On 31 January, CAAT returned to the Royal Courts of Justice to once again challenge the UK government over its arms sales to Saudi Arabia for use in the war in Yemen. We believe these sales to be illegal as well as immoral. The case is CAAT’s second Judicial Review against the Government on this issue, following the successful case we brought in 2019, temporarily halting new arms licences to the Saudi regime and the rest of the coalition that has bombed Yemen.
So what happened in court, and what happens next?
Background
Saudi Arabia has led a coalition of states carrying out a brutal bombing campaign in Yemen since March 2015, in support of the official government against the Houthi rebels who control the capital Sana’a and most of the north of the country. The Saudi coalition has regularly bombed civilian targets including hospitals, schools, homes, market places, weddings, funerals, food and water facilities and even a school bus full of children. These attacks have killed at least 9000 civilians, while being a major contributing factor to the world’s worst humanitarian catastrophe. In total, the United Nations estimates that the war in Yemen had killed 377,000 people by the end of 2021, through direct and indirect causes.
Since the start of the war, the UK has sold over £23 billion worth of arms to Saudi Arabia – including combat aircraft, bombs and missiles, and a constant supply of spare parts, maintenance, and technical support for the Saudi Air Force. The horrific human toll should have been reason enough for the sales to end, but the Government put the interests of the arms industry first, as it so often does. Nonetheless, the Government must obey its own laws on arms export licences, one clause of which says that a licence shall not be approved “if there is a clear risk that the items might be used to commit serious violations of International Humanitarian Law” [1] (IHL – the “laws of war”). Arms sales to Saudi for use in Yemen seem to clearly breach this.
The story so far
So how did we get here? As long-term supporters will know, CAAT first brought legal action way back in March 2016, seeking a Judicial Review of the Government’s decisions to continue arming Saudi Arabia. The High Court rejected CAAT’s case in 2017, but in June 2019 the Court of Appeal overturned this decision, ruling that the Government’s approach to deciding on these licences was “irrational and therefore unlawful,” and required them to retake them. Specifically, as part of their assessment of a “clear risk” the Government had to investigate the hundreds of past allegations of IHL violations by the Saudi coalition, something they had not done. Meanwhile, the Government agreed that it would not issue new licences.
Unfortunately, in July 2020, the Government announced that they had completed their review, and stated that while they had found a “small number” of “possible violations” of IHL, these were “isolated incidents” that did not involve any pattern leading to a clear risk of future violations. Thus arms sales could continue as before. The review was published by the then Trade & Industry Secretary Liz Truss.
Her conclusion seemed, on the face of it, to fly in the face of the vast body of evidence of attacks on civilians from numerous UN expert reports, and by Yemeni and international NGOs, based on their own detailed investigations on the ground. So CAAT has also challenged this decision, arguing that the Government had no reasonable basis for reaching its conclusions. In non-legal language, we believe that their investigation into past allegations is a whitewash.
The new case
CAAT received permission to bring this second Judicial Review in April 2021, but multiple delays mean it has only just come to court. The hearing was held by a Divisional Court, which means that there is one judge from the High Court and one from the Court of Appeal. CAAT is supported in its case by interventions from Oxfam and the Yemeni-based Mwatana for Human Rights, both of which have provided copious evidence of patterns of violations. As throughout the first judicial review, CAAT is represented in this case by Leigh Day, a prominent public law and human rights law firm.
On the eve of the hearing, on 30th January, CAAT held a vigil outside the Royal Courts of Justice, which included a powerful reading by Scouse-Yemeni poet Amina Atiq, and the reading of names of Yemeni civilians killed in two particular Saudi coalition airstrikes.
A notable feature of the case is that half the hearing – and a great deal of the Government’s evidence – was kept secret, for reasons of national security and relations with Saudi Arabia. Even CAAT’s lawyers do not get to see it. In these closed hearings, CAAT was represented by two Special Advocates with the required security clearance, who were able to view and challenge the secret evidence. (We have the same Special Advocates as in the first case, whom our lawyers regard very highly).
Nonetheless, the open hearings, and the open evidence, did much to reveal how the Government had carried out its flawed process. CAAT’s lead Counsel, Ben Jaffey KC, pointed to the strong dependence of the UK government on reports by the Saudi-led Coalition’s internal investigation body, the Joint Incidents Assessment Team (JIAT). It appears (though the details are “closed”), that without a JIAT report on an incident, the Government decided there was “insufficient information” to assess if an attack harming civilians was even a “possible” violation of IHL, however much robust evidence was available from other sources. In effect Saudi-led forces were being asked to assess themselves for war crimes.
Half of all “credible” allegations attributed to Saudi Arabia were placed in the “insufficient information” category. The investigation also ignored allegations involving attacks by Saudi helicopters. On the question of “patterns” of violations, Jaffey argued that there was a very clear pattern, ignored by the Government, of Saudi Arabia repeatedly failing to follow its own rules of engagement. An email by an unnamed Government official, revealed in Government evidence, even made the point that the Government’s reasoning on the lack of a pattern was circular.
Sir James Eadie KC, for the Government, argued that they had carried out an extremely thorough process, involving military and legal experts, using a wide range of information. This inevitably involved making numerous judgement calls, which it is the Government’s job to make, and that can only be overturned by the courts if they were clearly irrational. He submitted that CAAT had not demonstrated such irrationality.
The open hearing finished at lunchtime on 1st February, followed by the closed hearing, which concluded on 2nd February.
So… what are our chances, and when will we know?
How did it go? Well, we think our arguments were very strong, but of course we’re biased! The judges were clearly engaged and attentive, and asked many probing questions of our attorney, but did not seem hostile. A lot will depend on what went on in the closed hearings (which we cannot know), where the detailed analysis of how the government assessed specific incidents could take place.
It is now almost two months since the hearing, but judgements in such complex cases of public law can take a long time. For reference, the gap between the hearing and judgement in the Divisional Court for CAAT’s first judicial review in 2017 was about five months, while the gap between the Court of Appeal hearing and the verdict in 2019 was just over two months. So, the judgement could come at any time now, or could be months away.
Whatever the verdict, it is highly likely that the case will go to appeal. Nonetheless, the judges’ verdict and reasoning will be the starting point for the Court of Appeal, and the losing side from the first hearing will need to present clear reasons as to why the Divisional Court judges erred in law. The scope of issues that can be raised in an appeal may thus be narrower than in the original hearing. So this verdict certainly matters!
CAAT has a very high bar to reach to win this case. It is not enough to convince the judges that the Government’s decision is wrong, rather, we have to convince them that it was so unreasonable that they were not legally entitled to make such a decision. We believe we have made a very strong case for this.
Of course, as before, even if the Court does rule (again) that the government’s decisions were unlawful, this would not guarantee an end to arms sales to Saudi Arabia – it would probably mean that the government would, once again, need to retake the decisions, in a way that complied with the Court’s judgement about the errors in the previous decision.
But regardless of the outcome, the moral outrage and absurdity of continuing to approve arms sales that have fuelled such repression and led to such massive death and destruction is glaringly obvious, and CAAT will continue to oppose this both in court and out.
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[1] In fact, at the end of 2021 the government brought in a new set of export licencing criteria, which which changes the wording of numerous criteria, and in some cases raises concern that the government are attempting to lower the threshold required to issue export licences. However, the decisions being challenged were taken under the old criteria, which are therefore the ones that apply in this case.
