A Case Analysis: R (on the application of Campaign Against Arms Trade) v Secretary of State for International Trade and Others [2019] EWCA Civ 1020
Where military equipment is lawfully obtained and used for political aims, violations of International Humanitarian Law (IHL) may occur. This case concerns the legality of the grant by the UK Government of export licences for arms’ sale to Saudi Arabia (SA) for use in the Yemeni conflict. The Court of Appeal (CA) overturned a previous High Court (HC) ruling when faced a judicial review claim by Campaign Against Arms Trade (CAAT) regarding the rationality of the decision-making process of the Secretary of State for International Trade (SSIT).
Background, facts and decision
The Houthi rebels control Yemen since 2014. SA answered to Yemeni Government request and started a political-military Coalition against rebels and terrorist organisations. SA uses UK-supplied arms in the conflict. The SSIT allowed export licences after consulting the Foreign & Commonwealth Office (FCO) and the Ministry of Defence (MD).
The UK must follow guidance under the Export Control Act 2002, the EU Common Position 2008 and the criterion 2(c) under the Consolidated Criteria – adopted by the SSIT in 2014– which states that the Government will “not grant a licence if there is a clear risk that the items might be used in the commission of a serious violation of IHL” and will “exercise special caution and vigilance in granting licences to countries where serious violations of IHL have been established by the competent bodies of the UN or EU.”
Firstly, the CA affirmed that their role under judicial review was not to decide if a political decision was “right or wrong” but to assess the decision-making process as a matter of law.
The applicant, CAAT, argued that the UK Government was breaching criterion 2(c) by providing military equipment to SA for possible use in Yemen. The claimant argued that independent evidence from NGOs and the UN showed that SA was committing “striking” violations of IHL. CAAT claimed that SA was deliberately attacking civilians. CAAT argued that the SSIT’s decision was “deficient” considering the evidence alleging a “clear risk” of “serious violation” of IHL by the Coalition. CAAT argued that rationality required the SSIT to review NGOs and the UN’s evidence to reach a conclusion as to if a pattern of IHL violations occurred. CAAT claimed judicial review and was supported by the interveners – Amnesty International, Human Rights Watch, Rights Watch UK and Oxfam International – that provided materials.
The defendant, SSIT, argued that was deciding rationally according to the law and that was not responsible for determining the likelihood of SA violating IHL. Affirming that he uses more “robust and rigorous” information than CAAT, the SSIT relied upon the complex analytical process conducted by “expert personnel” from the MD and FCO on risks to IHL in Yemen.
The CA examined extensive materials in Open and Closed hearings. To protect national security, the SSIT and CAAT’s advocates presented their position in Closed hearings. The CA allowed appeal on ground one but dismissed it on grounds two and four.
Considering ground one, the CA held that the SSIT’s decision-making process regarding the arms export licences’ grant to SA was “irrational and unlawful.” He was legally obliged but failed to assess if the Coalition had “an historic pattern of breaches of IHL” which would be “obviously and centrally” essential to avoid a “clear risk” that arms would be used in future “serious violation” of IHL and to determine if SA had an honest intention to comply with IHL. The CA clarified that the MD had access to a “multi-layered” larger amount of materials like the SA’s operational plan and the UK Defence Intelligence reports.
Concerning ground two, the CA held that the SSIT did not fail to educate himself with essential information and that he was not obliged to answer specific questions that the EU Common Position User’s Guide raises about individual liability for IHL violations. The CA held that the SSIT’s analysis was “reasonable” because focused on SA’s compliance with IHL as a state like if it had “legislation prohibiting such violations.” Concerning ground four, the CA held that the HC and the SSIT did not equate “serious violation” with “war crimes” or “grave breaches.” Considering the “IHL Updates”, the CA stated that the term was even broader.
Finally, the CA held that the SSIT must reconsider his decisions regarding arms export licences following the “correct legal approach” and must assess past incidents to estimate future risk. The SSIT announced suspension of any new export licences’ issuance to SA until Government has reviewed past decisions, and until getting permission to appeal to the Supreme Court.
Analysis
According to Griffiths, this judgement demonstrates the power, scope and effectiveness of judicial review in evaluating the rationality of the SSIT’s decision-making process and in enforcing IHL in cases involving issues of national security and international trade. The CA is not an expert institution in such areas so must be extremely cautious before interfering with a decision reached with careful consideration by those who have the relevant, necessary knowledge. According to Daniel Hannan, from the Institute for Free Trade, “any decision about what to trade with should be made by our elected representatives not by our courts.” The CA recognised the limits of its discretion and is reluctant to interfere with the value of political decisions in areas where the Government enjoys a wider margin of appreciation.
Judicial review is crucial for maintaining the rule of law and for correcting unlawful practices by public authorities. It is not an appeal against Government’s policies which, in a democratic society, is a matter for the elected Government. The CA does not provide in-depth comments on the human rights issues and this judgment may have poor impact on enforcing such rights in particular the right to life of Yemeni people. From a strategic human rights perspective, it would be desirable for the CA to test if SA complies with IHL and the criterion 2(c) but it cannot do so. This raises the question of whether judicial review is an effective tool to protect human rights, enforce IHL and change global arms trade. By narrowing the issues to a matter of rationality, CAAT made the task easier for the CA to interfere only modestly with the decision and was successful. Yet, it has not achieved the goal of stopping arms exports to SA and softening the Yemeni people’s suffering. It is likely that the Government will not change its final decision after rationally applying the correct legal test.
One can argue there is confusion about the effect of the CA’s order. Although the media says that the CA ruled that the UK arms sales to SA are “unlawful”, the CA did not actually ruled that the rectified decision-making process’ conclusion would necessarily amount to a “clear risk” of “serious violation” and to banning licences. Thus, extant licences can continue to operate, and the SSIT may decide that no pattern of violations exists.
A criticism of the CA’s ruling rests in the evidence provided in Closed hearings which showed that the SSIT made a confidential decision that no assessment would be made on the Coalition’s possible past violations of IHL. This confidentiality is said to be for “protection of national security”, but it is of public interest to know the reasons behind the continued sale of arms by the UK and behind the refusal of it to evaluate the action of the Coalition in Yemen.
Andrew Smith, from CAAT, said that “the SA regime is one of the most brutal and repressive in the world, yet, it has been the largest buyer of UK-made arms, that the regime has been able to count on the uncritical political and military support of the UK, that the bombing has created the worst humanitarian crisis in the world, that UK arms companies have profited every step of the way and that arms sales must stop immediately.” The UK operates one of the most robust arms export regimes in the world. This secrecy around the decision may indicate that the UK is assisting or hiding violations of IHL by the Coalition in Yemen. It might mean that financial and geopolitical interests are prioritized over the civilians’ lives and the rights of those affected by the conflict.
This case exemplifies NGOs and global institutions’ work to ensure that principles of IHL and the rule of law remain respected in the international framework. Organisations could intervene to provide information on the Yemeni conflict and to emphasize that their evidence must be given value in determining if there were “clear risk” or “serious violation” of IHL. The CA recognised their contributions’ importance to the conflict’s analysis. The HC acted wrongly when disregarded the interveners’ authority and when treated the exclusive materials available to the SSIT as displacing the NGOs and the UN’s evidence. It could be useful to reach accurate conclusions and an independent assessment regarding status of IHL in Yemen.
The UK and the Coalition’s efforts are doubtful, uncertain and not compelling enough to uphold a decision in favour of issuing licences. SA seemed to be “genuinely” committed to IHL by engaging in constructive dialogue with the UK about intervention in Yemen and by creating a body for investigating incidents of concern. However, evidence proved that the Coalition was targeting civilians and that procedures disrespected the IHL principles. The CA concluded well by submitting that these efforts were “simply unreliable and irrational.”
This judgement’s decision is said to be a victory for human rights campaigners. Lucy Claridge, from Amnesty International, said that “this is the first time that a UK court has acknowledged the risks of continuing to lavish SA with military equipment for use in Yemen. We welcome this judgment as a major step towards preventing further bloodshed.” Clive Baldwin, from Human Rights Watch, declared that the “ruling shatters the UK’s policy of denying Saudi’s appalling human rights record in its war in Yemen and other EU states should stop arms sales to SA immediately.” Some EU states have refrained from selling arms to SA.
Ben Donaldson, from United Nations Association UK, affirmed that “this is a massive blow to the UK’s standing on the world stage that shows it has ignored the rules-based international system and put trade before the lives of Yemeni civilians and now things must change.” Matthew Spencer, from Oxfam, stated that “this ruling offers real hope for the Yemen’s people, that the Government now needs to respond by ending the sale of arms to SA, that millions of Yemenis are struggling to survive one of the world’s gravest humanitarian crises, a full-man-made catastrophe fuelled by arms sales from the UK Government and it is time for the UK to put more effort into securing a peace deal instead of into arms deals, and put pressure on its allies to agree an immediate ceasefire and commit to an inclusive peace process.”
According to barrister Admas Habteslasie, the Supreme Court (SC) is likely to simply agree with the CA. The SC may take the chance to make wider comments about the relationship between “judicial deference” regarding the decision-making and the application of public law principles. This is interesting to public lawyers, but it might be asked to what extent the SC is able to provide any useful guidance given the specific legal issues that arise. The SC may consider the User’s Guide as part of EU law. The SC might make an analysis of the meaning of the term “serious violation of IHL.” It is central within the Consolidated Criteria and the courts could clarify it. In Griffiths’ perspective, there is scope for the SC to correctly apply the arms trade statutory regulations. Lawfulness of arms sales to SA is still questionable and can be tested by the SC on appeal. Therefore, this could contribute massively to global arms trade and its interaction with IHL and human rights law.