On Thursday 20 June, the Court of Appeal issued its open judgment in the appeal concerning the lawfulness of the grant by the UK Government of export licences for arms sales to the Kingdom of Saudi Arabia (“KSA”), for possible use in the conflict in Yemen. In their judgment, Sir Terence Etherton MR, Irwin LJ and Singh LJ allowed the appeal by the Campaign Against Arms Trade (“CAAT”), remitting the decision to issue said licences by the Secretary of State for International Trade for reconsideration in accordance with the correct legal approach.
Please see here and here for analysis of the original decision of the Divisional Court.
The Successful Ground of Appeal
The Court of Appeal accepted the central argument by CAAT that the consideration by the Secretary of State of the past and present record of respect for international humanitarian law (“IHL”) by KSA was fundamentally deficient. As a result, the Secretary of State, the Court held, was unable to make a rational conclusion as to whether there was a “clear risk” of serious violations of IHL by KSA in future. As the legal framework concerning the granting of export licenses for arms sales required the Secretary of State to make such an assessment, the decision to approve arm sales to KSA was irrational and therefore illegal.
The submissions by CAAT in support of this argument were threefold. First, it pointed to the range and depth of the quality of the information and evidence, produced by the United Nations (“UN”) and various humanitarian and human rights organisations, documenting (serious) violations of IHL by KSA. If the Secretary of State had conducted a proper assessment of past violations of IHL, it could not have avoided engaging with this material. Second, some of the incidents reported by these external agencies were so striking and suggestive of serious violations, that they demanded a detailed assessment by the Secretary of State as to whether such violations had occurred. The evidence had established that the UK Government had not made any such conclusions about past violations of IHL. Third, and most crucially, in the absence of such conclusions, any other methods of assessing the risk of future violations would be inherently unreliable.
The Court made clear that it was not concerned with the merits of the position taken by the Secretary of State in determining whether there was a “clear risk” of serious violations of IHL by KSA in future. Indeed, in granting the appeal, the Court emphasised that it was not their view that, even if historic violations were found to have taken place, there would only be one answer on future risk. Accordingly, the Secretary of State is only required to change his approach on how to decide whether to issue export licenses for arms sales. The new approach must include a definitive assessment of allegations of the most striking of violations of IHL, including by engaging with credible reports produced by competent external agencies.
Any application for permission to appeal must be made by 27 June.
The Significance of the Decision
The original decision of the Divisional Court had, in effect, seriously impugned the veracity of reports by UN-appointed panels and well-respected humanitarian and human rights organisations. As set out in previous posts, the Divisional Court drew a sharp qualitative contrast between the “highly sophisticated, structured and a multi-faceted process” of governmental decision-making, and the reports of such groups and the press, which, according to the Court, suffer from a number of weaknesses. The detailed conclusions by the Court of Appeal have rehabilitated the credibility of these groups, their methods of investigation, and the reliability of their reports. Helpfully, the Court acknowledged that such groups had a “major contribution to make in recording and analysing events on the ground in the Yemen Conflict.”
Another significant element of the decision is the classification of the original conclusion by the Secretary of State – that there was no clear risk that KSA might commit serious violations of IHL in future – as irrational. Aside from the sheer quantity and quality of the evidence produced by competent external agencies, that conclusion had been an affront to the horrific suffering of those exposed to the reality of war in Yemen. The view of the UK Government about the conduct of KSA in the conflict in Yemen was, in effect, that it was not, in any serious manner, incompatible with IHL. If this were accepted, it would raise fundamental questions about the ability of IHL – if complied with by parties to the conflict – to limit the suffering of the victims of war.
The decision of the Court of Appeal will now require the UK Government to engage directly with such suffering; ask whether it is a result of serious violations of IHL; and determine if such violations could be avoided in future.