On 30 July 2008 the House of Lords ruled in the case of R v Director of the Serious Fraud Office (SFO)  UKHL 60 that the inquiry into the arms deal between one of the biggest British arms assemblers, BAE Systems, and the Saudi Arabian State, should be brought to a halt immediately in the interests of national security, causing “serious damage to the UK/Saudi security, intelligence and diplomatic cooperation” (as per Prime Minister and the Foreign and Defence Secretaries in para. 3 of the Case for the Respondents) .
The Divisional Court found that the decision to halt the prosecution of BAE was unlawful as it contradicts the constitutional principle of the rule of law and Article 5 of the OECD Anti-Bribery Convention. Nevertheless, the House did not only find it inappropriate to strike down the deal and thereby refused to examine it with a more critical eye than it may have before, but it equally neglected to cover all the relevant legal obligations and examine the compatibility of the actions of the State with its international obligations, i.e. international humanitarian and human rights law.
This is a difficult decision not only because it appears, to a certain extent, to go back on a political agenda against the arming of the Middle East as a means of collective punishment for their implicit endorsement or even harvesting of various terror movements. More so, and this is where its biggest and boldest legal lacunae are found, the judgment purports to completely disregard and thereby evade the applicability or even the reference of the legal frameworks of international humanitarian and human rights law to which the UK is party and is obliged to adhere in order to prevent the fueling of regimes and governments that systematically violate human rights.
To mention only a few overarching principles that give rise to explicit legal obligations in this factual context, a state that fails to scrutinise the activities of private military companies trading arms with countries that have and continue to violate human rights and humanitarian law, and are therefore likely to use the arms supplied to fuel those very regimes, violates its legal obligation to “ensure respect” for international humanitarian law and human rights. The significance of the contribution of these obligations to the practical regulation of the international arms trade has been challenged by writers like Brehm, however, there is nevertheless a solid legal framework that applies in these very cases where a developed state endorses the thriving of its free market capitalist economies at the price of the death and impovrishment of peoples elsewhere in less advantaged societies.
Notably, this is the first time that a case of this caliber arrives on the table of the House of Lords. In its analysis of the case, the judges overlook the relevant legal obligations under the frameworks of IHL and IHRL which directly oblige the UK government to use all appropriate measures to closely examine the arms deal and its facets in order to make sure that it does not violate, directly or indirectly, these very obligations. This particular perspective on this judgment and the judicial appreciation of the case factually, but more so legally in the application of the appropriate legal rules, was omitted.
The following articles will be particularly useful for those looking to explore the specifics a little further as they present the legal framework directly applicable to the facts of the case:
Bolvin A. “Complicity and beyond: international law and the transfer of small arms and light weapons.” International Review of the Red Cross, Vol 87, No 859, September 2005. pp 467-496; Available at: <http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/review-859-p467/$File/irrc_859_Boivin.pdf>
Brehm M. “The Arms Trade and States’ Duty to Ensure Respect for Humanitarian and Human Rights Law.” Journal of Conflict & Security law, Vol 2, No 3, 2008. pp 359-387; Available at: <http://jcsl.oxfordjournals.org/cgi/content/abstract/12/3/359>
Business and IHL: An introduction to the rights and obligations of business enterprises under international humanitarian law, ICRC, Geneva, 2006. Available at: <http://www.icrc.org/web/eng/siteeng0.nsf/html/p0882>