Forum on the Arms Trade
  • Home
  • Experts
    • View all - by location
    • View by issue expertise >
      • View all
      • US Policy and Practice >
        • Arms sales
        • Security assistance
        • Export control
        • Defense industry
      • International Instruments >
        • Arms Trade Treaty
        • CCW
        • Other instruments
      • Weapons >
        • small arms/light weapons
        • drones
        • landmines/cluster munitions
        • killer robots
        • cyber
        • explosive weapons
        • F-35
      • International Trade >
        • Global trade data/trends
        • Strategic trade control
        • Africa
        • Latin America
        • Middle East
        • Europe
        • Asia
      • Implications >
        • Harm to civilians
        • Gender
        • Child soldiers
        • Arms trafficking
        • Corruption
        • Environment
    • A to B >
      • Rasha Abdul Rahim
      • Jeff Abramson
      • Ray Acheson
      • Katherine Aguirre Tobón
      • Linda Åkerström
      • Waleed Alhariri
      • Radhya al-Mutawakel
      • Alma Taslidzan Al-Osta
      • Philip Alpers
      • Habbouba Aoun
      • Peter Asaro
      • David Atwood
      • Kathi Lynn Austin
      • Natalia Báez Zamudio
      • Deepayan Basu Ray
      • Seth Binder
      • Subindra Bogati
      • Laura Boillot
      • Matthew Breay Bolton
      • Mark Bromley
      • Martin Butcher
    • C to G >
      • Brian Castner
      • Thompson Chengeta
      • Purna Shova Chitrakar
      • Helen Close
      • Jordan Cohen
      • Magda Coss Nogueda
      • Verity Coyle
      • Anna Crowe
      • Maria Pia Devoto
      • Lode Dewaegheneire
      • Bonnie Docherty
      • Gugu Dube
      • Geoffrey L. Duke
      • Nils Duquet
      • Cindy Ebbs
      • Jennifer L. Erickson
      • Andrew Feinstein
      • Aude Fleurant
      • Denise Garcia
      • Dan Gettinger
      • Natalie Goldring
      • Colby Goodman
      • Hector Guerra
    • H to L >
      • William Hartung
      • Lisa Haugaard
      • Alexandra Hiniker
      • Erin Hunt
      • Adam Isacson
      • Roy Isbister
      • Cesar Jaramillo
      • N.R. Jenzen-Jones
      • Raza Shah Khan
      • Daryl G. Kimball
      • Adele Kirsten
      • Kate Kizer
      • Michael Klare
      • Matt Korda
      • William Kullman
      • Guy Lamb
      • Bruno Langeani
      • Edward J. Laurance
      • John Lindsay-Poland
    • M to R >
      • Daniel Mack
      • Daniel Mahanty
      • Ara Marcen Naval
      • Ivan Marques
      • Jesus Martínez
      • Montserrat Martínez Téllez
      • Nicholas Marsh
      • Shana Marshall
      • Stephen Miles
      • Elizabeth Minor
      • Yeshua Moser-Puangsuwan
      • Robert Muggah
      • Wanda Muñoz
      • Folade Mutota
      • Jasmin Nario-Galace
      • Afrah Nasser
      • Amy Nelson
      • Linnet L. Wairimu Ng'ayu
      • Nancy Okail
      • Iain Overton
      • Scott Paul
      • Carlos Pérez Ricart
      • Samuel Perlo-Freeman
      • Michael Picard
      • Natália Pollachi
      • Allison Pytlak
      • Josh Ruebner
    • S to Z >
      • Wilder Alejandro Sanchez
      • Stephen Semler
      • Camilo Serna
      • Annie Shiel
      • Shobha Pradhan Shrestha
      • Stephen Mwachofi Singo
      • Frank Slijper
      • Nate Smith
      • Ayman Sorour
      • Emma Soubrier
      • Jen Spindel
      • Alexandra Stark
      • Anna Stavrianakis
      • Rachel Stohl
      • Avihai Stollar
      • Ari Tolany
      • A. Trevor Thrall
      • Sahar Vardi
      • Andrea Edoardo Varisco
      • Francesco Vignarca
      • Jodi Vittori
      • Leah Wawro
      • Eugenio Weigend Vargas
      • Doug Weir
      • Anne-Charlotte Merrell Wetterwik
      • Sarah Leah Whitson
      • Patrick Wilcken
      • Cristian Wittmann
      • Sarah Yager
      • Katherine Young
      • Elias Yousif
      • Wim Zwijnenburg
  • Emerging Experts
  • Arms Transfers to Ukraine
    • Ukraine Countries List
  • U.S. Conventional Arms Transfer (CAT) Policy
  • Major Arms Sales Notifications Tracker
  • Events
  • Congressional Arms Trade Measures
  • Biden Admin's Controversial Arms Sales
  • U.S.-Saudi Arms Sales
  • U.S. Arms Sales to Taiwan
  • Biden Arms Sales To Israel
  • U.S. Arms Sales to India
  • U.S. Landmine Policy
  • Resource Page - Under Threshold Arms Sales
  • Resource Page - USML Cat I-III to Commerce
  • Journalists
  • Get on the list
  • About
  • Archives
    • All archives
    • Expert Publications
    • Blog
    • Newsletter

Taking Stock and Looking Ahead for Responsible Policies on U.S. Arms Sales

1/13/2020

2 Comments

 
This is the eighth blog post in a series looking at an array of issues in 2020 related to weapons use, the arms trade and security assistance, at times offering recommendations.
Picture
Shannon Dick
During the last three years, the United States’ approach to conventional arms sales has been characterized by its transactional nature and focus on short-term objectives. In this environment, the Trump administration has repeatedly challenged key tenets of U.S. arms transfer laws and policies, resulting in increased arms sales to countries of concern. At the same time, Congress has increasingly spoken out about U.S. arms sales decisions, leading to greater examination of and public discourse on the opportunities and, importantly, the risks presented by certain arms transfer decisions. Given these dynamics, the upcoming year presents an opportunity to reevaluate how the United States engages in the global arms trade and identify ways to ensure greater responsibility and accountability in U.S. arms transfer decisions in the years to come.
​
During the Trump administration, expediency, special interests, and perceived economic incentives have often come at the expense of long-standing approaches to U.S. arms transfer decisions. In the last year alone, the administration:
  • Released a fact sheet detailing its implementation plan for the revised Conventional Arms Transfer policy, which places a primacy on economic considerations and assisting U.S. defense industry, and seeks to incentivize arms sales as one response to concerns about great power competition. In so doing, however, the policy and its corresponding implementation plan gloss over considerations of human rights and international law – issues that serve to mitigate the inherent risks of arms sales.
  • Withdrew America’s signature from the Arms Trade Treaty – the only legal, international agreement that seeks to promote international security and reduce human suffering by regulating the global trade in conventional weapons – in a move that was influenced by and predominately supports special interest groups in the United States, such as the National Rifle Association.
  • Declared a national emergency to bypass Congress and push through more than $8 billion in arms sales to Saudi Arabia, the United Arab Emirates (UAE), and other countries – thereby continuing a pattern of approving arms sales to countries with known human rights concerns. Members of Congress had previously opposed the sales due to continued human rights abuses and the growing humanitarian catastrophe resulting from U.S.-backed, Saudi-led coalition bombings in Yemen.
  • Took additional steps to transfer oversight of firearms exports from the U.S. Department of State to the Department of Commerce, which would make it easier for U.S. arms manufacturers to sell their products abroad and increase the risk that U.S. weapons fall into the wrong hands or are used irresponsibly. The move would likely also result in less transparency around arms sales as well as challenge U.S. investigations of illegal arms transfers – among other concerns.
With these activities, the Trump administration has underscored its commitment to boost U.S. arms sales and to do so more quickly. But such an approach risks overlooking important considerations – such as ensuring appropriate end use, protecting against deleterious proliferation, and protecting human rights – and could lead to longer-term consequences for U.S. national security and foreign policy. These trends have already animated some congressional action and may continue to serve as fuel in underscoring the importance of Congress to hold the administration accountable and reassert its role in overseeing U.S. arms sales.

The political environment going into 2020 could present an opportunity to build on the attention and momentum of the past few years and embolden the American public and Congress to take more proactive steps to ensure proper oversight of and responsibility in U.S. arms sales. There are several avenues for improvement within the U.S. arms transfer policy framework, and actions taken this year could help lay the groundwork for establishing more robust, responsible, and accountable policies in 2021 and beyond.

In general, 2020 provides an opportunity to ensure that U.S. arms sales to foreign governments better align with those governments’ legitimate needs and capacities, as well as U.S. national security and foreign policy interests. For example, a recipient’s past behaviors could be taken into consideration when reviewing potential arms transfers in order to better safeguard human rights and mitigate potential harm. Additionally, Congress could pass legislation to restrict or prohibit future sales to countries such as Saudi Arabia and the UAE in light of the ongoing war in Yemen, as well as revise the procedures for considering and reviewing arms sales for all countries engaged in conflict. In addition, greater articulation and explanation of the Trump administration’s Conventional Arms Transfer Policy and implementation plan could help identify gaps in current policy and practice in order to better safeguard U.S. arms transfers. And finally, members of Congress could strengthen existing legislation by requiring the administration to report on potential violations of U.S. arms export laws. Such steps could ultimately serve to better inform the American public of the processes and risks involved in U.S. arms sales around the world.

Shannon Dick is a research analyst at the Stimson Center
2 Comments

Looking Ahead - Child Soldiers

1/9/2020

1 Comment

 
This is the seventh blog post in a series looking at an array of issues in 2020 related to weapons use, the arms trade and security assistance, at times offering recommendations.
Picture
Rachel Stohl
Picture
Ryan Fletcher
Children represent some of the most vulnerable populations in armed conflicts around the world. Too often, children shoulder the burden of conflict and are exploited by armed groups to serve on the frontlines and/or support armed operations – with national militaries, government-supported paramilitaries, and non-state armed groups recruiting and using child soldiers as tools of warfare. According to recent estimates by Child Soldiers International, 240 million children around the world live in countries affected by ongoing armed conflict and children have been exploited by armed forces and groups in at least 18 countries since 2016 – including in Afghanistan, Colombia, the Democratic Republic of Congo, Iraq, Libya, Mali, Myanmar, Nigeria, the Philippines, Sudan and South Sudan, Somalia, Syria, and Yemen, among others.
​
An often-overlooked component of this tragic reality is the impact of global arms transfers on the use of children in armed conflict. The dynamics of the international arms trade have made weapons more accessible to more actors – including those that forcibly recruit child soldiers. Many countries with known records of child soldier abuse rely on weapons and military assistance from some of the world’s leading arms exporters, including the United States. Yet few major arms exporters have incorporated the nexus between arms transfers and the recruitment and use of child soldiers into their national export policies or legislation. To underscore this connection and identify means to encourage national governments around the world to stop the recruitment and use of child soldiers, U.S. lawmakers adopted the Child Soldiers Prevention Act (CSPA) of 2008. The CSPA requires the U.S. Secretary of State to publish an annual list of countries whose armed forces or government-backed armed groups recruit or use child soldiers. This list is commonly referred to as the CSPA list and is published in the State Department’s annual Trafficking in Persons report. Countries included on the list are prohibited from receiving certain types of U.S. military assistance, training, and defense equipment.

This new year marks ten years of CSPA implementation and offers an important opportunity to review the CSPA’s efforts and examine its impact. Although the United States is one of few countries in the world to leverage U.S. military assistance to end the use of child soldiers, thus far, implementation of the law has been lacking.

One reason for poor implementation is the frequent use of what is known as a “national interest waiver” as detailed in the law itself. The CSPA allows the president to waive the law’s prohibitions, in whole or in part, “if the President determines that such a waiver is in the national interest of the United States.” The Obama and Trump administrations have both used these national interest waivers regularly. As a result, more than $4.3 billion in otherwise prohibited U.S. military assistance has been provided to countries known to recruit and use child soldiers over the last nine years, thereby limiting the consequences (or perceived consequences) for not aligning with the law’s requirements.

Another notable challenge to comprehensive CSPA implementation has been the omission of key countries from the CSPA list itself. For years, countries known to support the recruitment and use of child soldiers – such as Afghanistan, Iraq, and Saudi Arabia – have been deliberately kept off the CSPA list for political reasons. In a positive move, the State Department included Afghanistan, Iraq, and Burma on the 2019 CSPA list – countries it neglected to include in 2017, with notable controversy. However, absent from the 2019 list is the Kingdom of Saudi Arabia, which has been widely reported to be using children as young as 14 to fight its war in Yemen.

With his 2019 determination, President Trump waived all of the CSPA’s prohibited assistance, allowing all relevant military assistance to go to the seven countries currently budgeted to receive such assistance. The four countries absent from the waiver announcement – Iran, Burma/Myanmar, Sudan, and Syria – do not receive any U.S. military assistance.

The application of the CSPA over the last nine years has not lived up to the hope of the law’s potential. Children in conflict continue to be put at risk with no accountability by the governments that continue to violate the rights of their most vulnerable populations. In 2020 we must reflect on the trends of the CSPA’s implementation over the last 10 years and identify potential fixes to the law’s loopholes and weaknesses.
 
Rachel Stohl is vice president of the Stimson Center, where Ryan Fletcher is a research associate.
1 Comment

Looking Ahead to the Second Review Conference of the Convention on Cluster Munitions: 10 years of Article 7 Transparency Reporting

1/8/2020

0 Comments

 
This is the sixth blog post in a series looking at an array of issues in 2020 related to weapons use, the arms trade and security assistance, at times offering recommendations.
Picture
Lode Dewaegheneire
Transparency has always been an integral and important part of disarmament treaties. The Convention on Cluster Munitions contains comprehensive obligations on reporting in its Article 7. Inspired by its sister convention, the anti-personnel Mine Ban Treaty, the Convention extended the scope of reporting by including, amongst others, reporting requirements on newly discovered stockpiles, victim assistance, national resources and international cooperation and assistance. Article 7 was intended to promote compliance with the Convention and as a confidence building measure. It can also serve as a platform for exchange of information.
 
With the second Review Conference ahead this year, it is good to assess what has been done to promote reporting, where we stand now, and what could be recommended looking ahead.
 
Where do we stand?
 
Since reporting is a legal obligation, initial efforts were aimed at encouraging States Parties to timely submit their initial report and at improving the submission rate of annual reports. Different subsequent coordinators for Article 7 reporting, civil society and the Implementation Support Unit, planned several actions and offered assistance to States Parties.
 
A reporting format was recommended for use at the First Meeting of States Parties (MSP) in 2010and a reporting guide was issued to help States Parties in fulfilling their Article 7 obligations. A special focus was put on those States Parties that still had to submit their initial report and States Parties with treaty obligations.
 
Initial reports are crucial for the Convention since they set the benchmark against which progress in implementation will be measured and for assessing the challenges some States Parties are facing. Although Article 7 reporting is a legal obligation for all States Parties, it is of particular interest for those who still are implementing other obligations. Without annual updates, no assessment of progress is possible.
 
Through the years, it became clear that, to encourage States Parties to submit their reports, incentives where needed. Hence there was a shift in the efforts to better promote the opportunities reporting can offer for affected States Parties. In particular, by reporting on their challenges and on the needs, States Parties could give a clearer picture to potential sponsor states for assisting them in implementing the Convention. That can work provided that the reports are detailed and of high quality. When looking at some initial reports, one could see that this was not always the case and that assistance through coaching could be beneficial to some States Parties.
 
As far as the figures are concerned, nine States Parties have an outstanding initial report due, some of them are overdue for several years, as of writing of this article. One of those States Parties has cluster munitions victims. Progress has been made in this field and we observe an increased degree of initial reports submitted over time.
 
The annual report rate for 2019 was 73 %, as of the Ninth MSP in September 2019,. And although we should aim at the full 100%, this is an improvement compared to previous years. We could consider that the different initiatives to increase the reporting rate, one of the objectives of the 2015 Dubrovnik Action Plan (DAP) adopted at the First Review Conference, have been successful.
 
The use of the reporting guide, also encouraged by the DAP, lead in some cases to higher quality information reported. This is encouraging, although there is still room for improvement. The role the Cluster Munition Monitor is playing in clarifying some reports and in encouraging States Parties to be as comprehensive as possible should be highlighted.
 
For the Second Review Conference
 
The Second Review Conference being held this November in Switzerland will be an opportunity to assess progress made in the field of reporting and to define the priorities for the actions for the coming five years. It is important that the next Action Plan provides clear guidance. As former coordinator for Article 7 reporting, my leitmotiv was: “Reporting is not only a legal obligation, but also an opportunity and a tool.” I would like to use this phrase to make some recommendations for the Review Conference.
 
Reporting is a legal obligation and all States Parties are bound to Article 7 of the Convention. There should be no need for discussion about that. However, if priorities have to be set, efforts should be made to have all Stats Parties submitting their initial reports, on time, and to ensure that affected countries report annually on progress.
 
Some States Parties without implementation obligations believe that they should not submit an annual report. Promoting the use of the existing simplified "cover sheet" report could encourage them to fulfill their legal obligation and would improve the reporting rate.
 
By reporting on the challenges they meet and the assistance needed for the implementation of the Convention, States Parties can use the Article 7 report as an opportunity. As mentioned earlier, high quality reports are needed for this to work. Further efforts should be made to assist those States Parties in drafting their report. This “coaching” can be done by potential donor states and could lead to a better understanding of the needs on one side and the available offer for assistance on the other side.
 
Finally, after a decade of Article 7 reporting, the Review Conference could take it to the next level: starting to use it as a tool. And once again, the Convention could be inspired by the Mine Ban Treaty. That treaty's Oslo Action Plan, the result of the Fourth Review Conference held last year, innovated by defining indicators to assess the progress made in the implementation of the Mine Ban Treaty. Timely and comprehensive reporting is a key element in this approach and makes it a tool for defining the strategy of the Convention. This approach should also be considered when preparing the works of the Second Review Conference.
 
To conclude, reporting and its use have evolved and matured through the years in parallel with the Convention’s evolution. And although continuing efforts should be made to increase the reporting rate and to promote the opportunity of quality reporting, the Second Review Conference might be the right moment to start using the Article 7 reporting as a real management tool to reach the full implementation of the Convention.
 
 
Lode Dewaegheneire is a PhD researcher at the University of Liège (Belgium) and an independent expert. Previously as a diplomat from Belgium, he served terms as coordinator of the Article 7 committees for both the Convention on Cluster Munitions and the Mine Ban Treaty.
0 Comments

Drones and the Development of International Standards

1/7/2020

3 Comments

 
This is the fifth blog post in a series looking at an array of issues in 2020 related to weapons use, the arms trade and security assistance, at times offering recommendations.
Picture
Rachel Stohl
In the first half of the Trump administration, the United States demonstrated its continued reliance on lethal drones to respond to perceived terrorist threats, yet with no overarching strategy to guide such use. The Trump administration has placed a primacy on immediate military action, resulting in a U.S. drone policy that appears less restrained, less transparent, and less accountable.

As the number one user of lethal drone technology in the world, the United States has an opportunity to be a leader on developing appropriate policy frameworks to guide the transfer and use of armed drones and setting a responsible international precedent. Such an approach is particularly important as lethal drone technology continues to proliferate, and U.S. policy and practice impacts not only what happens within and to the United States, but how our allies, partners, and even our adversaries utilize drones for their own purposes.

Although the high profile drone-strike killing of Iranian general Soleimani is now front-page news, U.S. use of armed drones also remains controversial in large part because of ongoing secrecy surrounding their lethal use -- especially outside of traditional battlefields -- and the resulting lack of accountability that often goes hand in hand with limited transparency. These trends have only been amplified during the Trump administration, where U.S. drone policy has been defined by uncertainty coupled with less oversight and less transparency, and Trump has reversed course on certain measures designed to make drone use more responsible and bring the drone program out of the shadows. Additionally, the tempo and geographic scope of lethal drone strikes has increased and the threshold for strike-decisions has reportedly been lowered, while the CIA’s role in conducting lethal strikes has reportedly broadened.
 
The Trump administration also seems recommitted to pursuing a flawed multilateral process for developing international standards to guide drone transfers and use, which, in its current form, could weaken existing standards and result in other countries adopting policies and practices similar to those of the United States. In October 2016, the United States initiated a multilateral effort to examine the implications of drone proliferation and use by drafting and circulating a “joint declaration for the export and subsequent use of armed or strike-enabled unmanned aerial vehicles (UAVs).” Fifty-three UN member states signed on to the declaration and agreed to begin a process to develop global standards on export and subsequent use of armed drones. Now, a core-group of states, including the United States, United Kingdom, Netherlands, Germany, Italy, Japan, and observer states Turkey, Israel and France, are working to develop this initiative into so-called International Standards on the Export and Subsequent Use of Armed Drones, as communicated by the U.S. State Department in October 2017. While the results of this process and the standards themselves are unclear, it is moving forward.

The current U.S.-led process to develop global drone standards raises a number of concerns. For one, it risks giving the veneer of promoting responsible decision-making while proving meaningless in establishing appropriate controls, as higher standards already exist in several legal frameworks. The process also continues to be directed by a small group of states and remains closed to outside input from subject matter experts, relevant practitioners, and communities affected by drone transfers and use. Therefore, it is important that civil society representatives continue to remain engaged with states and inform them of policies and practices that support the development of responsible national policies on drones, as well as international standards to guide drone transfer and use.

In 2020, it is likely that we will continue to see increased proliferation and use of drones, but also a proliferation of new multilateral regimes and agreements. Differing standards or rules guiding drone transfers and use – that is, those enumerated in the international standards, the global counterterrorism forum, in the ATT, and in other export control regimes – could lead to confusion for states, both exporters and importers, over which rules and standards to follow or to apply. This risk could compound those already modeled by the U.S. drone program, such as the risks to civilians and challenges to the rule of law, both domestically and internationally.

As drones continue to proliferate and more countries look to acquire and use lethal drone capabilities, questions of efficacy, legality, transparency, and accountability will continue to raise concerns about the precedent being set by the current U.S. drone program. The United States has an opportunity to be a leader on this issue and ensure that U.S. policy on drones is responsible and transparent and sets an appropriate benchmark for drone transfers and use around the world. As we move into the next election cycle, it will be important for civil society to remain engaged and pursue forward progress on the issue of drones.
 
Rachel Stohl is vice president of the Stimson Center.
3 Comments

Looking ahead – the arms trade on trial in the UK and The Hague

1/6/2020

4 Comments

 
This is the fourth blog post in a series looking at an array of issues in 2020 related to weapons use, the arms trade and security assistance, at times offering recommendations.

The views expressed are those of the author and not necessarily those of Campaign Against Arms Trade.
Picture
Samuel Perlo-Freeman
Last year, Campaign Against Arms Trade (CAAT) won a legal victory against the UK Government in the Court of Appeal, which overruled a previous High Court judgment, and declared the government’s approach to evaluating export licenses for arms sales to Saudi Arabia to be “irrational and therefore unlawful.”
 
Criterion 2(c) of the EU Common Position on arms exports, which is also written into UK law (and therefore will likely remain after Brexit), states that an export license for military equipment shall not be issued if there is a “clear risk” that the equipment might be used to commit serious violations of International Humanitarian Law (IHL). CAAT had challenged the government’s continuing approval of export licenses for combat aircraft, bombs, missiles, and other equipment used in the Saudi-led war in Yemen, on the basis of the multiple, repeated attacks by the Saudi-led Coalition on civilians and civilian objects, documented by the UN and numerous NGOs with on-the-ground information, which CAAT’s lawyers argued surely meant a clear risk existed of further violations using UK weapons. The Government had argued that their close relationship with the Saudis, their knowledge of Saudi targeting procedures, and the training they provided, ensured that no clear risk existed; indeed, they had not made any assessment of the many hundreds of incidents of attacks on civilian targets of which they had been made aware, to decide if any of these were likely to be violations of IHL.
 
The judges ruled that any rational assessment of future risk must include as a crucial piece of evidence an assessment of past record. They ruled that the government must retake all extant export licensing decisions for equipment to the Saudi coalition, based on a lawful procedure. Until this review is complete, the government has agreed not to issue any new licenses for equipment that could be used in Yemen. The government has been granted leave to appeal to the UK Supreme Court, but has not been granted a stay of the judgment pending this.
 
There are therefore two major developments in this case to be anticipated in 2020: the Supreme Court hearing and judgment, and the results of the government’s retaking of export licensing decisions.
 
How the Supreme Court will view this case it would be pointless to speculate. As for the review of licensing, there are many possible outcomes, each of which might lead to different courses of action for those seeking to stop arms sales from fueling the Yemen war, and other conflicts worldwide. Some that come to mind include:
 
  1. The review could find that there has indeed been a pattern of violations of IHL by the Saudi-led coalition that means that there is a clear risk of future violations, resulting in the revoking of licenses for most or all equipment supporting the Coalition’s air war, and a future presumption of denial. This would be both fantastic and unexpected, and seems highly unlikely – much of the UK arms industry, BAE Systems in particular, is heavily dependent on exports to Saudi, and the government is unlikely to be willing to see this business terminated, including the huge servicing contracts BAE has with Saudi Arabia, supported by 6,300 employees in the Kingdom. BAE has received £29 billion in revenue from the Saudi Ministry of Defence (MOD) between 2009 and 2018 from sales and services, and the loss of this would be devastating to the UK’s “national champion,” whose interests carry huge weight in government policy-making.
  2. The review could conclude that there is no clear evidence of serious violations of IHL by the Coalition, and hence no clear risk of future violations, and thus continue to approve all licenses. This is certainly a possible outcome that would allow the government to achieve its objectives, but might be seen as too lacking in credibility to sustain, in particular in the face of potential future challenges.
  3. The review could find evidence of some violations of IHL, but conclude that this does not amount to a recurring pattern, so that there is still no clear risk, allowing most or all licenses to continue as before.
  4. The review could conclude that there has indeed been a pattern of serious violations of IHL, and that some previous licenses should not have been issued, leading to some being revoked; but that subsequent changes in Saudi policy, working with the UK government, combined with the lowering in the tempo of the air war that has been observed over 2019, means that there is no clear future risk, so that new licenses can be issued, subject to continual careful monitoring of Coalition actions.
 
In the event of any outcome other than a complete halt to arms sales for use in the Yemen war, CAAT and other interested parties will need to look carefully at the basis on which the conclusions were reached – in so far as it is possible to know them – and consider whether there might be grounds for further challenge. On the other hand, any outcome that concludes that previous licenses should not have been granted, on the basis of the record of IHL violations (such as 4), could open the way to looking more closely at other cases where the UK has issued licenses for arms sales to conflict parties; for example, to Turkey during their conflicts with Kurdish forces in Turkey and Syria (though the issuing of new licenses to Turkey are currently suspended), or even to the US for components and subsystems used in their many ongoing wars around the world, including drone wars, where their observance of IHL is open to severe doubt.
 
Meanwhile, another legal effort to hold both governments and arms companies to account is under way in the Hague: on December 11, the European Center for Constitutional and Human Rights (ECCHR), in collaboration with Mwatana for Human Rights in Yemen, CAAT, Amnesty International, Centre Delás in Spain, and Rete Disarmo in Italy, submitted a 350-page Communication to the Office of the Prosecutor (OTP) at the International Criminal Court, asking the OTP to investigate both senior government officials in the UK, France, Germany, Italy, and Spain, and senior corporate officers of nine companies headquartered in these countries, for their potential criminal responsibility for aiding and abetting war crimes in Yemen through the supply of arms. This is a unique effort up to now, in seeking to establish the liability of corporate actors for their role in supporting war crimes through the supply of arms. The Communication challenges companies’ defense that they only supply arms where they have an export license on numerous grounds: for one thing, international principles on business and human rights expect companies to go beyond the minimum requirements of national legislation in seeking to prevent their business activities from having negative impacts on human rights, and this should be even more so in the case of the arms industry, whose products are designed to kill. Secondly, the granting of an export license does not entail an obligation to export, so that the company cannot evade responsibility to conduct their own due diligence; moreover, an export license may be valid for years, so that the situation at the point of delivery may not be the same as at the time the license was issued.
 
The file is now with the OTP. ECCHR and their partners hope that they will at the very least give the case serious consideration, and that this may even lead to the opening of a Preliminary Examination in 2020.
 
The road to any prosecutions would be a long one; however, so long as this file remains open, it may be hoped that the potential for personal criminal liability may have a cautionary effect on decision-makers in evaluating export decisions, whether from the government or corporate side, encouraging more rigorous scrutiny of whether there is indeed a “clear risk” of equipment being used for war crimes or other serious violations of IHL.
 
However, returning to the UK, there is one dark cloud on the horizon regarding CAAT’s efforts to hold the government’s export licensing policy to account through the courts. The Conservative Party manifesto for the election that returned the party and Prime Minister Boris Johnson to power for the next five years included a paragraph that has alarmed civil society and others concerned with the rule of law, promising to review the whole nature of the relationship between government and the judiciary, including restricting the possibility of seeking judicial review; this will still be possible for individuals whose rights are trampled by an “overbearing state,” but not as a way of “conducting politics by other means.” This is probably primarily aimed at the sort of case that saw Boris Johnson’s prorogation of Parliament struck down in a scathing ruling by the Supreme Court in September, but may well also target cases such as CAAT’s.
 
On the other side of the Atlantic, in the Canadian province of Ontario, right-wing Conservative Premier Doug Ford passed a similar law in 2019, the Crown Liability and Proceedings Act, severely restricting the ability of Ontarians to sue the Provincial Government. Moreover, the law applies retroactively, and on the basis of this, the Ontario government is seeking to have eight previous class action suits against it – which the government had already lost, through all stages of appeal – thrown out. Given the Johnson government’s track record in terms of its respect for the rule of law (or lack thereof), it is not hard to imagine them pursuing a similar course in the UK, in spite of its flagrant violation of constitutional norms.
 
Could the UK government, if it loses in the Supreme Court, still try to have the case canceled by such means, and allow arms sales to Saudi Arabia to continue even after they have been shown to violate the UK’s arms export laws? We can only hope not, but it is not something that can be ruled out.
 
Sam Perlo-Freeman is research coordinator for the Campaign Against Arms Trade.
4 Comments

    About

    The "Looking Ahead Blog" features comments concerning short- to medium-term trends related to the arms trade, security assistance, and weapons use. Typically about 500-1000 words, each comment is written by an expert listed on the Forum on the Arms Trade related to topics of each expert's choosing.

    We have a number of special series including: 


    Looking Ahead 2023
    Looking Ahead 2022
    ​Looking Ahead 2021
    Looking Ahead 2020

    Looking Ahead 2019
    Looking Ahead 2018
    First 100 Days (April/May '17)

    Looking Ahead 2017

    Inclusion on the Forum on the Arms Trade expert list does not indicate agreement with or endorsement of the opinions of others. Institutional affiliation is indicated for identification purposes only.

    Archives

    February 2023
    January 2023
    December 2022
    September 2022
    August 2022
    May 2022
    April 2022
    February 2022
    January 2022
    October 2021
    September 2021
    August 2021
    July 2021
    April 2021
    January 2021
    July 2020
    May 2020
    January 2020
    December 2019
    July 2019
    April 2019
    January 2019
    December 2018
    May 2018
    December 2017
    May 2017
    April 2017
    January 2017
    December 2016
    October 2016
    June 2016
    May 2016
    April 2016
    June 2015
    May 2015
    March 2015

    Pdf's

    March 11 (2015)

    Categories

    All
    Adam Isacson
    Africa
    Alejandro Sanchez
    Allison Pytlak
    Amy Nelson
    Anna Stavrianakis
    Arms Sales
    Arms Trade Treaty
    Arms Trafficking
    Aude Fleurant
    Bonnie Docherty
    Brian Castner
    Child Soldiers
    Colby Goodman
    Corruption
    Cyber
    Dan Gettinger
    Danielle Preskitt
    Divestment
    Doug Weir
    Drones
    Emerging Experts
    Environment
    Erin Hunt
    Europe
    Exploration Of Arms Reduction And Jobs
    Explosive Weapons
    First 100 Days
    Frank Slijper
    Gender
    Global Trade Trends
    Harm To Civilians
    Hector Guerra
    High School Debate '19 20
    High School Debate '19-20
    Humanitarian Disarmament
    Iain Overton
    Jeff Abramson
    Jobs
    John Lindsay Poland
    John Lindsay-Poland
    Jordan Cohen
    Kate Kizer
    Killer Robots
    Landmines/cluster Munitions
    Latin America
    Laura Boillot
    Lode Dewaegheneire
    Looking Ahead 2017
    Looking Ahead 2018
    Looking Ahead 2019
    Looking Ahead 2020
    Looking Ahead 2021
    Looking Ahead 2022
    Looking Ahead 2023
    Maria Pia Devoto
    Martin Butcher
    Matthew Bolton
    Middle East
    Military Expenditures
    Natalie Goldring
    Nicholas Marsh
    Non State Actors
    Paul Holtom
    Rachel Stohl
    Ray Acheson
    Robert Muggah
    Robert Watson
    Roy Isbister
    SALW
    Samuel Perlo Freeman
    Samuel Perlo-Freeman
    Security Assistance
    Seth Binder
    Shannon Dick
    Suicide Bombing
    Summit For Democracy
    Sustainable Development
    Tobias Bock
    Transparency
    Ukraine War
    UN Register
    Victim Assistance
    Wanda Muñoz
    War In Ukraine
    William Hartung
    Wim Zwijnenburg
    Yeshua Moser-Puangsuwan

    RSS Feed

Proudly powered by Weebly