Last week in London, the High Court rejected a challenge brought by the Campaign Against The Arms Trade (CAAT). The court ruled that the British government had broken no law by selling arms to Saudi Arabia that are being used in a war against Houthi rebels in Yemen. NGOs that backed the challenge, including Amnesty International and Human Rights Watch, are downhearted. But on a closer look, Britain's victory over the legal challenge to its arms sales doesn’t give anyone much comfort.
The case is rooted in Britain’s adoption of a legally-binding policy that it has committed to follow when granting export licenses for arms and other military goods. This policy reflects the Arms Trade Treaty (ATT) voted on by the U.N. General Assembly on April 2, 2013, though the policy, as the Court sets out, has earlier precedents. It’s the ATT, which the U.S. has also signed (though not ratified), that gives the case its wider significance: the NGOs that brought the case were trying to control Britain’s arms export policy by using the ATT. They’d like to do the same thing to the United States.
You can ignore the commentators who insist that the High Court only decided in favor of the government because it considered secret evidence provided by the government (which, it is implied, was somehow improper). The High Court did indeed consider secret evidence, but its decision does not rely on it, and any literate person can follow the logic of that decision in the Court’s ruling.
I encourage anyone interested in this case, or its implications, to read that judgment in its entirety. But, in summary, the Court concluded that the British government conducted a serious risk assessment, that the government was not legally required to suspend arms sales to Saudi Arabia, and that “there was no ‘clear risk’ that there might be ‘serious violations’ of International Humanitarian Law [IHL] . . .. such that British arms sales to Saudi Arabia should be suspended or cancelled.”
The first of these conclusions, at least, seems well-founded. The British government provided considerable evidence – including but not limited to a “Tracker” of attacks in Yemen – that it had indeed asked the right questions and conducted a serious investigation. The Court pointed out that while the NGOs provided a considerable volume of evidence that Saudi forces might be committing violations of IHL, much of this evidence amounted to little more than vague allegations, and that the government’s “Tracker” contained information on many incidents of which the NGOs were apparently not aware.
The second conclusion, on the other hand, is much more finely-balanced. The Court recognized that there were indeed ‘known unknowns’ about events in Yemen, but concluded that the British government was able to assess what these were, and to consider them in light of the overall assessment required by Britain’s export license policy. The sticking point here is that while the government had confidence in its ability to assess pre-planned Saudi airstrikes, it had “very little insight” into “dynamic” strikes, in which a pilot decided to deploy munitions. Saudi targeting procedures in “dynamic” strikes were “less robust,” and “dynamic” strikes appeared to be a significant and growing share of the total.
The final conclusion, again, seems well-founded. The Court makes the valuable – and oft-ignored – point that the mere existence of civilian casualties does not mean that a violation of IHL has occurred. The laws of war prohibit intentional attacks on civilians and attacks that anticipate civilian casualties that are disproportionate to the anticipated military advantage. Bearing in mind the need for courts to defer to the Executive “in conformity with the scheme established by Parliament,” the Court concluded that the British government acted reasonably in deciding that the “necessary risk [of IHL violations] was not established.” While the NGOs would apparently like any risk of “violations” to be deemed sufficient to trigger a suspension of arms exports, the Court found for the government.
On the substance of the case, I agree with the Court. But my own view is that while the Court got it right in its first and third conclusions, its second – particularly as concerns “dynamic targeting” – is less persuasive. There is more than a hint in the Court’s judgment that Saudi Arabia is doing something common to many un-democratic states. On the one hand, in processes that face the West – diplomats and businessmen, in particular – undemocratic states are eager to follow Western forms and procedures.
On the other hand, behind the veil, the state works in completely different ways. The Soviet Union was a master of this approach: it had a constitution, just like the one in the United States (or even better, if you believed the communists). But of course the constitution was irrelevant: it was only there because some stupid people could and would be fooled by it. Today, Iran is a paradigmatic example of this two-sided state: it pretends to be a democracy and to follow diplomatic norms, but behind the scenes it is a vicious terrorist theocracy. The Court credits Saudi Arabia with being a more or less functioning and normal state, with normal armed forces, but it also offers hints (particularly when it comes to “dynamic targeting”) that the Saudi reality has only a limited connection with the Saudi image.
That problem, however, cuts both ways. The NGOs that brought this case badly want to do two things: a) use the ATT to limit, or even end, U.S. and Western arms exports; b) get signatures on the treaty from every nation in the world, purportedly because that will help make everyone more responsible. But in a world full of states like Saudi Arabia, signatures on a treaty are meaningless. To take just one example, only 43 of the ATT’s 92 States Parties have even bothered (or been able) to submit the mandatory report on their 2016 activities under the treaty. So while Saudi Arabia’s opacity (and seeming lack of responsibility) when it comes to “dynamic targeting” makes the British government’s decision to license exports harder to justify legally, it also destroys a core argument for the ATT.
In the end, the NGOs are far more concerned about what the U.S., Britain, and a few other Western governments do than they are about anything else. The fact that the British government won this case is therefore good news. But – leaving aside the NGO promise to appeal – the victory was only a partial one. In order to win its case, the British government had to establish, conduct, and then reveal to the Court an elaborate system of tracking and assessing Saudi military activity. It had to lawyer up and fight the case through the judicial system. And by taking the case, the High Court established that it will hear cases on British arms exports, thereby imposing further burdens on the government and implying that in a future case it might well find in favor of the NGO plaintiffs.
English legal decisions are often cited in U.S. courts. The fact that this case was heard will have some precedential value in the United States—as will its outcome. The State Department, foolishly, is fond of explaining why the ATT will have no impact on the United States . I wonder how many people in the State Department would like to go through the same public legal process that their colleagues in Britain have endured, especially if they had to look forward to going through it every time a left-wing NGO decided the time was ripe to launch another challenge to a U.S. export decision.
The left, predictably, is outraged by the High Court’s decision. They claim, of course, to care deeply about civilian casualties. But if you read the Court’s judgment, it notes that of the 208 incidents tracked by the British Ministry of Defence as of August 1, 2016, only about a third were probably the result of Saudi or allied activity. In other words, about 140 of the attacks were conducted by the rebels, who are armed, in part, by Iran. Yet whenever the NGOs mention anyone but Saudi Arabia, Britain, and the U.S., they invariably say nothing more than “All parties to the conflict have committed serious violations.” Then they get right back to blaming Britain and the U.S.
Even if you make the unwarranted assumption that all attacks in the “Tracker” are violations of IHL, that still leaves the Houthi rebels and their allies responsible for twice as many violations as the Saudis and their allies. I’d much prefer there be no war in Yemen at all. But if there is a war, I’d prefer to help the bad against the worse. The NGOs, on the hand, prefer to stand aside, to indulge their anti-American and anti-Western obsessions, and thereby to aid the worse through their own inaction.
Practically speaking, the NGOs take the side of the rebels, Iran, and the other terrorist groups in Yemen , and they’re trying to use the ATT to force that stance on Britain – and, indeed, the U.S. For groups that love to be holier than thou, this is perverse. But when it comes to the ATT, perverse outcomes are the norm: bad treaties make bad policy. At least in this case, and this time, the British government has escaped the worst outcome.
This piece originally appeared in Forbes: https://www.forbes.com/sites/tedbromund/2017/07/24/the-u-k-defeats-a-legal-challenge-to-its-arms-sales-or-does-it/#5e292d7f6f3a