UK Arms and Yemen
Armed Conflict in Yemen
Litigation against arms transfers in the context of the Yemen war first entered the UK courts in 2016. Two claims for
A procedure where a court can review the lawfulness of a decision or action by a public body, including the government
International Humanitarian Law (IHL) is the legal framework that governs activities during armed conflict.
On 6 June 2023, the High Court delivered a judgement on the second Judicial Review, which included both open and closed proceedings. The Court rejected all four grounds of challenge, 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.
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Press Release: GLAN and Mwatana Appeal UK Arms Sales to KSA
This press release discusses GLAN and Mwatana's request to the UK Court of Appeal to appeal against the High Court's recent judgment on the UK government's arms sales to Saudi Arabia.
Opinion Piece: UK Arms Sales to Saudi Arabia: Making [Non]Sense of the Judgement
This blog discusses lessons learned and problematic aspects of the the UK High Court's judgment on CAAT’s legal challenge to the UK government, over its arms sales to Saudi Arabia for use in the...
Case Development: Judgement by High Court on second Judicial Review against the Secretary of State for International Trade
The High Court dismissed the grounds for challenge, finding that the then Secretary of State for International Trade was not acting irrationally in their decision to licence arms sales to the...
Press Release: Arms Trade Campaigners Defiant After Disappointing High Court Judgement Over Saudi Arabia Arms Sales
This press release reflects on the High Court’s judgement to CAAT’s legal challenge to the UK government, over its arms sales to Saudi Arabia for use in the war in Yemen.
Opinion Piece: What's Next for CAAT's Court Case on Arms to Saudi Arabia?
This blog post reflects on the process of CAAT's legal challenge to the UK government, over its arms sales to Saudi Arabia for use in the war in Yemen.
Case development: Hearing in High Court closes
Proceedings in the High Court close on schedule. A judgement is expected in spring/summer 2023.
Case development: Hearing in High Court opens
Three days of open and closed proceedings begin in CAAT’s judicial review challenging the decision of the Secretary of State for International Trade to renew arms exports licences to Saudi Arabia.
Case Development: CAAT's skeleton argument for substantive hearing 31 January
The second claim for judicial review was filed after the Secretary of State decided to resume granting new licences for arms sales to Saudi Arabia. Campaign Against Arms Trade (CAAT) is arguing...
Case development: New hearing date set
The High Court has set a hearing date for CAAT's ongoing challenge. This will take place over three days in the week of 30th January 2023, and will involve both open and closed proceedings.
Case Development: Order Granting Permission to Intervene (Mwatana)
The High Court grants Mwatana for Human Rights permission to act as an intervenor in Campaign Against Arms Trade’s (CAAT) judicial review.
Case Development: High Court Ruling Granting Permission for Judicial Review
This document formally notifies that the claimant’s application for permission to apply for judicial review is granted on the basis that the application is ‘arguable’.
Proceedings in the UK have not substantively scrutinised the merits of the decisions by the Secretary of State to grant licences for the export of arms and military equipment to Saudi Arabia. Rather, as a result of the more limited grounds for judicial review under UK domestic law, the Court is only able to assess whether the government’s approach to decision-making was in line with the public law standard of rationality, a very high threshold that is particularly challenging to satisfy when it comes to government decision-making on sensitive matters such as arms exports.
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.
The competence to grant, amend, suspend or revoke licences for the export of arms and military equipment in the UK is vested in the Secretary of State for International Trade per the terms of the 2008 Export Control Order, Articles 26 and 32.
Licensing activity is mainly regulated by the 2002 Export Control Act. Prior to the UK’s exit from the EU, and during the period to which the current challenge relates, the Consolidated Criteria informed UK licensing decision making, in a manner that took into account the UK’s external obligations under the EU Common Position and was interpreted in light of the EU User’s Guide. On December 8th 2021, the UK issued new guidance that amended the Consolidated Criteria in a manner that risks further stifling the opportunity to strike down government decision making on arms exports in judicial proceedings.
For a more detailed overview of the UK framework, see the Annual Report on Strategic Export Controls here.
Four other NGOs intervened in both proceedings: Amnesty International, Human Rights Watch, Oxfam, and Rights Watch (UK). In April 2021, Mwatana for Human Rights was granted permission to intervene in Challenge 2.
To get in touch with the claimants and their legal representatives, please see here.
The classified nature of the evidence relied on by the government in its licencing decisions has created issues of oversight and accountability, and has resulted in the cases taking place, in part, in closed proceedings. CAAT was represented by two Special Advocates, as in the first judicial review, with the required security clearance, who were able to view and challenge the closed evidence.Read more about the lack of transparency in other jurisdictions
The court has affirmed the legal standing of NGOs to bring administrative challenges of this nature.Read more about whether claimants have been granted standing in other jurisdiction
The merits of licensing decisions by the UK Secretary of State have not been considered in close detail, and proceedings have instead considered the narrower question of the rationality of the government’s approach to licensing decisions.Read more about the issue of justiciability in other jurisdictions
At the time of proceedings, the EU Common Position was given domestic legal effect in the UK through the UK’s Consolidated Criteria, but it was not being fully implemented in the UK’s licensing practice, and the EU User’s Guide was not seen as imposing any enforceable procedural obligations.Read more about the applicability of the ATT and the EU Common Position in other jurisdictions
While the possibility to halt all exports remains possible, the Court has not ruled to this effect and has instead allowed extant cases to remain operative. See Challenge 1.Read more about whether claimants have been granted remedy in other jurisdictions
Two separate claims have been brought in the UK courts, with the most recent case pending on appeal following a hearing at the High Court in January 2023. Click ‘explore case’ to find out about each case in more detail and access all case documents.
First Administrative Challenge against the Secretary of State for International TradeExplore case
This case sought to challenge the government’s decision to grant licences for the export of military goods to Saudi Arabia and its justification that there was no clear risk that these items might be involved in IHL violations. On appeal, the court ruled that the Secretary of State had failed to properly consider evidence of a pattern of IHL violations by Saudi Arabia in Yemen and instructed the Secretary of State to not grant new licences.
Second Administrative Challenge against the Secretary of State for International TradeExplore case
This claim for judicial review was filed after the then Secretary of State decided to resume granting new licences for arms sales to Saudi Arabia concluding that, following a review of the UK’s licensing process, there was no ‘serious risk’ of IHL violations and no evidence that Saudi activity in Yemen amounted to a pattern of IHL violations but rather that any violations of IHL are ‘isolated’ incidents. On 6 June 2023, the High Court found that the decision was not irrational.
06 Jun 2023
The High Court dismissed the grounds for challenge, 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.Read the judgement here
02 Feb 2023
Proceedings in the High Court close on schedule. A judgement is expected in spring/summer 2023.
31 Jan 2023
Three days of both open and closed proceedings begin in CAAT’s judicial review challenging the decision of the Secretary of State for International Trade to renew arms exports licences to Saudi Arabia. In the open hearing the Claimant 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), which are often not available and noted that half of all “credible” allegations of IHL violations attributed to Saudi Arabia were placed in the “insufficient information” category when making assessments.CAAT's Skeleton argument for substantive hearing 31 January
13 Jan 2022
A closed court session takes place.
20 Apr 2021
Permission granted to CAAT to advance its challenge to the High Court.Read the High Court ruling here
22 Jan 2021
Government response. The government responds to CAAT's application for judicial review and submits that permission for judicial review should be refused. It submits that there is no basis to suggest that the Secretary of States decision-making approach is irrational, and that there is no basis for asserting that the Secretary of State’s conclusion that there is no ‘pattern’ of violations is irrational.Read the government's response here
26 Oct 2020
Case enters the courts. CAAT submits an application for judicial review to the High Court.Read the application for judicial review
20 Jun 2019
Judgement issued by the Court of Appeal. CAAT's appeal is partly accepted. The Secretary of State is instructed not to grant new licences for the sale or transfer of arms or military equipment to Saudi Arabia that might be used in Yemen, but is not required to suspend or revoke existing licences.Read the judgement of the Court of Appeal and court order here
09-11 Apr 2019
CAAT's appeal is heard at the Court of Appeal.Read the transcript of the hearing at the Court of Appeal
04 May 2018
Permission granted to CAAT to appeal the decision of the High Court of Justice at the Court of Appeal.Read the judgement of the Court of Appeal here
10 Jul 2017
Judgement of the High Court issued. The claim is dismissed on all grounds.Read the Judgement of the High Court of Justice
07-08 Feb 2017
CAAT's application for judicial review is heard at the High Court of Justice.Read the transcripts of the hearing at the High Court of Justice
30 Jun 2016
The High Court hearing takes place and CAAT is granted permission to proceed to judicial review.Read the High Court of Justice order granting permission to apply for judicial review
18 Apr 2016
A High Court judge refuses CAAT's application for judicial review, without a hearing. CAAT applies for a full High Court hearing for permission to bring a Judicial Review.Read the High Court's refusal of permission to proceed
09 Mar 2016
Case enters the courts. CAAT submits a request for judicial review to the High Court of Justice (Divisional Court).Read CAAT's submission here
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