The place of law in humanitarian activism: UK-Saudi arms trade

Comment International Issues Law

Image description:  CAAT campaigners protest against Farnborough International arms fair, 2016

On the 2nd of October 2018, Jamal Khashoggi got assassinated by Saudi Arabian agents in Istanbul. This assassination has led to a rampant increase in scrutiny of the UK’s continued sale of armaments and military equipment to Saudi Arabia. With the pressure upon the UK Government continuing to increase, the Campaign Against Arms Trade (CAAT) brought a judicial review case against the UK. In the Divisional Court, it was held that the Secretary of State for International Trade’s decision not to suspend export licences for the sale of arms and military equipment to Saudi Arabia was rational and justified as no ‘clear risk’ of a breach of international humanitarian law was found. The CAAT subsequently got granted permission for an appeal against this decision, with this appeal currently being reviewed.

The CAAT was permitted an appeal against the Department for Business, Energy and Industrial Strategy, as they argued that the UK must end its armament trading relationship with Saudi Arabia because exported military arms equipment to Saudi Arabia might be used in Yemen in the commission of a serious violation of international humanitarian law. In the Divisional Court it was held that this was not the case. However, now that an appeal has been granted, this case could alter the UK’s trading relationship with Saudi Arabia and any other nation with a similarly blemished public profile.

It could be held that the export licences for such armaments would not be granted if there was an evident risk that the arms would be used in a serious violation of international humanitarian law. The Divisional Court held this was not the case. The main reason being that the evidence displayed that the Secretary of State had considered both internal government risk analysis and third-party reports and had decided that there was no ‘clear risk’ that the weapons would be used to breach international humanitarian law. Above all it was not the court’s place to interfere with finely balanced decisions reached by experts. It was held that the decision of the Secretary of State for International Trade to continue granting export licences for the sale of arms to Saudi Arabia for possible use in the conflict in Yemen on the basis that there was no “clear risk” of “serious violations” was justified and rational.

The outcome of this case is extremely significant as it will display whether the law can be used to limit the Government’s business transactions based on violations of international humanitarian law.

There are two significant remarks that have to be made about this appeal. Firstly, it has to be stressed that this case regards a legal question. Whether the political views of the CAAT are justified is a question for the public to debate but not for the court to answer in this case. The court will solely determine if ‘there was a clear risk that items might be used in the commission of a serious violation of international humanitarian law’ when the UK sold weapons to Saudi Arabia. The CAAT consists of three main human rights activist groups; Amnesty International, Human Rights Watch and Rights Watch UK. These three groups could be right in contending that the UK government’s arms deals are unjustifiable. However, it has to be clear that that is not the question that the court will be answering. The courts will not, and should not, decide whether or not the government policy is right or wrong, it will merely decide if the trade relationship with Saudi Arabia is illegal according to the European Union criteria concerning exports of arms and military equipment.

Secondly, this case would alter the UK’s trading relationship with Saudi Arabia and with any nation of a similar public profile. The outcome of this case is extremely significant as it will display whether the law can be used to limit the Government’s business transactions based on violations of international humanitarian law. Currently, most activist groups primarily use political campaigns and protests to try and convince the government to change. The use of the law in this instance could amplify the importance of human rights and increase advocacy of more caution towards protecting such rights. The appeal of this case can potentially be a stepping stone in the direction of broader international human rights protection within the law. It will be interesting to see how the courts respond to their role of deciding whether, in the eyes of the law, there was a clear risk that these items could be used in the commission of human rights violations and the impact this could have on the UK’s future trade relationships.

Image Credit: Campaign Against Arms Trade