Arms in Yemen at the International Criminal Court

Potential Hurdles

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.