‘Nothing to see here’: UK’s response to court ruling on arms sales to Saudi Arabia raises doubts about its willingness to fix problems

26 June 2019 Roy Isbister ‘Nothing to see here’: UK’s response to court ruling on arms sales to Saudi Arabia raises doubts about its willingness to fix problems

The landmark ruling from the Court of Appeal on the UK government’s arms sales to Saudi Arabia undermines UK claims that its arms exports are not at risk of fuelling serious violations of international humanitarian law in Yemen. Now the government needs to honour the spirit as well as the letter of that ruling, says Roy Isbister.

I was in court 71 at the Royal Courts of Justice on Thursday last week when a stunning ruling was read out by the Court of Appeal. The court found the UK government’s decision to award licences for arms exports to the Kingdom of Saudi Arabia (KSA), for possible use in the war in Yemen, to be irrational and unlawful. This was on the grounds that it failed to ask crucial questions and to examine sufficiently how UK equipment to KSA might be used in serious violation of international humanitarian law in Yemen (see here for the full judgement, here for its ‘Minute of Order’, and here for its press summary).

The decision was stunning not because it was wrong. It was stunning because in these sorts of cases, the playing field is heavily tilted in favour of the government. The courts are very cautious to overrule the government on matters of policy or decision, and do so only rarely. Campaign Against Arms Trade (CAAT) – which brought the appeal against the government – and its legal team had a very high bar to clear.

The ruling tells us there is something rotten at the heart of UK decision-making on arms exports. According to the court, the problem lies with the government’s process of determining the risk of violations of international humanitarian law – a process that is (or should be) the backbone of the whole system. 

If the assessment process itself is unlawful, this means that decisions taken on the basis of that flawed process will in turn be unlawful.  And unless this approach applies only to exports to KSA, or those at risk of being used in Yemen – in which case the question would be: ‘why the limited application?’ – this problem may well apply across the board to all arms exports from the UK.

This points to a problem with the UK’s system of arms transfer control that is both deep and far-reaching. 

Yet just two hours after the court’s ruling, Liam Fox, the Secretary of State for International Trade, appeared before parliament with the government’s response, claiming the court was wrong (and the government would be appealing the decision) – and that even if it were right this was just a small technical glitch that nobody need be too concerned about; it would soon be addressed through some minor tweaking. 

The general tenor of his comments was that the courts strongly supported the government’s approach, aside from this minor technical problem. As support for his argument, Dr Fox referred liberally to the 2017 decision of the Divisional Court, a decision that the Court of Appeal on Thursday ordered to be “set aside in its entirety,” in which case all of Dr Fox’s references to that decision are irrelevant.  

The Secretary of State also engaged in a puzzling interpretation of the order of the Court of Appeal – that there can be no “new licences for the export of arms or military equipment to Saudi Arabia for possible use in the conflict in Yemen until [the Secretary of State] has either retaken the decisions referred to in … this order or … a stay of execution … has been granted by the Court permitting him to grant such licences.” In his statement this became that the government “will not grant any new licences for exports to Saudi Arabia and its coalition partners that might be used in the conflict in Yemen” while it “carefully consider[s] the implications of the judgment for decision making”. To be sure, it is welcome that the government has expanded the list of destinations to which no new licences will currently be issued to include KSA’s coalition partners, but what is meant by “considering the implication of the judgement” and how long this might take is far from obvious; it definitely doesn’t feel the same as the court’s order to retake the decisions. 

Meanwhile, the government has decided that exporters are free to continue to export under existing licences as if nothing has changed. Here the government appears to be taking advantage of the fact that although the court has ordered that “decisions not to suspend extant export licences for the sale or transfer of arms and military equipment to Saudi Arabia for possible use in the conflict in Yemen … are quashed”, it confusingly stated in its press summary that “[t]he decision of the court today does not mean that licences to export arms to Saudi Arabia must immediately be suspended.” But these are, lest we forget, licences the court has declared unlawful. Therefore, it seems logical and reasonable to conclude that arms deliveries made under licences declared unlawful must themselves be unlawful.   

It is also confusing that Dr Fox played up the centrality of international humanitarian law to the licensing process in some places, while playing it down in others. On the one hand he minimised international humanitarian law violations to the point of seeing them as mere irritation – “the Court judgement is about how decisions were made in relation to one element of one of [eight] criteria in a specific context.” On the other, he insisted that this is absolutely central to decision-making – “our whole assessment has been infused with IHL considerations; indeed everything has been looked at through the prism of IHL”.  Some clarity on his settled position on this would be welcome.

No more ‘business as usual’

The government is furiously attempting to present the court’s decision as of little importance, and through its decision not to suspend extant licences, to allow arms exports to continue largely as before. But the Court of Appeal has at last exposed the government as clearly failing in its duty to properly assess the risk of violations of international law. Given the weight of evidence from a wide range of credible sources of violations by the KSA and its coalition partners in Yemen, if the government does start to carry out due diligence as instructed by the court, the obvious conclusion is that the government will have to refuse or cancel a lot of licences. This goes some way to explaining the approach of the Secretary of State in his response to parliament. But it does not excuse it.   

We can only hope that the government will look on the review process as an opportunity to align its practice with its obligations, rather than seeing it as an inconvenience to be managed to ensure business as usual. We stand ready to work with the government to achieve this.

Photo: Saferworld/Lewis Brooks