'Isolated incidents': The legal absurdity of UK arms sales for Saudi war in Yemen
The UK government’s announcement of the resumption of arms export licensing to Saudi Arabia and its allies may well prove to be the nail in the coffin for thousands more Yemenis, as the war in their country extends into its sixth year.
Declaring that potential breaches of international humanitarian law by the Saudi-led coalition amounted only to "isolated incidents", Secretary of State for International Trade Liz Truss announced herself to be satisfied that Saudi Arabia has a "genuine intent and capacity" to comply with international law and that there is therefore no clear risk of the misuse of weapons.
It is unclear how the government got from a starting point that treats all potential breaches as breaches, to a conclusion that there is only a 'small number' of possible breaches
How did the government reach this conclusion in the face of ongoing attacks on civilian targets and infrastructure in the war?
In June last year the Court of Appeal found the government’s arms export policy to be unlawful, as it failed to assess whether the Saudi-led coalition had committed violations of international humanitarian law in Yemen. The court ordered the government to re-take its decisions, this time lawfully.
After more than a year of silence on the matter, the government announced that its revised methodology now takes into account past allegations of violations and treats all potential breaches as actual breaches for the purposes of assessment.
So far so good: UK policy is based on the risk that weapons might be misused, and risk-based analysis is supposed to be preventive, so a position that treats potential breaches as breaches is a welcome start. However, the government engaged in two steps of legal and political manoeuvring to reach a conclusion that there is no pattern of potential breaches, and therefore no clear risk, meaning that arms licences could resume.
First, it is unclear how the government got from a starting point that treats all potential breaches as breaches, to a conclusion that there is only a "small number" of possible breaches.
What's a possible breach?
The Ministry of Defence (MoD) says that on 4 July 2020 it holds details of more than 500 "alleged instances of breaches or violations of International Humanitarian Law (IHL) in Yemen". If the MoD has knowledge of more than 500 alleged breaches, and the government treats all potential breaches as actual breaches, then that means that the vast majority of these 500-plus alleged instances of violations have not been "assessed as a possible breach".
The government has constructed a position that allows it to both facilitate ongoing arms exports and claim adherence to international law
Significant definitional work has gone into narrowing the category of what constitutes a "possible breach" and putting distance between "allegations that are assessed as likely to have occurred" and those that are "assessed as a possible breach". If this sounds like pedantic wordplay, that’s because it is, albeit wordplay with deadly serious ramifications for the population of Yemen.
The government has constructed a position that allows it to both facilitate ongoing arms exports and claim adherence to international law. Second, it is unclear how the government reached the conclusion that these potential breaches constitute "isolated incidents". The government was required by the Court of Appeal to assess whether past incidents were part of a pattern.
On the basis that the possible violations "occurred at different times, in different circumstances and for different reasons" the government has concluded they were isolated. But one can just as easily – in fact, much more persuasively – conclude that this is evidence of widespread and systematic attacks over a long time period.
There is a wide range of evidence in the public domain that indicates widespread and sustained attacks on civilian targets and infrastructure. One of the most recent reports is a collaborative effort between Mwatana for Human Rights, a Yemeni human rights organisation, and the Global Legal Action Network intended to “give the government everything it needed to accurately assess the risk of future violations".
Yet the government has routinely failed to engage in any meaningful way with the evidence provided by civil society actors. There are challenges to identifying patterns and making decisions about whether attacks are systematic or indiscriminate – and the myriad organisations working on civilian harm could have provided lessons in how to identify patterns if the government was so minded.
The point is, the government did not want to find a pattern – because that would mean they had to suspend arms sales – and so they didn’t. Instead, they have declared themselves satisfied “that there is not a clear risk that the export of arms and military equipment to Saudi Arabia might be used in the commission of a serious violation of international humanitarian law” and issued a seemingly blanket statement about the resumption of licensing, which itself flies in the face of the commitment to undertake a case-by-case assessment of every licence application.
These machinations are all compounded by the ongoing reliance on secrecy. The secretary of state apparently considered "the full range of information", some of which is "necessarily sensitive and confidential". This is old ground and it served as a staple of the government’s defence in the legal proceedings.
Whitewashing Saudi Arabia
It was not persuasive then, and it is not persuasive now. The government’s policy is based on risk assessment, which is supposed to be preventive – so if there is evidence indicating a potential breach, it should be factored in in a preventive manner.
The government has refused to engage with, let alone refute, the wide range of credible allegations in the public domain that indicate violations of international law, instead relying on ostensibly superior secret information that the public is not entitled to engage with.
And it is now refusing to publish the information on which it has based its revised methodology – stating that it has published the criteria for decision-making and the quarterly lists of licences granted.
However, what is missing is any substantive explanation of the rationale for decisions actually taken: there is frequently a glaring gap between the government’s publicly stated position and its actual licensing practice, a gap that the stock repetition that the UK has "one of the most robust control regimes in the world" does not address.
And while the quarterly lists provide data on licences granted, the codes do not match those used by HM Revenue and Customs to report on actual deliveries, reports that anyway only cover a subset of all weapons exports. This makes it impossible to know what was actually transferred and when, especially in the case of so-called open licences that allow repeat transfers to multiple destinations.
The government’s announcement means that arms licensing to the Saudi-led coalition can resume and the legal case falls away. The government will undoubtedly use the ostensible stamp of legal approval to continue whitewashing Saudi Arabia’s reputation and attempt to deflect continued criticism.
It was recently announced that the Committees on Arms Export Controls will be re-established, with MP Mark Garnier in the Chair. The Committees' role is to scrutinise government policy and practice. They have not published a report in the past two years; and with the merger of the Department for International Development into the Foreign and Commonwealth Office, development actors' voices are even less likely to be heard at the table.
The new Committee members will have their work cut out for them.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.