The Court of Appeal has granted permission for Campaign Against the Arms Trade to appeal the legality of arms sales to Saudi Arabia
The destruction of Yemen continues and our role in that destruction becomes ever more clear as time passes. The case brought by CAAT failed and it is welcome news that the Appeal Court has allowed an appeal. The decision was profoundly flawed and needs to be challenged. It raised disturbing questions, not just about our role in the bombing of Yemen, but how our supposedly independent legal system operates in cases like this.
An analysis of the decision by Oxford Human Rights hub and others revealed profound flaws in the Appeal judges ruling and handling of the case. These are:
- statements by the government were taken at face value despite claims that the case would be looked at objectively
- the judges regarded evidence from NGOs as necessarily being of lesser value than the government’s arguments. They said they were ‘second hand’ despite the fact that the NGOs had representatives on the ground and had collected considerable first hand evidence of what was happening
- the close relations the government has with the Saudi government (to which we could add many members of the Royal family) puts them in a good position, it was claimed, to take statements by the Saudis at face value namely that they were compliant with International Human Rights standards
- the court took no account of the stake the government has in the trade namely that 46% of our arms exports are going to this country. That this might bias their case was not something that the judges seemed to consider. Indeed, they went further pointing to the ‘highly sophisticated, structured and multi-faceted process’ of government decision taking in comparison with that of the press and NGOs. Altogether, the judges exhibited an unduly deferential approach to the government
- But perhaps the most disgraceful aspect of their judgement was the issue of ‘inference’. This argument centred on the idea that it was not necessary or practical for the government to infer that civilian causalities and breaches of IHL arose from the supply of weaponry to the Saudis. Because this destruction was taking place in another country, it was not practical for the Secretary of State to have access to all the relevant information. So on the one hand, the judges say that the government has a superior and sophisticated decision making process compared to that of the NGOs and media, but on the other hand, when civilians are killed, suddenly they are not in a position to know it was our weapons which were involved.
There are other criticisms of the judgment and the dubious logic on which it was based. Overall, they seemed to adopt a unduly deferential approach to the government’s position.
In another development the Committee on Arms Export Controls criticized many aspects of the government’s dealings with arms supplies to the region. One key aspect is the question of brokerage. This is where a company, registered in the UK, uses a broker to circumvent the controls on the sale of arms. The Committee concluded:
The Committees conclude that it is a significant loophole in UK arms export controls that a UK company can circumvent those controls by exporting military and dual–use goods using an overseas subsidiary. The Committees recommend that the Government states whether it will close this loophole, and, if so, by what means and in what timescale.
The Committees continue to conclude that it is most regrettable that the Government have still to take any action against “Brass Plate” arms exporting companies who have the benefit of UK company registration but carry out arms exporting and arms brokering activities overseas in contravention of UK Government policies. 35 The Committees’ Recommendation: The Committees again recommend that the Government sets out in its Response to this Report what steps it will take to discontinue the UK registration of such companies [Extracts from the Select Committee Report]
The government does not accept the committee’s conclusions on this matter.
In yet another aspect, the government is alleged to use opaque licensing procedures to conceal hundreds of millions of pounds worth of British-made missiles and bombs sold to Saudi Arabia for use in Yemen under a licensing system that makes tracking arms sales more difficult.
Currently, the sale of arms is governed by the Arms Trade Treaty and the Consolidated EU and National Arms Export Licensing Criteria. It is clear from the opinion of the sub committee, CAAT and other NGOs that the government is using every stratagem to sell arms to Saudi and to keep on doing so. Royalty and ministers are pressed into service to keep the Saudi regime sweet. The effects of our arms – and those of other arms suppliers such as the USA – on the people of Yemen has been devastating. With 10,000 deaths and many more thousands injured and displaced, it is a calamity on a massive scale. We must hope that the higher court will overturn the highly dubious and flawed decision.
Either way, it is likely that Brexit will lead to a reduction in the EU’s ability to promote its standards in the field of export controls internationally. […] If Brexit means the UK starts to water down its export controls in order to facilitate transfers to Saudi Arabia, or otherwise boost its arms exports, the implications may be more severe. Such a move could trigger a ‘race to the bottom’ among EU member states, many of which are seeking to boost their own arms exports in order to help domestic producers offset the impact of post-2008 national defence cuts.
Let us hope they are wrong. It is likely however that post Brexit, there will be a keen desire to secure trade deals – to include arms sales – with any foreign nation including those with poor human rights records.