The British government’s transfer of weapons to Saudi Arabia, which is leading a coalition engaged in armed conflict in Yemen, was deemed unlawful by the UK Court of Appeal on June 21. This prompted the government to suspend issuing of any new arms export licences to Saudi Arabia that could be used in Yemen while it considers the implications of the ruling for its decision-making process.
During the Yemen conflict, which has already resulted in estimates of almost 100,000 deaths, the Saudi-led coalition has been accused of several violations of international humanitarian law by the United Nations and some major non-governmental organisations, including Amnesty International and Human Rights Watch. For example, a 2016 report by a UN panel of experts raised concerns about the widespread bombing of the populated city of Sa’dah in May 2015 by the Saudi-led coalition and whether it was proportionate.
The appeal judges accepted the argument made by the Campaign Against Arms Trade in the case and found that the UK had never clearly stated whether the Saudi-led coalition committed past violations of international law. But such an assessment is required by the relevant rules on international arms transfers.
International, European and British laws require governments of arms-exporting countries to authorise all arms transfers directed abroad, assessing whether there is a “clear risk” that the weapons will be used to commit serious violations of international law, among other things, by the final recipient. This means the government must make a judgement on the future, a difficult task in scenarios such as Yemen where the situation is volatile and cannot be easily predicted. But it’s possible to look at the past behaviour of the country that will receive the weapons, to make an assessment of its future conduct.
The British government has always justified its decision to authorise transfers of weapons to Saudi Arabia by looking purely at the future, avoiding any legal assessment of Saudi Arabia’s past behaviour. In fact, the UK has always justified its decisions to sell arms by stressing its efforts to train and support Saudis to avoid violations of international law, as well as Saudi Arabia’s own commitment to respect such laws in the future.
But the Court of Appeal found that the British government’s failure to assess the past conduct of Saudi Arabia against international law made its decision-making irrational and so unlawful.
Legally, the Court of Appeal cannot make decisions on whether Britain should transfer weapons to Saudi Arabia or not. This is a choice for the government and democratically judged by the parliament and British people. Nevertheless, the court can evaluate how the government makes its choices. In particular, the court can indicate which information the government needs to take into account before making a decision. In this case, the judges declared the government should have expressed its view on the legality of the Saudi Arabia’s conduct, regardless of how difficult that was. The judges ruled that the failure to take a stance on this undermined the whole process of authorisation of the arms transfers directed to Saudi Arabia.
This judgement will not prevent the government from exporting weapons to the Saudis in the future. Nevertheless, it prompted Liam Fox, the secretary of state for international trade, to tell parliament that the UK will stop issuing new export licences to Saudi Arabia while it reviews its decision-making process.
The UK ruling came on the same day that the US Senate blocked an US$8 billion US arms sales deal to Saudi Arabia because of concerns over human rights violations. While, no judges were involved, the bipartisan decision of the US Senate also concerned the pre-export decision-making process.
The judgment is a reminder that ministers cannot avoid their responsibility under international law. While the decision has no legal effects outside the UK, it could have important implications for the future enforcement of international law on the issue of arms transfers. International transfers of legal weapons are not generally banned by international law, but are prohibited when the weapons are or might be involved in the violation of the values and principles that guide the whole international community, such as the protection of civilians during armed conflicts.
The relevant domestic and international laws require governments to undertake a pre-export assessment on every arms transfer before authorising it. Countries cannot transfer weapons if they are completely blind to whether the recipients of the weapons will respect international law. Such blindness would mean accepting a very high risk of supporting military actions that the UK would never consider lawful if committed by its own armed forces.