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French Arms and Yemen

Jurisdiction

France

Locale

Armed Conflict in Yemen

Recipient State

Saudi Arabia, United Arab Emirates

Status

Ongoing

Several cases have been brought in France, seeking to halt the export of arms and military goods that risk being used in the Yemen conflict. The matter first entered the courts in 2018, and there have since been several cases brought by different claimants and using varying arguments and approaches, all broadly seeking to challenge French export decisions to Coalition members involved in the armed conflict in Yemen.

Two administrative cases have called for the suspension of licences issued for the export of arms to Coalition members involved in Yemen with three additional cases that have sought to cancel customs permits obtained by cargo ships for the transport of French arms to Saudi Arabia that also allegedly risk being used to commit IHL and IHRL violations in Yemen.

On 27 January, 2023, the first administrative case was dismissed on appeal by the Council of State due to a lack of jurisdiction to scrutinise general arms exports licencing decisions. An additional request to annul several licences granted for the export of arms to members of the Coalition involved in the conflict in Yemen, was also dismissed by the Administrative Court of Paris as the pending shipment that that the claimant relied on to ground its request had since been cancelled. A separate Freedom of Information request ordering French customs authorities to disclose information relating to the export of military goods and training to Saudi Arabia and the UAE is also still pending.

Most recently, a criminal complaint has been brought in the French courts, requesting a criminal investigation into the potential complicity of three French arms manufacturers in aiding and abetting the commission of war crimes and crimes against humanity in Yemen. This case is still in its early stages.

Watch full webinar here (27 June 2023)

Latest developments

Case Analysis

In contrast to legal challenges in some other national jurisdictions that seek to contest specific licences for the export of certain categories of arms to identified manufacturers, claims brought in the French courts have taken a somewhat broader approach. In particular, French NGOs have sought to challenge large swathes of licences for the export of arms to Saudi Arabia and other Coalition states that risk being used in the armed conflict in Yemen.

These cases have raised a number of issues of

and , including questions of EU law on the of arms control instruments in France (see in particular ASER’s first administrative challenge). It is notable that the French administrative courts have refrained from directly analysing the risk of exported arms being involved in serious violations of international law (IHL/ IHRL) in the conflict in Yemen, and have largely focused on procedural matters to dismiss case proceedings.

The more generalised nature of these legal challenges has arguably resulted in judicial deference as the Court has deemed itself incompetent to analyse arms export licensing decisions which have been declared as so-called ‘political’ and

acts. In turn, the Court has ruled all challenges inadmissible. This decision was upheld on appeal on 27 January, 2023. Per its judgement, the claimant must review one or more clearly identified licences authorising an export, as a general request to suspend licences can be seen as a request for an “embargo”, which is only in the purview of the government.

Moreover, the lack of transparency relating to arms transfers decisions has been a major hurdle in the legal challenges brought by ACAT and ASER in recent years and has motivated the initiation of a freedom of information request that is still pending before courts and has the potential to compel the government to disclose detailed information relating to their licensing and export policy. The pending criminal complaint against arms manufacturers also has the potential to shape legal doctrine on the criminal accountability of arms companies for their role in providing arms that risk fuelling conflict and international law violations.

Arms export controls in France are regulated at the national level under the French Code of Defence. The competence to grant, suspend, amend and revoke licences for the export of military goods is vested in the Prime Minister, who acts based on recommendations issued by an Inter-ministerial Commission for the ‘study of war material exports’ known as the CIEEMG.

Litigation in France has sought to challenge the licensing decisions of the Prime Minister in administrative proceedings pursuant to the governing French Code of Administrative Justice, in particular Article L.521-1 and Article L.521-2.

While France has ratified the ATT, and as an EU Member State is bound by the EU Common Position, French legislation does not explicitly incorporate either instrument. Additionally, the French Code of Defence does not clarify whether they can be invoked in court as a basis for challenging licenses for the export of military goods.

For a more detailed overview of the French framework, see this report by SIPRI.

Three claims have been brought by French NGO Action Sécurité Éthique Républicaine (ASER). A second NGO Action des Chrétiens pour l’Abolition de la Torture (ACAT), initiated two separate, but identical, challenges in early 2019 against customs permits authorising the transit of arms to Saudi Arabia.

The European Centre for Constitutional and Human Rights (ECCHR) has brought two further cases as part of a coalition of NGO claimants, with a freedom of information request launched jointly with Amnesty International France and media NGO Disclose as well as a joint criminal complaint with Mwatana for Human Rights and Sherpa.

To get in touch with the claimants and their legal representatives, please see here.

Themes

i

 A request to disclose all documents relating to licensing decision-making processes by French authorities was denied in ASER’s first administrative challenge and justified on the grounds of ‘secrecy’ under domestic law.

Explore the issue of transparency across cases

The Council of State upheld the decision of the Courts, ruling that licensing decisions are actes de gouvernement – political acts that form part of French foreign policy, which the Courts are not competent to scrutinise. See in particular ASER’s first administrative challenge.

Explore the issue of justiciability across cases

The ATT and EU Common Position do not have direct effect in domestic law and only govern interstate relations.

Explore the applicability of the ATT and EU Common Position across all cases

French courts have not granted any remedy, finding all cases inadmissible owing to a lack of jurisdiction over ‘political’ acts, of which arms export licensing decision-making forms part.

Explore whether claimants have been granted remedy in all cases

Matter has not yet arisen in proceedings.

Explore whether claimants have been granted standing across cases

Cases

Seven claims, both administrative and criminal in nature, have been brought in the French courts with an appeal and annulment procedure still ongoing as well as a freedom of information request and criminal complaint that are in their early stages.

Click ‘explore case’ to find out about each case in more detail and access all case documents.

Case status

Ongoing

Freedom of Information Request regarding French arms sales to Saudi Arabia and the United Arab Emirates

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This case seeks challenge the refusal of French customs authorities to disclose information relating to the export of military goods and training to Saudi Arabia and the UAE, arguing that this is a violation of domestic law on access to information as well as the right to receive information under the ECHR due to the risk that the arms would be involved in the commission of serious IHL violations in the conflict in Yemen. This case is still in its early stages.

Key Case Documents

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Ongoing

Criminal Complaint against Dassault Aviation, Thales and MBDA France

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Mwatana, ECCHR and Sherpa supported by Amnesty International France are requesting a criminal investigation into the potential complicity of three French arms manufacturers in aiding and abetting the commission of war crimes and crimes against humanity for their role in supplying and maintaining weapons of the Saudi-led Coalition. The complainants relied on evidence that arms produced by these companies have been used in the conflict in Yemen. This case is still under consideration.

Key Case Documents

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Closed

First Administrative Challenge launched by ASER against the Prime Minister of France

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This case challenged a decision of the French Prime Minister not to suspend licences for the export of military goods to countries involved in Yemen. The claimant requested the disclosure of all licensing information and related decision-making processes and called for these licences to be suspended based on the risk of the goods’ use in war crimes in Yemen. These decisions have been considered as non-justiciable political acts by an appeal court and the Council of State.

Closed

Second Administrative Challenge launched by ASER against the Prime Minister of France (Urgent Request)

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This case, submitted under an ‘urgency’ procedure, sought to challenge the continued refusal by the French Prime Minister to suspend licences for the export of arms to the Coalition based on new evidence of an imminent shipment of French arms to Saudi Arabia. The Court dismissed the claim, ruling that a situation of ‘urgency’ had not been established as the shipment had since been cancelled.

Closed

Third Administrative Challenge launched by ASER against the Prime Minister of France (Urgent Request)

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This claim called for the cancellation of customs permits authorising the transit of a Saudi cargo ship that would allegedly transport French arms to Saudi Arabia, arguing that there is a clear link between the export of war materiel to Saudi Arabia and serious violations of IHRL in Yemen, namely the right to life and freedom from inhuman and degrading treatment. The court dismissed the claim ruling that a link between the permits and possible IHRL violations had not been established.

Closed

First Administrative Challenge launched by ACAT against the Prime Minister of France (Urgent Request)

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This case challenged a decision to issue customs permits that would enable the transit of French arms to Saudi Arabia on the basis that they risked being involved in the violation of the fundamental rights of the Yemeni population. The court did not agree with the claimants and dismissed the claim. The crux of the court’s reasoning was that they did not consider that the contested permits could ‘directly and instantly’ affect the Yemeni civilian population’s fundamental rights.

Closed

Second Administrative Challenge launched by ACAT against the Prime Minister of France (Urgent Request)

Explore case

This claim sought to cancel customs permits issued to a Saudi cargo ship that authorised the transit and transportation of French arms to Saudi Arabia. It was submitted that the cancellation of the customs permits was necessary to protect the right to life and to freedom from inhuman treatment of the Yemeni civilian population. The court dismissed the case given the lack of a ‘marked and imminent’ danger to the civilian population as a direct result of the customs authorisation.

Timeline

FILTERS

27 Jan 2023

Challenge 1

Council of State upholds decision by Court of Appeal.

Read judgement here

07 Feb 2020

Challenge 5

Judgement issued. Claim dismissed as manifestly unfounded.

Read the judgement here

06 Feb 2020

Challenge 5

Saudi cargo ship ‘Bahri Yanbu’ expected to arrive at the port of Cherbourg, and subsequently transport French arms to Saudi Arabia.

05 Feb 2020

Challenge 5

Case enters the courts. Urgent request submitted at the Administrative Court of Paris.

December 2019

Challenge 2

Contract between NEXTER and Saudi Arabia for the delivery of military material is concluded. Delivery to commence in 2019.

19 Nov 2019

Challenge 1

Appeal submitted to the Council of State.

26 Sep 2019

Challenge 1

Judgement issued. Court dismisses the case due to a lack of jurisdiction.

Read the judgement here

08 Sep 2019

Challenge 1

Appeal submitted to the Court of Appeal of Paris.

08 Jul 2019

Challenge 1

Judgement issued. Claim dismissed as unfounded.

28 May 2019

Challenge 4

Case enters the courts. Urgent request filed at the Administrative Court of Paris for cancellation of customs permits.

28 May 2019

Challenge 4

Judgement issued. Case dismissed as unfounded.

13 May 2019

Challenge 2

Judgement Issued. Claim Dismissed.

Read the judgement here

09 May 2019

Challenge 2

Alleged shipment date of French arms from port of Le Havre (France) to Saudi Arabia in ‘Bahri Yanbu’ cargo ship (Saudi flagged), which was subsequently cancelled.

09 May 2019

Challenge 3

Case enters the courts. Urgent request filed at the Administrative Court of Paris for the cancellation of customs permits.

09 May 2019

Challenge 3

Judgement issued. Case dismissed as unfounded.

07 May 2019

Challenge 2

Case enters the courts. Claim submitted through an urgency procedure at the Administrative Court of Paris.

25 Jan 2019

Challenge 1

Claimant response. Maintains the contested decision falls within the court’s jurisdiction.

23 Nov 2018

Challenge 1

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’.

07 May 2018

Challenge 1

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.

01 Mar 2018

Challenge 1

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.

Contact & More Information

If you would like to know more about this case, please get in touch with our primary contact for each case: Matteo Bonaglia (ASER) by email, Elias Geoffrey (ACAT) by email, and Cannelle Lavitte by email

You can find out more about the work of the claimants at their website:

Action Sécurité Éthique Républicaine (ASER)

Action des Chrétiens pour l’Abolition de la Torture (ACAT)

Amnesty International France

Disclose

Mwatana for Human Rights

Sherpa