High Court allows UK government to continue exporting arms to Saudi Arabia
11 July 2017
Campaign against Arms Trade, R(on the application of) v The Secretary of State for International Trade  EWHC 1754 (Admin) – read judgment
Angus McCullough QC acted as Special Advocate supporting the Claimant in this case. He is not associated with the writing of this post.
A challenge to the legality of UK’s sale of arms to Saudi Arabia has failed. The claim sprang from the conflict in Yemen and the border areas of Saudi Arabia. It focussed on airstrikes conducted by a coalition led by Saudi Arabia in support of the legitimate government of Yemen against the Shia-led Houthi rebellion. UK arms export policy states that the government must deny licenses for sale of arms to regimes if there is a ‘clear risk’ that the arms ‘might’ be used in ‘a serious violation of International Humanitarian Law. This in turn is based on the EU Common Position 2008/944/CFSP on arms export control, which explicitly rules out the authorising of arms licences by Member States in these “clear risk” circumstances.
The claimant argued that the body of evidence available in the public domain not only suggested but dictated the conclusion that such a clear risk exists. It was therefore no longer lawful to license the sale of arms to Saudi Arabia.
The High Court dismissed their claim. The CAAT intends to appeal this decision.
Saudi Arabia and Yemen are contiguous and share a 1,800 km border. Since early 2015, Yemen’s capital city, Sana’a, and parts of central and southern Yemen have been in the control of Houthi Shia rebels. In the same year, a coalition of nine states led by Saudi Arabia (Egypt, Morocco, Jordan, Sudan, the United Arab Emirates, Kuwait, Qatar and Bahrain) responded to a request for assistance by President Hadi and commenced military operations against the Houthis in Yemen. A UN Security Council Resolution was passed, confirming the legitimacy of Hadi’s presidency.
Terrorist organisations such as Al-Qaeda and Daesh (also known as “ISIS”) have taken advantage of the on-going instability and ungoverned space in Yemen. As the Court observed,
There can be little doubt as to the seriousness of the military conflict in Yemen, and the threat which it is perceived to pose to Saudi Arabia and the stability of the wider region.
According to the United Nations, over 10,000 people have been killed as a result of the war. Since the bombing of Yemen commenced in March 2015, the UK has licensed £3.3 billion worth of arms to the Saudi regime, including aircraft, drones, missiles and armoured vehicles.
Arguments before the Court
The claimant submitted that Saudi forces might have used UK arms to violate international humanitarian law in their ongoing bombardment of Yemen. In the light of this, they said, the Secretary of State had acted irrationally in continuing to supply the Saudis with British-made arms. Publicly available evidence raised a presumption of a “clear risk” under the criteria for licensing the supply of arms which could not rationally be rebutted.
The claimants adduced a large volume of evidence which, they argued, demonstrated ‘overwhelmingly’ that Saudi Arabia had committed repeated and serious breaches of International Humanitarian Law during the conflict, in particular, by committing indiscriminate airstrikes against civilians.
The defendant maintained that the judgment required for assessing risk of human rights violations was prospective and predictive. The question is: ‘Knowing what we know, is there a clear risk that materials we supply to foreign states might be used in breach of International Humanitarian Law?’ Past judgements could inform, but they were by no means determinative. These judgements involved multiple layers of people and expertise. In war situations, hard facts are often difficult to come by and assess.
Furthermore, the open source material relied upon by the claimans for triggering the licensing criteria under the Common Position was only part of the picture. Other “strands” of information included
an understanding and knowledge of Saudi Arabian military processes and procedures, including by reference to information provided by the Defence Attaché at the British Embassy in Riyadh and UK Liaison Officers located in Saudi Arabia Air Operations Centre in Riyadh. This understanding and knowledge is also informed by logistical and technical support and training provided to Saudi Arabia …[as well as] reports from those within the MoD responsible for monitoring and analysing allegations of International Humanitarian Law violations in Yemen.
The Court had available to it closed material that could not be referred to in detail in open session for national security reasons. It included a number of sources of information available to the MoD include, notably fast-jet operational reporting data passed to the UK Liaison Officers, MOD sourced imagery which represented “a more comprehensive, high resolution and immediate picture than that provided by third party commercial imagery”; and other reports and assessments, including UK Defence Intelligence reports and battle damage assessment which makes an assessment of the impact of a strike on the intended target.
In its judgment based on both open and closed materials, the Court concluded that this application for judicial review should be dismissed. The claimant had not answered the legal requirements for successful challenges either to the Secretary of State’s refusal to suspend export licences for the sale or transfer of arms and military equipment to Saudi Arabia or his continuing decision to grant new such licences.
Reasoning behind the Court’s decision
Burnett LJ and Haddon-Cave J, giving judgment, observed that the assessment for issuing arms sale licenses was ‘predictive’ and involved the evaluation of risk as to future conduct of the recipient state “in a dynamic and changing situation.” A rationality test for this assessment was appropriate, but it had to be borne in mind that
Any prediction about the future behaviour of human beings … is necessarily problematical. Reasonable and informed minds may differ and a judgment is not shown to be wrong or unreasonable because that which is thought likely to happen does not happen.
Furthermore, this assessment involved the evaluation of risk of extremely complex facts and information drawn from a wide variety of sources, including sensitive sources not publicly available. For this reason, part of the Court’s consideration of evidence was conducted under the closed procedure with Special Advocates, from which the claimant was excluded.
The Court commented on the impracticality of making a judgment by reference to International Humanitarian Law about every past incident to make a licensing assessment. The unfeasibility of such an exercise was self-evident:
The close relationship between the UK Government and Saudi Arabia places [the government] in a position to garner more direct information about Saudi decision making than outside observers. Nonetheless, there would be inherent difficulties for a non-party to a conflict to reach a reliable view on breaches of International Humanitarian Law by another sovereign state. A non-party would not be likely to have access to all the necessary operational information (in particular, knowledge of information available at the time to the targeting decision-maker forming the basis of the targeting decision)
The fact that civilian casualties had occurred did not without more mean that a breach of International Humanitarian Law had taken place, still less a serious breach. Customary international law and International Humanitarian Law have long recognised that civilian casualties in military conflicts will occur. The reality of the position was that the Secretary of State had available to him and his advisers a significant amount of information relating to the conflict in Yemen and the conduct of Saudi Arabia as part of the Coalition. There was no sustainable public law criticism of the scope of the inquiries made on his behalf or the quality of the information available to him. The evidence showed “beyond question” that the apparatus of the State, ministers and officials, was directed towards making the correct evaluations for the purposes of the Common Position on assessment for arms licensing.
Finally, this kind of evaluation had parallels with making national security assessments. They were matters of judgement and policy and were recognised as primarily matters for the executive (see Rehman at  per Lord Hoffman; and c.f. also Harrow Community Support Limited v. Secretary of State for Defence  EWHC 1921 (Admin) at ).
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Reblogged this on Musings of a Penpusher and commented:
This is proof that we live in a state ruled by pedantic tyrants rather than a democracy.
This appears to amount to the non-justiciability of certain matters involving foreign affairs ie non-reviewability under the guise of judicial review
The analysis by the court viz. predicting the future behaviour of relevant actors & its associated problems is nonsensical. Why would you continue selling arms to a regime that has consistently breached International Humaniatarian Law (IHL) & other human rights’ standards? The Government can claim that it cannot predict future behaviour only in the first instance. It cannot, however, use that justificatory excuse when there is incontrovertible evidence of the targeting of schools & hospitals, & indeed civilians. There is therefore no need to predict future behaviour, but rather look at past breaches, which, on any reasonable interpretation, is enough to halt the sale of arms.
This is an unfortunate and worrying decision at all levels, The proposition that: “[t]he fact that civilian casualties had occurred did not without more mean that a breach of International Humanitarian Law had taken place” sounds not only inconsistent with earlier practices and policies but rather grotesque I would suggest. In 1999 NATO bombed the former Yugoslavia (consisting of Serbia and Montenegro at the relevant time) after it accused the regime of violating international humanitarian law in one particular village (Racak) where several civilian deaths occurred, which was actually a controversial and widely disputed claim. Secondly, arguing that making “national security assessment” is a matter of policy and judgment” is not in accordance with the House of Lords more recent suggestion that the matters involving national security would have to be subject to greater scrutiny, at least for Parliament to get more meaningfully involved, which kind of materialised with Parliament deciding not to use force against the Syrian regime, rather than the executive making their own judgment. I am not commenting on the wisdom and the consequences of the decision for the abhorrent regime because it is somewhat beyond legal analysis, which is unfortunate in my mind because I would have plenty to say!
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