Saudi arms sales: UK government must reconsider export authorisations

The UK government must reconsider its authorisation of exports of arms to the Kingdom of Saudi Arabia, following a win in the Court of Appeal for the Campaign Against the Arms Trade (‘CAAT’).

The judgment, which constitutes a judicial review of a 2017 victory for the government in the High Court, concerns ‘the lawfulness of the grant by the UK Government of export licences for the sale or transfer of arms or military equipment to the Kingdom of Saudi Arabia, for possible use in the conflict in Yemen.’

In a press summary, the Court of Appeal said it had concluded ‘that the process of decision-making by the government was wrong in law in one significant respect:

‘Part of the legal test under the Export Control Act 2002, the Export Control Order 2008 and the Common Position adopted by the Member States of the European Union in December 2008, is in what is known as “Criterion 2”.  This means the exporting state must consider “the recipient country’s attitudes” towards the principles of “international humanitarian rights instruments” and international human rights law. Criterion 2 stipulates that Member States:

“shall … deny an export licence if there is a clear risk that the … equipment might be used in the commission of serious violations of international humanitarian law”.’

The court said that the error of law it identified ‘concerns one part of the process followed by government in considering that “clear risk … of serious violations”.

‘The government made no concluded assessments of whether the Saudi-led coalition had committed violations of international humanitarian law in the past, during the Yemen conflict, and made no attempt to do so.

‘The evidence shows that the government has consistently engaged closely with Saudi Arabia, in an attempt to avoid breaches of international humanitarian law and to minimise or avoid civilian casualties in the Yemen conflict. The evidence demonstrates that these efforts have been genuine and extensive. There is considerable evidence as to the “attitude” of Saudi Arabia, and their expressed desire to avoid violations of international humanitarian law. The government argued that these steps were sufficient as a basis for a “finely balanced” judgement in favour of continued supply of weaponry.

‘The court has concluded, as a matter of law, that this was an error. On these facts, there was a legal obligation (as a matter of rationality) to make a systematic assessment of past possible violations, not necessarily in every case but, where possible, before deciding whether there is a clear risk of future serious violations. On that point, the appeal has succeeded and the decision of the High Court is overturned.’

It added, that the decision of the court ‘does not mean that licences to export arms to Saudi Arabia must immediately be suspended… It does mean that the UK government must reconsider the matter, must make the necessary assessments about past episodes of concern, allowing for the fact that, in some cases, it will not be possible to reach a conclusion. The government must then estimate the future risks in light of their conclusions about the past.’

The judgment is at:
https://www.judiciary.uk/wp-content/uploads/2019/06/CAAT-v-Secretary-of-State-and-Others-Open-12-June-2019.pdf