We have both proudly served Her Majesty’s government — one of us as an army officer and defence attaché to the British Embassy in Saudi Arabia, the other as a lawyer advising successive foreign secretaries on arms exports to Saudi Arabia. We did not undertake this work with illusions about the reality and cost of armed conflict. We did however work on the understanding that the relevant law — including in the Geneva Conventions and long-standing rules on arms exports — would be adhered to by our government.
But that is not currently the case, and we are shocked at the British government’s conduct when it comes to arms sales. It is no surprise to see attempts at a second judicial review (the first successfully halted exports in 2019, before the government resumed sales last year). And now, anticipating the High Court decision on permission imminently, we consider it a matter of moral obligation that we make our concerns public.
Why are we so concerned about arms exports to Saudi Arabia? In short, an export license is required by anyone British, or in Britain, who wants to export arms. The law prohibits the government from granting an export licence where there is a clear risk the item to be licensed might be used in a serious violation of international humanitarian law. This body of law governs conduct in warfare — it prohibits the targeting of civilians and mandates the taking of all feasible precautions to avoid killing them.
There are well established military methods for complying with these rules. British military personnel follow a set of obligatory processes when lethal force is contemplated: in airstrike planning, constant care is taken to spare civilians; any attack which might cause disproportionate loss of civilian life is prohibited; military target locations must be accurate and verified or they will not be engaged; and attacks are cancelled at the last moment if doubt emerges about the legality criteria being satisfied. There is a further check on British military behaviour: those carrying out airstrikes know they may end up in prison if they don’t take the requisite care to avoid civilian deaths; and legal liability can extend to those in the chain of command who authorise airstrikes or even those who simply fail to ensure the necessary procedures are in place.
It is by no means clear to us that the Saudi-led coalition takes this level of care. Indeed the UN Group of Experts on Yemen found little evidence of any attempt in Yemen to minimise civilian casualties. These are precisely the kinds of issues the government should be considering when deciding whether to grant an export licence. For that reason, the Ministry of Defence maintains a ‘tracker’ document that details every incident in which it is thought there may have been a violation of international humanitarian law. Of course, one past violation does not automatically mean there is a clear risk of another in the future. But by December 2017, there were 318 possible violations listed on the tracker. At that stage the government did not conclude whether any incident constituted a violation; rather, it supported the Saudis’ decision to investigate themselves as an adequate measure, providing the Saudis with advice on how best to do that, and with training on the use of specific guided munitions and international humanitarian law compliance. In essence, it decided that, despite the 318 incidents, the prohibitive risk threshold was not met.
Exports continued until the court in the first judicial review found that the necessary risk assessment had been conducted irrationally, and therefore unlawfully, and ordered licensing decisions be retaken.
Come July last year, the government announced that decisions had been retaken as ordered, and explained that although a number of incidents were being treated as violations of international humanitarian law, these were ‘isolated’ incidents — and the risk threshold was not met. Less than a week later, it came to light that the tracker by then listed 516 incidents (an average of 1.5 each week), including strikes in residential areas, on schools, hospitals and family homes. Just days ago, it was revealed that a number of lethal airstrikes had been missed off that list. Combining our military and legal knowledge, we struggle to understand how any assessment can consider the detail and frequency of these incidents and conclude, in good faith, that the prohibitive risk threshold is not met.
We absolutely support a responsible arms trade and fully understand the importance of diplomatic and defence relations, including with states that do not share our values. But we believe that the line must be drawn at the export of arms to Saudi Arabia for use in a conflict in which there has been at least one potential violation of international humanitarian law every week for the past five years, 20,000 civilians have died and ten million people face famine. In our view, the export of those weapons from Britain is demonstrably illegal.
We hope that, rather than face being dragged through the courts on this issue for a second time, and noting the incoming Biden-Harris administration has pledged to end US support for the Saudi action in Yemen, the UK government will now also do what’s right of its own volition and stop arming Saudi Arabia.