In the UK, civil society can challenge the legality of arms-exports. A series of judicial and executive decisions leave this important power in doubt.

In the United Kingdom, one of the major arms-exporting states in the world, the norms regulating the state’s control over the export of arms require the government to assess the presence of a “clear risk” of violations of international law, including international humanitarian law (IHL), by the recipient state. These norms have allowed international civil society to challenge the British government and its procedure to issue arms export licences and assess the risk of international law violations before competent courts, among other fora. Currently, some normative changes proposed by the government in December 2021 might modify the way in which relevant risk is assessed. Given the effectiveness of arms-export control norms and measures depends on how the “risk” of violations of international law is assessed, this check on government decisions may be in danger.

For centuries, England first and then the UK has been one of the major manufacturers and exporters of arms of the international community — see, for example, The Gun-Founders of England and the Pursuit of Power. Between 2016 and 2020, the UK ranked as the sixth-largest exporter of weaponry in the world, with a share of 3.3 percent of the global arms exports.

Along with its primacy as a major exporter, the UK was also one of the first countries to develop a permanent system of arms-export control in the first part of the 20th century. More recently, possibly moved by the finding that British weaponry reached Saddam Hussein’s arsenals, the UK has been one of the strongest supporters of the adoption of the Arms Trade Treaty (ATT), the first legally binding instrument regulating the circulation of conventional arms internationally.

The current normative system is based on the Export Control Act 2002 and the Export Control Order 2008, which prohibit the export of military goods, including weaponry, unless  authorised by a licence of the competent secretary of state, currently the secretary of state for international trade. The Export Control Order also allows the secretary to outline a series of criteria to regulate the issuing of export licences. These criteria, despite the announcement of December 2021 regarding their revision, are still based on the criteria set by the European Union (EU) Common Position 2008/944/CFSP. The Common Position requires arms-exporting states to undertake a pre-export risk assessment, considering, among other things, the existence of a clear risk that the recipient of the arms commits “serious violations of international humanitarian law,” including but not limited to war crimes. Therefore, while the decision to transfer arms generally remains within the realm of the arms-exporting state’s government, the way in which the related decision is taken is regulated by legal norms and, accordingly, subject to public scrutiny.

In 2017, reports emerged that the Saudi-led coalition’s bombing of civilians and civilian objects in Yemen had used weapons exported from Britain. A series of NGOs led by the Campaign Against the Arms Trade (CAAT) challenged the decision by the secretary of state for international trade to authorise the export of those bombs in the High Court. The Court agreed with the UK government and affirmed that the government, through its relationship with Saudi Arabia, was in the position to rationally assess that there was no clear risk of violations of IHL associated with the export of bombs for military aircraft to Saudi Arabia.

In 2019, before the Court of Appeal, CAAT succeeded in demonstrating the irrationality of the UK government’s assessment of a clear risk of IHL breaches by the Saudi recipients of arms. According to CAAT’s argument, eventually accepted by the Court of Appeal, the government should have expressed its own opinion on whether past incidents involving civilians in Yemen amounted to violations of IHL. In fact, an assessment of past incidents was considered essential to predict the future conduct of the recipient of British weaponry. Such a decision serves as a reminder for the government to undertake an objective legal analysis of an ally’s conduct, even when other interests in favour of the transfer of arms are present.

After a temporary suspension of the licences for exports to Saudi Arabia, Elizabeth Truss, the then secretary for international trade, resumed of the transfer of weaponry to Saudi Arabia in July 2020. Truss stated that the incidents involving civilians in Yemen and Saudi Arabia’s aerial bombardments were “isolated,” and neither a pattern of violations nor a clear risk of those violations existed. Following such a decision, CAAT lodged a new judicial review request before London’s High Court, which is due to be heard next June.

In December 2021, the new secretary for international trade, Anne-Marie Trevelyan, presented to the Parliament new criteria for the pre-export risk assessment of, among others, violations of IHL. Officially, the new legislation was proposed to detach the pre-export assessment criteria from EU legislation, because of the UK leaving the European Union. However, some changes in the language of the new criteria might have important consequences. According to some experts, such as Anna Stavrianakis, the new criteria can have an significant impact on how the risk associated with a transfer is assessed and identified. While the previous criteria required the halting of the transfer “if there is a clear risk” of serious violations of IHL, according to the proposed criteria, the halting of the transfers would be triggered only if the government “determines there is a clear risk” of those violations. If these new criteria were adopted, activists fear they could make it far harder for civil society organisations to challenge the government’s decisions on export licences in court.

Recent developments in domestic and international law on the regulation of arms transfers have had the effect of making governments’ decisions on arms exports more transparent and open to public scrutiny, domestically and internationally. In fact, Yemeni NGOs such as Mwatana for Human Rights were involved in the challenge of the legality of arms transfers to Saudi Arabia.

Norms such as the ones seen earlier democratise the process of arms exports, allowing people directly affected by the conflict in which the weapons are used and citizens of the exporting state to assess, and possibly challenge, a government’s arms-exporting decision. Limiting these norms would be taking several steps backwards, toward an obsolete conception that prevents public scrutiny of the so-called “high politics” decisions. A democratic state of the 21st century shall not return to such a conception, especially when, like the UK, it has significantly promoted the development of international disarmament law all over the world.

Dr Riccardo Labianco is a Lecturer in law at the School of Oriental and African Studies (SOAS) in London (UK), specialised in international law, including humanitarian and human rights law, disarmament law, and the Middle East. He is currently analysing how existing international law frames the position of arms-exporting states and their responsibility for the unlawful conduct of the arms recipients and other harmful consequences connected with the transfer of arms. Twitter: @RLabianco

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