The Secretary of State for International Trade informed parliament that she has retaken her decisions regarding licences for military exports to Saudi Arabia for possible use in the conflict in Yemen in light of the Court of Appeal decision Campaign Against Arms Trade, R (On the Application Of) v The Secretary of State for International Trade  EWCA Civ 1020, handed down on 20 June 2019 ('Decision').
The legal proceedings concerned the decisions of the then Secretary of State for Business, Innovation and Skills of 9 December 2015:
- Not to suspend extant export licences for the sale or transfer of arms and military equipment to Saudi Arabia for possible use in the conflict in Yemen; and
- To continue to grant further such licences.
As a result of the decision, the undertaking given to the Court – that the government would not grant any new licences for the export of arms or military equipment to Saudi Arabia for possible use in Yemen – falls away. The broader commitment that was given to Parliament, relating to licences for Saudi Arabia and its coalition partners, also no longer applies.
The Department of International Trade has stated that it will now begin the process of clearing the backlog of licence applications for Saudi Arabia and its coalition partners that has built up since 20 June last year. Each application will be carefully assessed against the Consolidated EU and National Arms Export Licensing Criteria and a licence would not be granted if to do so would be a breach of the criteria.
Exporters should be aware that it may take some months to clear this backlog. There may also continue to be delays in processing new applications until the backlog has been cleared.
The legal framework
The Export Control Act 2002
The export of arms and military equipment is regulated by the Export Control Act 2002 ("the 2002 Act"). Section 1(1) of the 2002 Act provides that the Secretary of State may by order make provision for or in connection with the imposition of export controls in relation to goods of any description. Section 5(2), as amended, provides that controls may be imposed for the purpose of giving effect to any EU provision or other international obligation of the UK.
Section 9(2) provides that the Secretary of State may give guidance about any matter relating to the exercise of any licensing power or other functions conferred by a control order, and section 9(3) provides that the Secretary of State must give guidance about the general principles to be followed when exercising any such licensing power.
Article 3 in Part 2 of the Export Control Order 2008 S.I. 2008/3231 provides that, subject to (among others) Article 26, no person shall export military goods or transfer military software or technology by electronic means. Article 26(1) provides that nothing in (among others) Part 2 prohibits an activity that is carried out under the authority of a UK licence. Article 32(1) provides that the Secretary of State may by notice amend, suspend or revoke a licence granted by the Secretary of State.
Council Common Position 2008/944/CGSP of 8 December 2008
In December 2008 the Member States of the EU adopted the Council Common Position 2008/944/CGSP of 8 December 2008 "defining common rules governing control of exports of military technology and equipment" ("the EU Common Position"). Article 1.1 provides that each Member State shall assess export licence applications made to it for items on the EU Common Military List on a case-by-case basis against the criteria of Article 2. Article 1.2 provides that those export licence applications include applications for physical exports and applications for licences for any intangible transfers of software and technology by means such as electronic media, fax or telephone.
The relevant criterion in Article 2 is that set out in Article 2.2 ("Criterion 2") as follows:
"Criterion Two: Respect for human rights and fundamental freedoms in the country of final destination as well as respect by that country for international humanitarian law.
- Having assessed the recipient country's attitudes towards relevant principles established by international humanitarian rights instruments, Member States shall:
(b) exercise special caution and vigilance in granting licences, on a case-by-case basis and taking account of the nature of the equipment, to countries where serious violations of human rights have been established by the competent bodies of the United Nations, the European Union or by the Council of Europe;
- Having assessed the recipient country's attitude towards relevant principles established by instruments of international humanitarian law, Member States shall:
(c) deny an export licence if there is a clear risk that the military technology or equipment to be exported might be used in the commission of serious violations of international humanitarian law."
Article 10 provides that:
"While Member States, where appropriate, may also take into account the effect of proposed exports on their economic, social, commercial and industrial interests, these factors shall not affect the application of the above criteria."
Article 13 provides that "the User's Guide to the European Code of Conduct on Exports of Military Equipment" shall serve as guidance for the implementation of the EU Common Position.
The Consolidated Criteria
On 24 March 2014 the Secretary of State set out in a written statement to Parliament what were described as "Consolidated EU and National Arms Export Licensing Criteria" ("the Consolidated Criteria"). These were based on the EU Common Position. The written statement said that it was guidance given under the 2002 Act s.9. Criterion 2 of the Consolidated Criteria is the relevant criterion and it was expressed as follows:
"The respect for human rights and fundamental freedoms in the country of final destination as well as respect by that country for international humanitarian law.
Having assessed the recipient country's attitudes towards relevant principles established by international humanitarian rights instruments, the government will:
b) exercise special caution and vigilance in granting licences, on a case-by-case basis and taking account of the nature of the equipment, to countries where serious violations of human rights have been established by the competent bodies of the UN, the Council of Europe or by the European Union;
c) 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 Parliamentary written statement referred to, and set out what was said in, Article 10 of the EU Common Position. It also said that, in the application of the Consolidated Criteria, account would be taken of reliable evidence, including, for example, reporting from diplomatic posts, relevant reports by international bodies, intelligence and information from open sources and non-governmental organisations.
The User' s Guide
As mentioned above, Article 13 of the EU Common Position refers to a "User's Guide" which is to "serve as guidance for the implementation of the Common Position". The relevant and current version of the User's Guide is dated 20 July 2015. Chapter 2, which has the title "Criteria Guidance", sets out "best practices" for the criteria in the Common Position, including Criterion 2. The introduction to Chapter 2 describes its purpose as follows:
"The purpose of these best practices is to achieve greater consistency among Member States in the application of the criteria set out in Article 2 of [the EU Common Position] by identifying factors to be considered when assessing export licence applications. They are intended to share best practice in the interpretation of the criteria rather than to constitute a set of instructions; individual judgement is still an essential part of the process, and Member States are fully entitled to apply their own interpretations. "
Paragraphs 2.1 to 2.15 of Chapter 2 of the User's Guide address Criterion 2. Reference was made to the following provisions in the course of oral argument on the appeal:
"2.1. [The EU Common Position] applies to all exports of military technology or equipment by Member States … Thus a priori Criterion Two applies to exports to all recipient countries without any distinction. However, because Criterion Two establishes a link with the respect for human rights as well as respect for international humanitarian law in the country of final destination, special attention should be given to exports of military technology or equipment to countries where there are indications of human rights violations or violations of international humanitarian law."
"2.2. Information sources: A common EU base of information sources available to all member States consists of EU HOMs reports, EU human rights country strategies and in certain cases EU Council statements/conclusions on the respective recipient countries. These documents normally already take into account information available from other international bodies and information sources. However, because of the essential case-by- case analysis and the specificity of each licence application, addition information might be obtained as appropriate from:
- Member States' diplomatic missions and other governmental institutions,
- Documentation from the United Nations, the ICRC and other international and regional bodies,
- Reports from international NGOs,
- Reports from local human rights NGOs and other reliable local sources,
- Information from civil society."
"2.10. The relevant principles established by instruments of international humanitarian law.
International humanitarian law … comprises rules which, in times of armed conflict, seek to protect people who are not or are no longer taking part in hostilities (e.g. civilians and wounded, sick and captured combatants), and to regulate the conduct of hostilities (i.e. the means and methods of warfare). It applies to situations of armed conflict and does not regulate when a State may lawfully use force. International humanitarian law imposes obligations on all parties to an armed conflict, including organised armed groups.
The main principles of international humanitarian law applicable to the use of weapons in armed conflict are the rule of distinction, the rule against indiscriminate attacks, the rule of proportionality, the rule on feasible precautions, the rules on superfluous injury or unnecessary suffering and the rule on environmental protection.
The most important instruments of international humanitarian law are the four Geneva Conventions of 1949 and their Additional Protocols of 1977. They are complemented by treaties on particular matters including prohibitions of certain weapons and the protection of certain categories of people and objects, such as children and cultural property …"
"2.11. Serious violations of international humanitarian law include grave breaches of the four Geneva Conventions of 1949. Each Convention contains definitions of what constitutes grave breaches (Articles 50, 51, 130, 147 respectively). Articles 11 and 85 of Additional Protocol I of 1977 also include a broader range of acts to be regarded as grave breaches of that Protocol. For the list of these definitions, see Annex V. The Rome Statute of the International Criminal Court includes other serious violations of the laws and customs applicable in international and non- international armed conflict, which it defines as war crimes (Article 8 sub-sections b, c and e…)"
"2.13 Clear risk. A thorough assessment of the risk that the proposed export of military technology or equipment will be used in the commission of a serious violation of international humanitarian law should include an inquiry into the recipient's past and present record of respect for international humanitarian law, the recipient's intentions as expressed through formal commitments a nd 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.
Isolated incidents of international humanitarian law violations are not necessarily indicative of the recipient country's attitude towards international humanitarian law and may not by themselves be considered to constitute a basis for denying an arms transfer. Where a certain pattern of violations can be discerned or the recipient country has not taken appropriate steps to punish violations, this should give cause for serious concern.
Common Article 1 of the Geneva Conventions is generally interpreted as conferring a responsibility on third party states not involved in an armed conflict to not encourage a party to an armed conflict to violate international humanitarian law, nor to take action that would assist in such violations, and to take appropriate steps to cause such violations to cease. They have a particular responsibility to intervene with states or armed groups over which they might have some influence. Arms producing and exporting states can be considered particularly influential in "ensuring respect" for international humanitarian law due to their ability to provide or withhold the means by which certain serious violations are carried out. They should therefore exercise particular caution to ensure that their export is not used to commit serious violations of international humanitarian law …
Relevant questions to be considered include:
- Is there national legislation in place prohibiting and punishing violations of international humanitarian law?
- Have the same measures been taken to ensure respect for international humanitarian law by other arms bearers which operate in situations covered by international humanitarian law?
- Have mechanisms been put in place to ensure accountability for violations of international humanitarian law committed by the armed forces and other arms bearers, including disciplinary and penal sanctions?
- Is there an independent and functioning judiciary capable of prosecuting serious violations of international humanitarian law?"
Annex III to section 2 of Chapter 2 of the User's Guide identifies "competent bodies of the UN, the Council of Europe or the EU to establish serious violations of human rights".
Principles of international humanitarian law
The relevant principles of IHL are codified in the Four Geneva Conventions of 1949 and the Additional Protocols I and II of 1977 and in customary international law. They include the following: (1) the obligation to take all feasible precautions in attack; (2) effective advance warning of attacks which may affect the civilian population; (3) the protection of objects indispensable to civilian populations; (4) the prohibition on indiscriminate attacks; (5) prohibition on disproportionate attacks; (6) the prohibition on attacks directed against civilian objects and/or civilian targets; (7) the obligation to investigate and prosecute; (8) the obligation to make reparation.
The "principle of distinction" prohibits an attack on civilians, as follows:
"In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives": Additional Protocol I to the Geneva Convention, Chapter II "Civilians and Civilian Population", Article 48; and see also Article 8(2)(b)(i) of the Rome Statute of the International Criminal Court.
The "principle of proportionality" prohibits an attack launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the concrete and direct overall military advantage anticipated: see Article 8(2)(b)(iv) of the Rome Statute of the International Criminal Court. The "principle of proportionality" does, however, permit belligerents to carry out proportionate attacks against military objectives, even when it is anticipated that civilian deaths or injuries will inevitably occur as a result.
Governments actions in light of the Decision
The legal proceedings concerned Criterion 2c of the Consolidated EU and National Arms Export Licensing Criteria – which requires the government to assess Saudi Arabia’s attitude towards relevant principles of international law and provides 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 international humanitarian law (IHL).
The Divisional Court found in favour of the government in its judgment of July 2017, noting that the government applied a rigorous and robust, multi-layered process of analysis to making its licensing decisions. The government’s approach has focused on a predictive evaluation of risk as to the attitude and future conduct of the Saudi led coalition, recognising the inherent difficulties of seeking to reach findings on IHL for specific incidents where the government does not have access to complete information. This included analysis, to the extent possible, of whether there were patterns of concern, in particular arising from trends in the number of allegations of civilian casualties and of damage to key civilian infrastructure. The Court of Appeal broadly endorsed this decision-making process.
The principal issue in the Court of Appeal was whether this analysis needed to go further. In the Court’s judgment, the question of whether there was an historic pattern of breaches of IHL was a question which required to be faced. Even if it could not be answered with reasonable confidence for every incident, at least the attempt had to be made. It was because the government had not reached findings on whether specific incidents constituted breaches of IHL as part of our assessment of clear risk, under Criterion 2c, that the Court of Appeal concluded that the government’s decision-making process was irrational and therefore unlawful.
To address the Court of Appeal’s judgment, the government has developed a revised methodology in respect of all allegations which it is assessed are likely to have occurred and to have been caused by fixed wing aircraft, reflecting the factual circumstances that the court proceedings concerned. Each of those allegations has been subject to detailed analysis by reference to the relevant principles of IHL and in the light of all the information and intelligence available. An evaluation has then been made, in respect of each incident, whether it is possible that it constitutes a breach of IHL or whether it is unlikely that it represents a breach. For a number of incidents, as envisaged by the Court of Appeal, there is insufficient information to make this evaluation. Where an incident is assessed as being a “possible” breach, it is regarded – for the purposes of the Criterion 2c analysis – as if it were a breach of IHL. By setting the threshold as “possible” the IHL analysis has captured the widest range of relevant potential IHL breaches, to provide a base from which to assess the prospective risk for Criterion 2c.
The government has assured that IHL analysis has now been applied to all credible incidents of concern of which they are aware. Some of these incidents have been assessed as “possible” violations of IHL. These have therefore been factored into the overall Criterion 2c Analysis on the basis that they are violations of IHL.
The government has also sought to determine whether these “violations” are indicative of:
(i) any patterns of non-compliance;
(ii) a lack of commitment on the part of Saudi Arabia to comply with IHL; and/or
(iii) a lack of capacity or systemic weaknesses which might give rise to a clear risk of IHL breaches.
The government has said that it has similarly looked for patterns and trends across the incidents which have been assessed as being unlikely to be breaches of IHL and those for which there is insufficient information to make an assessment. However, the analysis has not revealed any such patterns, trends or systemic weaknesses. Furthermore, the incidents which have been assessed to be possible violations of IHL occurred at different times, in different circumstances and for different reasons. The government concluded that the these were isolated incidents.
The Secretary of State for International Trade emphasised that the IHL analysis is just one part of the Criterion 2c assessment. In re-taking these decisions, she says she has taken into account the full range of information available to the government. In the light of all that information and analysis, she confirms that she has concluded that, notwithstanding the isolated incidents which have been factored into the analysis as historic violations of IHL, Saudi Arabia has a genuine intent and the capacity to comply with IHL.
On that basis, the Secretary of State for International Trade confirms that she has assessed that there is not a clear risk that the export of arms and military equipment to Saudi Arabia might be used in the commission of a serious violation of IHL.
Having now re-taken the decisions that were the subject of judicial review on the correct legal basis, as required by the Order of the Court of Appeal of 20 June, it follows that the undertaking that the government gave to the Court – that they would not grant any new licences for the export of arms or military equipment to Saudi Arabia for possible use in Yemen – falls away. The broader commitment that was given to Parliament, relating to licences for Saudi Arabia and its coalition partners, also no longer applies.
The government will now begin the process of clearing the backlog of licence applications for Saudi Arabia and its coalition partners that has built up since 20 June last year. Each application will, of course, be carefully assessed against the Consolidated EU and National Arms Export Licensing Criteria and a licence would not be granted if to do so would be a breach of the Criteria. It may take some months to clear this backlog.
Appeal to the Supreme Court
Finally, as indicated in the statement made to the House on 20 June 2019, the government confirmed that they sought permission to appeal to the Supreme Court against the Court of Appeal’s judgment. Permission was granted by the Court of Appeal on 9 July 2019. In light of the revised methodology which outlined above, the government will now be taking steps to withdraw this appeal.
HAMMAD BAIG © 2020
33 BEDFORD ROW
Hammad practices, international trade law, tax law and commercial litigation with a specific interest in VAT and Customs and Excise Law.
Further articles on topics relating to Hammad's practice areas, can be read under his Insights, and on Hammad’s blog. Should you wish to instruct Hammad, then please do not hesitate to contact his clerk Mark Byrne.
NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.