The UK government makes billions of pounds from arms sales to countries with repressive, murderous, regimes, like Saudi Arabia, while also claiming to operate one of the most robust arms export control regimes in the world. That hasn’t saved it from legal action brought by Campaign Against the Arms Trade, which argued that notwithstanding that frequently claimed robustness, the government’s export of arms to Saudi Arabia is illegal. I remember that legal action well, because I was the Foreign Office lawyer responsible for fighting it.
The law in this area is not complicated. Anyone British, or in Britain, needs a licence to export arms. Some arms are unlicensable here, such is our collective disgust at the harm they cause – cluster munitions, for example, or equipment used in the execution of human beings. For everything else, applying for a licence is straightforward – a simple form, then a decision from the Department for International Trade. That decision should be made in compliance with the law, which, of most relevance to exports to Saudi Arabia for use in Yemen, says that a licence must not be granted where there is a “clear risk” they might be used in a serious violation of international humanitarian law – “IHL”.
IHL is the framework within which those at war must conduct themselves. It includes rules to protect civilians. You can have war, the law accepts; you can drop bombs on legitimate military targets – a factory producing munitions, for example, or the headquarters of the opposing military, but you can’t aim for civilians, be they on a school bus, in a clinic, or at a funeral; and you must take all feasible precautions to avoid civilian casualties. Those precautions might be things like ensuring you use the most precise weapon available, or if your military target is beside a school, you drop your bombs at night when the children are at home.
In addressing that question of the “clear risk”, the government must consider the Saudis’ past and present record of respect for IHL. Though, as a Foreign Office director explained in the witness statement I helped to draft, even if there was an apparently well-founded allegation of a serious violation of IHL – if it happened six months ago, the Saudis took significant steps to learn from it, and put new processes in place to try to avoid a repeat – the UK government might still appropriately conclude the prohibitive risk threshold was not met, so exports could lawfully continue.
How the Saudis behave in the conflict is central to this risk assessment, and the government monitors the activities of the Saudi-led coalition and keeps a list of every incident in which they may have violated IHL. By December 2017, there were 318 incidents on that list – an average of just over two per week, for almost three years. Rather than draw conclusions as to whether any of those incidents amounted to a serious violation of IHL, the UK supported the Saudis’ development of investigations into their own alleged IHL violations, and provided them with training on the process for investigating themselves; and the Foreign Office witness told the court about the logistical support provided by the UK to Saudi Arabia, the secondment of RAF staff to provide technical maintenance support and UK training of Saudi personnel on targeting and IHL compliance.
Despite the list of 318 incidents, the risk threshold wasn’t met, said the government. The arms sales continued until June 2019 when the Court of Appeal found that the risk assessment had been conducted irrationally, and therefore unlawfully. It ordered the government to retake licensing decisions, this time on the correct legal basis.
On 7 July Liz Truss told parliament that in the court’s judgment, the question of whether there was a historic pattern of violations of IHL had to be faced. She explained that the government had done so, noted that the incidents assessed to be violations by the Saudi-led coalitions “occurred at different times, in different circumstances and for different reasons”, and concluded that these were isolated incidents.
Six days later, the government confirmed that there were now 516 incidents on that IHL list, an average of 1.5 per week for the preceding two and a half years.
Despite that, said the UK government, there was definitely no clear risk that even one such incident might amount to a serious violation by the Saudi armed forces and happen again in the future.
Exports resumed and are ongoing.
I have acute shame about my role in all of this. I did not become a lawyer in order to justify the moral depravity that is the export of arms to Saudi Arabia.
We are five years into this conflict. Seventeen thousand civilians are dead and 10 million people are facing famine. The people of Yemen, the devastated and the starving, are our fellow human beings. Their lives are not worth less than ours, nor are they worth less than our economic growth or employment prospects. They are our equals, and they are victims not just of our egregious immorality, the British preference for our money above their lives, but of our illegality.
This is not a one-off. With the approval of the prime minister, the secretary of state for Northern Ireland told parliament of the government’s intention to break international law in a bill to amend the Brexit deal with the EU. The attorney general did not object, but many other lawyers did – including the president of the Law Society. Lawyers know that these are not small print technicalities, but a dangerous cultural shift towards a government which considers itself above the law. And when governments consider themselves above the law, the consequences can be horrifying: government critics are poisoned, journalists are detained and murdered, doctors are imprisoned for treating pro-democracy protestors, and particular ethnic groups are incarcerated and forcibly sterilised.
Boris Johnson cannot be allowed to drag Britain any further in that direction – and every government minister who has fallen meekly into line behind him must consider their conscience, and their country, and do what’s right. If they fail, we may soon be reminded that the very worst terrors human beings inflict on others happen when those in power do not respect the law.
Molly Mulready is a former UK Foreign Office lawyer