4The UK’s legal obligations
A global leader in the rule of law
81.As a key element of the UK’s global influence to protect and promote our interests and values, supporting our security and prosperity, the SDSR sets out that we “will work with our allies and partners to strengthen, adapt and extend the rules-based international order and its institutions.”112
82.We heard, however, that the UK’s continued authorisation of arms transfers to Saudi Arabia in the face of allegations that they breach the UK’s international obligations like the Arms Trade Treaty (ATT), raises questions as to the UK’s commitment to a rules-based international order, and damages the UK’s standing within the international community.113 The UK Working Group on Arms argued that the UK, by appearing to be ready to breach its international obligations, sent a message to other states that they could do the same.114
83.Professor Philippe Sands QC told us about the importance of the leadership position the UK holds internationally with regards the rule of law:
If I were a legal adviser to this Government, I would be saying, “It is time to start asking yourselves the right questions as to what your responsibilities and obligations are. Why, Minister? Because the United Kingdom is a global leader on the rule of law” […] I think that what the United Kingdom does really matters, because the United Kingdom plays a leadership role on a lot of these issues. When the United Kingdom takes a lead in a certain area, many others will often follow.115
84.The UK Government has been at the forefront of work to establish systems of rules to regulate arms exports, our own national system of rules in the EU and, importantly, the ATT. Work to secure this was described as “at risk of unravelling by the current policies towards Saudi Arabia and the supporting coalition”.116
85.Dr Anna Stavrianakis told us that the conflict in Yemen has put the UK Government in a very difficult position regards its international obligations and its leadership in the rule of law:
The UK Government put themselves in a position of moral leadership by pressing for the arms trade treaty during the negotiating phases. Now that it has entered into force, there is a whole series of reputational politics associated with it, in being seen to lead and to uphold it in terms of implementation[…]The current situation in Yemen is quite unfortunate for the UK Government, because it has put them into a trap. They are caught in a trap that sets large swathes of domestic public opinion, and their legal obligations, against their relationship with Saudi Arabia, so they are now in quite a tricky position.117
86.The argument that the UK Government is trapped was also made to us by Dr Robert Dover and Professor Mark Phythian, who contended that “the UK Government has placed itself in an invidious position of fighting a proxy war in Yemen alongside the Saudis, and thus has tied its own hands: it has virtually no choice but to supply military equipment into that theatre at ongoing reputation cost.”118
87.We are concerned by the increasing perception that the Government’s position is inconsistent with its support for the rule of law and the international rules-based system. The onus is now on the Government to prove that it has complied with its obligations.
A robust licensing regime
88.In response to questions on arms transfers to Saudi Arabia, the Government has repeatedly insisted that the UK operates one of the most robust arms export control regimes in the world119. Paul Everitt, Chief Executive of ADS, argued that the UK’s licensing regime was held up as a benchmark for international best practice, and stressed the importance of the public availability of information.120 Mr Everitt explained that arms exports are a regulated sector—once a company decides to sell overseas and applies for a licence, it is then up to Government to make the judgements and decisions about whether that licence would comply with our legal obligations. Accordingly, once the licence has been applied for, the individual company has “crossed a line where responsibility has to sit with the Government and those who are making the key decisions.”121
89.The Government assesses licence applications for compliance with arms trade law which, Professor Philippe Sands QC explained to us, operates in three distinct levels: the Arms Trade Treaty at the international law level; the EU common position at the European Union law level; and the consolidated EU and UK arms export licensing criteria at the domestic, UK law level.122 Although Professor Sands and his colleagues from Matrix Chambers looked at all three levels when producing the legal opinion on the lawfulness of the authorisation by the United Kingdom of weapons and related items for export to Saudi Arabia in the context of Saudi Arabia’s military intervention in Yemen,123 Professor Sands confirmed that the three levels do overlap:
Having concluded that both article 6 and article 7 [of the ATT] are not being complied with, you can effectively piggyback your way on to violations of the EU common position and the UK criteria, because both require, among other things, a commitment to meet your international standards. If you are failing to meet your international standards, it follows that you are failing to meet your EU standards and failing to meet your domestic standards.124
90.We have received much evidence concerned with the UK Government’s compliance with articles 6.3 and 7 of the Arms Trade Treaty, articles 2 and 6 of the EU common position, and criterion 2c of the UK’s arms export licensing criteria, all of which refer to the respect of the recipient country for international law and require that the Government not grant a licence where there is a clear risk that the items might be used in the commission of a serious violation of IHL.125 This evidence has questioned the robustness of the licensing regime.
Assessing risk
91.In judging whether an export of defence equipment is compliant with the obligations above, the Government is required to carry out a risk-based assessment, looking at all available evidence. Oliver Sprague, of Amnesty International, told us that there was evidence of unlawful strikes by the Saudi-led coalition “in spades” in Yemen, where Amnesty believed that there was a risk that UK-supplied equipment could be used in future combat.126 Dr Stavrianakis argued that the UK Government, by ignoring evidence of breaches of IHL and failing to conduct its own investigations, was setting “the bar for the risk assessment impossibly and inappropriately high”.127
92.The concerns we heard about how the UK Government is investigating violations of IHL were widespread. Many witnesses argued that there is a considerable body of reliable evidence of such violations by the Saudi-led coalition, which indicated that there is an appreciable risk of defence equipment supplied by UK manufacturers being used in contravention of international law and the UK’s international obligations.
93.The UK Government operates a risk-based arms export licensing regime, requiring Government to assess the risk that arms exports might be used in violation of international humanitarian law. In the face of widespread allegations of violations of international humanitarian law in Yemen, it is difficult for the public to understand how a reliable licence assessment process would not have concluded that there is a clear risk of misuse of at least some arms exports to Saudi Arabia. At present, the Government’s export licensing policy towards Saudi Arabia could be interpreted as not living up to the UK’s robust and transparent regulations, nor upholding the UK’s international obligations.
94.The credibility of the Government’s policy and practice of its arm export licensing regime has been called into question. In response, we recommend it issue a public explanation of its risk assessment process and what level of risk would trigger the refusal of a licence.
A chain of responsibility
95.We heard concerns regarding the Government’s understanding of the end-use of the equipment we supply to Saudi Arabia. Our attention was drawn to a parliamentary response by the Defence Secretary that “the use of equipment and weapons supplied to the Saudis is an operational matter for the Saudi military authorities. The Saudis have assured us that British-supplied munitions will be used in compliance with international humanitarian law and we continue to engage with them on these assurances.”128
96.Professor Philippe Sands QC raised this reliance on assurances from the Saudis as particularly problematic. He said that between June and October 2015, the Foreign and Commonwealth Office made a number of statements which had in common that they relied on assurances given to us by the Saudi authorities. He advised that governments could not simply rely on the reassurances of others, but that article 6 of the ATT imposed an explicit obligation on signatories to form a view.129
97.Dr Stavrianakis described this as a chain of responsibility, which “links the responsibility of the exporter to the behaviour of the importer, because it is incumbent on the exporter to assess the risk of how that equipment might be used—not will be used but might be used. “130 Oliver Sprague from Amnesty International further clarified:
In order to establish a risk-based analysis of a licence, they have to have an indication about how that weaponry is used to discharge that function. If they are genuinely saying that how Britain’s weapons are going to be used is not a matter for them, it is impossible for a decision to be made to authorise those weapons lawfully on the basis of the relevant articles in the Arms Trade Treaty. They have to have some assessment of the prior knowledge on the uses to which the weaponry would be put. It is absolutely fundamental.131
98.According to Professor Philippe Sands QC , the chain of responsibility could be extended to individual ministers:
If I were a legal adviser to a Minister, I would say, “Minister, there is a reason, beyond this, why you need to look at this matter, which is that beyond international humanitarian law and international human rights law, there is now also international criminal law. International criminal law imposes responsibilities not on states but on individuals. If it turns out that the United Kingdom is supplying weapons in a conflict that is giving rise to systematic violations of international humanitarian law, I cannot exclude the possibility that, on some day in the future, you, as the person who supplied the weapons, could be hauled before some foreign national court, some domestic UK court or some international court.” If I were a Minister, I would want my legal adviser to say that.132
A lack of transparency
99.The Department for Business, Innovation and Skills publishes the licensing statistics for UK arms exports on a quarterly basis.133 We heard from Roy Isbister of Saferworld that the UK Government deserves credit for the timeliness of the information made available which allows observers to investigate what has been licensed for transfer up to the start of the previous quarter. He also raised the UK parliamentary oversight system as a model other countries might like to follow.134 That said, there are limits to the information which can be extracted from the licensing statistics. As we heard from Dr Stavrianakis, statistics do not help her understand the licensing process and, in her view, serve to create the impression of transparency:135
What we see happening—well, I do not see anything happening, because what happens inside the licensing process is not made public. There is a black box of decision making. The Government will point to the fact that there is a process and say, “Our process is based on the rules that say that we will not export if there is a clear risk that the equipment might be used in internal repression. Because we have this process that means there can be no risk that the equipment will be used for internal repression, ergo these exports are fine.” That ends up becoming a circular logic. Without their publishing more information to allow independent observers to assess the veracity of those claims, I as an external observer cannot be confident that that is what is happening. We do not know [...] The wording is clear; the Government will not license an export if there is a clear risk that it might be used in internal repression. That still requires judgment. It requires choosing: which evidence and how we measure risk and so on.136
100.There is no public discussion about what happens within Government during the assessment of licence applications. For Dr Stavrianakis, the challenges this creates in examining arms exports have been further exacerbated since the start of the conflict in Yemen by the shortening of the processing time for licences to Saudi Arabia as follows:
- Q2, 1st April–30th June 2015: the median processing time for SIELs was 25 days, with 35% completed in twenty working days and 98% in sixty days. SIELs worth £1,736,807,764 were granted. The largest category was ML10 (aircraft, UAVs, and related good and components): £1,714,184,642.137
- Q3, 1st July–30th September 2015: the median processing time for SIELs was 14 days, with 78% completed in twenty working days and 100% completed in sixty days. SIELs worth £1,108,300,139 were issued. ML4 (bombs, torpedoes, rockets, missiles) was the biggest category: £1,066,216,510.138
- Q4, 1 October–31 December 2015: Median processing time: 12 days; 91% completed in 20 working days; 98% in 60 working days. SIELs worth £19,739,194 were issued. ML4 was again far and away the largest category by value (£3,705,539) followed by ML1 (firearms) (£1,005,560).139
101.At a time when the body of evidence to consider in assessing licence applications to Saudi Arabia and in measuring risk against licensing criteria was growing, the processing time for applications was in fact reducing. As Dr Stavrianakis told us:
If you look at the most recent licensing statistics, the median processing time has come down and the proportion of export applications completed within 20 working days has gone up. I am sure the Government would say, “See, everything is working fine,” but now I have even less idea of what is happening within that process. If the Government are so sure that what they are doing is fine, why have they not responded to any of the criticisms.140
102.The Government points to its robust licensing regime as evidence that its arms export practices are responsible. However, by failing to provide persuasive evidence to support this statement or to respond to reports of breaches of international humanitarian law, the Government is preventing public scrutiny of its practices. It is problematic that, at the very time the Government was in receipt of reports documenting violations of international humantarian law by the Saudi-led coalition the processing times for those licence applications were speeded up. The Government should provide a detailed explanation for those licensing decisions rather than a simple assertion that we have a rigorous licensing regime.
103.We are grateful for the former Foreign and Business Secretaries’ respective offers for members of the Committees on Arms Exports Controls to have regular meetings with ministers and to visit the Arms Export Policy Department in the FCO and the Export Control Organisation in BIS. However, we recommend that the Government implement greater transparency in the policy and practice of its arms exports. As a first step towards this, it should provide further details on the following:
- the changes in information, assessment methods and political direction which have occurred since the war in Yemen began;
- how differences in opinion between the departments involved in licensing are resolved; and
- how often decisions are being referred up the chain of political responsibility, and how far up these decisions go.
104.As stated in paragraph 8, UK arms exports are bound by the obligations within the Arms Trade Treaty (ATT), the EU Common Position on Arms Exports and the Consolidated EU and UK arms licensing criteria. Articles 6(3) and 7 of the Arms Trade Treaty, Criteria 2 and 6 of the EU Common Position and Criterion 2(c) all refer to respect of the recipient country for international law and require that export licences are not granted where there is a clear risk that the items might be used in the commission of a serious violation of IHL.
105.The then BIS Minister, the Rt Hon Anna Soubry MP, clarified that the Government must consider each licence, for each type of weapon, on its own merit and “if it is found that there has been a breach of those criteria with an export licence, the answer is a very clear yes. We will revoke licences. We will suspend licences, if there is evidence.”141 As explained in its evidence to this inquiry, the FCO judges export licences to Saudi Arabia as legally compliant.
106.Whilst the appropriateness of the framework of the law is a separate matter, with current legal obligations based on risk it is not necessary to prove that there have been serious violations of IHL for continued arms exports to be in violation of the UK’s legal obligations. While the Committee calls for further improvements in the transparency, efficacy, and timeliness of internal coalition investigations and the establishment of an independent UN-led investigation to supplement the Joint Incidents Assessment Team (JIAT), we acknowledge that it is not necessary for these to be concluded in order to prove that the UK’s exports are non-compliant with the UK’s legal obligations.
107.Professor Sands and his colleagues at Matrix Chambers argued in their legal opinion that, “it is reasonable to conclude that in such circumstances future transfers by the UK of weapons or items capable of being deployed against civilians or civilian objects would be used in a manner that is internationally unlawful.” They further concluded that “the UK has - or should be recognised as having - knowledge that weapons or related items exported to Saudi Arabia would be used in future attacks directed against civilian objects or civilians protected as such, or in the commission of war crimes in Yemen.”142 On the basis of the evidence available, they added that the UK Government would have had knowledge that transfers of arms to Saudi Arabia would have constituted a breach of its obligations as early as May 2015.143 As such, any arms exported to Saudi Arabia which could be used in the conflict in Yemen and for which their end-use is not restricted, they concluded, would constitute a breach of the UK’s legal obligations under domestic, European and international law.144 In order to bring the UK into compliance with its legal obligations, they recommended that the UK:
should halt with immediate effect all authorisations and transfers of relevant weapons and items to Saudi Arabia, capable of being used in the conflict in Yemen, pending proper and credible enquiries into the allegations of violations of IHL and IHRL [International Human Rights Law] that have arisen and that could arise in the future.145
108.However, Matrix Chambers’ legal opinion was predicated on “the apparent absence of any credible or other investigations by Saudi Arabia into allegations of violations of IHL”, as it was published on 11 December 2015 before the JIAT had published the findings of any of its investigations. Furthermore, the opinion was reached “on the basis of the evidence and information available to us [Matrix chambers],”146 whilst our inquiry has found that the Government does have access to material non-public information, such as operational reports from the Saudi-led coalition and information from the Government’s own sources.
109.The High Court has granted the Campaign Against Arms Trade, represented by Leigh Day solicitors, a judicial review of the decision by BIS Ministers to continue issuing licences for arms exports to Saudi Arabia in the light of allegations that exports might not be compatible with UK and EU legislation, after it ruled that they had an arguable case.147
110.The Campaign Against Arms Trade has also argued that the Government should suspend all extant licences to Saudi Arabia until the judicial review has concluded and proved that continued arms exports are compliant with the UK’s legal obligations.148 This argument would mean simply that an arguable case of a clear risk of a serious violation of IHL being committed is enough to force the Government to cancel arms export licences.
111.The courts are the appropriate body to test whether or not HMG is compliant with the law. However, setting the threshold for the cancellation of arms export licenses as low as an arguable case of a clear risk of a serious violation of IHL, would be a dangerous precedent to set and could have results that are very damaging to the values and interests of the United Kingdom and the protection of the human rights that the law is aiming to sustain. Such a system could undermine the confidence of not just Saudi Arabia but all of our allies that anything but undisputed certainty that all operations were fully compliant with IHL would not disrupt defence relations in times of war. This denies the reality of any battlefield. This would cause considerable damage to domestic defence industries, the UK’s international relations, and the capability of our closest allies to conduct legitimate military operations, disproportionate to the real need to ensure that export of UK-manufactured weapons are compliant with the UK’s legal and moral obligations.
112 SDSR https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/478933/52309_Cm_9161_NSS_SD_Review_web_only.pdf Para 5.2
113 UKWG submission, para 3
114 UKWG submission, para 9
115 Q79
116 Q1 [Oliver Sprague]
117 Q136
118 University of Leicester submission, executive summary
119 For example: Saudi Arabia: Arms Trade, 11 May 2016, 36869 [Tobias Ellwood]; Saudi Arabia: Arms Trade, 14 April 2016, 33214 [Tobias Ellwood]; Arms Trade: Saudi Arabia, 2 March 2016, 28765 [Anna Soubry]; Engagements, 27 January 2016, 605 c262 [The Prime Minister]
120 Q98
121 Q121 [Paul Everitt]
122 Q57
123 Legal Opinion: the lawfulness of the authorisation by the United Kingdom of weapons and related items for export to Saudi Arabia in the context of Saudi Arabia’s military intervention in Yemen, Professor Philippe Sands QC, Professor Andrew Clapham and Blinne Ní Ghrálaigh, 11 December 2015
124 Q63
125 UKWG submission, para 26; Mwatana submission, para 23; Anna Stavrianakis submission, para 5; Q23 [Oliver Sprague]; Q57 and Q63 [Professor Philippe Sands QC]
126 Q27
127 Dr Anna Stavrianakis submission, para 10
128 Yemen: Military Intervention, 7824WQ, 17 July 2015
129 Q60
130 Q150
131 Q32
132 Oral evidence to the IDC Q79
133 Department for Business, Innovation and Skills and the Export Control Organisation, Strategic Export Controls: licensing data
134 Q39
135 Dr Anna Stavrianakis, follow-up evidence
136 Q144
137 Department for Business, Innovation and Skills, Strategic Export Controls: Country Pivot Report 1st April 2015–30 June 2015, 20 October 2015, pp 262–265
138 Department for Business, Innovation and Skills, Strategic Export Controls: Country Pivot Report 1st July 2015–30 September 2015,19 January 2016, pp 249–254
139 Department for Business, Innovation and Skills, Strategic Export Controls: Country Pivot Report 1st October 2015–31 December 2015, 19 April 2016, pp 265–270
140 Q151
141 Q187
142 Legal Opinion: the lawfulness of the authorisation by the United Kingdom of weapons and related items for export to Saudi Arabia in the context of Saudi Arabia’s military intervention in Yemen, Professor Philippe Sands QC, Professor Andrew Clapham and Blinne Ní Ghrálaigh, 11 December 2015, para 11
143 Ibid, para 13
144 Ibid para 18
145 Ibid para 19
146 Matrix Chambers, Legal Opinion, 11 December 2015, p3
© Parliamentary copyright 2015
15 September 2016