June 20, 2019UK Court of Appeal On Appeal Arms Trade Intervenor
The facts of the case
This case concerned the legality of the UK government's licencing of arms sales to Saudi Arabia. The case was an appeal against a 2017 High Court ruling that allowed the UK government to continue to license the sale of arms to Saudi Arabia. Judicial review proceedings were brought by the Campaign Against Arms Trade (“CAAT”) against the Secretary of State’s decision to export military equipment to Saudi Arabia for use in Yemen.
The Applicant argued that, where there is a “clear risk” that weapons might be used to commit serious violations of international humanitarian law, the Government is obliged to suspend the sale of weapons. Thus, the Applicant argued that it was unlawful for the UK Government to continue to allow export of arms to Saudi Arabia in light of the mounting evidence regarding alleged breaches of international humanitarian law by the Saudi-led coalition in Yemen.
The first judicial review was heard by the High Court, which in July 2018 ruled against the Applicant. On appeal, the Court of Appeal ruled in the Applicant’s favour in June 2019. The Government was ordered to review all extant decisions of arms export licenses, and to suspend the issuance of any new ones where equipment could be used by Saudi Arabia in Yemen. The Government asked for permission to appeal to the Supreme Court.
RSI’s intervention in the case
RSI, together with Amnesty International and Human Rights Watch, was granted leave to intervene in the case on two core matters. The first was to provide information on the current conflict in Yemen and the weight that should be given to NGO, UN, and other third-party evidence in making a determination as to whether there had been serious violations of international humanitarian law in Yemen. The second concerned the UK’s responsibility under international law for Saudi Arabia’s acts. RSI argued that where the UK had knowingly aided or assisted Saudi Arabia in breaching legal standards in the Yemen conflict, the UK could itself be fixed with responsibility for those acts.
RSI submitted that in this case, the lack of any evidence suggesting that the Government performed an analysis of the UK’s obligations under Article 16 of the Articles on State Responsibility provided a strong rationale for the Court to rule that the granting and maintaining of the export licenses was unlawful.
The judgment in the case
The Court of Appeal recognised the relevance and importance of NGO and UN contributions to the recording and analysis of armed conflict. Although the Court accepted that the analyses of the conflict carried out by the Ministry of Defence and the Foreign Office were, broadly speaking, ‘rigorous and robust’, it sided with the Applicant on its central argument concerning the importance of considering the historical pattern of breaches in international humanitarian law. The Court proceeded to hold that the government's decision-making process was unlawful in one significant respect, in that it had not considered the Saudi-led coalition's attitude to past breaches of international humanitarian law.
The Court ruled that as a consequence of this failure, the Secretary of State was required to reconsider the licensing.
What does this mean for our work?
Our interest in this ongoing case exemplifies our work to ensure that rule of law principles remain respected in the international security space, and that reasonable due diligence is exercised by state actors.
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