Saudi arms sales and the limits of international law
Finbar Anderson reports reports on humanitarian challenge to the UK arms trade claiming weapons may have been used to kill civilians in Yemen – and the limits of international law.
It is frequently referred to as the ‘forgotten war’. Yet horrific stories of famine, cholera and civilian deaths continue to slip through the media blackout from war-torn Yemen with tragic regularity. Saudi Arabia is leading the campaign against the Houthi rebels there, and many fear that their military forces are using weapons exported from the UK.
A high-profile judicial review was heard in the UK’s High Court earlier this year, in which Campaign Against Arms Trade (CAAT) argued that the government was obliged to suspend arms sales to Saudi Arabia. The CAAT argued that the UK’s own arms export criteria stated that export licences should not be granted ‘if there is a clear risk that the items might be used in the commission of a serious violation of international humanitarian law’.
The court published its judgment in July, finding that it had not been unreasonable for the government to think there was ‘no clear risk’ that weapons supplied to Saudi Arabia might be used for such purposes. This opinion prevailed despite the fact that many NGOs and international organisations (including the UN) have documented Saudi involvement in the killing of civilians in Yemen on an enormous scale.
The reason for the difference of opinion between the government’s assessment of Saudi Arabia’s potential violations of international humanitarian law and the UN’s is largely to do with the system through which our government makes such decisions.
The final responsibility for suspending or granting arms export licences lies with the secretary of state for international trade. His decision is informed by various findings from government departments, as well as external organisations and NGOs. Among these, information from the Ministry of Defence and the Foreign Office is prioritised. Indeed, the court was persuaded that the ‘volume of material ’ published by these two departments is testament to the ‘genuine concern and scrutiny’ they gave to alleged violations of international humanitarian law.
In this lies the likely reason for the UK government failing to find Saudi Arabia guilty of violations of international law: each of the three government departments concerned with the continued granting of export licences is institutionally biased in favour of their Saudi clients.
The Foreign Office, for instance, pays lip service to the advancement of human rights by keeping Saudi Arabia on its human rights watch list. Nevertheless, the real diplomatic fallout of a decision to ban arms exports would be extremely damaging for relations between the two countries.
The MoD, meanwhile, is keen to promote a network of strategic global alliances and recently announced new British Defence Staffs in Saudi Arabia as part of the UK’s International Defence Engagement Strategy. Furthermore, while the MoD absolutely does not want to see UK weapons in the hands of potential rivals like China or Iran, it stands to benefit from a healthy arms trade. Producing defence material in higher volume results in a cheaper unit cost when the ministry itself wants to purchase such material (here).
As for the Department for International Trade, it stands to reason that any decision that might threaten trade with one of the UK’s most valuable customers should be avoided. Figures taken from the department’s website show that the total value of arms export licences in 2016 exceeded £7 billion, of which trade with Saudi Arabia accounted for over £600 million.
One of the key things the court will consider when hearing a judicial review is whether or not the decision breached the rules of ‘natural justice’. That is, the public body should not allow a decision to be taken by someone who is not impartial. However, while it is well established that decisions should not be taken by those who personally have a financial interest in the decision, there seems to be little clarity on the extent to which officials acting in the best interest of their department are exhibiting bias.
As things stand, the court gives little consideration of the potential for any bias within government departments. It therefore considers the government’s decision-making superior to all those bodies who criticised Saudi violations of international humanitarian law because of the ‘significant qualitative difference between the risk analysis which the government agencies involved in the decision-making process are able to carry out, on the one hand, and the reports of the NGOs and press as to incidents in Yemen, on the other ’.
In February 2016, public pressure on the government to suspend arms sales reached a climax. At that time Edward Bell, the head of the Export Control Organisation at the Department for International Trade, emailed a colleague in another government department, saying: ‘My gut tells me we should suspend. This would be prudent and cautious given the acknowledged gaps in knowledge about Saudi operations. I put this directly to the [secretary of state] in these terms.’
Although Mr Bell’s advice was not heeded, the court decided that this was proof that the system works. The decision-making process is ‘finely balanced’. However, it appears that the triumvirate of secretaries with ultimate decision-making power never considered the situation was so delicately poised. Minutes of a meeting held shortly after Mr Bell’s email state that ‘given the discussions [the secretary of state] had had and the advice he had received from [redacted] Foreign Secretary (FS) and Defence Secretary (DS) he was minded to continue exporting.’
While there may be occasional dissent from more junior members of staff, it appears the interests of these three principal government departments consistently override any humanitarian law concerns. In September 2016, for example, the Business, Innovation and Skills and International Development Committee published a report calling for the suspension of arms export licences to Saudi Arabia. The heads of three government departments swiftly published a response pledging to continue supplying Saudi. They were foreign secretary Boris Johnson, defence secretary Michael Fallon, and trade secretary Liam Fox.
The system as it is currently set up makes it unlikely that domestic interests would ever allow a suspension of arms sales, no matter how strong the evidence of violations of international humanitarian law. Current case law essentially dictates that it is not sufficient for a state receiving arms to simply give assurances that they will not be used in violations of international humanitarian law. By getting its information directly from the source (Saudi Arabia), the government has ensured that UK decision-makers are ultimately responsible for making the decision on whether or not there has been a violation of international law, rather than anyone in Saudi.
As long as they conduct themselves properly to make a decision, the government can continue to find in favour of the Saudis – and their own interests. International law is blunted, arms sales continue, and bombs continue to fall on Yemen.
This article was first published on Monday, September 4