The Court of Appeal (Sir Terence Etherton MR, Irwin and Singh LJJ) today held that the Secretary of State for International Trade had acted unlawfully in not suspending extant licences, and continuing to grant further licences, for the export of arms and military equipment to Saudi Arabia for possible use in the conflict in Yemen.
The Secretary of State’s arms export policy, reflecting an EU Common Position, precludes the grant of arms export licences where there is a “clear risk” that the arms might be used to commit a serious violation of international humanitarian law. A series of reports by respected non-governmental organisations, and by a UN Expert Panel established pursuant to Security Council resolutions, have identified a pattern of violations of IHL by the Saudi-led coalition in Yemen, some of them serious. These included the designation as a military target of Sa’dah (a city of some 100,000 inhabitants), a series of attacks on Médecins Sans Frontières clinics and an attack on a funeral in Sana’a killing and injuring a large number of civilians.
Campaign Against Arms Trade sought judicial review of the Secretary of State’s decisions to continue to license arms exports. It claimed that the decision that the “clear risk” test was not met was irrational in light of the open evidence and that, by not even attempting to reach a conclusion on the question whether past violations had taken place, the Secretary of State had failed properly to inform himself on a factor that was key to his decision. CAAT also argued that it was irrational to take a decision without information about whether Saudi Arabian law prohibited violations of IHL and had in place mechanisms to secure accountability for such violations; and that the Secretary of State had erred in law by adopting too narrow an interpretation of the term ”serious violation”. Amnesty International, Human Rights Watch, Rights Watch UK and Oxfam intervened in support of the claim.
After an open and closed hearing, the Divisional Court (Burnett LJ and Haddon-Cave J, as they then were) dismissed the claim in July 2017.
The Court of Appeal today unanimously allowed CAAT’s first and central ground of appeal. It held that the question whether there was an historic pattern of breaches of IHL was one which had to be faced. Even if it could not be answered with confidence in respect of every incident of concern, it was clear that it could properly be answered in respect of many such incidents including most if not all of those that had featured prominently in argument. Such an assessment had at least to be attempted. The Court noted that the Secretary of State had not explained in evidence why the decision had been taken that no assessments of past violations should be made or event attempted. It relied on closed evidence indicating that such assessments routinely can be, and had been, made in similar but different contexts. Without such assessments, it was impossible to know how much weight to give to high level assurances by the Saudi authorities, which had been relied upon by the Secretary of State in reaching his decision that the “clear risk” test was not met.
The Court remitted the matter to the Secretary of State to reconsider in accordance with the judgment.
Links to the judgment and press summary are here.
Martin Chamberlain QC was lead counsel for the Appellant, Campaign Against Arms Trade. Jemima Stratford QC was lead counsel for Amnesty International, Human Rights Watch and Rights Watch UK, which made written submissions as interveners.