The UK’s Unlawful Grant of Export Licences for the Sale of Arms to Saudi Arabia

Since March 2015, a Saudi Arabia-led coalition of Arab States is conducting air strikes against the Houthi rebels in Yemen. Without going into the details and legality of the war, it is uncontested that Yemeni civilians are currently experiencing one of the world’s worst man-made humanitarian crises. In April 2019, the London Court of Appeal (‘Court’) heard the Campaign Against Arms Trade (‘CAAT’)’s appeal against the High Court of Justice Divisional Court (‘Divisional Court’) judgment of 10 July 2017 on the lawfulness of the continued granting of arms export licences. On 20 June 2019, the Court delivered its appeal judgment, ruling that it was irrational and therefore unlawful for the Secretary of State for International Trade (‘Secretary of State’) to proceed as he did, namely to not take Saudi Arabia’s past and present record of respect for international humanitarian law (‘IHL’) into consideration. In this regard, the Court overturned the Divisional Court’s earlier decision.

It is worth stressing – as the Court also emphasised – that the case concerned a claim for judicial review: a process where a court assesses whether a public authority has taken a decision in the correct way (appeal judgment para. 54). This means the Court is not in the position to examine the executive’s decision as such; at issue is the procedure of how the public organ reached that decision. In the present case, the Court is not concerned with the merits of the government’s decision to grant export licences for the sale or transfer of arms or military equipment to Saudi Arabia for possible use in the conflict in Yemen. The main point of contention was whether the Secretary of State could lawfully (continue to) grant arms export licences, based on the test of rationality.

This blog post outlines the legal context applied by the Court under (I). Although the Court did not rely on the Arms Trade Treaty (‘ATT’) directly, this treaty encompasses the most relevant international norms with regard to arms control to date, and will be touched upon under (II). Lastly, the outstanding question of the UK’s responsibility for complicity in violations of IHL in Yemen will be briefly discussed under (III).