13 Sep UK-Saudi Arabia Arms Trade before the High Court: Questions following the Judgment
[Riccardo Labianco is a PhD candidate at SOAS, University of London. His research focuses on state-to-state military assistance in times of conflict.]
On 10th July 2017, the High Court of Justice (HCJ) delivered its decision regarding the choice of the Secretary of State for International Trade not to halt the transfers of arms between the UK and Saudi Arabia (SA). The Campaign Against Arms Trade (CAAT), the claimant, requested judicial review of that choice, in light of the violations of international humanitarian law (IHL) committed by SA in the conflict in Yemen which likely occurred through UK-manufactured arms and weapons. Eventually, the judges accepted the government’s arguments and dismissed the request for judicial review. This decision was based on the fact that the UK government was the only actor able to assess the absence of a clear risk of IHL violations that could be committed with the transferred arms, due to its inside knowledge of the Saudi administration and its engagement with it. As shown below, the absence of a clear risk of IHL violations must be assessed before authorising any arms export.
Two aspects of the judgment are analysed here. First, the HCJ’s interpretation of the “Consolidated Criteria for Arms Export”, a piece of EU legislation incorporated in the UK legal system. Second, the choice to consider the UK’s “privileged position” within the Saudi administration as an essential element for the lawfulness of the arms transfers.
First, the legal sources used by the HCJ should be clarified. The parties and the judges referred to the “Consolidated EU and National Arms Export Licensing Criteria”. This source was chosen as the main point of reference for authorising arms exports by the competent Secretary of State (previously, the Secretary of State for Business, Innovation and Skills, then, the Secretary of State for International Trade), according to section 9(3) of the Export Control Act 2002 (the judgment, paragraphs 4-5). This Act permits the competent Secretary of State to choose the relevant legal source for the issuing of arms export authorisations. Accordingly, the Secretary of State’s choice considered the European Council Common Position 2008/944/CFSP from which the first version of the “Consolidated Criteria” was extracted (the judgment, paragraphs 6-7). On 25th March 2014, the Criteria were updated by the competent Secretary of State, including reference to the Arms Trade Treaty (ATT), a treaty entered into force on 24 December 2014 and ratified by the UK on 2 April 2014. Therefore, the “Consolidated Criteria” in the UK today is a kind of EU-UK hybrid piece of legislation, which was originally enacted by an EU body and subsequently subjected to the British government’s interpretation (the judgment, paragraph 95).
Along with the Criteria, the government, and later the parties to the judicial proceedings, referred to the EU Council User’s Guide to the Common Position of 2008 (User’s Guide), issued in 2015 and including references to the ATT (the judgment, paragraphs 11-14). The HCJ’s attitude towards the latter appeared quite intermittent. In the judgment, sections where the User’s Guide provisions are used to strengthen the court’s arguments alternate with other passages where the HCJ highlights the non-binding nature of this instrument. For instance, firstly, the HCJ affirms that “the User’s Guide” is “non-binding guidance”. Then, in the same paragraph, some other sections of the User’s Guide are used to affirm that “isolated incidents […] are not necessarily indicative of the recipient country’s attitude towards international humanitarian law”, a line consistent with the HCJ interpretation (the judgment, paragraph 179).
Furthermore, one could also ask why neither the parties nor the judges seemed to refer to Article 7 ATT, which is mentioned in Criterion 1 (B), to evaluate the Secretary of State’s choice not to halt the arms transfers. Considering the claimant’s argument, Article 7 seems very relevant. At paragraph 7, the supplier is “encouraged” to re-evaluate the authorisation to transferring in the event that they “become aware of new relevant information” regarding a possible unlawful use of the transferred items. Despite the presence of the weak word “encourage”, the violations committed in Yemen between 2015 and 2016 appeared to fall within the scope of this provision, which, however, nobody seems to have mentioned.
The next point regards the government’s justification of exporting arms to SA, eventually shared by the judges. This is based on what can be called the UK’s “privileged position” within the Saudi administration.
Criterion 2(c), the source quoted during the proceedings, provides that an export authorisation will not be granted if a “clear risk” that the arms “might be used in the commission of a serious violation of international humanitarian law” exists. The government and the judges disagree with the claimant’s concerns, related to violations which occurred between 2015 and 2016, on the basis not only that the UK has significant inside knowledge of Saudi procedures, but also in light of the UK’s high capacity to influence SA in its adherence to IHL, through training and advising Saudi military personnel (the judgment, paragraphs 121-127).
Such line of reasoning triggers a criticism and an observation. It appears questionable that Saudi commitments and promises for the future should overcome past and present Saudi IHL violations in Yemen, including the bombing of schools, hospitals and civilian areas, a conduct that is considered a war crime if undertaken intentionally and with the knowledge of the consequences (see the judgment, paragraph 17).The User’s Guide prescribes that the risk assessment should include the “past and present record of respect for IHL”, the “recipient’s intentions as expressed through formal commitments” and the capacity of the recipient of using arms consistently with IHL norms (User’s Guide, paragraph 2.13 p54). In the judgment, not only are significant violations of the principle of distinction reported (e.g. the judgment, paragraphs 67,69), but also some public statements of a Saudi high officer regarding the intention to undertake actions against the principle of distinction were provided as proof of future violations (the judgment, paragraphs 138-140).
Therefore, the HCJ’s attitude towards this is inexplicable. First, the Court did not consider them as evidence of the presence of a clear risk, adhering to the government’s position. Second, the judges attempted to interpret those statements, offering their own analysis of the conflict (the judgment, paragraph 142), inconsistently with respect to what they affirmed later in the judgment (the judgment, paragraph 209). The existing violations of the principle of distinction and those public statements should have been summed and considered as a proof of a clear risk of future similar actions.
Moving to the observation, the judgment seemed to suggest that the UK’s “privileged position” is essential to guarantee the absence of a “clear risk” of IHL violations through UK-manufactured arms and weapons (the judgment, paragraph 211). Therefore, if the British government acts as guarantor of Saudis’ commitments for the future before the HCJ, this fact has to be read through the provisions of the User’s Guide, which mentions the “recipient’s capacity to respect IHL” (User’s Guide, paragraph 2.13). Even ignoring that the literal meaning of that expression refers to the recipient alone, not with the supplier’s assistance, in the case of SA, the contingency of Saudis’ capacity on UK’s support, as suggested by some passages, cannot be denied (the judgment, paragraphs 126-127).
At this point, one can ask what would happen if there were gaps in the British knowledge of Saudi military procedures and deficiencies within the UK influence over the Saudi Kingdom. The main argument for the lawfulness of the UK-SA arms trade would fall. From the lines of the judgment, these gaps and deficiencies seem to exist, as some branches of the government admit (the judgment, paragraphs 9,155,159).
Before the HCJ, the UK government stated that it has no control over the actions where “dynamic targeting” is used but only of pre-planned one (e.g. the judgment, paragraphs 155,159). For instance, in the case of aerial bombardments, like the ones undertaken in Yemen by Saudis, dynamic targeting means that the pilot takes the decision while flying, not before take-off (e.g. the judgment, paragraphs 202.9). In such a scenario, British personnel on the ground do not seem able to exercise their influence, as the argument of the “privileged position” seems to require.
In conclusion, besides some inconsistencies regarding sources, this judgment seems characterised by two elements: a trustful look to the future, which obscures past and present IHL violations, along with the acceptance of the “privileged position” argument. Perhaps, the importance of the norms violated by Saudis should have required stronger arguments to rebut the strong doubts that what Saudis did in Yemen through UK-manufactured arms will not happen again, especially when the UK cannot guarantee a deep knowledge of Saudi military procedures and a strong influence on the conduct of hostilities in Yemen.