Saudi soldiers fire artillery toward three armed vehicles approaching the Saudi border with Yemen. Hasan Jamali/Press Association. All rights reserved. A cycle of claim and counter-claim has been set in motion about arms sales and international humanitarian law (IHL) in the Saudi-led war in Yemen. Serious, widespread and credible allegations of the targeting of civilians, of failures to take precautions to protect them or to investigate their deaths have been made by a growing chorus of international actors: from Amnesty International and the International Committee of the Red Cross, to the European Parliament and, most recently, a UN panel of experts and UN Secretary General Ban Ki-moon.
Calls for a halt to arms transfers to Saudi Arabia are growing, yet major suppliers to Saudi Arabia such as the UK continue to not listen. Initially the UK government showed itself deaf, ignoring the allegations. Then it trotted out the standard line about having one of the world’s most rigorous control regimes – waiting for the fuss to blow over, essentially. But the fuss is not blowing over. The scale of civilian harm is growing, accompanied by increasingly widespread and vocal public and elite concern.
As a result, the UK government is starting to have to actually respond to the allegations. But what we’ve seen is not engagement with the substance of the claims. Rather, we’ve seen a blanket counter-claim that the UK supports efforts by its ally Saudi Arabia to restore the legitimate government of Yemen. This has led to a confrontation within the UK government between the Department for International Development (DfID) and the Foreign and Commonwealth Office (FCO), the former arguing that the promotion of arms transfers undermines the growing provision of humanitarian aid to Yemen. (DfID does not scrutinise arms sales to Saudi Arabia because it is not poor; and the Minister of State for International Development Desmond Swayne claims he would not expect to have been consulted about them, despite the disastrous impact on the humanitarian and sustainable development situation in Yemen.)
Some of the FCO claims are clearly diversionary: Parliamentary Under-Secretary of State Tobias Ellwood telling the International Development Committee that it would be “naive” to say the UK cannot supply its allies with weapons is a crude attempt at distraction, and an evasion of the issues at stake. More seriously, it is being claimed that military action in Yemen will create the conditions for a political settlement, which is the prerequisite for improving humanitarian access and civilian safety. There are serious issues at stake here, with no easy answers. They deserve genuine debate, not the obfuscation that has largely characterised the UK government in its public performances thus far.
The scale of civilian harm is growing, accompanied by increasingly widespread and vocal public and elite concern.
Until recently the Saudi government has remained largely silent, leaving the UK in the uncomfortable position of having to defend its arms client and ally. This saw a series of typically British moralising claims about how the government is trying to educate its recalcitrant southern partners. Ministers went on record saying that the UK was encouraging the Saudis to comply with IHL and to be more transparent, to exercise restraint and be more responsible: part of "what we try to do overtly, but also quietly, to advance change in Saudi Arabia," as Tobias Ellwood put it.
Then on 1 February 2016, the Saudi government issued a press release announcing the formation of a high-level independent team to evaluate military targeting and incidents involving civilians. It is not clear who is on this team, or what their expertise is in IHL; but it has been formed by the Yemeni government, and so at the very least it is not actually independent. This has echoes of the UK government helping to stymie a Dutch proposal at the UN Human Rights Council for an international, independent investigation, and supporting a Saudi counter-proposal that the Yemeni government conduct the investigation.
Accidental, indiscriminate or deliberate?
A Yemeni man who was injured by the recent a Saudi-led airstrike. Hani Mohammed/Press Association. All rights reserved.That is how these governments deflect criticism: by claiming civilian deaths as collateral damage, as regrettable accidents, if they are acknowledged at all.
In a press release last October, the Saudi government admitted to bombing a Doctors Without Borders field hospital, and has since maintained its position that the bombing was an accident. The investigative committee decided that “the military task they were performing was never done at random or blindly. However, human errors were not ruled out.” This could mean that there were a lot of human errors – but then the press release claims the human errors are “obvious but not in high levels.” That leaves the possibility that the targeting of civilians was deliberate. The Saudi government goes on to deny having seen the UN expert report alleging 118 other violations of international law.
So, in sum, there is a process of denial, via the silence around the remaining allegations and evidence; there is the admission of a single mistake (bombing the MSF hospital), which is mitigated by the claim that there is no systematic or deliberate policy and the reassurance that independent scrutiny has now been carried out. Each step of this self-justifying narrative can be challenged; indeed, has been challenged. Until now, business could carry on as usual despite these challenges. So the most significant recent development is that the Saudis now feel they have to respond at all. But even this is tempered by the form of justification they now offer, which is remarkably similar to the typical British strategy: announce a review, and then claim that the review found no evidence of a problem.
The question is whether this shift in justification will lead to any change in military practice. When the west goes to war, it harms and kills civilians through the systematic transfer of risk onto them. Accidental "small massacres" are an inbuilt feature of western war-making, foreseen but not deliberate. That is how these governments deflect criticism: by claiming civilian deaths as collateral damage, as regrettable accidents, if they are acknowledged at all. It is rare indeed for western powers to even admit to making a mistake — they pre-empt criticism of this by referencing their own policies of civilian protection.
And the UK government never admits to breaches of its own arms export policy and its commitments under national, EU and international law, it simply asserts that it has a rigorous control regime, without shedding any light on what actually happens during the process. The Saudi-led coalition seems to be deliberately – or at the very least, indiscriminately – targeting civilians as part of its war strategy. The Saudis are now at least admitting to “mistakes”: the challenge now is to translate this into a change in Saudi military strategy, and a change in the character of debate in the UK about the ramifications for arms export policy.
How to break out of this cycle of claim and counter-claim? This is not a case of six of one, half a dozen of the other: some claims are more valid than others. The evidence is stacking up of the indiscriminate or deliberate targeting of civilians, and that is against international law. Yes, the UK government has an interest in supporting its allies. But it also has legal obligations, nationally, at the EU level, and internationally under the UN Arms Trade Treaty, making it responsible for violations of IHL alongside those actually carrying out the attacks using equipment supplied by the UK. At the very least these allegations need to be independently investigated.
So why is this not happening? This is where we need to think about the importance of justifications and legitimations. A European Parliament delegation is due to travel to Saudi Arabia and Qatar this week to discuss EU-Saudi relations. During this time, the UK’s Committees on Arms Export Controls (CAEC) will meet for the first time since the general election last May. At the moment the best we can hope for is that the Saudi-led coalition no longer deliberately attacks civilians. The worst we can fear is a PR onslaught designed to cover up such attacks. This is why it’s so important to scrutinise justifications, and why the CAEC has such a crucial job to do. It is time to disarm some of the claims around arms transfers, and have a mature debate about their role in war, political settlement, humanitarianism, and civilian harm.
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