect questions of international responsibility. They blunt the prohibition on transfers of arms likely to be used in violative ways by allowing supplying states’ authorities to engage in a process that is largely devoid of a review of substantive questions of international responsibility or, more significantly, the factual analysis of the human consequences of such dealings.