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Human rights challenge to UK export of arms to Saudi Arabia

30/01/23

The Administrative Court will this week hear a challenge to the Secretary of State for International Trade’s (the “Secretary of State”) decision to licence the sale of arms, including aircraft and munitions, to the Kingdom of Saudi Arabia (“KSA”) for use in the ongoing conflict in Yemen.

The challenge has been brought by the Campaign Against Arms Trade (“CAAT”), supported by Yemeni human rights organisation, Mwatana for Human Rights (“Mwatana”), and Oxfam. Mwatana is based in Sana’a, Yemen and investigates and documents alleged violations of human rights by all factions in the civil war. The UN has described the war in Yemen as the world’s worst humanitarian crisis and estimates that, by the end of 2021, over 377,000 people had been killed.

The legal framework for the export of arms is set out in the Export Control Act 2002, and in guidance adopted from the EU known as the Consolidated Criteria and the User’s Guide. One of the Consolidated Criteria (Criterion 2c) requires the Secretary of State not to grant a licence for the sale or transport of arms if there is a “clear risk” that they might be used in the commission of a serious violation of international human rights law (“IHL”). The User’s Guide states that the assessment should include an inquiry as to the “recipient’s past and present record of respect for international humanitarian law” including whether there has been a “pattern of violations”.

On 7 July 2020, the Secretary of State made her most recent decision to grant licences, concluding that there was no “clear risk” that the exported material might be used in the commission of a serious violation of IHL. The decision was based on a review of alleged incidents amounting to IHL violations, in light of material gathered by the Ministry of Defence and the Foreign Office.

The present claim challenges the lawfulness of this decision on four grounds:

  1. Ground 1 contends that there was no proper evidential basis for the Secretary of State’s conclusion that there had only been a limited number of IHL violations.
  2. Ground 2 contends that there was no proper evidential basis for the Secretary of State’s conclusion that there was no pattern of IHL violations.
  3. Ground 3 contends that, irrespective of the existence of a pattern, there was no proper basis for concluding that Criterion 2c was not engaged, given the alleged record of past violations.
  4. Ground 4 contends that the Secretary of State misdirected herself as to the meaning of “serious” violations and failed to consider whether officials in KSA enjoyed impunity for serious violations.

Each of these grounds was granted permission by the Honourable Mr Justice Jay.

In support of the claim, Mwatana has adduced evidence of 149  airstrikes allegedly carried out by the KSA Coalition and which have allegedly caused civilian harm in Yemen. Mwatana’s reports are based on “on the ground” investigations and catalogue how incidents may involve violations of IHL, contrary to the Geneva Convention 1949, its Additional Protocols and customary international law.

The Secretary of State resists each of the grounds, contending that the decision was lawful, based on a careful assessment of relevant evidence, and within the wide margin afforded to government when making decisions of this sort. 

The hearing will proceed over three days commencing on 31 January.

James McClelland KC and Aarushi Sahore, together with Admas Habteslasie (Landmark Chambers), represent Mwatana and are instructed by Bindmans LLP and Global Legal Action Network.