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UK Government loses case relating to Saudi Arabia arms exports

  • United Kingdom
  • Competition, EU and Trade

25-06-2019

On 20 June 2019, the UK Court of Appeal ruled that the UK Government’s decision to continue licensing exports of military equipment to Saudi Arabia for possible use in the conflict in Yemen was unlawful.

The judgment comes amidst global concerns over the use of weapons against civilians in the context of the Yemeni civil war.

The judgment did not oblige the UK Government to suspend existing export licences or to refrain from granting new ones. However, International Trade Secretary said that no new licences for export to Saudi Arabia and its coalition partners would be granted while the Government considers the implications of the judgment and while permission to appeal is sought.

If the Government changes its licensing policy as a result of this judgment, then this will likely affect companies that export military equipment where the end-user is based in Saudi Arabia and the intended end-use is linked to the Yemeni civil war.

The Export Control Joint Unit (“ECJU”) confirmed that export licences granted before the date of the judgment are not immediately affected – exporters may continue to use them while the Secretary of State reconsiders the decisions in respect of such licences.

Background

The internal conflict in Yemen began in 2015, when the rebel Houthi movement seized control of much of the west of the country and forced President Abdrabbuh Mansour Hadi to flee abroad. A coalition led by Saudi Arabia and eight other Arab states intervened in an attempt to restore the Yemeni government. Western allies, including the UK, US and France, have provided logistical and intelligence support to the coalition, as well as licensed exports of weapons for use in the conflict. The UK has licensed more than £4.7bn of arms exports to Saudi Arabia since March 2015, including exports of fighter jets and precision-guided bombs.

The Court of Appeal’s ruling followed an appeal against an order of the Divisional Court dismissing the judicial review issued by the Campaign Against Arms Trade (“CAAT”). The initial claim requested the judicial review of the Secretary of State for International Trade’s failure to suspend extant export licences for the export of military equipment to Saudi Arabia for possible use in the conflict in Yemen, and of the Secretary of State’s decision to continue to grant such licences.

Legal context

Under the Export Control Order 2008, exports of military items are subject to licensing requirements imposed by the Secretary of State. Licence applications are assessed on the basis of criteria set out in Article 2 of the EU Council Common Position 2008/944/CGSP (“EU Common Position”) on the common rules governing control of exports of military technology and equipment.

The relevant criterion in the context of the proceedings was that set out in Article 2.2 of the EU Common Position:

Criterion Two: Respect for human rights and fundamental freedoms in the country of final destination as well as respect by that country for international humanitarian law.

- Having assessed the recipient country’s attitudes towards relevant principles established by international humanitarian rights instruments, Member States shall:

(a) (…)
(b) exercise special caution and vigilance in granting licences, on a case-by-case basis and taking account of the nature of the equipment, to countries where serious violations of human rights have been established by the competent bodies of the United Nations, the European Union or by the Council of Europe;
(c) deny an export licence if there is a clear risk that the military technology or equipment to be exported might be used in the commission of serious violations of international humanitarian law.”

Criterion Two is also repeated in the Consolidated EU and National Arms Export Licensing Criteria (the “Consolidated Criteria”) set out by the UK Secretary of State on 24 March 2014.

The Secretary of State previously confirmed that, in the application of the Consolidated Criteria, account would be taken of reliable evidence, including, for example, reporting from diplomatic posts, relevant reports by international bodies, intelligence and information from open sources and non-governmental organisations.

Military sales to Saudi Arabia contribute to thousands of engineering jobs and have provided billions of pounds of revenue for the UK. More than 40% of UK arms exports are destined for Saudi Arabia. However, factors such as the effect of exports on the economy or the industry should not affect the application of the licensing criteria.

The Court of Appeal decision

The four grounds of appeal raised by the CAAT were as follows:

1. Ground 1: the evidence shows that the Secretary of State’s consideration of Saudi Arabia’s past and present record of respect for international humanitarian law, including whether a pattern of violation could be discerned, was fundamentally deficient;

2. Ground 2: the Secretary of State failed to ask the questions identified in the User’s Guide, and in particular failed to answer the questions specified in the User’s Guide1;

3. Ground 3: the Divisional Court adopted an incorrect approach to the standard of review in the present case; and

4. Ground 4: the Divisional Court had failed to answer the question whether the term “serious violations” of international humanitarian law in Criterion 2c was synonymous with “grave breaches” of the Geneva Conventions and war crimes under international law or, as CAAT submitted, referred to serious violations of international humanitarian law more generally, and should have resolved that issue in CAAT’s favour.

The Court of Appeal upheld the appeal on the first ground and ruled that the CAAT succeeded in showing that there were deficiencies in considering Saudi Arabia’s record in respect of international humanitarian law as part of the decision making process.

• In the court’s judgment the question of whether there was a historical pattern of violations of international humanitarian law required to be faced; even if it could not be answered with reasonable confidence for every incident, at least an attempt had to be made.

• The pattern of serious violations did not simply need to be taken into account, as the Divisional Court found, but it needed to be properly assessed and considered.

• The Court of Appeal held that it was irrational and therefore unlawful for the Secretary of State to assess licence applications for exports of military equipment to Saudi Arabia without proper consideration of humanitarian law violations in the context of the Yemeni conflict.

• As a consequence, the Secretary of State was remitted to reconsider its decisions in accordance with the correct legal approach.

Implications and commentary

The ground on which the Government lost in the Court of Appeal judgment concerned whether it was under an obligation to make an overall assessment of whether there had been historical violations of international humanitarian law by Saudi Arabia, including whether a pattern of violations could be discerned.

In a statement in the House of Commons, Liam Fox said that the Government’s approach was “in line with the EU Common Position; it is therefore focused on a predictive evaluation of risk as to the attitude and future conduct of the Saudi-led coalition and recognises the inherent difficulties of seeking to reach findings on international humanitarian law for specific incidents where we do not have access to the complete information. Indeed, the Divisional Court pointed to the “self-evident” impracticality of doing so. Even so, we have fully and robustly engaged with incidents of concern and sought to test and understand the risk of future incidents. We have all along considered the historical record of Saudi Arabia in respect of international humanitarian law. Our whole assessment has been infused with international humanitarian law considerations; indeed, everything has been looked at through the prism of international humanitarian law.”

A spokeswoman for Prime Minister Theresa May said that the Government was disappointed with the court’s decision and would be seeking permission to appeal against it.

The judgment did not oblige the UK Government to suspend existing export licences or to refrain from granting new ones. However, International Trade Secretary Liam Fox said that no new licences for export to Saudi Arabia and its coalition partners would be granted while it considers the implications of the judgment and while permission to appeal is sought.

If the Government changes its licensing policy in relation to Saudi Arabia and decides that no new licences should be issued for exports which are related to the conflict in Yemen, then this will likely affect both: (i) licence applications for exports directly to Saudi Arabia; and (ii) licence applications for export to a third country, where the end-user is based in Saudi Arabia and the intended end-use is linked to the Yemeni civil war.

Liam Fox also said: “As to how we look at existing licences, and at licences elsewhere, I have made it clear that we will review all licences in the light of the court’s judgment. It is worth noting, however, that the Campaign Against Arms Trade did not seek an order to suspend licences, and that the Court has not ordered that in its judgment.

In its Notice to Exporters dated 25 June 2019, the Export Control Joint Unit confirmed that export licences granted before the date of the judgment are not immediately affected – exporters may continue to use them while the Secretary of State reconsiders the decisions in respect of such licences. In addition, the ECJU has stopped new registrations for six Open General Export Licences (“OGELs”), as follows:

• PCBs and components for military goods;

• Export after repair/replacement under warranty (military goods);

• Exports for transfers in support of UK Government defence contracts;

• Software and source code for military goods;

• Technology for military goods; and

• Military goods: collaborative Project Typhoon.

Exporters who are already registered for these OGELs may continue to use them to export to Saudi Arabia and its coalition partners, subject to compliance with the terms and conditions of the licences. Arrangements will be put in place for future registrations for other destinations permitted by these OGELs.

Other EU Member States, such as Germany and Denmark, already prohibit licensing exports of items that may be used in the Yemen conflict. When this was raised in the House of Commons, Liam Fox stated that the Government does “discuss matters with our European colleagues, including our German colleagues, at the highest level, and it is our policy to continue to apply the EU Common Position to licensing. (…) Our European partners and others are entitled to deviate from the EU Common Position if they wish, but we intend to follow it”.

However, following the EU Common Position simply means that the risks of international humanitarian law violations need to be given proper consideration. Having assessed the risks, the Government may still conclude that Criterion Two does not apply in any given scenario.

To emphasise this point, the Court of Appeal’s judgment was not about whether the Secretary of State has made the right or wrong decisions about granting export licences, but concerned the rationality of the process used to reach those decisions. Amending the process so that it does fully consider the potential violations of international humanitarian law does not necessarily mean any of the decisions would be different.


1. The ‘User’s Guide’ containing guidance for the implementation of the EU Common Position, sets out ‘best practices’ for the licensing criteria, including Criterion Two and lists questions which the authorities should ask themselves when assessing a licence application. These questions include:

• Is there national legislation in place prohibiting and punishing violations of international humanitarian law?

• Have the same measures been taken to ensure respect for international humanitarian law by other arms bearers which operate in situations covered by international humanitarian law?

• Have mechanisms been put in place to ensure accountability for violations of international humanitarian law committed by the armed forces and other arms bearers, including disciplinary and penal sanctions?

• Is there an independent and functioning judiciary capable of prosecuting serious violations of international humanitarian law?

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