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On Monday, July 10, Britain’s High Court ruled that the UK’s sales of arms to Saudi Arabia is within the boundaries of UK and EU law. Campaign Against Arms Trade (CAAT) brought the case to the High Court over humanitarian concerns regarding the high civilian death toll in the Yemen civil war.
Saudi Arabia is the largest purchaser of British-made weaponry, having bought more than £3 billion of arms in the last two years. Among their purchases are Typhoon and Tornado fighter planes, as well as precision-guided bombs. UK arms sales to Saudi Arabia have been under increasing scrutiny from NGOs and MPs due to Saudi Arabia’s involvement in the war in Yemen, where The Guardian reports that “the Saudi-led bombing campaign is accused of killing civilians and damaging vital infrastructure.”
UK and EU arms sales regulations state that export licenses cannot be granted if there is a “clear risk” that the weapons may be used to violate international humanitarian law. In the UK, export licenses for weapons are granted by Liam Fox, secretary of state for international trade.
The UK had, in multiple instances, previously considered suspending their arms trade with Saudi Arabia over this issue. During the case, documents were revealed in which the export policy chief told Sajid Javid, the business secretary then in charge of licensing, that “my gut tells me we should suspend [weapons exports to the country]”. According to The Guardian, “the UK was preparing to suspend exports after the bombing of a funeral in Yemen in October 2016 killed 140 civilians.” However, Boris Johnson, the foreign secretary, advised Liam Fox to continue arms sales, saying “the ‘clear risk threshold for refusal’ … has not yet been reached.” In October 2015, the Foreign Office, using information provided by the Ministry of Defense, reported concerns that the level of civilian casualties was “worrying,” but claimed that there was insufficient evidence to indicate that the casualties were intentional.
CAAT presented hundreds of pages worth of reports from the UN, the European Parliament, Red Cross, Médecins Sans Frontières, Amnesty International, and other sources, providing evidence of airstrikes on schools and hospitals, as well as evidence of an excess of civilian casualties. The judges admitted that the evidence provided “represent[s] a substantial body of evidence suggesting that the coalition has committed serious breaches of international humanitarian law in the course of its engagement in the Yemen conflict.” Still, they concluded that “this open source material is only part of the picture.”
Another part of the larger picture considered by the judges was the Saudi government’s investigations in the civilian casualties. However, CAAT lodged a protest that despite the Saudi government’s efforts, only 5% of incidents had been reported by the unit. The efforts of the Saudi government to report on civilian casualties caused by their attacks were enough for the judges to state that “Saudi Arabia has been, and remains, genuinely committed to compliance with International humanitarian law; and there was no ‘real risk’ that there might be ‘serious violations’ of International humanitarian law such that UK arm sales to Saudi Arabia should be suspended or cancelled.”
In the end, Lord Justice Burnett, who heard the case with Mr Justice Haddon-Cave, decided in an open judgment that “the material decisions of the secretary of state were lawful. We, therefore, dismiss the claim.” He is also delivering a closed judgment, as a great majority of the case was heard in secret due to national security concerns.
CAAT already plans to appeal the High Court’s decision. Their spokesman, Andrew Smith, called the verdict “disappointing,” going on to say that “if this verdict is upheld, then it will be seen as a green light for government to continue arming and supporting brutal dictatorships and human rights abusers like Saudi Arabia that have shown a blatant disregard for international humanitarian law.”
According to Al Jazeera, the judges involved said that “their job was not to look at the exports themselves, but to simply look at the decision-making process.” However, as previously noted, those in charge of deciding whether or not to grant the export of arms to Saudi Arabia over the last two years had in multiple occasions contemplated ending the export of arms due to humanitarian issues. Also, looking at the exports themselves seems to be a key factor in determining if a “clear risk” of human rights violations exists. There appears to be clear evidence that the airstrikes led by Saudi Arabia in defense of the UN-backed Yemen government have resulted in human rights violations due to the excess of civilian casualties. While the Saudi government may be investigating the accusations, their efforts do not change the reality of the acts that have been committed.
This view is supported by Rosa Curling of Leigh Day, the solicitors of CAAT, who stated: “The law is clear: where there is a clear risk UK arms might be used in the commission of serious violations of international law, arms sales cannot go ahead. Nothing in the open evidence, presented by the UK government to the court, suggests this risk does not exist in relation to arms to Saudi Arabia. Indeed, all the evidence we have seen from Yemen suggests the opposite: the risk is very real … Our government should not be allowing itself to be complicit in the grave violations of law taking place by the Saudi coalition in Yemen.”
CAAT and other supporters of the attempt to halt UK arms trade with Saudi Arabia can only hope that in the appeal, the judges weigh those “real risks” over the intentions of those deciding on whether or not to grant export licenses for the arms trade.