Reflections on the UK High Court decision on arms sales to Saudi Arabia

On 10 July the UK High Court rejected a legal challenge by Campaign Against Arms Trade (CAAT) that UK arms sales to Saudi Arabia for use in the conflict in Yemen were illegal. Instead, the Court ruled that the Government was “rationally entitled” to conclude there does not exist a clear risk that UK arms sold to Saudi Arabia might be used in the commission of a serious violation of international humanitarian law in the Yemen conflict. Not only is this incredibly disappointing, it also raises significant questions about the effectiveness of the UK’s arms export controls.

The Court decision does not change the fact that the situation for the people of Yemen is dire. All parties to this complex conflict stand accused of violations of international law. Air attacks by the Saudi-led coalition (‘the Coalition’) ^[1] have been responsible for the majority of direct civilian casualties and have played a significant role in the destruction of Yemen’s civilian infrastructure. Houthi forces have been responsible for arbitrary detentions, enforced disappearances and indiscriminate artillery attacks that have killed and injured many hundreds of civilians. All sides have also prevented desperately needed supplies from reaching Yemeni civilians. Seventeen million Yemenis (out of a population of 27 million) are now food-insecure. 

The UK Government has been providing political and military support to only one side —the Saudi-led coalition. Since the conflict began in March 2015, the UK Government has authorised the sale of billions of pounds worth of fighter aircraft and their components, and over a billion pounds worth of bombs for those aircraft to the Royal Saudi Air Force (RSAF).  UK support for Saudi Arabia and the Coalition is premised on the request by the internationally-recognised President of Yemen, Abdrabbuh Mansur Hadi, for military support from the Gulf Cooperation Council and the League of Arab States, and on UN Security Council Resolution 2216.  The central issue, however, should not be whether Saudi involvement in Yemen is legitimate. It should be whether Saudi conduct has, as alleged, been in repeated breach of international law.  This is the core concern underpinning CAAT’s legal challenge:  the clear risk that UK arms exports to Saudi Arabia might be used in Yemen in the commission of serious violations of international humanitarian law (IHL).

The Judgement: avoiding the real issue

Central to the case was an examination of whether the UK Government was in breach of its obligation as set out in Criterion 2c of the Consolidated EU and National Arms Export Licensing Criteria to ‘not grant [an export] licence if there is a clear risk that the items might be used in the commission of a serious violation of IHL.’ 

Crucially, the Court’s decision, that the UK Government’s decisions to authorise the export of arms to Saudi Arabia were lawful, turned on procedural matters — on whether Government processes were rigorous enough and whether the Secretary of State was “rationally entitled” to reach the conclusions that he did.

Significantly, the Judgement avoids any meaningful reflection on what is actually meant by ‘clear risk’. At certain points, it appears to imply that this equates to a very high level of certainty — one that runs counter to any common understanding of the term ‘risk’.  However, as at 13 January 2017 the UK Ministry of Defence ‘Tracker’— a database which monitors IHL violation allegations made by international organisations, other governments, the media and NGOs —  had on record 251 potential incidents of concern in Yemen.  Cumulatively this suggests a significant level of risk requiring in-depth analysis, something which the Government acknowledges it has not undertaken.    

Also perplexing is the Court’s position on the Coalition’s decision to designate the whole of Sa’dah city and the Maran region as military targets. The Judges appear satisfied that the Coalition, by putting the population “on notice through social media and leaflet drops to evacuate prior to military action” had acted “in accordance with … IHL [which] requires adequate advanced warning to be given to civilians who may be affected by military attacks”. This runs counter to widely-held views expressed, for example, by the UN, that the notice given was inadequate, due to: the short period of the warning before attacks (sometimes as little as one or two hours), a high level of illiteracy among the population, and fuel shortages preventing evacuation.

The Court also expresses a high level of confidence in the conduct and assurances of the Saudi Government. The Court’s faith in the Saudi Government is especially perplexing when set against its dismissive attitude with respect to independent analysis and investigation by highly credible organisations including the UN.  This confidence should be questioned, particularly in relation to:

• The work of the Joint Incidents Assessment Team (JIAT), a body established by the Coalition to investigate and judge allegations of misconduct made against it. No significance is placed by the Court on this fundamental conflict of interest, nor on the fact that JIAT was not set up until January 2016, almost a year after the aerial campaign and associated violations began, seven months after a licence was granted for export of military aircraft and related items worth £1.7 billion, and five months after a licence was granted for export of £990 million of bombs — all to the RSAF.  More than one year after its establishment, JIAT had investigated only 14 cases, or just five per cent of the 251 potential incidents recorded by the Tracker.  
• Saudi Arabia’s repeated denials that it had used cluster munitions in Yemen following a report by Amnesty International in May 2016. The UK Government initially declared itself largely satisfied with Saudi reassurances before the provision of additional details by Amnesty in June 2016 led the UK to call upon Saudi Arabia to investigate the matter. Finally, in December 2016, the UK Defence Secretary admitted in Parliament that Saudi Arabia had used cluster munitions, including British-made BL755 bombs. That it took Saudi Arabia seven months to establish whether it dropped cluster bombs in Yemen undermines claims that the RSAF is running a reliable targeting operation.

There are also repeated references in the Judgement to the notion of licensing decisions being ‘finely-balanced’ and that consequently it would be inappropriate to attempt to second-guess Ministers.  This language was used repeatedly in the intra-governmental communications that were included in the witness statements from officials.  However, from the beginning of the air campaign until 31 March 2017, there were 709 licences issued for exports to Saudi Arabia and just five refusals. It thus appears odd that in a situation where arguments are finely balanced, the licensing decision is almost always the same.

Implications for arms transfer control in the UK

This case raises concerns about the UK’s current system of arms transfer control. It suggests that as long as the correct processes are followed, the Consolidated Criteria do not constrain the UK Government unless the Government chooses to be constrained. On 15 occasions in 2016 it refused to issue Standard Individual Export Licences on the basis of Criterion 2 of the Consolidated Criteria; it would be of great interest to learn how in each of these 15 cases the risk to human rights and IHL compare to the risks attending the export of aircraft and bombs to RSAF since March 2015. Regardless, it is hard to escape the conclusion that the export criteria are not the decisive factor in the licensing decisions and that the process provides cover for decision-making, rather than the basis for it.

Despite Government assertions that the UK has one of the best arms export control systems in the world, it appears that something is seriously wrong. The rewriting of the UK’s export control law in 2002, the agreement on the EU Code of Conduct on Arms Exports in 1998 – becoming a legally-binding Common Position in 2008 – and the adoption and entry into force of the Arms Trade Treaty in 2013-2014, were all intended to tackle the excesses of the past by grounding states’ arms export decision-making on fundamental principles of international law and enlightened self-interest. The UK played a pivotal role in promoting these objectives and continues to stress the importance of an international rules-based system more broadly.

And yet, in this case, the UK appears unwilling to apply its own rules to a credible standard. Indeed, the High Court Judgement suggests the current law is drafted so as to give far too much discretion to the Executive, suggesting that either the law or the existing guidance be amended so as to place meaningful limits on the decision-making freedoms of the Government of the day.

There is a significant and perhaps growing body of opinion that the status quo may need revision. In September 2016 the UK’s Parliamentary Select Committees on Business, Innovation & Skills and International Development concluded that “[i]n the case of Yemen, it is clear to us that the arms export licensing regime has not worked”, and recommended the suspension of relevant licences pending an independent, UN-led enquiry. Public opinion also supports this line: only 18 per cent of respondents to a July 2017 poll commissioned by the Independent supported such sales “while the Middle Eastern state is engaged in Yemen’s civil war”.

The legal process may still have some distance to run, and might still deliver a result more in keeping with common sense and decency. However, should an appeal deliver the same result as the High Court, then the inescapable conclusion will be that the current regime is flawed. It will then be incumbent on all stakeholders to work to change the existing framework so that the next time the Government is faced with similar circumstances its legal obligations are fully consistent with the overarching moral imperative.

[1] The Coalition has for most of the campaign comprised Bahrain, Egypt, Jordan, Kuwait, Morocco, Qatar, Saudi Arabia, Sudan and the UAE.  Qatar’s membership was terminated on 5 June 2017.

This version was corrected on 15 August 2017.