First Administrative Challenge launched by ASER against the Prime Minister of France
Armed Conflict in Yemen
This request, submitted on behalf of French NGO ASER, called for the suspension of all licences for the export of arms and military goods to countries involved in the conflict in Yemen. The claim was submitted following a failed request that ASER made directly to the French Prime Minister for their suspension. The claim before the Administrative Court of Paris therefore sought to challenge the implicit decision by the French Prime Minister not to suspend the licences. The claimants also requested the disclosure of all information on the licences and the decision-making process that led to their adoption. The claimants contended that, in light of the large body of evidence indicating serious IHL and IHRL violations by the coalition in Yemen, at the time of authorisation the French Prime Minister knew that the goods that were being licensed for export could be used in the commission of war crimes in the armed conflict in Yemen.
Despite invoking a body of evidence indicating that the arms would be used in this manner, the case was dismissed on appeal matters of jurisdiction and justiciability. On 27 January, 2023, the Council of State upheld this decision.
Case Development: Judgement by the Council of State on ASER’s appeal to contest decision by Court of Appeal on 26.09.2019
The Council of State confirmed the decision of the Court of Appeal of the Administrative Court of Paris, arguing that France’s export licensing decision is intrinsically political in nature and...
The submitted arguments proceeded on three grounds.
First, that the contested licences were unlawful because the Prime Minister had failed to follow the prescribed procedure set out in governing legislation by not consulting with the CIEEMG prior to issuing the licences. Code of Defence, Articles R2335-11 and R2335-15
Second, that by issuing the licences the Prime Minister had breached France’s international obligations due to the alleged violations of Article 6(3) and Article 7(7) ATT and Articles 1 and 2 EU Common Position. The main argument in this respect was that the Prime Minister had knowledge, at the time of authorisation, that the exported arms would be used in the commission of war crimes.
In turn, the claimants argued that this was in violation of relevant domestic legislation that requires compliance with international commitments, including treaty obligations and broader public policy positions on arms exports. Code of Defence, Article L.2335-4
Third, that the decision to issue these licences amounted to an ‘unlawful or irrelevant regulatory act’ under domestic law that should have been annulled by the French Prime Minister. Code of Relations between the Public and Administration
Decision of the Administrative Court
While the Administrative Court of Paris did recognise its jurisdiction to analyse what the government had contested was a non-justiciable political act, it dismissed the claim on all three grounds.
The particular crux of the court’s reasoning was that the ATT and EU Common Position do not have direct effect in domestic law and do not create justiciable rights, and therefore could not ground the claimant’s challenge.
Decision on Appeal
The Court of Appeal of Paris dismissed the case on appeal based on a lack of jurisdiction.
It did not examine the substance of the legal challenge as, in contrast to the lower court, it agreed with the government’s argument that the contested licensing decision was a political act that cannot be scrutinised by a Court of law.
On 27 January, 2023, the Council of State upheld the decision that the Courts do not have the jurisdiction to scrutinise general arms exports licencing decisions, as they are considered in the purview of the government’s foreign policy decisions.
01 Mar 2018
ASER requests formal suspension of all licences for the export of arms and military goods to countries involved in the armed conflict in Yemen based on a wealth of evidence of IHL and IHRL violations committed by the coalition forces and the export of French arms to such members of this coalition.
07 May 2018
Case enters the courts. Formal request to Prime Minister is unsuccessful. Claim submitted to the Administrative Court of Paris challenging the decision not to suspend arms export licences to coalition members.
23 Nov 2018
Government response. Prime Minister contests all grounds as unfounded and argues a lack of jurisdiction on the basis that the contested licensing decision is a non-justiciable ‘acte de gouvernment’.
25 Jan 2019
Claimant response. Maintains the contested decision falls within the court’s jurisdiction.
08 Jul 2019
Judgement issued. Claim dismissed as unfounded.
08 Sep 2019
Appeal submitted to the Court of Appeal of Paris.
26 Sep 2019
Judgement issued. Court dismisses the case due to a lack of jurisdiction.Read the judgement here
19 Nov 2019
Appeal submitted to the Council of State.
27 Jan 2023
Council of State upholds decision by Court of Appeal.Read judgement here