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UK’s revised arms export criteria: a shift towards less accountability?

On the 30 November 2023, the House of Commons Library published a detailed report UK amends its criteria for arms exports‘ on the revisions to the United Kingdom’s criteria for arms exports. Such revisions represent a significant shift in the nation’s approach to controlling the export of military and dual-use goods. These changes, implemented in December 2021 but articulated in the report almost two years later, have elicited various critical responses and raised questions regarding their potential impact on human rights and the accountability of the UK Government in the global arms trade.

The 2021 revision of the UK’s arms export criteria notably alters the language and scope of the export control regime. Key changes include the removal of specific EU-related references due to Brexit, and the introduction of broader, less explicit language in assessing the risks associated with arms exports. This includes replacing terms like “provoke or prolong armed conflicts” with “undermine internal peace and security,” and adding a new degree of government discretion in the risk assessment process.

The paper was first published in March 2022 and revised and updated on 30 November 2023 to reflect commentary on the criteria by the Committees on Arms Export Controls and Campaign Against Arms Trade. On 6 December the author made a minor update, without changing the publication date, to correct an error in a footnote, and also to add a sentence to the summary stating the original publication date.

These changes, particularly the insertion of the phrase “if it [the Government] determines” in several criteria, substantially shift the criteria from being specific and objective to more subjective, potentially reducing the threshold for approving arms exports and limiting the scope for legal challenges. This has raised concerns about a potential decrease in accountability and a heightened risk of UK arms being used in human rights abuses.

Background of the Revisions
The UK Government’s revised licensing criteria for strategic exports are crucial for companies that wish to export military or dual-use goods. This system requires such companies to obtain a license from the Government, a process aimed at ensuring that exports are in line with the UK’s international obligations and do not contribute to human rights violations. These criteria have been updated periodically, with the last significant update before 2021 being in 2014. The revision in 2021, influenced partly by the UK’s exit from the European Union, saw the removal of references to the EU and the introduction of new language and emphasis points in the criteria.

Human Rights Concerns
A core concern expressed by critics, including policy advisors from organisations like Action on Armed Violence, is that the revised criteria might lead to a reduction in accountability and transparency. There is a fear that these changes could result in UK arms being used to commit war crimes and other human rights abuses. This apprehension is rooted in the belief that the Government may now find it easier to overlook human rights concerns in its licensing decisions.

In 2021, AOAV reported that Britain had been granting export licenses for military goods to a significant number of countries on its own embargoed, sanctioned, or trade-restricted list. Between January 2015 and June 2020, the UK’s Department for International Trade (DIT) approved military-use exports to 58 out of 73 countries listed as subject to such restrictions. These licenses, totalling over 4,800, are valued at approximately £2.6 billion, with a majority covering high-value items like aircraft, helicopters, drones, and also small arms, explosives, and crowd control equipment.

The countries receiving these exports were diverse, ranging from those under UN or EU embargoes, like Libya, Belarus, and China, to others with region-specific restrictions, such as ECOWAS nations. Notably, exports had been approved to 14 countries also listed as human rights priorities by the UK’s Foreign Office.

This dual approach of condemning human rights violations while approving arms sales to the same countries, including key markets like Bahrain, Bangladesh, Colombia, Egypt, and Saudi Arabia, illustrates a complex and potentially contradictory stance by the UK government.

Furthermore, the sale of military items, including small arms and ammunition, had been sanctioned to countries with recent histories of violent conflict or state oppression. For example, exports to Nigeria were approved despite known issues of police brutality, and significant exports of sniper rifles to Pakistan and India have raised concerns given the ongoing tensions in Kashmir.

At the time, AOAV said that the UK’s Export Control Joint Unit (ECJU) seemed to have overlooked potential human rights abuses in these decisions. Our report also highlighted the lack of clarity and consistency in public documentation of UK military export controls, which hampered meaningful scrutiny of arms exports and their intended end-users.

This situation underscores the challenges the UK faces in balancing trade interests, geopolitical strategies, and human rights considerations in its arms export policies post-Brexit.

Shift in Language and Emphasis
The revised criteria add to this concern. In particular, the changes exhibit notable shifts in language and focus.

For instance, Criterion 2 has been altered from assessing “a risk items might be used for” to “a clear risk that the items might be used to commit or facilitate” internal repression or serious violations of international humanitarian law. This kind of language shift is seen across various criteria, suggesting a broader, less specific approach to assessing risks associated with arms exports. Such changes could potentially dilute the strictness of the criteria, making it easier for exports to be approved even when there are significant concerns.

Method of Application
The report highlights that the method by which these criteria will be applied remains as it was laid out in 2014 – on a case-by-case basis and not refusing a license on grounds of purely theoretical risks. This approach, while intended to be practical, raises questions about the consistency and rigour with which these criteria will be applied in complex, real-world scenarios.

Process and Content Criticisms
The process of revising the criteria and the content itself has been subject to criticism. Control Arms UK, a coalition of NGOs, pointed out issues with the process, particularly the lack of external consultation and the opacity surrounding the review. This criticism is significant as it touches on the democratic process of policy-making and the importance of stakeholder engagement in decisions that have far-reaching consequences. Control Arms UK acknowledged some positive amendments, particularly those aligning the criteria more closely with the obligations under the Arms Trade Treaty. However, they expressed deep concern over changes to specific criteria, which they believe might be motivated by the UK Government’s legal challenges, such as those related to arms exports to Saudi Arabia.

Effectiveness of Controls
A critical amendment in the criteria is the insertion of the phrase “if it [the Government] determines” in the risk assessment of several criteria. This amendment is viewed as significantly weakening the effectiveness of controls. It grants the Government considerable discretion to dismiss evidence that may be inconvenient for its export decisions. This change narrows the scope for future legal challenges, a concern highlighted in the context of the controversy over arms exports to the Saudi-led coalition in Yemen. This aspect is particularly troubling, given the role of UK arms in conflicts where there are documented human rights violations.

Broader Implications
The changes to the UK’s arms export criteria have broader implications for international security and human rights. By potentially lowering the threshold for approving arms exports, these revisions could contribute to an increase in arms flows to conflict zones or repressive regimes. This prospect raises ethical questions about the UK’s role in global conflicts and its commitment to upholding international human rights standards.Moreover, the shift in language and criteria could have ramifications for the UK’s international relations. The country’s arms export policies are not only a matter of domestic concern but also play a significant role in its diplomatic engagements and international reputation. If the UK is perceived as lax in its export controls, especially regarding human rights considerations, this could strain its relationships with allies and international bodies committed to upholding human rights and preventing conflict.

Conclusion
In conclusion, while the UK’s revised arms export criteria may align with certain international obligations, they potentially weaken accountability and oversight. This revision raises critical questions about their impact on human rights and the potential for misuse of exported arms. The amendments reflect a notable shift in language and focus, which could have far-reaching implications for the UK’s role in international arms trade and its commitment to upholding human rights standards.

Dr Iain Overton of AOAV said of the changes: “The UK’s recent changes to its arms export criteria, while perhaps a bureaucratic necessity in a post-Brexit world, pose significant concerns. The lessening of specific language and the increased discretionary power of the government could lead to a dangerous lack of accountability. It’s imperative that we maintain a vigilant eye on the potential consequences of these amendments, particularly regarding human rights violations and the perpetuation of conflict globally.”

The concerns raised by various stakeholders, including NGOs and academic experts, underscore the need for a careful and transparent approach to arms exports. As the global landscape continues to evolve, with increasing conflicts and humanitarian crises, the role of major arms exporters like the UK becomes ever more critical. Ensuring that arms export policies are robust, accountable, and aligned with the highest standards of human rights and international law is not just a matter of national policy but a crucial aspect of global peace and security.