Halting arms sales to Saudi Arabia over concerns that British-made weapons could be used to break humanitarian laws in Yemen would have “serious political ramifications”, a London court has heard.
James Eadie QC laid out the government’s case on the second day of a judicial review into the government’s decision to continue licensing exports of weapons to Saudi Arabia.
The government should not have to “set themselves up as auditors of armed conflict by friendly governments” when deciding whether there was a risk those governments might use British weapons to break the laws of war in the future, Eadie said.
“If you refuse to allow exports you interfere with the interests – if not rights – of those who wish to export their goods,” Eadie said. Such a decision would also “create some risk that you may affect diplomatic relations with that country”.
Campaign Against the Arms Trade, which is bringing the case with Leigh Day solicitors, says the government should have halted weapons exports to Saudi Arabia, its most significant weapons client, as the kingdom leads a coalition of Middle Eastern nations in trying to put down a Houthi insurgency in Yemen.
Documents disclosed in a hearing on Tuesday revealed the decision not to halt exports to Saudi Arabia, taken by the then business secretary Sajid Javid in February 2016, was viewed as “finely balanced” by officials. Edward Bell, head of the Export Control Organisation, wrote in an email: “my gut tells me we should suspend” the arms sales.
Half the case is being heard in secret as the government wants to rely on “sensitive material” that it says would damage national security if heard in open court.
Saudi Arabia is the UK’s most significant weapons client: more than £3.3bn worth of exports have been licensed since the Yemen offensive started in March 2015. But the kingdom has faced intensive international criticism over claims of high civilian casualties and damage to vital infrastructure in Yemen, already one of the region’s poorest countries.
Under UK arms export licensing rules, weapons should not be exported if there is a “clear risk” they will be used to commit “serious violations of international humanitarian law” (IHL), the rules that govern war.
But establishing whether a particular nation has committed such violations “may be extremely difficult and indeed possibly inappropriate”, Eadie told the court. Proving wrongdoing of this level requires a “focus on the importance of intention or wilfulness” of a state’s actions.
“There’s a clear focus there on a country’s attitude,” he said. “Are they acting wantonly? Are they acting deliberately?” This is almost impossible to prove without access to the internal military records of another nation, he said.
Eadie hit back at suggestions in Tuesday’s hearing that the British system for investigating whether Saudi strikes had breached IHL was inadequate. “The process was one of intense and almost continuous review with all the expert input one would expect from the Foreign Office and Ministry of Defence,” he said.
“The idea that one’s not seeking to examine those incidents of most concern through the prism of IHL is nonsense.”
A “sensible approach” was to select only the most worrying strikes and attempt to find out more, including through military and diplomatic backchannels. “That examination needs to ask the right questions, it needs to be focused in the right place and it is inevitably subject to constraints: limited information and the need to be thoroughly cautious,” he said.
Arriving at judgments about the military conduct of an ally is fraught, he added. “One needs to be jolly careful – and it is appropriate in a friendly relationship to be jolly careful about reaching judgements of serious violations of IHL.”
The hearings in closed court end on Friday.
