US Arms and Yemen, Libya

Application for Judicial Review

The 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.

Rather than challenging specific licensing decisions, the Application for Judicial Review brought by the NYCFPA and Human Rights Solidarity has focused on the government’s refusal to meet the standards of the Arms Export Control Act (AECA) and the Administrative Procedures Act (APA), in its arms sales to the UAE despite having knowledge of the state being out of compliance with the Foreign Military Sales (FMS) programme. The specific target of the legal action is the sale of US$23 billion worth of military goods, including advanced fighter jets, drones, and munitions, to the UAE.

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 defendants have not engaged with the substantive elements of the export decision, but instead responded by invoking procedural claims of a lack of

Given the scale and reach of US arms exports and concerns about its underlying law and policy, the potential impact of a favourable judgement is significant. However, the political sensitivity around export decisions as matters of national security and US foreign policy means that the State Department may argue that the export decision was based on classified evidence that cannot be shared, that the government holds the prerogative to decide on such largely political matters, and consequently, that they cannot be the subject of judicial challenge. 

Civil Complaint by Yemeni Nationals

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 political question doctrine remains a key issue that is contested between the plaintiffs and the defendants. The US government defendants maintain their position that the claims raised by the plaintiffs are fundamentally a non-justiciable political question and that the Court does not have the authority to “second-guess” the government’s decisions. The defence contractor defendants reiterate the same arguments, while noting that they are subject to ‘derivative sovereign immunity’, where they should not be held liable for actions conducted under the government’s directive. The plaintiffs are seeing to make the argument that the crux of their claims lies with restrictions placed on US Foreign Military Sales (FMS) by the AECA and FAA. As such, the plaintiffs are not questioning the government’s foreign policy decisions but rather are asking the Court for an injunction ordering the defendants to comply with these restrictions.

The question of justiciability has been a repeated theme both within US courts and outside. In a recent case concerning US arms transfers to Israel the courts similarly ruled that the claims were fundamentally non-justiciable political questions, though this is not the “preferred outcome”. As such, if the plaintiffs do win the case, it would be a highly notable step towards holding the US government accountable for their arms export decisions.