By Angeline Welsh
is beset by a serious and on-going conflict. Since 2015 Yemen’s capital city, Sana’a, and parts of central and southern Yemen have been in the control of Houthi revolutionaries …, a Shia-Zaydi movement. A coalition of nine Middle Eastern states, led by Saudi Arabia, have intervened on behalf of President Hadi of Yemen. In March 2017 it was reported that some 7,600 people have been killed and 42,000 injured since hostilities began, primarily as a result of coalition airstrikes. The Saudi forces involved in those strikes have used British-built aircraft and precision-guided Paveway weapons licensed by the UK Government.
In The Queen on the application of Campaign Against Arms Trade v The Secretary of State for International Trade [2017] EWHC 1726 (QB) a divisional court considered the lawfulness of the decision of the UK Government to licence these arms. The Campaign Against Arms Trade (“CAAT”) claimed that the Secretary of State for International Trade (“SoS”) had unlawfully refused to suspend current, and cease to grant new, licences for the export of arms to Saudi Arabia. CAAT relied on evidence that the Saudi led coalition had committed serious and repeated breaches of International Humanitarian Law during the Yemen conflict, including third party reports from agencies of the United Nations, reports of the European Parliament, the UK Parliamentary Committees and NGOs. Further, in 2016, the Head of Export Control at the Department for International Trade had advised the SoS that licences be suspended given an acknowledged knowledge gap regarding Saudi operations.
Notwithstanding the evidence presented by CAAT, the court rejected its claim. While recognizing the gravity of the decision to license the export of arms to Saudi Arabia, the Court was reluctant to intervene in a decision which it concluded was “imbued” with diplomatic and security considerations.
The Court was also impressed by the evidence presented by the SoS that a “rigorous and on-going assessment” was undertaken by the UK Government as to whether there was a clear risk of licensed arms being used for breaches of International Humanitarian Law.
The judgments offer a relatively detailed insight into the way in which the UK Government monitors potential breaches of International Humanitarian Law. It also reinforces the fact that the Courts are reluctant to trespass on executive decisions, especially where they are highly sensitive in nature.
The Licensing Regime
Currently licences for the export of arms are granted by the SoS who is obliged, when making the decision as to how to exercise this licensing power, to follow guidance issued under the Export Control Act 2002. That guidance, known as the “Consolidated Criteria”, reflects a common policy position adopted by the EU Member States (European Council Common Position 2008/944/CFSP). This “Common Position” sets out criteria to be applied to licensing decisions, including a requirement to “not grant a licence if there is a clear risk that the items might be used in the commission of a serious violation of international humanitarian law.”
The Council of the European Union has produced a User’s Guide with guidance on the approach to the Common Position, including guidance of the “thorough assessment” to be undertaken as to whether the proposed export of arms will be used in the commission of a serious violation of International Humanitarian Law. This should include an inquiry into: (i) the recipient’s past and present record of respect for International Humanitarian Law; (ii) the recipient’s intentions as expressed through formal commitments; and (iii) the recipient’s capacity to ensure that the equipment or technology transferred is used in a manner consistent with International Humanitarian Law and is not diverted or transferred to other destinations where it might be used for serious violations of this law.
Grounds of challenge
There were three grounds to CAAT’s challenge to the SoS’s licensing decisions:
(1) Failure to ask correct questions and make sufficient enquiries, arguing that the SoS had failed to take into account some of the guidance set out in the EU’s “User Guide” setting
(2) Failure to apply the “suspension mechanism”, which was adopted as UK Government policy in February 2012 to allow the Government to quickly suspend the processing of a licence application.
(3) Irrationality in concluding that there was no “clear risk” of the licensed items being used for a serious violation of International Humanitarian Law
The thrust of CAAT’s case was that there was a formidable body of reliable evidence that demonstrated that the Coalition had committed serious and repeated breaches of International Humanitarian Law. This included 72 reports of potential “serious breaches” grounded in reports by the United Nations, the European Parliament, Médecins Sans Frontières, Amnesty International and Human Rights Watch. Faced with this evidence, any conclusion that there was no “clear risk” that licensed military equipment may be used in a breach of International Humanitarian Law would have to be based on compelling evidence which had the effect of negating the evidence presented by CAAT.
Domestic Public Law Principles
The assessment to be performed by the SoS may have related to principles of international law, but the legality of the decision of the SoS is a matter of domestic public law. The divisional court therefore asked whether the SoS had met his obligations to take these criteria into account. In particular, was the SoS’s decision to continue to licence the export of arms to Saudi Arabia irrational or unreasonable given the available evidence as the potential use of those arms?
Reviewing the applicable domestic public law principles, the Court determined:
First, that the context of this case necessitated that the Court should accord considerable respect to the decision-maker. Although the Court agreed with the claimant that the nature of the decision, involving a risk to life, necessitates a rigorous and intensive standard of review, it was persuaded that the assessment of whether there is a “clear risk” is imbued with assessments of how a friendly foreign government will act which is informed by diplomatic and security expertise which the Court does not possess.
Second, the Court also considered the obligation on a public body to carry out a sufficient inquiry prior to making its decision. The focus of this inquiry is on whether the SoS asked himself the right question and took reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly. If it is alleged he failed to take information into account, could a rationale decision-maker, in the relevant statutory context, have taken that decision without considering particular facts or factors? And if the decision-maker was unaware of the particular fact or factor at the time, could he or she nevertheless take this decision without taking reasonable steps to inform him or herself of the same?
The Court went on to consider the evidence as to the assessment underlying the SoS’s licensing decisions through the prism of these two guiding legal principles.
Assessments underlying the SoS’s licensing decisions
The Court’s judgment records the interplay between several Government departments supporting the assessments underlying the SoS’s licensing decisions. It offers a rare insight into the workings of Government agencies on this issue.
The SoS’s licensing decisions are made as follows:
The SoS receives recommendations from the Foreign Secretary. The Foreign Secretary is supported by the Foreign Office which draws together the advice to be given to the Foreign Secretary on whether a licence would be compliant with the Consolidated Criteria. It does so from a number of sources which include the Department for International Trade, information from diplomatic posts, legal advisers, the Ministry of Defence (the “MoD”) and, where the end destination is of concern, the Human Rights and Democracy Department.
It is the MoD which monitors and analyses allegations of breaches of International Humanitarian Law in Yemen, which it does through a central database known as “the Tracker”. This records each incident and includes details such as whether an incident is likely to have been a coalition strike and whether a legitimate military target has been identified. Incidents are analysed to seek to verify the substance of the allegations as well as the likelihood that a strike was carried out using an item licensed under a UK export licence.
The Court was clearly impressed by the range of sources and volume of information recorded in the Tracker. In particular it noted that the Tracker recorded significantly more incidents than those which were included on a list presented by the Claimant in evidence (208 to 72). The Government also considered that of the 72 incidents on CAAT’s list, it was unaware of only 3 incidents which the MoD felt should be added to the Tracker. The Court also noted that the MoD had access to a much wider range of information than CAAT, much of which was sensitive and so could not be referred to in open session. That included insight into the military systems, processes and procedures of Saudi Arabia adopted in Yemen obtained through diplomatic and military cooperation as well as UK engagement with Saudi Arabia with respect to the conduct of military operations in Yemen and International Humanitarian Law compliance.
Overall the Court concluded that the detailed and organised nature of these assessments demonstrated a genuine concern and that the MoD and the Foreign Office gave genuine scrutiny to reported incidents of breaches of International Humanitarian Law in Yemen. It summarised:
“This was no superficial exercise. It has all the hallmarks of a rigorous and robust, multi-layered process of analysis carried out by numerous expert Government and military personnel, upon which the Secretary of State could properly rely“.
Rejection of CAAT’s criticisms of the SoS’ evidence
The Court roundly rejected CAAT’s criticisms of the UK Government’s analysis of the risks of breaches of International Humanitarian Law. For example, criticism of the Saudi Government’s efforts to investigate such breaches was rejected on the basis that its growing efforts to establish and operate procedures to investigate incidents of concern was a matter the SoS was entitled to take into account. Similarly, the Court did not need to reach a final view on whether public statements made by the Saudi Government were merely aspirational as CAAT claimed. Instead it was sufficient to note that the SoS was entitled to take them into account when weighing the wider “complex patchwork of evidence”.
Determination on the 3 grounds of challenge
The Court rejected all three grounds of challenge for the following reasons:
(1) Failure to ask correct questions and make sufficient enquiries
The Court rejected CAAT’s argument that the SoS failed to ask himself all the relevant questions set out in the EU “user guide”. Noting that the “user guide” was not binding and the questions contained therein were indicative, the Court considered that the flexibility in the inquiry process as to whether there was a “clear risk” of a breach of International Humanitarian Law was wide and it was for the SoS to determine how best to go about inquiring into the key matters.
The Court also rejected an argument that it was incumbent on the SoS to make a determination of the likelihood of a breach of International Humanitarian Law in relation to each alleged incident. This exercise was impractical: an International Humanitarian Law analysis is necessarily a sophisticated exercise involving a myriad of issues, which would be inhibited by the fact as a non-party the UK Government would not necessarily have access to all relevant information.
The Court noted: “The evidence shows beyond question that the apparatus of the State, ministers and officials, was directed towards making the correct evaluations…“.
Thus the Court found that the UK Government was entitled to side-step a more detailed inquiry in relation to the incidents described by the UN, the EU and the NGOs. Instead, it could make a broader future looking assessment as to the “clear risk” of possible breaches taking into account information derived from a broader range of sources (including closed material). This gives a reasonable amount of latitude to the Government, even when faced with credible third party reports of breaches.
(2) Failure to apply the “suspension mechanism”
Through a statement made to Parliament in February 2012 the UK Government adopted a suspension mechanism policy stated to allow it to quickly suspend the processing of a licence application. The Court rejected an argument that the adopted suspension mechanism should have been applied. Essentially it followed from its assessment of the evidence relating to the basis for the licence decisions that a similar decision not to suspend at any stage cannot be said to have been irrational or unlawful.
(3) Irrationality in concluding that there was no “clear risk”
And yet against the systems put in place by the UK Government, CAAT was not alone in expressing its serious concerns regarding breaches of International Humanitarian Law. As noted, it relied, inter alia, on third party reports from agencies of the United Nations, reports of the European Parliament, the UK Parliamentary Committees and NGOs. The Head of Export Control at the Department for International Trade had himself advised that licences be suspended in 2016.
But the Court was not to be moved from its reluctance to intrude upon the decision of the SoS. Again it said that the determination of a breach of International Humanitarian Law is a complex exercise and isolated incidents would not necessarily result in a finding that there was a “clear risk” of such a breach. Further, the third party reports relied on were taken into account by the SoS and were often directed at broader issues in any event. Finally, the Court considered that the fact the SoS’s decision to continue to licence exports in 2016 despite the advice from the Head of Export Control, was finely balanced to be instructive.
“…in an area where the Court is not possessed of the institutional expertise to make the judgments in question, it should be especially cautious before interfering with a finely balanced decision reached after careful and anxious consideration by those who do have the relevant expertise to make the necessary judgments”.
Conclusion
The above quote from the judgment sums up the case. In the face of significant evidence that the UK Government undertook detailed assessments as to whether there was a “clear risk” of a breach of International Humanitarian Law and given the influence of diplomatic and security considerations on that decision making process, this was an area where the Court felt distinctly uncomfortable with intervention.
The seriousness of the allegations in the case of Yemen, supported by a range of credible institutions, means that the licensing of arms exported to Saudi Arabia will remain an important, but politically sensitive, issue. Shining a light on the process adopted by the UK Government in reaching its licensing decisions is a positive development even if it did not go as far as CAAT and the interveners (Amnesty International, Human Rights Watch, Rights Watch (UK) and Oxfam) had hoped.
Source: The Law of Nations, Edited by Website Team
