Divisional Court to consider lawfulness of UK arms exports


The Divisional Court (Popplewell LJ and Henshaw J) will, between 31 January and 2 February 2023, hear a challenge to the decision of the Secretary of State for International Trade to licence the sale of arms, including aircraft and munitions, to the Kingdom of Saudi Arabia (“KSA”) for use in the ongoing conflict in Yemen. In March 2015, a coalition of states led by KSA (“the Coalition”) intervened in the ongoing civil war in Yemen. The Coalition launched military operations in Yemen, principally through launching air strikes. Violations of IHL by the Coalition have been widely documented by the UN and human rights organisations. The UN has described the war in Yemen as the world’s worst humanitarian crisis and estimates that, by the end of 2021, over 377,000 people had been killed. 70% of the deaths are of children under five. The challenge has been brought by the Campaign Against Arms Trade (“CAAT”), supported by interventions from the Yemeni human rights organisation, Mwatana for Human Rights (“Mwatana”) and Oxfam. Mwatana is a human rights organisation based in Sana’a, Yemen that has undertaken significant work investigating and documenting violations of human rights and humanitarian law by all sides in the conflict in Yemen. In support of the claim, Mwatana has adduced evidence of 149 airstrikes carried out by the Coalition and which have allegedly caused civilian harm in Yemen. Mwatana’s reports are based on “on the ground” investigations and catalogue how incidents may involve violations of IHL, contrary to the Geneva Convention 1949, its Additional Protocols and customary international law. In making licensing decisions, the Secretary of State applies guidance to the effect that a licence is not to be granted for the sale or transport of arms if there is a “clear risk” that the exported materials might be used in the commission of a serious violation of international human rights law (IHL). An earlier challenge brought by CAAT was successful in establishing that the Secretary of State’s refusal to form a view as to whether allegations of breaches of IHL were established or not was, in light of the terms of the guidance, unlawful. Having reconsidered the matter and re-designed her decision-making process, the Secretary of State, despite the extensive documentation of violations of IHL by the Coalition, on 7 July 2020 again concluded that there was no “clear risk” that the exported material might be used in the commission of a serious violation of IHL and decided to continue to grant licences. The claimant and interveners challenge the Secretary of State’s conclusion on the basis that it is, inter alia, irrational and contrary to the requirements of the relevant guidance. Admas Habteslasie appears for Mwatana (with James McClelland KC and Aarushi Sahore), instructed by Bindmans LLP.

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