R (Campaign Against the Arms Trade) v Secretary of State for Business, Innovation and Skills [2019] EWCA Civ 1020
20th June 2019
- UK 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 anappeal against a 2017 High Court ruling thatallowed the UK governmentto continue to license the sale of arms to Saudi Arabia.Judicial reviewproceedings werebrought by the Campaign Against Arms Trade CAAT) against the Secretary of States decision toexport militaryequipment to Saudi Arabia for use in Yemen.
The Applicantarguedthat, where there is au201cclear riskthat weapons might be used to commit serious violations of international humanitarian law, the Government is obliged to suspend the sale of weapons.Thus,the Applicantargued that it wasunlawful for theUK Government to continue to allow export of arms to Saudi Arabiain light ofthe mounting evidenceregardingalleged breaches of international humanitarian law by the Saudi-led coalition in Yemen.
The first judicial review was heard by the High Court, whichin July 2018 ruled againstthe Applicant.On appeal,the Court of Appeal ruled inthe Applicants 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 equipmentcouldbe usedby Saudi Arabia in Yemen. The Government asked for permission to appeal to the Supreme Court.
RSIs intervention in the case
RSI,together withAmnesty InternationalandHuman Rights Watch,wasgranted leave to intervene in the caseon two core matters.The first was toprovideinformation 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 hadbeen serious violations of international humanitarian law in Yemen.The secondconcernedthe UKs responsibility under international lawfor Saudi Arabias acts.RSI argued thatwhere theUK had knowingly aidedor assistedSaudi Arabiainbreachinglegal standards in the Yemen conflict, theUK could itself be fixed with responsibility for those acts.
RSI submittedthat in this case, the lack of any evidence suggesting that the Government performed an analysis of the UKs obligations underArticle 16 of the Articles onState Responsibility provided a strong rationale for the Court to rule that thegranting and maintaining of the export licenses was unlawful.
The judgment in the case
The Court of Appeal recognised therelevance and importance of NGO and UN contributions to the recording and analysis of armed conflict.Althoughthe Court accepted that the analyses of the conflict carried out by the Ministry of Defence and the Foreign Office were, broadly speaking,u2018rigorous and robust, it sided withthe Applicant on itscentral argument concerning the importance of considering the historical patternof breaches ininternationalhumanitarianlaw.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 ruledthat as a consequence of this failure, the Secretary of Statewas requiredto reconsider the licensing.
What does this mean for ourwork?
Our interest in this ongoing case exemplifies our work to ensure that rule of law principlesremainrespected inthe international security space, and that reasonable due diligence is exercised by state actors.