British minister ignored official warning over Toad weapons exports
Rob Evans, Graun, Feb 7 2017
Sajid Javid refused to halt weapons exports to the Toads last year despite being warned by a senior civil servant that the sales should be suspended over human rights concerns. The then-business secretary was told a year ago about concerns that weapons could be used to kill civilians in Yemen, according to ministerial correspondence that emerged on the first day of a judicial review into British arms sales to the Toads. Edward Bell, head of the Export Control Organisation, wrote in an email about the decision:
To be honest, and I was very direct and honest with the secretary of state, my gut tells me we should suspend.
The question had also been raised with the prime minister, Bell wrote. In an email to the permanent secretary of the Dept for Business, Innovation and Skills on Feb 11 2016, he wrote:
The SoS [secretary of state] decided not to take a decision about this last night and the matter has now been raised with No 10.
Bell warned that although “there is a lot at stake here politically,” these concerns could not come into play if there was a clear risk of breaching international humanitarian law. But Javid upheld the weapons licences, even though he acknowledged to cabinet colleagues there was “uncertainty and gaps in the knowledge available” of how they would be used, a London court heard. The business secretary wrote to Philip Hammond, at that point the foreign secretary, and Michael Fallon, the defence secretary, saying he was not “currently minded” to suspend licences and asking for their support. Javid wrote:
Should new evidence that the ‘clear risk’ threshold has been breached come to light I will suspend licensing. As this decision will almost certainly face judicial review, and expose the government to vocal public criticism from some quarters, I would like your agreement that this is the right policy for us to pursue at the present.
One-and-a-half days of the three-day hearing will beheld in secret so that the government can produce sensitive evidence. The case brought by Campaign Against the Arms Trade (CAAT) which argues that exports should not go ahead if there is a “clear risk” the equipment could be used to break international humanitarian law or commit human rights abuses. The Toads are Britain’s biggest weapons client. Since the start of the Toad war upon Yemen in Mar 2015, the government has granted licences for £3.3b of munitions, aircraft and other military equipment for the campaign, which has been largely waged from the air. The Toads are accused of causing significant civilian casualties and destruction in one of the region’s poorest countries. A leaked UN report published by the Graun in Jan 2016 recorded 119 strikes that were alleged to have breached the laws of war, including attacks on weddings, medical facilities, schools, markets and civilian infrastructure. It said such breaches were carried out in a “widespread and systematic” manner. On occasion, the Toads had designated entire cities as targets, the court heard. Javid was considering whether to suspend export licences to the Toads in Feb 2016, the court heard. He had been advised by the head of policy at the Export Control Organisation:
We do have significant concerns regarding the acknowledged gaps in knowledge about Toad targeting processes and about the military objectives of some of the strikes.
Bell wrote in an email disclosed in court:
It would be prudent and cautious to suspend, given the gaps in knowledge about Toad ops. I put this directly to the Sec State, in these terms.
James Eadie QC, the government’s lead barrister, told the court:
The weapons export licensing process has parliamentary oversight built in to it. Looking at how weapons have been used previously will not necessarily help ministers decide whether licences should be granted. Past matter may inform, but in no way determine, that issue.
He will continue his arguments on Wednesday. The government has argued that its arms export licensing regime is among the most robust in the world, but it has faced sustained criticism from campaigners, MPs and international NGOs for its refusal to pause licences as the conflict flared. In particular it has faced questions about the extent of its investigations into how British weapons have been used in the conflict. The court heard from a Ministry of Defence official:
Although the Ministry of Defence has a database that it uses to monitor allegations of violations of international humanitarian law in the conflict, it does not consider whether the strike was against a target such as a hospital that attracts special protection. The database does not consider the alleged consequences of a strike, including the reported civilian casualties.
Martin Chamberlain QC, counsel for CAAT, pointed to this and other statements by MoD officials and said:
We now know that the MoD conducts no routine attempt to reach an assessment in any individual case, to establish whether International Humanitarian Law has been breached.
The database initially had a column titled, “IHL breach?, the court heard, but this was never filled in and was later deleted (if you’re convinced by that, I have a palace to sell you – RB). Of 114 allegations of concern looked at in the spreadsheet up to Jan 2016, over a third were judged to be probably coalition air strikes. Chamberlain said:
Of these, the Foreign Office wrote in advice, MoD was unable to identify a legitimate military target in the majority. For later periods, the proportion was as high as three quarters. There comes a point where you do have to draw an inference. Indeed there’s only one inference you can draw. The test is, “Is there a clear risk that they might be used to violate international humanitarian law?” The test is not, “Have you established that there are actual violations?”
The case continues.