At the 73rd UN General Assembly it was revealed that a child dies every 10 minutes due to war-related causes in Yemen. This follows comments by the UN humanitarian chief Mark Lowcock that the fight against famine in Yemen was being lost. Yet none of this has nudged Australia to issue autonomous sanctions on either Saudi Arabia or United Arab Emirates, nor has it endorsed the renewal of the UN investigation of war crimes in Yemen. Instead it continues to push for defence cooperation with and arms exports to United Arab Emirates and Saudi Arabia-the biggest state sponsor of terrorism in the world.
SECRECY
Over many months I have sought to extract from Defence and other Departments a clearer picture of Australia’s involvement – whether directly or indirectly – in the war in Yemen. It is disconcerting that no one, including members of parliament (apart from specific members of the Government and some public servants) is permitted to know what military equipment Australia is authorising for sale into countries committing human rights violations by hiding behind claims of commercial in confidence.
Former Greens Senator Scott Ludlam made attempts in a May 2017 Senate Estimates hearing to ascertain the nature of our military exports to Saudi Arabia, only to be told by the Deputy Secretary of Defence, Rebecca Skinner, “we seek to protect that information from a commercial perspective, as we would not wish for Australian companies to be disadvantaged commercially through us providing, into the public domain, particular commercial information.”
On 29 May 2018, in response to Questions on Notice from Labor Senator Alex Gallacher about the type of goods exported to Saudi Arabia, the Government confirmed that ‘Defence does not release the details of export approvals due to commercial in confidence considerations….’
The position we are left in means that we don’t know what we’re selling, when each sale was approved or when and how much equipment was exported, how the equipment is being used and by whom, and whether or not we are in fact complying with our treaty obligations, international obligations and human rights.
THE SYSTEM
The Departments of Defence, Home Affairs and Foreign Affairs & Trade appear to be the three departments principally involved in the arms approval and export process. Defence deals with the approval of military licences, Home Affairs deals with the actual export of defence goods and Foreign Affairs & Trade provides advice to Defence on foreign affairs implications of complex – as opposed to exports deemed routine – export applications, as well as whether Defence meet Australia’s obligations under the Arms Trade Treaty and other international instruments.
Apart from being questionable as to their accuracy, the responses from Defence to questions about arms exports suggest that Defence officials are not sure what the process is for the issuing of permits for the export of military equipment and how it has been applied.
Certainly the current system in place to approve military licences doesn’t follow up or trace exports under the permit. The system does not provide any certainty that the goods or technologies exported reach the approved end user; it is merely a permission to export goods or technology. They simply deal with the application and even if they approve it, that seems to be the end of it.
In May this year the Government revealed in Questions on Notice No. 111 2018-19, Budget Estimates, Foreign Affairs Defence and Trade Committee, Defence Portfolio that ‘Exporters do not advise Defence whether they proceed to export after receiving their export permits….’
Perhaps the best illustration of the necessity to track defence exports under permits is the case of the HSV-2 Swift which was built in Australia in 2003 by Austal and was an early prototype for the U.S. Navy’s vision of high-speed multihull transports. It was reported that the US Navy leased the Australian made vessel to the United Arab Emirates in 2013. Then in October 2016, well after the Saudi led war in Yemen had commenced, reports emerged that the Swift was severely damaged by Houthi attack off the coast of Yemen and was carrying aid and equipment for UAE army.
In August this year, following the bombing of a school bus in Yemen which killed 50 children, Senator Peter Whish-Wilson put it to the former Minister of Defence Marise Payne, “Given the assessments you just outlined are top secret, how can you rule out that any arms exports of defence technology to Saudi Arabia or one of its allies in their war in Yemen were not used to assist in carrying out the air strike on 9 August on innocent children?” Payne responded by saying, “I’ve been through the process by which military exports, defence exports, are considered. The reflection of our international obligations, including the Arms Trade Treaty, the assessment against those international obligations, human rights, national security, regional security and foreign policy questions are brought to bear in all of those considerations.”
In other words, one of the reasons the former Defence Minister would not be able to categorically rule it out is because the Department of Defence ‘does not track Australian goods and companies per se’ and therefore has no way of knowing.
In an April 2018 response to a Freedom of Information request issued on the Department of Home Affairs by Susan Hutchison, specialist in conflict and development, requesting data on actual exports of defence goods from Australia, based on usage of defence export permits, for the financial years 2015/16, 2016/17 and the period 1 July 2017 to 30 December 2017 she was informed that ‘exempt data in full from disclosure…. the information entered into the ICS system is a mandatory legislative requirement completed by owners to ensure compliance with the Customs Act. The majority of declarations are submitted electronically in the ICS and the authentication process associated with that procedure makes the data being transferred as part of that transaction implicitly secure and confidential…the data within the document specifically outlines particular importation data that is commercially sensitive including the importers/exporters’ details, volume and value of commodities; the data within the document is sufficiently secret in that only the importer/exporter itself (or those acting on their behalf) would be aware of the data relating to their importation/exportation activities. The information is not common knowledge or in the public domain; the importer/exporter views their data as valuable commercial information that has been given to the Department in confidence for the limited purposes of assessing Customs duties and clearing import/export processes….release of the information could reasonably be expected to prejudice the competitive commercial activities of the importer/exporter. Any public release of this information would lead to a commercial disadvantage or impairment for the importer and/or exporter referred to within the data.’
How can the Department of Home Affairs claim commercial in confidence when the information requested is not tied to any specific exporter and it’s now historical data anyway? The assertions set out above obviously are directed at trying to secure commercial in confidence secrecy based on bald assertions without any substantial factual basis, and they obviously are framed to attempt to attract the commercial in confidence FOI exemption.
ARMS TRADE TREATY
On 3 June 2014 Australia ratified the Arms Trade Treaty (ATT). The requirement at the heart of the treaty is for exporting states to make certain assessments relating to the likely consequences of an arms transfer before authorising it to go ahead. This includes a duty to consider the likelihood that the arms in question could be used to commit or facilitate a serious violation of international humanitarian or human rights law. If the exporting State identifies an ‘overriding’ risk of such consequences, it must not authorise the export. However, before refusing it must consider whether there are measures which could be undertaken to mitigate the risk, including ‘jointly developed programmes’ involving the importing and exporting States. This would include programmes aimed at promoting and protecting human rights in the recipient State.
Article 2(1) of the Arms Trade Treaty requires member States to report their exports of battle tanks, armoured combat vehicles, large-calibre artillery systems, combat aircraft, attack helicopters, warships, missile launchers, and small arms and light weapons.
Although documents produced in response to Freedom of Information requests reveal that 16 military licences were granted for the export of military equipment to Saudi Arabia from 1 January 2016 to 13 December 2017 and 15 permits were granted for the export of military equipment to United Arab Emirates from 1 January 2017 to 16 May 2018, there is no reference to exports to Saudi Arabia in Australia’s 2016 and 2017 annual reports to the Arms Trade Treaty Secretariat. Australia’s 2016 annual report does mention two permits granted to the United Arab Emirates covering 30 items of small arms/light weapons in, but there is no reference to authorised exports to the UAE in the 2017 annual report. The Government’s official reports seem to stand in stark contrast to the number of permits issued.
On 9 July 2018 a Defence spokesperson confirmed that ‘If goods or technologies approved by Defence for export are not covered by the Arms Trade Treaty , they are not included in Arms Trade Treaty annual reports. This means the number of military exports reported to the Arms Trade Treaty may be less than the total number of military exports approved by Defence.’
When asked which goods or technologies are not covered by the Arms Trade Treaty a spokesperson from Defence confirmed on 12 July 2018 that ‘Part 1 of the Defence and Strategic Goods list includes military goods and technologies that are not covered by those listed in Article 2(1) of the Arms Trade Treaty.’
As I have previously reported, ‘five of the military permits granted for exports to Saudi Arabia refer to Approved DSGL Technology. The Defence and Strategic Goods list is a ‘compilation of military and commercial goods and technologies that Australia regulates. The goods, software and technologies on the list are agreed in conjunction with members of various international non-proliferation and export control regimes. These items either have a military use, or can be used to develop weapons of mass destruction…’
RISK ASSESSMENTS
Article 7 of the ATT sets the standard upon which a State is obliged to refuse the export of arms based on a risk assessment. Under Article 7, export authorities need to consider ‘the potential that the arms or items would contribute to, or undermine, peace and security; and could be used to commit or facilitate [emphasis added] a serious violation of international humanitarian law or international human rights law and commit or facilitate an act constituting an offence under international conventions or protocols relating to terrorism or transnational organised crime, to which the exporting State is a party, and taking into account the risk of the arms being used to commit serious acts of gender based violence or violence against women and children.’
On 1 June 2018 a Defence spokesperson confirmed that ‘In accordance with Australia’s export control legislation, all export applications considered by Defence are subject to a rigorous risk assessment process. This process considers Australia’s international obligations, including the Arms Trade Treaty, as well as considerations relating to foreign policy, human rights, national security and regional security. On a case-by-case basis, Defence consults with a range of internal stakeholders and with other government agencies, including DFAT. The level of consultation undertaken will depend on the nature of the export (destination, end use, end user and technology) and the risks identified by Defence. For example, extensive consultation on the application of the Arms Trade Treaty to some exports of intangible items, such as technical data or software, may not be required. Risk assessments were conducted for all export permits issued by Defence between 1 January 2016 and 31 December 2017, including permits for exports to Saudi Arabia.’
Contrary to the statement that risk assessments were conducted for exports to Saudi Arabia, in response to a FOI request for copies of risk assessments for permits granted or proposed to be granted by the Department of Defence for military exports to Saudi Arabia from 1 January 2016 to 31 December 2017, a Defence, FOI decision maker confirmed, on 17 August 2018: ‘I identified no documents matching the description of the request. …..Article 7 of the Arms Trade Treaty requires exporting State parties to assess the risks of exports of conventional arms covered by Article 2(1), or items covered under Article 3 or Article 4. There were no export permits issued by Defence for goods or items covered under Article 2(1), Article 3 [ammunition/munitions] or Article 4 [parts and components] of the Arms Trade Treaty to Saudi Arabia between 1 January 2016 and 31 December 2017. As such there were no risk assessments conducted by Defence, in accordance with the Arms Trade Treaty for exports to Saudi Arabia in that timeframe.’
CONSULTATION ACROSS GOVERNMENT
On 25 October 2017, at a Senate Foreign Affairs, Defence and Trade Legislation Committee Estimates hearing, Defence officials stated that ‘Each of our exports is managed on a case-by-case basis. As we’ve discussed previously, that also includes other government departments participating in the consultative process in order to give advice on some of those elements, and we make a judgement on the exports. In many cases exports are approved and occasionally exports aren’t’, and that ‘We would have issued the permit [to Saudi Arabia] on the basis of the information available to us at the time. Those criteria remain in place. Our teams are continually assessing the environment into which our exports are made. If there was a change in our assessment in that way, or a concern around a particular export, that would be dealt with.’
On 13 August 2018 former Minister for Defence, Marise Payne, confirmed that ‘the Defence Export Strategy does not include any changes to Australia’s defence export control provisions. The Defence Export Controls Branch is, and will remain, separate and independent from the new Australian Defence Export Office. The criteria, the considerations, that all export applications are subject to have not been changed. They include the assessment of export applications against five criteria: Australia’s international obligations, human rights, regional security, national security and foreign policy. The assessment of export applications is done on a case-by-case basis, looking at the end use, the end user and technology that is being exported. Those export applications are considered by Defence subject to that assessment process, including the assessment processes of the Department of Foreign Affairs and Trade, my own department and appropriate intelligence organisations. As I said, it includes consultation across government to ensure all of those criteria are considered.’
And yet on 23 April 2018, in response to a FOI request, Defence confirmed that it did not hold documents relating to legal advice for exports to Saudi Arabia. Curiously, following a FOI request, the Department of Foreign Affairs and Trade confirmed that legal opinion or advice existed in relation to permits granted or proposed to be granted by the Department of Defence for military exports to Saudi Arabia from 1 January 2016 to 31 December 2017 but that it was exempt in full.
If consultation occurs across government departments – as has been indicated by Defence officials and the former Minister for Defence – why has the Department of Defence no record of it in terms of the existence of legal advice?
SAUDI ARABIA
In November 2017, former Minister for Defence, Marise Payne, confirmed that “Australia has made contributions to support in Yemen since the beginning of the year. Minister Bishop announced the most recent contribution of $10 million on 16 September. That assistance has helped to deliver food, health care, water and sanitation to the many people who are in need of urgent assistance. We are also contributing to the humanitarian response in Yemen through our funding of the UN Central Emergency Response Fund…What Australia has done is to urge all those involved in Yemen to end the conflict and return to UN led negotiations aiming for a permanent end to the hostilities. Australian officials have made representations to the parties to the conflict regarding the importance of allowing unhindered humanitarian access and the need to respect international law…”
Again on 13 August 2018, Marise Payne indicated that “As we have indicated in previous comments on this matter and on the conflict in Yemen itself, we’ve called on all the parties to the conflict to continue to work with the UN Office of the Special Envoy for Yemen, Mr Martin Griffiths, to reach a political solution to this conflict. We have made representations to the parties in the conflict via Australian officials in terms of the importance of allowing unhindered access for humanitarian support and particularly the need to respect international humanitarian law. That would go to an event such as the one to which Senator Whish-Wilson refers….I think it is also important to note that Australia regularly raises human rights matters with the Saudi government. We’ve raised them with Saudi ministers through our embassy in Riyadh and to Saudi Arabian diplomats here in Canberra. Minister Bishop raised the issue of women’s rights and activists in a meeting—I think a matter to which Senator Whish-Wilson referred—with her Saudi counterpart, the foreign minister Al-Jubeir, in their meeting at the G20 in Argentina just recently. We are very strongly committed to working with the international community to advance those human rights across the world. That is one of the reasons why we worked so hard to become a member of the Human Rights Council: to work with a range of countries to end violence—for example, against women and girls—to support their economic empowerment—and those sorts of concerns that Senator Whish-Wilson has raised.”
Don’t forget that the Saudi Arabia that caused concern about human rights is the same Saudi Arabia that is the recipient of an unspecified, and probably unknown, quantity of Australian military exports.
What is equally unclear is whether or not former Minister for Defence Industry, Christopher Pyne, raised any concerns about the human rights violations occurring in the war in Yemen when he met with Crown Prince Mohammed bin Salman – the architect of the Yemen war – when he allegedly met with him (and other Saudi senior defence officials) on 29 October 2017 to discuss opportunities for defence industry cooperation and advocate for Australian defence exports, whether he thought the meetings were appropriate given that earlier that month the Saudi-led multinational coalition fighting in Yemen had been included on a draft United Nations list of parties that kill and maim children in war, and whether the meetings were a ‘success’.
UNITED ARAB EMIRATES
While many concerns have been raised about Australia’s relationship with Saudi Arabia, our involvement with United Arab Emirates (UAE) is less well known. UAE forms part of the Saudi-led coalition in Yemen, committing ground troops in Yemen.
In August a UN delegation to Yemen released its report ‘Situation of human rights in Yemen, including violations and abuses since September 2014’. That report noted that by early 2017 ‘consistent reports began to surface of violations committed in detention facilities or undeclared centres under the control of the UAE. President Hadi requested the coalition to hand over all places of detention and secret prisons that had been created outside the framework of the State institutions…Detainees have been subjected to torture and other cruel treatment in facilities such as the Al Rayyan and Bureiqa facilities (controlled by UAE)….’
Such reports clearly didn’t filter through to the former Minister for Defence Industry, Christopher Pyne, who both accepted and reported in his Member’s Interests Statement, ‘one night’s accommodation and meals by the United Arab Emirates on 18 Februry 2017 as a delegation head to the International Exhibition [International Defence Exhibition and Conference] in Abu Dhabi’.
The UN delegation to Yemen found that in March 2018 [one month after Pyne’s visit] nearly 200 detainees were stripped naked in a group while personnel of the UAE forcibly examined their anuses. During this search, multiple detainees were raped digitally and with tools and sticks.
The August 2018 report by the UN delegation to Yemen noted that it:
‘has reasonable grounds to believe that the Governments of Yemen, the UAE and Saudi Arabia are responsible for human rights violations, including unlawful deprivation of the right to life, arbitrary detention, rape, torture, ill-treatment, enforced disappearance and child recruitment, and serious violations of freedom of expression and economic, social and cultural rights, in particular the right to an adequate standard of living and right to health.
Individuals in the Government and the coalition, including Saudi Arabia and UAE may have conducted attacks in violation of the principles of distinction, proportionality and precaution that may amount to war crimes.
Individuals in the Government and the coalition, including Saudi Arabia and UAE have committed acts that may amount to war crimes, including cruel treatment and torture, outrages upon personal dignity, rape and conscripting or enlisting children under the age of 15 or using them to participate actively in hostilities…
The documents produced by the Department of Defence in response to a Freedom of Information request confirm that the reality and the magnitude of human rights abuses occurring in Yemen didn’t deter the Department from granting 15 permits for the export of military equipment to the United Arab Emirates from 1 January 2017 to 16 May 2018. Defence are still to confirm how many permits were granted between 1 January 2016 and 31 December 2016.
A 9 May 2018 document titled ‘Meeting brief: MDIND meeting with the UAE Minister of Foreign Affairs and International Cooperation’ – prepared in readiness for the meeting in Canberra in May 2018 between Mr Pyne and the UAE Foreign Minister Abdullah bin Zayed bin Sultan Al Nahyan – notes that ‘…The UAE is seeking to develop its own industrial base using offset requirements, partnerships with foreign original equipment manufacturers and technology transfer…’ Attachment B to that document includes discussion points confirming that the ‘Australia-UAE defence relationship – We view our defence relationship with the UAE as a genuine partnership that makes a substantial contribution to the peace and security of the Middle East….Australia is keen to enhance defence industry cooperation with the UAE….I understand there are a number of Australian companies seeking opportunities in the UAE…’
Within the documents produced is the document ‘Defence Relationship Brief – United Arab Emirates’’ which reveals the extent of Australia’s defence cooperation with the UAE. It confirms that ‘…Australia’s bilateral defence engagement with the UAE primarily consists of annual dialogues and exercises, fee for service training, senior visits, defence industry cooperation, [redacted] and port visits [redacted] Australia’s Defence Attache is located in Abu Dhabi and the annual Joint Defence Cooperation Committee dialogue is our primary mechanism for managing the relationship….Recent engagement… [includes]:
CDF visited the UAE in Jan 2018 and met with Chief of Staff of the Armed Forces LTGEN Al Rumaithi.
HMAS Newcastle conducted a PASSEX with the UAE Naval Forces in October 2017.
UAE observers participated in EX Talisman Sabre in July 2017.
DEPSEC SP&I visited the UAE in May 2017 to meet with senior officials from the Ministry of Defence, Minister of Foreign Affairs, and the Presidential Guard.
Joint UAE [redacted] team participated at ASAAM 17 in May 2017.
Prime Minister Turnbull visited the UAE in April 2017 for a call with Crown Prince Sheikh Mohammed bin Zayed Al Nahyan.
HMAS Arunta conducted a PASSEX with the UAE Naval Forces in January 2017.
CDF visited the UAE and conducted key leadership engagement, including a counterpart call with Chief of Staff, in December 2016
Equally disturbing is an included document titled ‘UAE: Defence Relations Factsheet’ which notes key leaders, all of whom were identified in the August 2018 UN report as actors in the Yemen conflict (Annex I).
CONCLUSION
Melissa Parke, a member of the UN Group of Eminent Experts on Yemen, has noted that the August 2018 ‘report called upon the international community to refrain from providing weapons that could be used in the Yemen conflict.
Eight and a half million Yemenis are currently on the brink of famine arising from the naval and air restrictions placed on Yemen by Saudi Arabia, UAE et al, yet Australia is approving undisclosed military exports and pushing for an increase in defence exports and cooperation
There should be an immediate arms embargo put in place with respect to Saudi Arabia and UAE and a parliamentary inquiry to examine defence exports to those countries and indeed the entire defence exports process. Any claims by any department that information or documents are “commercial in confidence” should require a sound factual basis – evidence, not assertions – and then be rigorously scrutinised.
Kellie Tranter lawyer, researcher and human rights activist. Copyright Kellie Tranter 2018
