UK Arms and Yemen

Despite these structural barriers, in the first administrative challenge, the Court of Appeal overturned an earlier decision in favour of the government by the Divisional Court. The Court of Appeal ruled in CAAT’s favour and required the government to cease issuing new licences for exports to Saudi Arabia based on its judgement that the Secretary of State had failed to properly take into account the risk of serious violations of IHL. Specifically, it concluded that the Secretary of State had failed to assess the existence of a past pattern of serious violations of IHL as part of the assessment of the risk of future violations.

Impact of the Court of Appeal’s ruling

However, the actual impact of this ruling on arms exports has been notably limited. This was partly due to the limited remedy that was awarded to the claimants, as rather than impose a blanket ban on all exports or suspend all licences for specific types of goods that might be involved in air attacks, as the Court was in theory competent to do, the Secretary of State was only instructed not to grant new licences, meaning that transfers could still continue under existing licences that remained valid.

The impact of this ruling was however short-lived. Only a year after this judgement, the Secretary of State announced that, following a review of its licencing processes, the UK authorities were permitted to resume granting new licences to Saudi Arabia as it was determined that there was no ‘clear risk’ of serious violations of IHL. This was challenged in a fresh claim for judicial review initiated by CAAT in 2020 that is still ongoing.

Second administrative challenge

A significant amount of publicly-available evidence has been brought forward by CAAT and other intervening NGOs that strongly indicate a pattern of IHL violations by Saudi Arabia, both through direct airstrikes and other activity including acts of torture. The government has, however, sought to have second administrative challenge dismissed on the grounds that it has made a thorough assessment of past allegations of violations of IHL, and taken this fully into account as part of its overall assessment of risk. The government argues that it relies on classified information when carrying out risk assessments to decide whether to grant licences. This evidence was reviewed in closed proceedings on 1 and 2 February 2023, meaning that much of the court’s deliberations, as well as the evidence itself, will not be publicly disclosed at any point, including to the claimants, making it harder to successfully challenge the government in open sessions without knowing the evidential basis of its decision making.

On 6 June 2023, the High Court rejected the grounds for challenge brought by CAAT, finding that the then Secretary of State for International Trade was not acting irrationally in their decision to licence arms sales to the Saudi-led Coalition. This is despite the fact that evidence of breaches of IHL were dismissed by the government if they were not subject to assessment by the Joint Incidents Assessment Team (JIAT), which was coordinated by the Saudi-led coalition and has been proven to be partial.