The Court of Appeal of England and Wales issued a landmark ruling June 20 on the U.K.’s decision to continue licensing arms sales — and its failure to suspend existing licenses — to Saudi Arabia, given the conduct of Saudi Arabia in the Yemen conflict. The government will now have to reconsider these decisions on the correct legal basis. At the same time, the court’s decision could provide guidance for other European Union members and the United States on how they view their own weapons sales to partner nations.
The court ruled, in essence, that in making decisions on arms sales, the U.K. government could no longer ignore uncomfortable facts. And the facts are uncomfortable. By the time the Divisional Court heard the claim brought by the Campaign Against Arms Trade in February 2017, evidence had already emerged that the Saudi- and United Arab Emirates (U.A.E.)-led coalition had repeatedly carried out indiscriminate and disproportionate attacks on Yemeni civilians and civilian objects. In the years since, the civilian body count has grown and the ledger of apparently unlawful attacks, including potential war crimes, has lengthened.
Criterion 2(c) of the U.K.’s Consolidated EU and National Arms Export Licensing Criteria — derived from the 2008 European Union Common Position on military exports, which is binding on EU member states — requires the government to refuse an export license where there is a “clear risk” that the military materiel to be exported “might be used in the commission of a serious violation of international humanitarian law.”
By 2019, more than four years after the Saudi/U.A.E.-led coalition began to intervene in Yemen’s war, evidence indicates the U.K. and others are far beyond the world of hypothetical risk. The Yemen-based organization Mwatana for Human Rights has documented scores of apparently unlawful coalition airstrikes. In 27 of these attacks, Mwatana, the U.S.-based University Network for Human Rights and Netherlands-based PAX were able to identify Western weapons, most made in the United States, but some in European states, including the U.K. These 27 attacks alone killed at least 203 civilians and wounded at least 749, striking homes, schools, businesses, farms, and a wedding. The United Nations and human rights groups have documented dozens of other apparently unlawful coalition attacks.
The evidence is clear: The coalition has repeatedly carried out indiscriminate and disproportionate airstrikes, failed to take appropriate precautions, and failed to credibly investigate. Yet, arms continued to flow from the U.K., as well as from the United States, France, Spain, Italy and others.
Assessing Past Violations
The central question before the Court of Appeal was whether the Secretary of State could rationally decide not to assess individual past violations in an estimation of the risk of future violations and remain in compliance with domestic and EU rules on arms exports. The Court of Appeal clearly answered this question in the negative.
The Court of Appeal concluded that, while past violations are not necessarily determinative of future risk and there is no requirement for the exporting state to assess “each and every” potential violation, excluding an assessment of past incidents entirely was irrational. In 2017, the lower court had acquiesced to the government’s argument, finding the Secretary of State was “rationally entitled” to conclude there was no clear risk by looking at a range of factors, even if those factors failed to include an assessment of past violations. Even maintaining a high degree of deference, the Court of Appeal overruled the lower court on this point.
Whether there was a historic pattern of breaches of international humanitarian law “was a question which [was] required to be faced,” the Court of Appeal ruled. “How could it reasonably be otherwise?”
The public law doctrine of irrationality imposes a “deliberately high threshold” that must be surmounted before the Court will interfere with the decisions of public bodies. A finding of irrationality means, in this context, not that the Court thought it would be “preferable” if the government assessed past possible violations, but that no reasonable public authority could ever expect to make a decision on future risk without doing so.
Paragraph 144 provides context for the future application of past incidents to the “clear risk” test: “…perhaps the most important reason for making such assessments is that, without them, how was the Secretary of State to reach a rational conclusion as to the effect of the training, support and other inputs by the UK, or the effect of any high level assurances by the Saudi authorities?”
This is well-illustrated by the repetition of the same kinds of violations over and over again in Yemen. In October 2015, the coalition bombed a hospital supported by the humanitarian organization Médecins Sans Frontières (MSF, or Doctors Without Borders). In August 2016, the coalition again bombed an MSF hospital. Almost two years later, despite multiple and repeated assurances by the Saudis to the U.K., in addition to all of the U.K. training, support, and arms, the coalition bombed another MSF health facility. Again and again, in these and other attacks, the coalition appeared to fail when it came to complying with the principles of precaution, distinction, and proportionality.
Under the old process, the U.K. could avoid these uncomfortable facts by generally stating that it had access to qualitatively better evidence than NGOs. Now, according to the Court of Appeal, the U.K. will have to look at these and similar incidents head-on, in the knowledge that if they continue to grant licenses despite obvious patterns of violations, civil society organizations may mount a fresh challenge.
The court did not find that the U.K. was required to answer every question posed by the EU User’s Guide, which is designed to help EU member states apply the Common Position. (We would argue a more robust inquiry related to arms-receiving states’ ability to comply with international legal requirements is a key factor in any thorough risk assessment, and that should include appropriately investigating and prosecuting where allegations of war crimes are credible, and making reparations.) Nor did the court order the U.K. to stop licensing or transferring arms to Saudi Arabia, (although the government did provide an undertaking not to grant any new licenses until it has either complied with the order or secured a stay pending an appeal to the Supreme Court.)
But the court’s decision on process is important — extremely so. The decision strongly endorses the existing guidance in Section 2.13 of the User’s Guide: That, in assessing “clear risk,” states should include, amongst other important inquiries, an examination of “the recipient’s past and present record of respect for international humanitarian law.” To the Court, this is a necessary component of any arms-licensing decision.
In other words, the ruling would require the U.K. to incorporate assessments of laws-of-war compliance by partners to whom it is exporting military materiel. Regularizing the review of international humanitarian law compliance by partners is a crucial means of making those laws more effective (and thus more meaningful for civilians for whom harm is meant to be minimized by these provisions).
In the Yemen context, a review of this nature would bring much-needed and long-overdue scrutiny to the conduct of the Saudi/U.A.E.-led coalition by the official entities of its allies, who in many cases serve as the coalition’s enablers. Such reviews should necessarily involve scrutiny of the recipient state’s response to violations. In the case of Saudi Arabia, the U.A.E., and other coalition members, the response has been marked by denial and excuse.
Other EU Members and the United States
For other EU members, particularly those that have yet to suspend arms licenses to Saudi Arabia, the U.A.E. and their coalition partners, the judgment – although not legally binding on other EU states – makes a compelling case (with much of its reasoning grounded in the same test as set out in the EU Common Position and the User’s Guide) that they, too, must assess the coalition’s record in Yemen, and cannot turn a blind eye to past abuses when granting arms licenses if seeking to comply with the EU Common Position.
The U.S. Congress, in its ongoing battle with the Trump Administration on the issue of arms exports to Saudi Arabia and the U.A.E., might consider legislating something similar for U.S. domestic law. The impact would be felt for Yemen and beyond, as it would constitute a major stride towards ensuring adequate scrutiny of the potential U.S. role in abuses by its partner nations, including by raising alarm bells more quickly regarding possible complicity. It would also better align domestic law with existing international obligations, including under Common Article 1 of the Geneva Conventions. Even to meet its negative obligation not to encourage, aid, or assist violations, the U.S. should conduct an appropriate assessment prior to arms transfers (including past violations) and refrain from transferring where there is an expectation that weapons will be used to violate the Conventions.
While not upholding the Campaign Against Arms Trade’s fourth ground of appeal, the Court did clarify another element that may be of significance to EU member states applying the Common Position. To the Court, “serious violation” under Criterion 2(c) is “broader than, and not synonymous with, the concept of war crimes or grave breaches of IHL.” This may have application to, for example, the alleged systemic failure on the part of coalition states to provide pilots with the no-strike list when carrying out so-called “dynamic strikes.” Insofar as EU states are applying the same legal test to the same fact pattern, they should consider a wider range of possible serious violations, and not cabin that inquiry to potential war crimes or grave breaches.
The U.K. has already announced it will appeal. In the meantime, the ruling’s import is already being felt: The U.K. said it would not grant any new licenses for sales to Saudi Arabia and its coalition partners that might be used in Yemen while considering the Court of Appeal judgment.
Yemen’s ills go far beyond arms sales — the Houthi armed group has also carried out egregious abuses. But stopping the flow of weapons to Saudi Arabia, the U.A.E. and its coalition partners is one concrete way to push for better laws-of-war compliance (including credible investigations and reparation), as well as pave the path towards peace. Arms licenses are granted on a case-by-case basis – if Saudi Arabia and the U.A.E. realize the law does in fact have a serious constraining effect on the flow of arms from the EU, they might try harder to improve their practices. It is long past time the primary states enabling the coalition, including the United States, the U.K. and France, recognize they cannot simply refuse to reckon with the deadly impact of their continued military support. The court case is a milestone in that effort.
IMAGE: Man walking in Al-Senidar Factory Complex in Sana’a, Yemen, after a September 2016 airstrike involving a UK-made Raytheon-manufactured bomb destroyed large parts of the factory complex and damaged at least one house nearby. (Photo courtesy of Mwatana for Human Rights, 2016).