UK export licence for sale of arms to Saudi Arabia declared unlawful

The Queen (on the application of Campaign Against Arms Trade) v Secretary of State for International Trade, [2019] EWCA Civ 1020

Date of judgment: 20 June 2019

Court: Court of Appeal (Civil Division), London

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Relevance of the case 

The appeal concerned the lawfulness of the decision by the Government of the United Kingdom (UK Government) to grant export licences for the sale or transfer of arms or military equipment to Saudi Arabia, for possible use in the conflict in Yemen. The appeal succeeded on Ground 1 of the grounds of appeal raised by the Campaign Against Arms Trade (CAAT), in that the evidence showed that the Secretary of State’s consideration of Saudi Arabia’s past and present record of respect for international humanitarian law (IHL) – including whether a pattern of violations could be discerned – was fundamentally deficient. As such, the Court of Appeal (the Court) held that it was irrational and unlawful for the Secretary of State to have proceeded as he did, and remitted the matter to the Secretary of State to reconsider in accordance with the correct legal approach.

Of particular importance, the Court made clear that the Secretary of State would be required to assess Saudi Arabia’s past and present record of respecting IHL, as well as any pattern of violations, in order for any decision by the UK Government to grant an an export licence for the sale or transfer of arms to be considered lawful.

Factual background

There have been ongoing tensions in Yemen since 2015 between two factions in the country. In March 2015, a coalition of nine states, led by Saudi Arabia, responded to a request for assistance from the President of Yemen and commenced military operations against the Houthi rebels (who are loyal to the former president). According to CAAT, there was a large body of evidence which demonstrated overwhelmingly that Saudi Arabia had committed serious and repeated breaches under IHL during the conflict in Yemen. In particular, CAAT claimed that Saudi Arabia had committed indiscriminate or deliberate airstrikes against civilians, including airstrikes which used “cluster” munitions, and which targeted schools and medical facilities.

Legal framework

The export of arms and military equipment from the United Kingdom to Yemen is regulated by the Export Control Act, 2002, and provides for the imposition of export controls in appropriate circumstances. Further, the Member States of the European Union (EU) are bound by the Council Common Position of 8 December 2008 defining common rules government control of exports of military technology and equipment (EU Common Position). Notably, article 2.2 provides as follows:

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:

…

(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;

…

Having assessed the recipient country’s attitude towards relevant principles established by instruments of international humanitarian law, Member States shall:

(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.

This is supplemented by other relevant documents, including a User’s Guide to the European Code of Conduct on Exports of Military Equipment (User’s Guide), which provides guidance on the implementation of the EU Common Position. Also of relevance are the Four Geneva Conventions of 1949 and the Additional Protocols I and II of 1979, which codify the relevant principles of IHL, as well as customary international law.

Findings of the Court

On appeal, CAAT raised the following four grounds of appeal:

• Ground 1: That the evidence showed that the Secretary of State’s consideration of Saudi Arabia’s past and present record of respect for IHL, including whether a pattern of violations could be discerned, was fundamentally deficient.
• Ground 2: That the Secretary of State failed to ask the questions identified in the User’s Guide, in particular whether there were mechanisms in place to ensure accountability for violations of IHL committed by the armed forces.
• Ground 3: That the Divisional Court had adopted an incorrect approach to the standard of review in the present case.
• Ground 4:  That the Divisional Court had failed to answer the question of whether the term “serious violations” of IHL contained in the EU Common Position was synonymous with “grave breaches” of the Geneva Conventions and war crimes.

Permission was granted to appeal on Grounds 1, 2 and 4, but refused on Ground 3.

In respect of Ground 1, the Court concluded that CAAT had succeeded in its central argument. The Court noted in this regard that the question of whether there was a historic pattern of breaches of IHL by Saudi Arabia was one which had to be faced. Even if it could not be answered with reasonable confidence in respect of every incident of concern, it was clear that it could properly be answered in respect of many such incidents, and at least the attempt had to be made. Such assessments were necessary for the Secretary of State to be able to reach a rational conclusion as to the effect of the decisions taken. Accordingly, the Court held that it was irrational and unlawful for the Secretary of State to have proceeded as he did.

In respect of Ground 2, the Court held that it was unable to accept that the matters raised in Ground 2 pointed to the Secretary of State having adopted a process that was irrational. The Court noted that the Secretary of State enjoyed a broad area of judgment in assessing how to address the criterion in article 2.2(c) of the EU Common Position. As such, this ground of appeal was dismissed.

In respect of Ground 4, the Court held that the court of first instance had not erred in law in its understanding of the term “serious violations of IHL”. Further, the Court declined the request from CAAT to provide a definition of “serious violations”, finding that it would not be appropriate to do so in the abstract when so much would depend on the precise facts of a case. As such, this ground of appeal was dismissed as well.

Order of the Court

In conclusion, the Court held that the appeal succeeded on the basis of Ground 1, and that consequently the matter was to be remitted to the Secretary of State to reconsider in accordance with the correct legal approach. 

The full judgment is accessible here.

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