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US Arms and Yemen (and Libya)

Jurisdiction

United States of America

Locale

Armed Conflict in Yemen, Armed Conflict in Libya

Recipient State

United Arab Emirates, Saudi Arabia

Status

Ongoing

In late 2020, New York Center for Foreign Policy Affairs (NYCFPA) and Human Rights Solidarity initiated a legal challenge against decisions taken by the Trump administration to approve the sale of F-35 jets and drones to the United Arab Emirates (UAE), which has been involved in the Yemen conflict. This shift took place in the broader context of heightened challenges by the Presidency against the role and legitimacy of the ATT and its ability to constrain US activity as a leading global arms exporter. The matter first entered the courts in late 2020, with the claimants calling for the

of allegedly rushed decision-making that led to the authorisation of licences for the export of arms to the UAE in light of the risk of their use in armed conflict in Yemen and Libya.

This case is still pending before a District Court in the US with the judge’s ruling on a motion to dismiss filed by the US government and decision on whether to proceed to trial awaited. 

In a separate instance, in March 2023, seven Yemeni nationals brought a case against defence contractors, Saudi Arabian and UAE military officials, and US Secretary of State Antony Blinken and Pentagon Chief Lloyd Austin in the district court of Washington DC. The complaint is based on egregious harm caused to the plaintiffs by two specific bombing incidents, which targeted a wedding in Sanaban on 7 October 2015 and a funeral in Sana’a on 8 October 2016 respectively.

This case is presently awaiting a response from the defendants.

Latest developments

Case Analysis

Two legal challenges have been initiated in the US. The first challenge, brought in late 2020 by NYCFPA and Human Rights Solidarity focuses on procedural issues surrounding the US State Department's decision-making process allowing the export of arms to the UAE. The second challenge was brought in March 2023 by seven Yemeni nationals to seek injunctive relief and damages on the basis that they suffered significant bodily harm and property loss due to attacks by the Saudi-led Coalition on civilians with US-made arms.

Rather than challenging specific licensing decisions, the Application for Judicial Review has focused on the procedural inadequacies of policy decisions taken by the State Department that risk leading to the regular export of arms to the UAE. The specific basis of the legal action is the sale of $23 billion worth of military goods, including advanced fighter jets, drones and munitions, to the UAE.

The defendants have not engaged with the substantive elements of the export decision that has been challenged, and the government has instead responded by invoking procedural claims of a lack of

and the of licencing decisions to attempt to have the case thrown out.

Given the scale and reach of US arms export policy, the potential impact of a court judgement in the claimant’s favour is clear. However, the political sensitivity and national security interests that underlie arms exports, and broader US foreign policy, make it foreseeable that if placed under judicial scrutiny, the State Department could claim that the export decision was based on classified evidence that cannot be shared and that the government holds the prerogative to decide on such largely political matters, and consequently, that they cannot be the subject of challenge.

The challenge remains pending and so the merits of the decision to export arms to this destination are yet to be considered in close detail.

The case put forth by the Yemeni nationals in March 2023 has been brought on their own behalf. The plaintiffs also brought this action on behalf of others similarly-situated current and former victims of serious international law violations committed by Saudi and UAE officials, which international authorities have held likely amount to international crimes, including extrajudicial killings and torture. It seeks injunctive relief and monetary damages for the injury caused by such violations, sought on the basis that decisions to approve arms sales to Saudi Arabia and UAE are “arbitrary and capricious”. The claimants further argue that US defence contractors are “unjustly enriched” through the sales of weapons to Saudi Arabia and UAE.

The defendants have not yet responded to the case and so the merits of the claim are yet to be considered.

Legal challenges in the US have sought to judicially review the licensing decisions of the Department of State in administrative proceedings and seek injunctive relief pursuant to governing legislation, which provides for the ability to set aside decisions that are ‘arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law’. US Administrative Procedure Act (APA), S.706 (2)(a)

The relevant domestic legislation:

  • prohibits the export of US arms in all instances except inter alia where they would ‘strengthen national security and promote world peace’. US Arms Export Control Act (AECA)
  • places limitations on military assistance provided in situations where the recipient country is involved in an ongoing armed conflict or in gross human rights violations. US Foreign Assistance Act
  • allows non-US citizens to file lawsuits in US federal courts for certain violations of international law. Alien Tort Statute (ATS)
  • allows for civil suits in the US against individuals who, acting in an official capacity for any foreign nation, commit torture and/or extrajudicial killing. Torture Victim Protection Act (TVPA)

The competence to approve the export of arms and military goods is vested in the State Department, who acts on behalf of the President. A valid and reasoned justification must be provided for all licensing decisions as well as if the licensing authority wishes to depart from prior arms export policies.

High value exports are also subject to a vote by the House of Representatives and the Senate. While their vote against a certain export can be vetoed by the President, that veto can then be overridden by a majority in Congress.

The US is a signatory to the ATT but has not yet ratified it. The administration has promised to change the US’ current position on the ATT. In February 2023 the Biden administration issued a Memorandum on United States Conventional Arms Transfer Policy, which emphasises a higher human rights standard for arms transfer assessments. That said, the new policy has not resulted in any changes in the US’s position on or engagement with the ATT.

For a more detailed overview of the US framework, see this briefing by the Congressional Research Service and this primer by the Centre for Civilians in Conflict and American Bar Association,

The Application for Judicial Review has been brought by two NGO claimants – the New York Center for Foreign Policy Affairs (NYCFPA) and Human Rights Solidarity. They are joined in this case by two associations of the families of victims of air attacks in Libya that involved UAE operated weapons, as well as several named ‘Refugee Plaintiffs’ who were survivors of air raids against a detention centre for refugees and undocumented migrants in Libya reportedly carried out by the UAE. The claimants were represented by Matthew Collette of Massey & Gail LLP.

A second class complaint has been brought by seven Yemeni nationals who are being represented by Terrence Collingsworth of International Rights Advocates. The plaintiffs represent the victims of two separate bombings in the country: a wedding in Sanaban on 7 October 2015 and a funeral in Sana’a on 8 October 2016.

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

Themes

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While the NYCFPA and Human Rights Solidarity argues that its interests are affected by US export policy as an NGO working on challenging illegal arms exports, the US State Department has argued that the claimant has not been directly injured by the contested export decision and therefore does not have standing to challenge its legality.

Meanwhile, the seven Yemeni nationals have legal standing in US Courts under the Alien Tort Statute (ATS).

Read more about whether claimants have been granted standing in other jurisdictions

In the matter of the Application for Judicial Review, the US State Department has claimed that arms export decisions are non-justiciable as they are political questions that are subject to ‘unreviewable agency discretion’. This has not yet been considered by the Courts.

Read more about the issue of justiciability in other jurisdictions

The US is a signatory to the ATT but has not ratified it.

Read more about the applicability of the ATT and the EU Common Position across the challenges

Matter not yet considered in proceedings.

Read more about the issue of transparency in other jurisdictions

Cases

A claim is still pending before the US courts, with the Court’s decision on whether to dismiss the case or proceed to trial still awaited. Click ‘explore case’ to find out about the case in more detail and access all case documents.

Case status

Ongoing

Application for Judicial Review against the US Department of State and US Secretary of State

Explore case

The plaintiffs call for the review of a series of decisions that permitted the export of military goods to the UAE, arguing that the government’s process was rushed and arbitrary, did not follow all required procedural measures and lacked a valid and reasoned justification. The judge’s decision on whether to dismiss the case or proceed to trial is still awaited.

Key Case Documents

View all case documents

14.04.2021

Amended complaint brought against the US Department of State

Read in full

18.06.2021

Opposition to the State Department’s Motion to Dismiss

Read in full

12.05.2021

State Department Motion to Dismiss the Complaint

Read in full
Ongoing

Civil Complaint by Yemeni nationals to seek injunctive relief and damages

Explore case

The plaintiffs seek injunctive relief and damages on the basis that they suffered significant bodily harm and property loss due to attacks by the Saudi-led Coalition on civilians with US-made arms. The plaintiffs are currently awaiting a response from the defendants.

Key Case Documents

View all case documents

02.03.2023

Class Complaint for injunctive relief and damges

Read in full

Timeline

FILTERS

02 Mar 2023

Challenge 2

Complaint filed in the district court of Washington DC in the US seeking injunctive relief and damages.

Read complaint here

16 Jul 2021

Challenge 1

Government response in support of motion to dismiss. The State Department defends its arguments based on lack of standing, non-justiciability and argues that the Court should not allow for external actors to intrude on sensitive US foreign policy and national security considerations.

18 Jun 2021

Challenge 1

Plaintiffs' response to motion to dismiss. The plaintiffs maintain that they have the requisite standing and interest to challenge the contested decision and that the Court is competent to scrutinise it.

Read the plaintiff's opposition to the State Department’s Motion to Dismiss

12 May 2021

Challenge 1

Government Response. State Department files a motion to dismiss the claim, on the grounds of lack of standing of the plaintiffs and the non-justiciability of the claim, invoking national security considerations.

Read the motion to dismiss

14 Apr 2021

Challenge 1

Amended complaint filed, adding additional plaintiffs who had been direct victims of air attacks by the UAE.

Read the amended complaint

20 Dec 2020

Challenge 1

Claim enters the courts. Complaint filed before the US District Court for the District of Columbia seeking the judicial review of an authorisation to export arms to the UAE.

Read the original complaint here

01 Nov 2020

Challenge 1

Announcement by the Secretary of State of its decision to export arms and military goods to the UAE.

Analysis

04 June 2022

Saudi-led Airstrikes in Yemen Have Been Called War Crimes. Many Relied on US Support.

Joyce Sohyun Lee, Meg Kelly, and Atthar Mirza | Washington Post

Analysis conducted by the Washington Post reveals the extent of US support provided to air force squadrons involved in the Saudi-led Coalition’s campaign in Yemen.

15 February 2022

Human Rights, Civilian Harm, and Arms Sales: A Primer on US Law and Policy

John Ramming Chappell and Brittany Benowitz | Center for Civilians in Conflict and American Bar Association

This primer seeks to inform oversight and advocacy efforts by identifying the relevant sources of US law governing arms transfers, compiling existing human rights protections and oversight mechanisms in these sources of law, and clarifying the authorities of different US government entities.

21 July 2021

Biden's DOJ Is Using A Ridiculous Argument To Defend A Controversial Trump-Era Arms Deal

Akbar Shahid Ahmed | Huffington Post

This article critiques the argument put forth by the US administration that the sales of arms to the UAE are disconnected from ongoing human rights abuses by its forces.

12 January 2021

Lawsuit Threatens $23bn Weapons Sale to UAE

Joe Gould | Defense News

This article provides coverage of the complaint against the US State Department for arms sales to the UAE.

30 December 2020

Pompeo and State Department Face Legal Action over $23bn UAE Arms Sale

Sheren Khalel | Middle East Eye

This article outlines the initial complaint submitted by the NYCFPA in December 2020.

29 December 2020

Trump Administration Facing Legal Action over ‘Rushed’ Sale of Arms to UAE

Samuel Lovett | The Independent

This article provides an overview of the case introduced by NYCFPA, and the main aspects of their argument and opposition to the decision of the Secretary of State.

01 January 1970

In late 2020, New York Center for Foreign Policy Affairs (NYCFPA) and Human Rights Solidarity initiated a legal challenge against decisions taken by the Trump administration to approve the sale of F-35 jets and drones to the United Arab Emirates (UAE), which has been involved in the Yemen conflict....

Contact & More Information

If you would like to know more about the Application for Judicial Review, please get in touch with our primary contact Justin Russell by email. If you would like to know more about the complaint brought by the Yemeni nationals, please get in touch with our primary contact Terrence Collingsworth by email

Find out more about the work of the claimants at their website:

New York Center for Foreign Policy Affairs

Human Rights Solidarity

International Rights Advocates