In a judgment issued on 6 June, the UK’s High Court dismissed the case brought by CAAT challenging the Government’s decision to renew arms sales to Saudi Arabia. The Court found that CAAT had not proved that the then Secretary of State for International Trade was acting irrationally in their decision to licence arms sales to the Saudi-led Coalition. It followed a successful Court of Appeal ruling in 2019 which ordered the Government to halt arms sales to the Saudi-led Coalition bombing Yemen, while it reviewed its licensing decisions.
After some time to digest this disappointing news, we would like to reflect on what we have learned from bringing these legal challenges, and to highlight aspects of the judgment we see as most problematic.
CAAT disagrees with the ruling of the High Court. We remain certain of the grounds we challenged the case on.
It is important to highlight the parameters of a Judicial Review. In the most recent judgment, the Court itself noted the ‘‘the deliberately high threshold’ of irrationality that CAAT must prove’, and further stated ‘judicial review is not an appeal against governmental decisions on their merits’.
What is important about these legal parameters is that they belong to the Court and not to us as campaigners. We do believe that the Government was acting irrationally in how it made assessments of violations of International Humanitarian Law (IHL) by the Saudi-led Coalition in Yemen. But even if the Court did not accept our arguments, that does not mean there is any dispute that widespread violations of human rights have taken place, including those that may amount to war crimes. Rather than disputing this fact, the High Court judgment actually affirms it.
We are confident that the legal cases we have undertaken since 2016 have increased accountability for UK arms sales, and shown the government that civil society and the public are watching. In the judgment, the Court agreed with the Government that the Saudi-led Coalition’s ‘improvements’ in adhering to IHL over the course of the war shows that they were willing and able to comply with IHL.
We believe that the opposite is true. When the Government calculated the risk of IHL violations at the outset of the war in Yemen, it clearly overestimated the Saudi-led Coalition’s ability or willingness to comply with IHL, or overestimated the political capital the UK had to influence its biggest customer for arms sales at the time. Were it not for the outcry from Yemen, from civil society around the world, and international bodies such as the UN Group of Eminent Experts on Yemen, these violations would have continued to escalate even beyond the horror of the last eight years.
Prior to the war, Saudi Arabia was already a huge customer for UK arms sales. On average in the two years preceding the Coalition’s bombing of Yemen, and the first three years of the war, 49% of UK arms sales were to Saudi Arabia. CAAT had already been campaigning for an end to Saudi arms sales based on its dismal human rights record domestically. If the government were assured that UK arms sales used in conflict would be used in compliance with IHL, we weren’t.
Making (non)sense of the legal arguments in the judgment
While we disagree with the judgment, it is still a very important document because it’s essentially a statement of fact about how the UK government justifies its arms export regime, and views its obligations to protect civilians in conflict. Some of the most concerning elements of the Government’s arguments illustrate a clear attempt to circumvent its obligations under international law.
Margin of error
The word ‘margin’ appears five times in the judgment in reference to a 2020 Government Decision Paper which states that the detail of possible IHL breaches “is consistent with a limited number of errors, well within the margin that would be expected in a conflict of this nature”.
We need to be very clear that when the government is talking about a ‘margin of error’ this is referring to the death of civilians by Coalition bombings, and the far-reaching suffering caused by violations of International Humanitarian Law. We would like to live in a world where international law to protect civilians in conflict is the lowest bar of protection we can expect, but even the principles of proportionality and taking feasible precautions are deemed by our government as flexible. In fact, as the quote above illustrates, they are ‘expected’.
You might ask yourself if governments are selling arms to conflicts where they are expecting violations of IHL, surely that means there is a clear risk of serious violations of IHL – a clear risk which they are already aware of.
This point was argued in court – that given the mountain of evidence (over 400 incidents of IHL violations on the government’s own tracker) such violations were likely to continue, and so it would be irrational to conclude that there was no clear risk of future serious violations. Eight years into the war this ‘expected margin’ is no longer theoretical, but real people whose lives have ended, real families who have lost loved ones.
Conveniently for the Government, the Court found that repeated breaches of the principles of IHL, including proportionality and taking feasible precautions, did not constitute a pattern, because it was “too much of a leap to say that such commonality must be a concerning pattern.” If you think surely there is more to the Court’s reasoning than simply “too much of a leap”, I’d invite you to read paragraph 176 of the judgment.
Construction of Numbers
The judgment makes numerous references to ‘numbers’: numbers of airstrikes, numbers of possible serious IHL violations. These numbers are compared and contrasted in disingenuous and harmful ways, and it is worth re-emphasising that there are real people behind all of them. They are not just a useful legal construct on behalf of the Secretary of State for International Trade.
For example: “Whilst care must be taken in drawing comparisons across different conflicts (as the Decision Paper said), it is to be noted that in the Syria/Iraq conflict in which a similar number of airstrikes were carried out, a similar number of allegations were recorded against the coalition forces.”
This quote again illustrates the fact that in government and supported by the court, there is an expectation and acceptance of IHL breaches in conflict. There is also no further explanation of why the allegations in the Syria/Iraq conflict are not of concern. I would not be surprised to see a hypothetical Judicial Review judgment on Coalition conduct in Syria/Iraq say ‘a similar number of allegations were recorded against the Coalition forces in Yemen’, and that then be the sole justification as to why civilians dying as a result of IHL breaches is nothing to worry about.
“The fact that the number of possible breaches was so small compared with the number of airstrikes and sorties could rationally be relied on as a source of comfort that there were not such systemic weaknesses”, only individual ‘errors’ in the past.
Yet the government was able to cut the number of ‘possible breaches’ in half by removing all those they decided fell into the category of ‘insufficient information’. Conveniently, the great majority of ‘insufficient information’ cases are not reported on by the Saudi-led Coalition’s investigation team into civilian casualties. The government relied on the perpetrator of these crimes to self-report, and then used the ‘so small’ number of violations as a source of comfort.
Describing these breaches as ‘so small’ is a value judgement not a fact. If you are one of the people directly impacted by these breaches, if you died in a Coalition airstrike, were seriously injured, or you lost a loved one, this value judgement would be of no comfort whatsoever. Frankly, it is offensive for the court to talk about ‘a source of comfort’ to the UK government in arming and profiting from the war in Yemen, when the Yemeni people have faced so much suffering including war crimes, economic devastation and famine.
In the same paragraph, 141, the Court responded to our arguments that the government should seek further information from the Coalition when it did not have enough information to make an assessment as to whether an incident was a serious violation of IHL. The court said “It can be seen from the numbers involved that it would be a huge undertaking, which the Secretary of State and her advisers could rationally consider would have had adverse foreign relations consequences in return for which there would have been no significant benefit in the analysis of what is ultimately a predictive evaluation of future risk”.
Rather than looking at a high number of credible allegations of violations as needing thorough investigation, the government created an exercise which allowed evidence of systemic weaknesses to be filed under ‘insufficient information’, circumventing its obligations once again.
Clear Risk
In court our legal team argued that as the government’s new ‘Decision Paper’ concluded that there have been new breaches of IHL since the previous decision to issue licences, it follows that the previous decision was wrong in its assessment of future risk.
The judges rejected this argument and stated that: ‘To conclude from that fact that the previous assessment of future risk must have been flawed, making special caution and vigilance essential this time round, is in our view an inappropriate application of hindsight.’
A judgment that deals with rationality and assessments of risk may sound quite academic and legal, but this quote illustrates a common sense understanding of logic is missing. Essentially the Government can continue to make assessments that always reach the same conclusion – no clear risk of serious violations of IHL and arms exports to Saudi Arabia can continue. Applying hindsight is deemed ‘inappropriate’, allowing the government to ignore real violations which should be the most important factor in calculating risk, or explain them away as ‘isolated incidents’.
It makes even less sense when we take into account the ‘margin of error’ as discussed above; that the Government ‘expects’ serious breaches of IHL to occur, makes assessments that there is no clear risk of IHL, and then once these violations take place, the Government does not apply hindsight to future assessments.
Moving forward
“The wisdom of governmental policy is not a matter for the courts and, in a democratic society, must be a matter for the elected government alone. … Judicial review is not, and should not be regarded as, politics by another means.”
This quote from another case (1.) was referred to in the judgment, to emphasise that judicial review is not a means to judge governmental decisions as good or bad, only unlawful or irrational. We remain steadfast in our position that the Government’s actions were unlawful and we disagree with the Court’s judgement.
It also highlights another issue that is implicit in the judgment. ‘The wisdom of governmental policy’ is of course not just ‘a matter for the elected government alone’, but for those people that the government represents. In a democracy we have every right to judge our Government’s actions as good or bad. The evidence that has been made public over the course of seven years of legal cases challenging arms exports used in Yemen shows that we have so much to be angry about, so much that we need to keep working to change. Despite the harrowing nature of this judgment, where human life is reduced to ‘margins’ or ‘numbers’, in showing us what’s wrong with the system that we have, it’s a clear call to action of what we need to change – a call that we at CAAT and our supporters will continue to answer as we campaign for a more just and peaceful world.
Katie Fallon
Advocacy Manger at Campaign Against Arms Trade
- R (Hoareau and Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin), at paragraph [326]
