On Monday, July 10, the UK High Court ruled that the government is acting lawfully in allowing export licenses for arms sales to Saudi Arabia. In so doing, the Court rejected a judicial review brought by Campaign Against Arms Trade (CAAT), which argued that such sales were illegal due to the Saudi-led war in Yemen, which has killed over ten thousand civilians and which, through its near total blockade of the war-torn country, has created a near-famine situation for 17 million people and contributed to a massive cholera epidemic. CAAT argued that export licenses should be denied under the criterion in UK export licensing law that forbids a license where there is a ‘clear risk’ that the weapons licensed ‘might be used to commit serious violations of international humanitarian law [IHL]’. British weapons, including Tornado and Typhoon combat aircraft, as well as bombs and munitions, have been extensively used by Saudi Arabia in attacks that have frequently hit civilian targets. A UN report in 2016 documented 119 violations of IHL.
The judgment shows that the Court was convinced by the government’s argument that it follows rigorous procedures for evaluating such risks, and has access to sources of information not available to CAAT and other NGOs, such as Amnesty International, that supported the claim; such as information on Saudi targeting policies that come from the UK MOD’s close working relationship with the Saudi armed forces. Much of this government evidence was presented in secret, and seems to relate to Saudi intentions as opposed to the consequences of their military actions. This secrecy, far from unusual in ‘national security’ matters, is a particularly concerning feature of the judgement.
The ruling seems to set a very high bar indeed for denying an export license. As Rudy Schulkind argues in the New Statesman, the ruling does not imply that violations of international humanitarian law have not taken place, or that a risk of further violations does NOT exist. Rather, the decision hinges on a matter of procedure: the UK government has not acted irrationally or unlawfully in its evaluation of the available information, in concluding that the criterion for denying a license has not been met. Essentially, the ruling focuses on the process of decision making within the UK government, and seems to give little weight to the overwhelming evidence that violations of international humanitarian law have occurred.
This is an extremely disappointing outcome for all concerned with the immense suffering in Yemen that is being caused by the Saudi-led war. CAAT are seeking to appeal the verdict, and there are a lot of arguments that can be made on the legal front which I am not qualified to evaluate. I cannot say that I am greatly surprised by the court’s decision, in choosing not to overrule the government on a matter of core foreign and defence policy. The government has its procedures, which are indeed pretty rigorous in terms of process, and its sources of information, and the courts would require a very high level of evidence indeed to overrule the way the government has evaluated this.
I hope that an appeal is able to find sufficiently convincing arguments and evidence and put a stop to these lethal and disgraceful sales, but to my mind the primary blame belongs firmly with politicians rather than judges.
Export licensing criteria are designed to sound rigorous and restrictive, but to be as flexible and open to interpretation as possible in implementation. The UK criteria reflect those in the EU Common Position on arms exports. While this EU policy arguably has had some impact in imposing common minimum standards on EU members, the European Union includes several major arms producing countries, whose industries have a high level of export dependence in many cases. The criteria were not made with the intention of preventing those industries from striking the big deals that their governments want to make. Hence the case-by-case approach that undergirds the entire policy, and the language allowing for a wide range of interpretation.
Even where procedural improvements have been introduced, politicians invariably continue to insist on maintaining the flexibility to sell arms based on political considerations. As an example from another European producer: following extensive debate and controversy, the Swedish government is moving ahead with changes to their arms export policy that go beyond the ‘case by case’ approach (that looks primarily at the specific equipment being sold rather than the regime to whom it is being sold). The Swedes are seeking to introduce a ‘democracy criterion’ that would consider the status of the recipient government as a democracy or otherwise. Parliamentarians and civil society have long been calling for an end to Swedish arms sales to dictatorships such as Saudi Arabia and the UAE, in particular in light of Sweden’s proclaimed feminist foreign policy. Many are hailing this as a major step forward.
But even with these improvements, there is still a political catch. The proposed new rule does not forbid arms sales to dictatorships; it merely says that the non-democratic status of a proposed recipient will be an ‘obstacle’ (Swedish: ‘hinder’) to granting a license. But, as Swedish peace organization Svenska Freds asks, how high is an obstacle? The answer, of course, is that it as high or low as the government wants it to be, and where core interests of maintaining defence industrial capabilities are sufficiently pressing, the obstacle presented even by a brutal misogynistic absolute monarchy like Saudi Arabia may turn out not to be all that imposing.
The UK, however, is in a different league when it comes to arms sales to Saudi Arabia: there is no country for which the British government is prepared to show as much ‘flexibility’ as Saudi Arabia, by far the UK’s largest external arms customer. Over the period 2012-16, fully 48% of the UK’s exports of major conventional weapons were to Saudi Arabia, according to SIPRI data. In financial terms the figure may be even higher, as these figures do not take into account earnings from the services provided by BAE Systems, the UK’s dominant arms producer, in Saudi Arabia, where they have around 5,800 employees providing support and maintenance services. In 2016, 21% of BAE’s revenues came from sales to Saudi Arabia, as much as from sales to the UK itself.[i] Without massive Saudi arms sales over the years, some UK arms producing capabilities, such as major combat aircraft, might have been very hard to maintain.
Therefore, for the sake of keeping up the incredibly lucrative pipeline of arms sales to Saudi Arabia, successive UK governments, Conservative and Labour, have been willing to remain silent on gross human rights abuses, collude with or tolerate massive bribery associated with the arms deals, to the tune of possibly billions of pounds, suppress a National Audit Office report into the corruption, and cancel a Serious Fraud Office investigation (seriously damaging the UK’s international reputation for anti-corruption efforts). They have now added to this list by becoming actively complicit in a devastating war in Yemen, with all its catastrophic humanitarian consequences.
Deference to Saudi Arabia extends to other areas as well. Most recently, the UK government has just decided to suppress a report into the funding of extremism and terrorism, almost certainly because the report points to Saudi Arabia as a key source of such funding, The Financial Conduct Authority is proposing to soften the rules for listing of state-owned companies on the London Stock Exchange to allow a ‘premium’ listing for Saudi Arabia’s giant state-owned oil company Aramco.
The overriding priority given by successive UK governments to maintaining the UK’s status as a major arms producer, and the resulting dependence on Saudi exports, has in many ways made the UK a puppet of Saudi Arabia. Which is ironic, given that the rationale for maintaining a strong domestic arms industry is to preserve national autonomy in foreign and defence policy.
There are signs of a chink in this decades-old bipartisan foreign policy and defence consensus in the UK. Labour Party leader Jeremy Corbyn, who greatly outperformed expectations in the recent UK general election, and who has never adhered to this consensus, has repeatedly called for an end to UK arms sales to Saudi Arabia. Were he to be elected, he would certainly face massive pushback on this position from large sections of the UK foreign policy and defence establishment, including parts of his own party, and from sections of the Trade Union movement. Were an end to such sales to happen, it would represent a seismic shift in UK policy.
Meanwhile, efforts on the judicial front to stop the arms sales will continue, but as long as the core problem is political, not legal, such efforts face obstacles far, far higher than any presented by arms export control systems.
[i] BAE Systems Annual Report, p3, http://investors.baesystems.com/~/media/Files/B/Bae-Systems-Investor-Relations-V3/Annual%20Reports/annual-report-2016-28032017.pdf. The biggest customer, at 36%, was the US, but this is from BAE’s US operations, which are therefore not part of the UK’s ‘defence industrial base’, and are therefore of much less interest to the UK government.
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