I have received many emails concerning UK military exports to Saudi Arabia.
The Government operates one of the most thorough military export control regimes in the world. All export licence applications are assessed on a case-by- case basis against the Consolidated EU and National Arms Export Licensing Criteria. These criteria take account of all prevailing circumstances at the time of application and the Government will not issue an export licence where there is a risk that doing so would violate any of these strict rules.
The Court of Appeal decision concerned a narrow aspect of the Criteria known as Criterion 2, which stipulates that Member States:
“shall … deny an export licence if there is a clear risk that the … equipment might be used in the commission of serious violations of International Humanitarian Law”
The Court of Appeal identified an error of law in one aspect of the process required by Criterion 2. It concluded that although the Government considered violations of International Humanitarian Law (IHL) before deciding whether to issue an export licence, it made no concluded assessments of whether the Saudi- led coalition had committed IHL violations in the past during the conflict in Yemen.
The Court concluded there was a legal obligation, as a matter of rationality, to make a systematic assessment of past possible violations, not necessarily in every case but, where possible, before deciding whether there is a clear risk of future serious violations. Therefore, the judgment does not concern whether the Government made the right or wrong decisions, but rather whether the decision- making process was rational. In addition, the judgment positively emphasises that changing the process, as set out by the Court, does not necessarily mean that any of the export decisions made would be found to have breached the Consolidated EU and National Arms Export Licensing Criteria.
The Court was also clear that both the Government and Saudi Arabia demonstrated ‘extensive’ efforts to avoid breaches of IHL and civilian casualties in the conflict. The Court stated:
“The evidence shows that the Government has consistently engaged closely with Saudi Arabia, in an attempt to avoid breaches of International Humanitarian Law and to minimise or avoid civilian casualties in the Yemen conflict. The evidence demonstrates that these efforts have been genuine and extensive. There is considerable evidence as to the ‘attitude’ of Saudi Arabia, and their expressed desire to avoid violations of International Humanitarian Law.”
The Court of Appeal held that the Government must review past episodes of concern and then estimate the future risks of continued military exports in relation to the conclusions about the past. However, the Court stressed that its decision does not mean that defence exports to Saudi Arabia must be suspended. Instead, the Government, in its response to the decision, has decided the go beyond what was requested by the Court and not grant any new export licences under the Consolidated EU and National Arms Export Licensing Criteria to Saudi Arabia and its coalition partners.
The Court of Appeal judgment follows a decision made in 2017 by the Divisional Court which found in favour of the Government’s approach. It decided that the Government’s military export criteria, which is in line with the EU common position, focuses on a predictive evaluation of risk as to the attitude and future conduct of the Saudi-led coalition and that the approach does indeed consider the historical record of Saudi Arabia in respect of IHL. It also recognised the inherent difficulties of seeking to reach findings on IHL for specific incidents where there is not access to complete information. Therefore, the Government has grounds for disagreement with the further judgment of the Court of Appeal and has stated its intention to seek permission to appeal the decision.
The Government takes its responsibilities very seriously when issuing military export licences, operating one of the most thorough licencing regimes in the world, and this is reflected in the comments made by the Court regarding the UK’s ‘extensive’ efforts to avoid IHL breaches. Consequently, the Government, not the Court, has decided to suspend military exports to Saudi Arabia pending the outcome of its appeal on the Court’s decision, which it disagrees with on the grounds that an earlier judgement found the Government’s processes for evaluating whether to issue an export licence to Saudi Arabia to be rational.