Arms in Yemen at the International Criminal Court
Armed Conflict in Yemen
Unlike the other cases documented on this site that have been brought in domestic courts, the case brought before the International Criminal Court (ICC) takes place in the international arena and is exclusively governed by international law. It seeks to establish the international criminal liability of corporate executives and senior public officials involved in arms transfers in the context of the Yemen war.
In a formal communication submitted to the Office of the Prosecutor (OTP) of the ICC, the complainants have formally called for the investigation of managers of arms exporting companies as well as senior public officials who granted export licences for the export of arms to the Saudi-led coalition. The communication specifically calls on the OTP to investigate whether these individuals could be held criminally liable for their complicity in alleged war crimes in Yemen as a result of their conduct.
This case is in its early stages, with the communication to the OTP still under preliminary examination.
Academic Journal: Individual Criminal Liability for Arms Exports under the ICC Statute: A Case Study of Arms Exports from Europe to Saudi-led Coalition Members Used in the War in Yemen
This article examines the circumstances under which corporate officers responsible for weapons exports can be criminally liable as accomplices to war crimes under Article 25(3)(c) of the Statute of...
This case has the potential to lead to the criminal accountability of licensing authorities in a number of major exporting states that are already under scrutiny in their own national courts - UK, France, Italy, Spain and Germany. Unlike most other litigation against arms transfers initiated to date, it also calls into question the complicity of arms manufacturers when their goods are involved in the commission of war crimes in an armed conflict, and creates the possibility that they will be held accountable in a manner that has not often been seen in either international or national proceedings.
The Communication focuses on the following companies: Airbus Defence and Space S.A. (Spain), Airbus Defence and Space GmbH (Germany), BAE Systems Plc. (UK), Dassault Aviation S.A. (France), Leonardo S.p.A. (Italy), MBDA UK Ldt. (UK), MBDA France S.A.S. (France), Raytheon Systems Ltd. (UK), Rheinmetall AG (Germany) through its subsidiary RWM Italia S.p.A. (Italy), and Thales France.
The submission relies on 26 incidents of airstrikes allegedly conducted by the Coalition on residential buildings, schools, hospitals, a museum and world heritage sites, that may be characterised as war crimes under the Rome Statute.
Three specific examples of such airstrikes were illustrated in the case report: on 12 June 2015, the Coalition allegedly conducted an airstrike on a residential area in Sana’a, which resulted in the killing of five civilians – no evidence was found that the residences were military targets; on 2 December 2015, the Coalition attacked the vicinity of a Mèdecins Sans Frontières (MSF) tented clinic in Taiz city, injuring nine people (of which one died the next day); and on 8 October 2016, the Coalition allegedly dropped three bombs, which struck the Deir AlḨajārī village, killing a family of six, including a pregnant mother and her four children.
Establishing Criminal Responsibility
The criminal nature of this case poses additional hurdles when compared to administrative and civil procedures that are often pursued in national jurisdictions. In particular, in order to establish criminal responsibility there must be a causal link between the conduct of the alleged accomplices to the commission of war crimes and the war crimes themselves. This is more difficult to establish in this case as the complainants have limited access to physical evidence that, for example, weapons manufactured and exported by the accused have been found at attack sites in Yemen. Moreover, the significant opacity around the nature, quantity, end-user and dates of arms transfers poses a challenge to determining individual criminal liability.
To overcome this, the complainants have relied on the interpretation of several international criminal tribunals, including in cases concerning arms transfers, that the causal link between the accomplice’s conduct and the criminal act does not need to be direct, either geographically or in time. According to this interpretation, it suffices that the conduct contributes to the overall contribution of the main crime by the main perpetrator.
To support this argument, the complainants argue and document in their communication that the Saudi-led Coalition has been involved in patterns of IHL and IHRL violations since March 2015. If successful, this would further clarify that the absence of remnants of exported weapons at the site of a specific unlawful attack would not exonerate the exporters from complicity in war crimes.
Principle of Complementarity
Another potential hurdle is that under the principle of complementarity, the ICC will only prosecute an individual if states are unwilling or unable to carry out an investigation or prosecution in their national courts. Rome Statute Article 1
Therefore, with proceedings ongoing in a number of the states in question, the OTP may not immediately initiate an investigation. Given the transnational and complex nature of arms transfers scrutinised in the communication, the complainants rely on the ‘positive complementarity’ approach of the ICC, through which the OTP can seek judicial cooperation between the relevant investigative authorities.
Further information on the communication can be found here.
Proceedings at the International Criminal Court are governed by the Rome Statute, which outlines and defines a series of criminal acts that fall within the jurisdiction of the court.
This submission has been made pursuant to Rome Statute Article 15, which empowers the OTP to initiate investigations on the basis of information received by NGOs. Under this provision, an investigation must be opened if the OTP finds that the crimes fall within the court’s jurisdiction, the case is admissible and therefore there is a ‘reasonable basis’ to proceed.
Six NGOs are involved in this challenge – European Centre for Constitutional and Human Rights (ECCHR), Mwatana for Human Rights, Amnesty International, the Campaign Against Arms Trade (CAAT), Centre Delàs and Rete Italiana Pace e Disarmo.
To get in touch with the claimants and their legal representatives, please see here.
Communication to the Office of the Prosecutor of the ICCExplore case
This submission calls for investigations into the defendants’ contribution to a number of war crimes as defined by the Rome Statute, including direct attacks against civilians and civilian infrastructure. The complainants have argued that the defendants are criminally responsible for their role in aiding and abetting the commission of war crimes. The communication to the OTP is still under preliminary examination.
Key Case DocumentsView all case documents
11 Dec 2019
A communication on the situation in Yemen and the role of European companies and government actors is submitted to the Office of the Prosecutor by the claimants.Read case report here
Contact & More Information
If you would like to know more about this case, please get in touch with our primary contact Cannelle Lavite (ECCHR) by email.
Find out more about the work of the claimants at their website:
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