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

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
Anna Dwan link
8/14/2020 06:23:38 am

Spot on with this write-up, I truly think this website needs much more consideration. I’ll probably be again to read much more, thanks for that info.

Reply
Landscape Design Palo Alto link
8/17/2020 09:49:28 am

This is the right blog for anyone who wants to find out about this topic. You realize so much its almost hard to argue with you (not that I actually would want HaHa). You definitely put a new spin on a topic that’s been written about for years. Great stuff, just great!

Reply
Heritage hotel of india link
10/16/2020 06:12:26 am

I have inferred the fact that your views of Samuel perlo are very justified in itself and should be implemented for the good of all in UK.

Reply
instagram viewer link
10/30/2020 03:48:58 am

I really appreciate this wonderful post that you have provided for us. I assure this would be beneficial for most of the people. Let make your blogs more plentiful on instagram with our site

Reply

Your comment will be posted after it is approved.


Leave a Reply.

    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

    March 2023
    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