UK High Court finds that arms trade to Saudi Arabia can continue

R (on the application of Campaign Against Arms Trade) v The Secretary of State for International Trade and Intervenors [2017] EWHC 1726 (QB)

Summary

This case considers whether the United Kingdom's Secretary of State correctly made a decision not to suspend a licence to export arms to the Kingdom of Saudi Arabia. The Campaign Against Arms Trade (the Claimant) argued that the export licence should be suspended on the basis that there was a clear risk that the arms could be used in the commission of serious violations of international humanitarian law. The Court dismissed the Claimant's case, finding that the decision not to suspend the export license was lawful and open to the Secretary of State to make.

Both open and closed evidence was presented in the case, resulting in both an open and a closed judgment. Although this summary considers only the open judgment because the closed is not publicly available, it should be noted that the reasons of the Court were also influenced by the closed evidence.

Facts

Since 2015, parts of Yemen have been controlled by a rebel force known as the Houthi. In the same year, the President of Yemen requested assistance from the United Nations to protect Yemen and its citizens from the actions of the Houthi. Consequently, a coalition of nine states led by Saudi Arabia (the Coalition) commenced military action against the Houthi.

The United Kingdom's Secretary of State for International Trade is responsible for licensing the export of arms. Licensing decision-making is governed by domestic UK law. The UK domestic law draws on many of the rules developed and agreed between European Union Member States, known as "The Common Rules Governing the Control of Exports of Military Technology and Equipment" (the Common Position). Criterion 2c of the Common Position provides that a country should "not grant a licence if there is a clear risk that the items might be used in the commission of a serious violation of international humanitarian law".

The Claimant sought judicial review of the Secretary's decision not to suspend the export license to sell arms to Saudi Arabia. The Claimant was strongly supported by four Intervenors: Amnesty International, Human Rights Watch, Rights Watch (UK) and Oxfam. Together, they presented material that purported to show a number of instances where the coalition had committed violations of international humanitarian law. The Claimant argued that there was a 'clear risk' that the arms sold to Saudi Arabia would be used to commit further serious violations.

The three grounds argued by the Claimant were that the Secretary:

• failed to ask correct questions and make sufficient enquiries;
• failed to suspend arms sales; and
• irrationally concluded that there was no 'clear risk' under Criterion 2c.

In responding to the claims, the Secretary made the following submissions: that the decision making process was conducted at the highest levels of Government; that he had consulted with specialist departments and experts who had particular knowledge of the situation; that he also had to be cognisant of the evolving situation in Yemen and include this in the decision making process; and that the decision was therefore one that must be "extremely finely balanced".

The case was heard in the High Court of Justice of England and Wales where, in a joint judgment, Lord Justice Burnett and Mr Justice Haddon-Cave dismissed the claim.

Decision

1. Evidence of the Claimant

The Court first considered the evidence of the Claimant. Among this evidence were reports from: the United Nations; the European Parliament; the Council of the European Union; the International Committee of the Red Cross; Médecins Sans Frontières; Amnesty International; Human Rights Watch; and the House of Commons Committee. The Claimant also relied on media reports.

The material included a number of reports of past actions of the Coalition that the Claimant argued constituted serious breaches of International Humanitarian Law. Examples included an airstrike on a Médecins Sans Frontières-sponsored hospital and several other strikes that resulted in the deaths of a disproportionate number of civilians. The Claimant argued that these examples evidenced a pattern of behaviour that made it likely that arms sold to Saudi Arabia would be used in the commission of further breaches.

The Claimant's case was strongly supported by the Intervenors who highlightedthat there were "a series of instances … in which civilians had been killed 'as a result of apparently indiscriminate, or, at least, poor targeting'."

2. Evidence of the Defendant

The Court was able to review both open and closed material that was submitted by the Secretary. Closed material included sensitive information that could not be made available to a broader audience for national security reasons.

In the open material, of particular note to the Court was a tracker that was maintained by the Ministry of Defence. This tracker contained a significantly greater number of incidents than those listed by the Claimant. Of the incidents identified by the Claimant, only three had not been included in the tracker and were subsequently added upon receipt of the application for judicial review.

Having reviewed the material, the Court noted the considerable fervour that was evident in the monitoring and investigation conducted by the Government. Their Honours said:

This was no superficial exercise. It has all the hallmarks of a rigorous and robust, multi-layered process of analysis carried out by numerous expert Government and military personnel, upon which the Secretary of state could properly rely.

3. Grounds of Challenge

Having reviewed the evidence of the Claimant and the Defendant, the Court dismissed the Claim on all three grounds.

Failure to ask correct questions and make sufficient enquiries

The Court concluded that the Secretary correctly utilised the "significant amount of information" available to him. There was no evidence that the Secretary had acted unlawfully, given the scope of the inquiries made and the quality of information that was available. Their Honours concluded: "[t]he evidence shows beyond question that the apparatus of the State, ministers and officials, was directed towards making the correct evaluations".

Failure to suspend arms sales to Saudi Arabia

The Court noted that the circumstances in which an export licence would be suspended was a matter of policy and that each decision was made on a case-by-case basis. Referring again to the "wide range of sophisticated first-hand and other evidence available" to the Secretary, the Court concluded that the Secretary was able to evaluate the reliability of reported breaches of international humanitarian law, and could assess the weight of any deficiencies in the information available to him. The Secretary's decision not to suspend the export licence was not unlawful.

Irrationally concluding that there was no 'clear risk' under Criterion 2c

The Court determined that the third party reports that the Claimant had relied upon did not automatically lead to a conclusion that criteria 2c was triggered. Although it was right that these reports should be given weight, they should be considered in the broader context. Their Honours noted that the incidence of civilian casualties did not automatically mean that there had been a breach of international humanitarian law. Indeed, it is established that in military conflicts, civilian casualties will occur.

Their Honours stated:

The question of whether a breach of International Humanitarian Law has in fact taken place following civilian casualties is often necessarily a complex and fact-sensitive question requiring careful investigation.

Furthermore, the Court, citing the EU User's Guide for interpreting criterion 2c, found that, even where a breach of international humanitarian law has occurred, it is not necessarily conclusive that a 'clear risk' exists.

Ultimately, the Court again recognised the considerable scrutiny that the Secretary had given to the information available in making the decision. Their Honours stated that the decision was one that was taken by individuals with considerable expertise. They concluded that, while the Court has jurisdiction to examine the decision:

[The Court] should be especially cautious before interfering with a finely balanced decision reached after careful and anxious consideration by those who do have the relevant expertise to make the necessary judgments.

The Court found that the comprehensive nature of the material that the Secretary had access to, and the way in which that material had been used in order to make the decision not to suspend the export licence, led to a conclusion that the decision was one that was open to the Secretary to make. It was not irrational for the Secretary to decide not to suspend the export licence, nor was it unlawful.

Commentary

The decision in this case highlights the difficulties that organisations such as the Claimant and Intervenors have when documenting and corroborating reports of breaches of International Humanitarian Law. The Court did not dismiss the considerable body of evidence provided by these organisations, but it recognised the limitations of this evidence. For example, it is particularly difficult to substantiate evidence in a situation of conflict that is continually evolving and involves a multitude of stakeholders.

The open judgment is, of course, only part of the reasons in this case. The Court had the advantage of reviewing the closed materials that also influenced the ultimate decision. This represents another considerable disadvantage to organisations who wish to hold governments to account through an application of judicial review. When a considerable body of material is unavailable to the Claimant, mounting a case is ever the more challenging.

The full text of the decision can be found here.

Clare Bradin is a Senior Associate and Michael Anthony is a Law Graduate at Allens