Key evidence in the case was kept secret - and so will evidence in the case of British intelligence and counter-terrorism cooperation with the US
The ruling by two judges that British weapons sales to Saudi Arabia do not breach British or international humanitarian law may be a victory for the British government – and, by implication, any other major arms supplier. It is certainly a victory for secret justice.
You may claim that British bombs have killed civilians in Yemen. But what do we know? The judges have been told things which we ordinary mortals have not
You may claim, as UN agencies, NGOs, and humanitarian organisations have done, that British bombs have killed civilians in Yemen, said Lord Justice Burnett and Mr Justice Haddon-Cove. But what do we know?
The judges have been told things which we ordinary mortals have not. The reports that the claimants – the Campaign Against the Arms Trade (CAAT) – relied on “represent a substantial body of evidence suggesting that the Coalition [of bombers] has committed serious breaches of International Humanitarian Law in the course of its engagement in the Yemen conflict,” said the judges.
“However,” they added, “this open source material is only part of the picture.”
The British defence ministry, continued the judges, had access to a “wider and qualitatively more sophisticated range of information” than that available to CAAT, including British Ministry of Defence imagery, intelligence reports and battle damage assessments.
Much of that, the judges stress, is “sensitive”. So it must be kept from the prying eyes of any independent scrutineer.
Theresa May, meanwhile, refuses to release a report, commissioned by her predecessor, David Cameron, on the foreign funding and support of jihadi groups. Saudi Arabia is believed to feature prominently in the report which the Home Office has suggested will never be published.
Life and death cycle
Under EU and British guidance, the government “will not grant a licence if there is a clear risk that the items might be used in the commission of a serious violation of International Humanitarian Law”, the judges remind us, underlining the key words.
Saudi intelligence may save lives in Britain. British weapons may kill civilians in Yemen – and elsewhere in the Middle East
The guidance is full of qualifications wide open to interpretation. Does a serious violation mean that there must be deliberate targeting of civilians, as the government’s lawyers implied? There has obviously been a clear risk that civilians would be killed. Not even the British government denies that civilians have been killed by bombing raids on Yemen.
Senior RAF officers recently admitted that civilians may have been killed in Mosul by British Brimstone missiles, said to be the most accurate, precision-guided, weapons in the business despite the care taken by RAF pilots and drone operators. Britain has supplied Saudi Arabia with less accurate and larger Paveway bombs that have been dropped over Yemen.
So anxious was the MoD and British-based arms companies to oblige the Saudi regime that it diverted 500lb Paveway IV guided bombs originally earmarked for the RAF to Saudi Arabia to enable it to continue striking targets in Yemen and Syria.
And Saudi Arabia admitted late last year it had bombed targets in Yemen with British cluster bombs, weapons which maim innocent civilians, notably children and which successive British governments said years ago they would never use again. The 2008 international convention banning their use has not been signed by Saudi Arabia (nor by the US).
It follows a pattern. Saudi intelligence may save lives in Britain. British weapons may kill civilians in Yemen – and elsewhere in the Middle East.
No longer pretending
The British government has virtually given up pretending that human rights matter any more. Back in 2015, Sir Simon McDonald, the top official at the Foreign Office, told the Commons foreign affairs committee that human rights was "not one of our top priorities".
Human rights no longer had the "profile" within his department that they had "in the past", he said. And the greater the risk to lucrative arms sales, the lower the priority. British ministers and the British royals were hugging the Saudi royal family as more people were being executed in Saudi Arabia than for many years.
In 2008, after the Blair government stopped Britain’s Serious Fraud Office from pursuing its probe into allegations of corruption over the sale of British warplanes in the huge al-Yamamah oil-for-arms deal agreed by his predecessor, Margaret Thatcher, Saudi royals warned that Britain faced another “7/7" - a reference to the London underground suicide bombings - and the loss of "British lives on British streets" if they pressed on with their inquiries and the Saudis carried out their threat to cut off intelligence.
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Lord Justice Moses told the High Court then that the government appeared to have "rolled over" after the threats. He said one possible view was that it was "just as if a gun had been held to the head" of the government. Moses said he was surprised the government had not tried to persuade the Saudis to withdraw their threats. He said: "If that happened in our jurisdiction [the UK], they would have been guilty of a criminal offence.”
A far as the British government is concerned, its relationship with Saudi Arabia – and Bahrain and Oman, too, for that matter – is truly special, almost as special as Britain’s relationship with the US. It would have appealed had today’s judges ruled against it.
Justice in the dark
Key evidence in the case of British arms sales to Saudi Arabia has been kept secret. Other evidence is now also being kept secret in the case of British intelligence and counter-terrorism cooperation with the US.
After six years of delay, today was the government’s first chance to put up or shut up - and they’ve shut up
- Cori Crider, lawyer for Abdul Hakim Belhaj and Fatima Boudchar
The British government is not only insisting that the hearings into the abduction and torture in 2004 of Abdul Hakim Belhaj and his wife, Fatima Boudchar - two of Muammar Gaddafi’s opponents - by Britain’s MI6 and America’s CIA must be held in secret. It insists the reasons Britain’s Crown Prosecution Service gave for not pursing criminal charges must also be kept secret.
“A closed material procedure is unnecessary and is not in the interests of the fair and effective administration of justice,” Leigh Day, Belhaj’s lawyers – who are also CAAT’s lawyers in the arms sales case – told the British high court on Monday.
Cori Crider of the human rights group Reprieve and a counsel for the family said: “After six years of delay, today was the government’s first chance to put up or shut up - and they’ve shut up. We’ve given the court thousands of pages of evidence about CIA torture and Britain’s role in this sorry episode - and what does the government have to say about it? Nothing."
Monday was a bad day for open justice in two cases before Britain’s high court.
- Richard Norton-Taylor is a former security and defence editor at the Guardian. His books include In Defence of the Realm? The case for Accountable Security and Intelligence Services and Truth is A Difficult Concept: Inside the Scott Inquiry. He has written a number of award-winning plays, including Half the Picture, The Colour of Justice, Justifying War, Bloody Sunday, which won an Olivier theatre award, Called to Account, and Chilcot. He is on the board of Liberty, the National Council for Civil Liberties. He has twice won Freedom of Information Campaign awards.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.
Photo: Smoke billows following an air strike by Saudi-led coalition on 11 May 2015, in Sanaa. (AFP)