The UK Government acted unlawfully in granting export licences for the sale of arms or military equipment to Saudi Arabia, for possible use in the conflict in Yemen, in not properly considering whether Saudi Arabia had previously committed violations of international humanitarian law during the conflict, the Court of Appeal in London ruled today.
Three judges allowed an appeal by Campaign Against the Arms Trade (“CAAT”), along with four other organisations as interveners, from a High Court ruling of July 2017, which dismissed its claims for judicial review.
The Court of Appeal read and heard extensive evidence and argument, both in open court and, for national security reasons, in closed hearing, in order to consider a large amount of highly sensitive material. The position of CAAT was presented in closed hearings by special advocates, who were able to see all the closed material.
CAAT's arguments succeeded on only one significant point: that the process of decision-making by the Government wrongly applied the legal test under the Export Control Act 2002, the Export Control Order 2008 and the common position adopted by the member states of the European Union in December 2008, on what is known as "criterion 2". This means the exporting state must consider the recipient country’s attitudes towards the principles of international humanitarian rights instruments and international human rights law, and "shall... deny an export licence if there is a clear risk that the... equipment might be used in the commission of serious violations of international humanitarian law".
The Government made no concluded assessments of whether the Saudi-led coalition had committed violations of international humanitarian law ("IHL") in the past, during the Yemen conflict, and made no attempt to do so, but argued that it was sufficient that it had consistently engaged closely with Saudi Arabia, in an attempt to avoid breaches of international humanitarian law and to minimise or avoid civilian casualties in the conflict. It led evidence that these efforts had been genuine and extensive, along with considerable evidence as to the "attitude" of Saudi Arabia, and its expressed desire to avoid violations of IHL. These steps were sufficient as a basis for a "finely balanced" judgment in favour of continued supply of weaponry.
However the judges (Sir Terence Etherton MR, Lord Justice Irwin and Lord Justice Singh) rejected this approach, holding that on the facts, there was a legal obligation (as a matter of rationality) to make a systematic assessment of past possible violations, not necessarily in every case but, where possible, before deciding whether there was a clear risk of future serious violations.
"The question whether there was an historic pattern of breaches of IHL on the part of the coalition, and Saudi Arabia in particular, was a question which required to be faced", the opinion states. "Even if it could not be answered with reasonable confidence in respect of every incident of concern (which CAAT accepts, and so do we) it is clear to us that it could properly be answered in respect of many such incidents, including most, if not all, of those which have featured prominently in argument. At least the attempt had to be made... there is no document or documents to which the Secretary of State can turn, setting out the rationale by which it was thought right that no assessments of past violations should be made or even attempted."
Their decision does not mean that the export licences must be suspended, but that the Government must reconsider the matter and make the necessary assessments about past episodes of concern, allowing for the fact that, in some cases, it will not be possible to reach a conclusion, and then estimate the future risks in light of its conclusions about the past.