This piece explores the link between international arms transfers and serious violations of international humanitarian law and human rights, and how Australia’s arms exports strategy may be at odds with its obligation to respect international humanitarian law and abide by the Arms Trade Treaty.
In Yemen, the Arab world’s poorest country is currently experiencing what the UN has labelled the world’s worst humanitarian crisis. Numerous violations of international humanitarian law and human rights have been documented since March 2015, when Saudi Arabia and the United Arab Emirates (UAE) initiated an international intervention in support of ousted President Hadi. Yet, four years after the conflict began, and with the benefit of significant evidence linking arms supplied by Western countries to indiscriminate civilian attacks in Yemen, the Australian government issued 42 licences to export military or dual-use equipment to Saudi Arabia and the UAE in 2019. The authorisation of these arms transfers comes after the announcement by the government of an ambitious defence export strategy in 2018, aimed at moving Australia into the top ten arms supplying countries in the world and pledging a A$3.8 billion fund to help local arms exporters enter the international market. This post reflects on whether such a strategy is at odds with Australia’s obligations in respect of international humanitarian law and human rights, and whether it could ultimately undermine Australia’s reputation as a global leader on arms control.
The human price of arms transfers
It is widely recognised that the unregulated availability of weapons is a major contributing factor in violations of international humanitarian law and civilian suffering in armed conflict. Nowhere is this more apparent than in the multiple non-international armed conflicts occurring in Yemen. Since March 2015, more than 112,000 people have died in that country as a direct result of the conflict between the Saudi and UAE-led coalition and the Houthi rebels, including over 12,600 civilians killed in targeted attacks. International reports shows that indiscriminate air strikes carried out by the coalition have hit marketplaces, hospitals, civilian neighborhoods, water treatment centers and a school bus. There is significant evidence that the bombs, missiles and combat aircraft supplied by US and European arms companies have been used in these attacks. In one tragic example, the bomb dropped by a coalition warplane on a school bus in northern Yemen in 2018, which killed 40 boys aged 6 to 11, was identified as a 227kg laser-guided bomb made by Lockheed Martin and sold to Saudi Arabia by the US. Amnesty International has also found that military vehicles and weapons supplied to the UAE have also been illegally diverted, and are now widely used by militias in Yemen. Some of these groups have been accused of war crimes and other serious violations of international law.
Regulation under the Arms Trade Treaty
Since the adoption of the Arms Trade Treaty (ATT) by the UN General Assembly in 2013, the obligations of states involved in the global arms trade have been more clearly defined than ever before. The ATT is the first legally-binding instrument ever negotiated to establish common standards and regulate the international trade in conventional arms, representing the culmination of many years of diplomatic work. It is a landmark treaty for the international community because it clearly, and for the first time, ties human rights and humanitarian imperatives to the international arms trade, moving beyond questions of state sovereignty, national security and economics. Article 6 of the ATT outlines circumstances in which arms transfers are strictly prohibited, including where a state party has knowledge that the items will be used to commit serious violations of international law. In the absence of such knowledge, Article 7 requires a state party to evaluate the potential risk that a serious violation of international humanitarian or human rights law could be facilitated or committed with the items to be exported. States parties are also required to submit annual reports on their authorised and actual arms transfers under Article 13.
This year is the sixth year since the ATT entered into force on 24 December 2014. There are currently 110 states parties, in addition to 31 signatory states (states that have signed the treaty but not yet ratified, approved, or accepted it). A further 54 states have not yet joined the treaty. Australia, which ratified the ATT on 3 June 2014, played a leadership role in bringing the treaty to fruition as one of the co-authors of the original 2006 General Assembly Resolution. The 2013 treaty negotiations were chaired by the Australian Ambassador to the UN, Peter Woolcott, and the Foreign Minister at the time of ratification, Julie Bishop, described the ATT as a “major foreign policy achievement for Australia”. Through the ATT and other cooperative efforts, such as the ‘Australia Group’ forum for harmonising export controls on chemical and biological weapons, Australia has built an international reputation as a leader on arms control issues.
Responsibility under international humanitarian law
In addition to its obligations under the ATT, Australia also has obligations in relation to international humanitarian and human rights law which are pertinent to the issue of arms transfers. All states have an obligation to respect and ensure respect for international humanitarian law as per Common Article 1 of the 1949 Geneva Conventions. This obligation has been accepted as a principle of customary international law by the International Court of Justice (ICJ) in Nicaragua (at  and ), which was held in Construction of a Wall (at [158-9]) to be applicable to international and non-international armed conflicts alike. While the obligation on a state to abide by the rules of international humanitarian law seems straightforward, how a state ensures respect for these rules by other states is less clear. Nevertheless, it seems reasonable to assume that providing the material means by which violations of the rules are committed would be a breach of the obligation to ensure respect for those rules. This position is supported by the law of state responsibility around complicity, as expressed in Article 16 of the Draft Articles of Responsibility of States for Internationally Wrongful Acts, which prohibits a state from aiding or assisting another state in violating international law.
Australia’s defence exports
According to Australia’s export control policy, export applications are considered on a case-by-case basis and consideration is given to the risk that the technology or goods to be exported “may go to or become available to a country where it may be used in a way contrary to Australia’s international obligations or commitments”. Other assessment criteria include the risk that the technology or goods “may be used to commit or facilitate serious abuses of human rights”, may aggravate “an existing threat to international peace and security or to the peace and security of a region”, or may be “used for conflict within a country” or to “further militarise conflict within a country”. On the other hand, the defence export strategy released in 2018 aims to significantly increase defence exports, and has so far seen the value of permits issued increase from $1.6 billion in 2017/18 to $4.9 billion in 2018/19. The strategy says the “expansion” will involve a “transparent approach” to balancing the challenges of defence exports, but just how the potentially competing objectives of increasing defence exports and complying with international obligations are to be balanced is not explained.
Records released under the Freedom of Information Act 1982 (Cth) in March this year reveal 24 permits were issued by the Australian Government in 2019 to export weapons and military technology to the UAE and 18 permits were issued for exports to Saudi Arabia. Another 31 permits were issued for exports to African countries suffering from instability and violence including the Central African Republic, Democratic Republic of Congo, Libya, Mali, Somalia and Sudan. What is not publicly available is how many weapons have been sold, to whom, for how much, or for what purpose, on the basis that this information is ‘commercial-in-confidence’. Australia previously produced annual reports on weapons exports, but stopped declaring this information in 2004. The Department of Defence now produces quarterly data on arms exports on the total value of approved arms export licences broken down by destination region, making a freedom of information request the only way to reveal which individual countries are buying Australian-built weapons. The bottom line is that arms being transferred by Australia could potentially be involved in serious violations in Yemen and elsewhere, and are at a minimum contributing to the continuation of violent conflicts in Africa and the Middle East.
Information about permits issued by the Australian Government in 2019 to countries such as Saudi Arabia and the UAE raise questions about how the current arms export approval processes can be consistent with Australia’s responsibilities under international law. Yet without greater transparency, it is not possible to know with certainty whether or not Australian-made weapons or technology are being used to commit serious violations. However, increasing arms sales to countries with a record of violating human rights and international humanitarian law does not seem to be in the spirit of the ATT or Geneva Conventions. This leaves Australia exposed to accusations that it is not complying with its obligations under international law in relation to responsible and transparent arms transfers. This cannot help but tarnish Australia’s reputation as a world leader on arms control.
Suzanne Varrall is a UNSW Scientia PhD scholar in international law. She is also a qualified lawyer with an interest in human rights and public interest law. Suzanne’s background is in international policy and government and she has previously worked at the Asia Pacific Centre for Military Law at the Department of Defence, and at the Department of the Prime Minister and Cabinet in national security and international policy roles.