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UK grant of export licences for the sale of arms to Saudi Arabia ruled unlawful due to failure to assess Kingdom’s past record on international humanitarian law

R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020

Related Member(s):
Jonathan Glasson QC
Related Practice Area(s):
Public and Private International Law, Public Law
Court:

The appellant challenged the lawfulness of the grant by the UK Government of export licences for the sale or transfer of arms or military equipment to the Kingdom of Saudi Arabia, for possible use in the conflict in Yemen. The Court of Appeal allowed the appeal of the Campaign Against Arms Trade.

The appeal was based on three grounds:

  1. The Secretary of State’s consideration of Saudi Arabia’s past and present record of respect for international humanitarian law was deficient;
  2. The Secretary of State failed to answer matters specified in the User’s Guide including whether the state in question has legislation to prohibit violations of international humanitarian law, whether there are mechanisms to ensure accountability for violations, and whether there is an independent judiciary which can prosecute violations;
  3. And the Divisional Court failed to answer the question of whether ‘serious violations’ of international humanitarian law is synonymous with  ‘grave breaches’ of the Geneva Convention, or if it refers to serious violations more generally.

The Court of Appeal allowed the appeal on ground 1, dismissing the appeal on the other two grounds.  The Court of Appeal had earlier refused permission to challenge the Divisional Court’s finding on the standard review.

The Court considered evidence in both closed and open proceedings. In relation to ground 1, the Court did not accept that the UK military and other analysts and advisers wrongly discounted the evidence coming from the NGOs and the UN Panel of experts, rather finding that the evidence was considered, in each case where a concern was raised. It also found that those advising the Secretary of State were all along keenly alive to the question of possible violation of international humanitarian law and its impact on continued supply of weapons. However, the Court accepted that the question whether there was an historic pattern of breaches of international humanitarian law on the part of the Coalition, and Saudi Arabia in particular, was a question which required to be faced. The Court found that, in the early months of 2016 there was either a decision, or a change of position, so that there would be no assessment of past violation of international humanitarian law. The Court considered that, without making such assessments, the Secretary of State could not reach a rational conclusion as to the effect of the training, support and other inputs by the UK, or the effect of any high level assurances by the Saudi authorities. Therefore the Court concluded that the Secretary of State’s actions were irrational and, so it was unlawful  for him to proceed as he did.

The Court did not accept ground 2. It considered that the essential focus of the present case was not on individual responsibilities for war crimes, to which the three questions identified would be relevant. Rather, the focus was on whether the Kingdom of Saudi Arabia as a state has a record of compliance with international humanitarian law, and this was addressed under ground 1.  As such, the Secretary of State did not adopt a process which was irrational in relation to ground 2.

Considering the judgment given by the Divisional Court, the Court of Appeal also dismissed ground 4. It held that the Divisional Court did not err in law in misunderstanding the meaning of the term ‘serious violations of international humanitarian law’. The Divisional Court stated in its judgment that the term ‘serious violation’ is a general term in international humanitarian law which includes ‘grave breaches’ and ‘war crimes’, thus demonstrating it did not consider the concepts to be synonymous. The Court of Appeal also considered that the Divisional Court judgment demonstrated that it did not consider the concept of serious violations to be restricted in some way to those cases where there could be established individual criminal responsibility.

Therefore, following the allowing of the appeal on ground 1, the Court of Appeal concluded that the matter should be remitted to the Secretary of State to reconsider in accordance with the correct legal approach.

Jonathan Glasson QC was involved in this case.