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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

Looking Outside the State-Centered Box: Tools for Change in 2017

12/21/2016

4 Comments

 
This is the sixth blog post in a series looking at an array of issues in 2017 related to weapons use, the arms trade and security assistance, at times offering recommendations.
Picture
Jeff Abramson
At a time when it may be easy to anticipate the faltering of international instruments and global approaches, especially as countries in the West -- starting with the United States and United Kingdom -- put national interests above regional and international ones, it is wise to remember that states are not the exclusive drivers of change. Progress-pushing work by civil society using legal, financial, industry-led, investigative and transparency tools has impacted weapons use and the conduct of the arms trade. We should expect those tools again to make a difference in 2017.

Beginning early in the year, a UK court case initiated by civil society will address the legality of arms transfers to Saudi Arabia, with potential ramifications on the European Union and more broadly on all states party to the Arms Trade Treaty. Already, legal concerns have been expressed in the United States by leading independent experts about sales and assistance to Saudi Arabia, and could be renewed should the incoming Trump administration continue a policy of arming Riyadh during the humanitarian crisis in Yemen.

The persistent investigative efforts of many civil society groups, including by Amnesty International and Human Rights Watch, that documented indiscriminate use of weapons by the Saudi-led coalition undoubtedly played a role in the Obama administration’s recent decision to hold off on delivery of precision-guided munitions. That research work also helped push the UK government to reverse its earlier conclusion that the coalition had not used cluster munitions in Yemen; explicitly in reference to weapons that had originally been supplied by London more than a quarter century ago. On Monday this week, the UK Secretary of State for Defence confirmed a pledge by Saudi Arabia not to employ the weapons (BL755s) again.

The stigma on cluster munition use, in particular, has been strengthened by the creative financial focus of the Stop Explosive Investments campaign that publishes original research into the financial institutions (and states) that invest in -- or pledge not to invest in -- companies producing cluster munitions. As such efforts help shrink the financial incentives and marketplace for indiscriminate weapons, it makes more likely decisions such as the one taken recently by Textron to suspend its product line, functionally ending production of cluster munitions in the United States.

Other industry members, including the scientists and researchers that make sophisticated weaponry possible, have taken a proactive position for a ban on so-called “killer robots.” In 2015, thousands of artificial intelligence experts and researchers -- including prominent scientists and industry leaders such as Stephen Hawking, Elon Musk and Steve Wozniak --  issued an open letter calling for autonomous lethal weapons not to be developed. In 2014, the first robotics company -- Clearpath Robotics in Canada -- pledged not to make killer robots,  In 2017, work on this issue will enter a new phase as states parties to the Convention on Conventional Weapons agreed last week to formalize discussion on the topic, a step that may lead to an official protocol that the Campaign to Stop Killer Robots and a growing number of states say should ban the weapons.  

Civil society will also play a critical role in improving transparency in many areas related to the arms trade and security assistance, at times by making sense of public-but-hard-to-gather-or-understand data. For example, SIPRI will continue its highly respected research and publications on global arms trade trends, especially related to major weapons systems. Landmine and Cluster Munition Monitor will track global developments on landmines and cluster munitions, serving as the de facto monitoring regime for two treaties. For the newer Arms Trade Treaty, projects such as the ATT Baseline Assessment Project and the  ATT Monitor have already established a track record of aiding states in understanding their obligations as well as assessing their efforts. In the United States, the Security Assistance Monitor is now pulling together vast amounts of U.S. data into one place for improved transparency on the world’s largest arms and security assistance provider.

In looking ahead, these civil society members and many others should be watched as they employ and develop the tools that shape change in 2017 and beyond.

Jeff Abramson, who coordinates the Forum on the Arms Trade, is a senior fellow at the Arms Control Association and manager of the International Campaign to Ban Landmines-Cluster Munition Coalition’s (ICBL-CMC) Landmine and Cluster Munition Monitor program

4 Comments

Declining transparency in reporting on arms trade and military spending: some observations

5/17/2016

2 Comments

 
PictureAude Fleurant, and the SIPRI arms transfers and military expenditure team
This is the third blog post in a series on official transparency reporting, where it struggles, and the important role civil society often plays in monitoring and improving global understanding of the trade and use of conventional weapons. 

In the first week of May, the US State Department started to add data on US arms exports in 2015 to the UN Register of Conventional Arms (UNROCA). Though still in the process of being completed the report reveals that 36 M-ATV armoured vehicles were delivered to Saudi Arabia. That is useful to know considering that these vehicles are used in the forceful Saudi intervention in Yemen. However, closer examination of other sources suggests that many more M-ATVs must have been delivered to Saudi Arabia in 2015 or 2014. Why are they not reported? We don’t know, but this is a recent example of how incomplete government reporting continues to hinder well informed discussions on arms trade and military expenditure and highlights the continuing efforts made by NGOs and research institutes to collect and disseminate relevant information and analysis.
 
Over the past few years, a worrisome trend of problems in reporting for military spending and the global arms trade and, consequently, reduced transparency has been observed by the team of researchers at SIPRI in charge of maintaining the databases and present global trends. SIPRI relies on open sources for its databases on military spending and arms transfers. Each year, the team collects, processes and then publishes new figures on national and regional military spending and arms transfers, with accompanying analysis of regional and global trends.
 
Intermittent and reduced reporting by states and international organisations is an issue for the team. However, it is far from being the only one that we face when harvesting data. Indeed, in several instances, there is reporting, but the quality of the data is highly questionable, resulting in lack of clarity about what the figures cover and what definitions are used to achieve them. For instance, the team has noted discrepancies between figures from different government reports originating from the same countries – ´such as with discrepancies between reporting by the Pentagon and the U.S. report to UNROCA in 2014 - as well as important delays in publishing yearly reports.
 
Military spending may fare better than the arms trade in terms of transparency, as countries such as Nigeria and Kazakhstan have started providing detailed figures online. However, there is a counter trend of countries that have stopped publishing their figures altogether. For its 2015 new military expenditure data, the team decided against presenting an estimate of regional military spending for the Middle East. This decision can partly be explained by the fact that Syria and Yemen are waging wars on their territory, which disrupt regular activities of state institutions such as reporting on budgets. However, Qatar and the United Arab Emirates, which we can assume to be two large regional spenders, do not publish their military budgets at all. In the case of Saudi Arabia, the third largest global military spender in 2015, a single budget figure is published every year, but there are no details about what it covers, making it very opaque.
 
Problems of reporting and timeliness are also observed in the global north, especially for arms transfers. Indeed, the publication of the European Union Report on arms exports of member states, which was initially designed to increase transparency on this matter within the European Union, has been severely delayed two years in a row -- the one covering 2014 having been published in early May 2016. The quality of the figures presented in the EU report is also highly questionable. Several states, such as the United Kingdom and Germany, report export licences values without providing any figures for the actual deliveries of the weapons for which the licences were issued. The use of global licences also injects greater opacity into the arms trade.
 
Some of these problems are not new, and SIPRI has designed alternative ways to circumvent them - to a certain degree. For instance, a network of national experts supports the data collection process by providing details of coverage and definition in the case of military spending. Extra research is led in-house to assess official figures by comparing them to other sources and/or to fill gaps by using trustworthy secondary sources. When no figure is available or is deemed too unreliable, the team uses estimates that are then clearly identified as such, and revised when new information is available.
 
Despite these difficulties, SIPRI updates its databases and analysis yearly, doing its part to inform civil society, and to support positive actions. However, weaker reporting, discrepancies in figures presented, lack of definitions and delays in publishing the reports reduce decision-makers' accountability as well as oversight of independent auditing agencies and parliamentarians. 

Aude Fleurant is Director of SIPRI's Arms and Military Expenditure Programme. The programme team contributed to this blog post.

2 Comments

Trends in illicit trafficking

3/11/2015

1 Comment

 
Nicholas MarshNicholas Marsh
Bucking the role of shadowy arms dealers found in the popular imagination, governments and non-state groups fighting in recent high profile wars – e.g. Syria, Iraq, Ukraine, Libya – get their arms from states. Supplies for rebels often come from looting state arsenals or from not-even-covert shipments organized by friendly states. Governments receive military aid or generous financing terms. Much work has been expended on conflict economies, and they are still important, but in many contemporary wars weapons can be obtained for free. The prospect of more great power confrontation raises the concerning likelihood that weapons supplies to proxies will more frequently be used as a means to try to obtain foreign policy goals.  
 
In recent years homicide accounts for over ten times more violent deaths than warfare. Regions affected by high levels of homicide, which are often as violent as war zones, also experience high levels of illicit firearms. Crime is the most important global driver of illicit firearms ownership, use and trafficking. The acquisition of these arms is via purchases from retail shops of lawfully imported or locally produced guns; pilfering from government stocks held by the police and armed forces; and illicit cross-border trafficking. Authorized exports have been increasing to many of these countries. 
  
Hitherto research on illicit trafficking has mainly been conducted via case studies and field work. This important work will be augmented by the systematic collection and analysis of data. Doing so will enable researchers to track global and regional trends (albeit with important caveats about data quality and comprehensiveness), and better understand the economic and political foundations of the illicit arms trade. 

Nicholas Marsh is a Research Fellow at the Peace Research Institute Oslo (PRIO).

1 Comment

Will U.S.-Russian competition make it more difficult to control the global arms trade?

3/11/2015

1 Comment

 
Natalie GoldringNatalie Goldring
According to recent press accounts, Russia is considering selling advanced mobile anti-aircraft missile systems to Iran. Russia is already moving toward delivering the same system to Egypt, and has reportedly transferred it to Venezuela as well. According to The Guardian, the manufacturer claims that the system is effective against missiles, fixed-wing aircraft, drones, and precision-guided bombs.

The Russian resurgence in the international arms trade challenges recent U.S. supremacy in this arena. According to the Stockholm International Peace Research Institute (SIPRI), from 2004-2008, the United States was responsible for 30 percent of the global weapons trade, with Russia in second place with 24 percent. From 2009-2013, however, the gap between the two countries narrowed significantly, with the United States still in first place at 29 percent, but Russia close behind at 27 percent. With the release of new SIPRI arms trade data in mid-March 2015, the two top suppliers may well switch places.

The United States has signed the global Arms Trade Treaty (ATT), but the prospects for ratification in the near future are dismal at best. Russia has not signed the treaty, and it abstained on the General Assembly vote on ATT passage. Advocates of global control of arms transfers must develop strategies for addressing key suppliers that are not full participants in the treaty. One possibility is seeking synergies among the ATT, the UN Programme of Action on Small Arms and Light Weapons and the UN Register of Conventional Arms to strengthen the nascent global regime on conventional weapons transfers.

Dr. Natalie Goldring is a Senior Fellow in in the Security Studies Program in the Edmund A. Walsh School of Foreign Service at Georgetown University. She is also UN consultant for the Acronym Institute for Disarmament Diplomacy.

1 Comment

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    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.

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