Just over two weeks ago, I questioned whether there was a review of British arms export licences for Israel, in the wake of the recent conflict in Gaza. About one week ago the British Government announced the findings of its review of licensed exports to Israel. It sets out the lamentable Ministerial decision-making around export licences for Israel and the Occupied Palestinian Territories, even by the standards that the Government sets itself.
How does the Government decide what military equipment can be exported?
There are official criteria which set out the factors the Government will consider when deciding whether to give a company an export licence, which were last updated in March 2014. The criteria aim “to adequately address the risks of irresponsible arms transfers”.
For example licences should not be granted “if there is a clear risk that the items might be used for internal repression” or a clear risk that the items “might be used in the commission of a serious violation of international humanitarian law”. Further, licences should not be granted for items which might “prolong armed conflicts” or “aggravate” them.
However, the criteria only deal with licence applications, not with licences previously granted, held by exporters, and currently in force.
The Government has previously told Parliament’s Committees on Arms Exports Controls that it is “satisfied that none of the currently extant licences for Israel and the Occupied Palestinian Territories contravenes its policy [i.e. the criteria]…However, as was shown during the Arab Spring, circumstances can and do rapidly change, leading to a reassessment of risk and, in some cases, a different decision using the same criteria. In such cases the Government would revoke the licence”.
As well as the power to revoke licences, the Government can also suspend them.
What was the position prior just after the start of the recent conflict in Gaza?
The Israeli Government launched the current military operation in Gaza on 8 July. On 23 July, Parliament’s Committees on Arms Exports published a report showing that the following export licences for Israel and the Occupied Palestinian Territories were in force:
anti-riot/ballistic shields, body armour, components for body armour, components for all-wheel drive vehicles with ballistic protection, components for equipment employing cryptography, components for military combat vehicles, components for military communications equipment, components for military support vehicles, components for small arms ammunition, components for sniper rifles, cryptographic software, equipment employing cryptography, general military vehicle components, military communications equipment, small arms ammunition, software for equipment employing cryptography, technology for equipment employing cryptography, technology for military communications equipment, technology for small arms ammunition, technology for the use of equipment employing cryptography, water cannon and weapon sights
What has British Government policy towards export licences for Israel and the Occupied Palestinian Territories been during the conflict in Gaza?
From the start of the Gaza conflict the loss of life was heavy, with almost all the civilian casualties being Palestinians killed by the Israeli Defence Forces. On 3 August UN Secretary-General Ban Ki-moon condemned a “gross violation international humanitarian law” by the Israeli Defence Forces.
It is self-evident that there was a clear risk that the equipment companies were permitted to export to Israel and the Occupied Palestinian Territories at the start of the Gaza conflict, described in the Parliamentary report, “might be used for internal repression”, and might “prolong” or “aggravate” the conflict. After Ban Ki-moon’s statement it was also obvious that the equipment “might be used in the commission of a serious violation of international humanitarian law”.
If the behaviour of the Israeli Defence Forces was not sufficient to convince Ministers there was a risk of British equipment permitted for export being used in contravention of the British Government’s stated policy, there was also the evidence of the previous major conflict in Gaza. The then Foreign Secretary, David Miliband, told Parliament that British military equipment had been used in Operation Cast Lead. Further he said “It is inherent in the consolidated criteria that judgments are in part based on past practice, so evidence from Operation Cast Lead will be used in all future applications”.
The Government could have, from the start of the conflict in Gaza, chosen to suspend all existing licences in force for Israel and the Occupied Palestinian Territories while it worked out which ones might give rise to the risks above. It did not do so. No suspension was announced, and no notice to exporters was sent. It is clear that the evidence from Operation Cast Lead was ignored.
The carnage continued, and public criticism of the Government’s position grew apace. By the start of August there were reports in the media Ministers were reviewing export licences for Israel and the Occupied Palestinian Territories. On 10 August a ceasefire was announced, which may well be on the verge of breaking down at the time of writing.
On 12 August the Government published the results of its review. It identified 12 licences for components “which could be part of the equipment used by the Israel Defence Forces in Gaza”. In other words, for the entire period of the conflict, it had been legal for the companies holding those licences to continue to supply the Israeli Defence Forces during the carnage.
At the time the review was announced around one day was left of the 72 hour ceasefire announced on the 10 August. Yet the Government, by not suspending or revoking any licence, in effect was saying that it thought there was no “risk” that the equipment licensed “might be used for internal repression”, might “prolong” or “aggravate” the conflict, or “might be used in the commission of a serious violation of international humanitarian law”.
The current conflict in Gaza is a case study in lamentable decision-making in arms export licensing.
However, for new export licence applications a different policy is being followed. According to the Government “no new licences of military equipment have been issued for use by the Israeli Defence Force during the review period and as a precautionary measure this approach will continue until hostilities cease”. But, bizarrely, no such precautionary approach is being followed for existing licences still in force.
The Government’s behaviour is on its own terms irrational. Accordingly it seems to me the Judicial Review action currently being launched by Campaign Against Arms Trade may well have some chance of success. I wish them well.