Is the UK’s arms trade with Saudi Arabia a breach of the Arms Trade Treaty?

Is the UK Government now ignoring Arms Trade Treaty obligations by continuing to trade arms with repressive regimes?  This was the question asked by the Control Arms campaign on 16 January 2015.  They think the answer is yes, but unfortunately it appears to be no, as I will explain.

Saudi Arabia is the UK’s biggest arms customer and has been since the fall of the Shah of Iran over thirty years ago.  The Control Arms campaign says that “by sending arms [to Saudi Arabia] while acknowledging widespread human rights violations, the United Kingdom is acting at odds with the Arms Trade Treaty which entered into force on 24 December 2014”.  In particular, they say

It is unclear how these arms sales are in anyway [sic] compatible with the UK’s obligations under the Arms Trade Treaty, a Treaty which now requires the UK to stop exporting weapons where this is a very real risk that those weapons could fuel serious human rights violations.

This issue goes to the heart of the debate about whether the Arms Trade Treaty will actually have any impact.  So, does the text of the Arms Trade Treaty require the UK to cease its lucrative arms trade with Saudi Arabia?

Now in fairness to Control Arms UK Programme Director Oliver Sprague, he is suggesting only that UK arms exports to Saudi Arabia should be stopped “where this is a very real risk that those weapons could fuel serious human rights violations” (this, one assumes, means a good deal of current UK arms sales to Saudi Arabia could continue).

The relevant parts of the Arms Trade Treaty dealing with human rights violations are Articles 6 and 7.

In Article 6, arms sales are prohibited if, the exporting State

has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.

Thus the UK’s arms sales to Saudi Arabia are not caught under Article 6 because (I assume) the UK Government has no knowledge right now (and, nor, I think, does anyone else) that the Saudis will use the arms they are sold for the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which the UK is a Party.  In fact I would say that there is no evidence now that the Saudis are likely to use the arms they are sold for these purposes.

If arms exports are not prohibited under Article 6, the exporting State must then consider Article 7 which says it must take

1. …into account relevant factors, including information provided by the importing State in accordance with Article 8 (1), assess the potential that the conventional arms or items:
   1. would contribute to or undermine peace and security;
   2. could be used to:
      1. commit or facilitate a serious violation of international humanitarian law;
      2. commit or facilitate a serious violation of international human rights law;
      3. commit or facilitate an act constituting an offence under international conventions or protocols relating to terrorism to which the exporting State is a Party; or
      4. commit or facilitate an act constituting an offence under international conventions or protocols relating to transnational organized crime to which the exporting State is a Party.
2. The exporting State Party shall also consider whether there are measures that could be undertaken to mitigate risks identified in (a) or (b) in paragraph 1, such as confidence-building measures or jointly developed and agreed programmes by the exporting and importing States.
3. If, after conducting this assessment and considering available mitigating measures, the exporting State Party determines that there is an overriding risk of any of the negative consequences in paragraph 1, the exporting State Party shall not authorize the export.
4. The exporting State Party, in making this assessment, shall take into account the risk of the conventional arms covered under Article 2 (1) or of the items covered under Article 3 or Article 4 being used to commit or facilitate serious acts of gender-based violence or serious acts of violence against women and children.

As Control Arms’ criticism of the UK Government policy is focused on “human rights violations” I will only discuss the international humanitarian law and international human rights law criteria in Article 7.

The core of international humanitarian law is the Geneva Conventions.  According to the Red Cross, international humanitarian law “applies only to armed conflict; it does not cover internal tensions or disturbances such as isolated acts of violence”.  Article 7 requires that an exporting state should take into account whether a proposed arms export “could be used to commit or facilitate a serious violation of international humanitarian law”.  Now Saudi Arabia is not currently in an armed conflict with any other state, and so any UK weapons sold now cannot be used to commit or facilitate a serious violation of international humanitarian law.  Nor is there any “overriding risk” of Saudi Arabia becoming involved in an armed conflict with any other state.  There is, perhaps, a more “general” risk of this occurring, but that is not the threshold set by the Treaty.

Article 7 requires that an exporting state should take into account whether a proposed arms export “could be used to commit or facilitate a serious violation of international human rights law”.

This begs the question what amounts to “a serious violation of international human rights law”.  Fortunately, a report with this very title has been published by the Geneva Academy of International Humanitarian Law and Human Rights.  The report says that international human rights law covers “violations of human rights that are international crimes, its scope is much broader and includes violations of social, economic, and cultural as well as civil and political rights”.  So far, so good.  The violations of human rights in Saudi Arabia (rightly) complained of by Amnesty and many others are covered.

But what does “serious violation” mean?  The report says “international practice indicates that many factors influence, and no single factor determines, whether a human rights violation is ‘serious’.”  Indeed “expert human rights bodies apply several criteria when they distinguish ‘serious’ violations, though their use is often implicit and no set of criteria has been formally agreed”.

Unfortunately, during the negotiations on the Arms Trade Treaty

the available records do not indicate that the merits of ‘serious violations’ rather than ‘a serious violation’, or the difference between them, were discussed. The record of discussions sheds little light on the meaning of the term. When negotiation of the ATT started, some of those involved asked what would constitute a violation of human rights law but this issue was not addressed later on.

So we have a Treaty where there is no agreement at all about what one of the key provisions means.  And it is rather difficult to accuse someone of breaking a Treaty or law, if one does not know what it means.   The weakness of the Treaty in this regard is painfully clear when one compares it with articles 6 to 8 of the statute of the International Criminal Court, which defines the crimes falling under its jurisdiction.

Unsurprisingly Control Arms take the view that UK arms exports to Saudi Arabia “could be used to commit or facilitate a serious violation of international human rights law”.   But, unfortunately that does not matter.   What matters is enforcement.   There are three basic options:

1. Self-regulation by the UK Government
2. Enforcement of the Treaty in some international fora
3. Enforcement of the Treaty by the UK courts

As regards 1, this is what is envisaged by the Treaty.  Article 14 covers enforcement and states only “each State Party shall take appropriate measures to enforce national laws and regulations that implement the provisions of this Treaty.”    It seems obvious that state parties are going to be reluctant to declare themselves to be in breach of the Treaty.   There is a further point, which is that as there is no agreed meaning or definition of the term “serious violation of international human rights law”, all the UK Government needs to do to be in compliance with the Treaty is simply to assert that it does not consider there to be “serious violation[s] of international human rights law” in Saudi Arabia.  (Incidentally, I think it would be a very worthwhile endeavour for Parliamentarians and campaigners to try and get the UK Government to provide a definition of a “serious violation”).

Turning to 2, there is no provision in the Treaty for enforcement in any international fora, nor is there even a peer review mechanism where states examine each other’s conduct, as for example occurs as part of the arrangements under the OECD Anti-Bribery Convention.

Turning to 3, here the issue is whether the Treaty is enforceable in the UK courts.   As already noted, the lack of definition of the term “serious violation of international human rights law” would make this very problematic.  I am not a qualified lawyer and so cannot say whether a Judicial Review action could be brought.  Control Arms have said that continued UK arms sales to Saudi Arabia are not “compatible with the UK’s obligations under the Arms Trade Treaty” but they have not suggested that this means the UK Government is acting illegally or in any way that could be challenged in the UK courts.

However, even if the UK Government did think UK arms exports to Saudi Arabia could be used to commit or facilitate a serious violation of international human rights law, there are two barriers to be overcome in the Treaty.

Firstly, the UK Government would need to consider whether there are “measures that could be undertaken to mitigate risks…such as confidence-building measures or jointly developed and agreed programmes by the exporting and importing States”.  This could be a rather tricky diplomatic issue to deal with, for fairly obvious reasons.

Secondly, the UK Government would have to believe there was an “overriding risk” the proposed arms exports “could be used to commit or facilitate a serious violation of international human rights law”.  This I think is a very high threshold, and one unlikely to be met in most circumstances.

Control Arms, and many others like me, would like to see a new “norm” in the way the global arms trade works.  I certainly would like to see a great deal less of it, and an end to arms exports to repressive regimes like Saudi Arabia.  The fact that the UK’s arms trade to Saudi Arabia will not be touched by the Arms Trade Treaty is clearly shown by the fact that BAE Systems, which in 2013 (last full year for which figures are available) made around £3.4 billion from arming Saudi Arabia (20.2% of its revenues) has welcomed the Treaty.

So, is the UK Government now ignoring Arms Trade Treaty obligations by continuing to trade arms with repressive regimes?  The answer, unfortunately, appears to be no.  The Arms Trade Treaty is too weak.  Rather than it being “unclear how these arms sales are in anyway compatible with the UK’s obligations under the Arms Trade Treaty” as Control Arms claim, the problem is it is unclear what a “serious violation” of human rights actually is, and hence what the UK Government’s obligations are.  Because the Treaty leaves a crucial term (a “serious violation of international human rights law”) undefined, the UK Government can correctly claim it is living up to its obligations.  Other Governments will of course do the same.  And that is one of the reasons I believe that, even if it were possible to assess the impact of the Arms Trade Treaty, we would find the Treaty having no impact on the UK’s arms trade, and probably not on the global arms trade either.