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About once a decade, an arms trade scandal punctures public consciousness and generates debate about British foreign policy, the state of domestic democracy, and accountability for political decisions. Since 2015, arms sales to Saudi Arabia have generated controversy because of their role in creating humanitarian catastrophe in the war in Yemen: thousands dead and displaced, politically imposed famine through aerial and naval blockades, and now a cholera epidemic.

The UK is formally committed to international humanitarian law (IHL), common EU export rules and, most recently, a UN treaty regulating the international arms trade, all of which forbid exports where they are at risk of misuse in serious IHL violations.

So how is it that the UK government continues to sell weapons to Saudi Arabia for use in the war in Yemen, despite these explicit commitments? ? And how is it that the High Court recently dismissed a case of judicial review, confirming that the government was ‘rationally entitled to conclude’ that arms exports pose no clear risk to IHL in Yemen?

A flexible interpretation of risk, reliance on secret information, and deference of the Court to the executive are to blame.

Taking the government to court

In February 2017, activists took the government to court in a case of judicial review. Campaign Against Arms Trade (CAAT) argued that the UK government is breaking its own laws governing arms exports by continuing to sell weapons to Saudi Arabia since the start of the war in Yemen.

CAAT’s lawyers argued that the government has broken its legal obligation not to allow exports if there is a clear risk that weapons might be used in serious violations of international humanitarian law.

But the judges concluded in July that the government was ‘rationally entitled to conclude’ that the Saudi?led coalition was not deliberately targeting civilians; and that Saudi Arabia respects and is committed to complying with IHL.The judges’ decision provides a stamp of approval to an arms export policy that has directly contributed to the deaths of thousands of civilians in Yemen.

No clear risk?

During the judicial review hearing, the government claimed that it had additional, ‘sensitive’ information beyond that provided by CAAT, that meant that the risk of misuse was not a ‘clear’ risk; that any excessive civilian harm was a mistake and was being addressed by the Saudi?led coalition, thereby mitigating the risk; and that it did not need to explain why CAAT’s argument was wrong. The High Court accepted the government’s claims, and concluded that the government was rationally entitled to conclude that there was no clear risk – and thus, that there was no need to suspend or cancel arms exports to Saudi Arabia.

Overall, the judicial review judgment ended up confirming the legality of a policy and process in which the UK government claims not to know whether violations of IHL are taking place; evidence of past misuse is not deemed to pose a clear risk that future exports might be misused; and evidence of systematic attacks on civilians are explained away as mistakes. Rather than acting to prevent harm, a risk?based framework for assessing arms transfers ends up facilitating exports. The importance of judgement and flexibility – practices intrinsic to risk assessment – makes the limits of policy negotiable rather than absolute.

How exactly has an ostensibly preventive policy of risk been mobilised – not only to justify rather than restrict exports, but also to ensure that the threshold of clear risk is not seen to have been breached?

Secret information

Improvements in transparency after previous arms export scandals have been undermined by the government’s reliance on secret information, which cannot be disclosed openly in court for ostensible national security reasons.

The judges in the judicial review hearing did not dispute the veracity of the evidence provided by CAAT; they acknowledged that CAAT’s evidence was suggestive of serious IHL violations. However, they concluded that the government has more and better information, and that the open source evidence provided by CAAT is ‘only part of the picture’.

Secret information completed the picture, to the point where the judges felt able to decide that the government is legally entitled to conclude that there is no clear risk that weapons supplied to Saudi Arabia might be used in serious violations of the laws of war.

Deference of the High Court to the executive

The reliance on secret information was indicative of a broader trend illustrated by the hearing – the deference of the High Court to the executive. The judges accepted the government QC’s advice that primacy should be accorded to the executive as the primary decision maker. They agreed that arms export decisions are ‘matters of judgment and policy’ and thus ‘primarily matters for the executive’.

Moreover, it remains unclear what contestation, if any, there has been from within the civil service of approvals of arms exports to Saudi Arabia since the war in Yemen began. Yet, licensing decisions have speeded up rather than slowed down, which seems odd given the increasing scale of information about potential violations of IHL, and suggests that political direction has been issued.

Denigrating the campaigners

In court, the implicit denigration of campaigners’ empirical, thematic and legal expertise was accompanied by the explicit, and factually incorrect, sidelining of their evidence on the grounds that NGOs ‘often have not visited and conducted investigations in Yemen, and are necessarily reliant on second?hand information’.

Many of the NGOs and investigators cited in the hearing actually do visit Yemen and other warzones, conduct fieldwork, and take great care to triangulate their sources. Misrepresentations such as this must be particularly galling for NGOs and researchers whose work on other issues is mobilised by the government when it seeks to criticise others.

The response from CAAT has been to appeal the judgment; it remains to be seen how higher courts will treat their claim, if it is permitted. And it remains to be seen how the parliamentary Committees on Arms Export Controls will take up the baton of scrutinising government arms export policy with regard to Yemen, and how.

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