Rigorous Assessment of Historical IHL Violations in Arms Export Licensing: CAAT v Secretary of State for International Trade

Introduction

The case of Campaign Against Arms Trade (CAAT) v. Secretary of State for International Trade ([2019] WLR(D) 343) addresses the legality of the UK Government's decision to grant export licenses for arms and military equipment to Saudi Arabia amidst ongoing conflicts in Yemen. CAAT challenged the failure of the Secretary of State to suspend existing licenses and the continuation of new licenses, arguing that Saudi Arabia had committed serious breaches of international humanitarian law (IHL) during the Yemen conflict.

The key issues revolve around the proper assessment of the risk that exported arms might contribute to IHL violations, the sufficiency of the Secretary of State's inquiries into Saudi Arabia's compliance with IHL, and the broader implications for arms trade regulations.

Summary of the Judgment

The Court of Appeal, in reviewing the case, examined whether the Secretary of State for International Trade lawfully assessed the risk of IHL violations when granting arms export licenses to Saudi Arabia. The Divisional Court had previously dismissed CAAT's claim, asserting that the Secretary of State acted within his discretion and based his decisions on a comprehensive array of evidence, including open and closed sources.

CAAT appealed on four grounds, with the primary contention being that the Secretary of State failed to adequately assess Saudi Arabia's historical record concerning IHL violations, rendering his decision irrational and unlawful. The Court of Appeal allowed the appeal on this ground, holding that the decision-making process lacked a thorough assessment of past IHL breaches, which was essential under the Export Control Order 2008 and the EU Common Position criteria.

Consequently, the matter was remitted to the Secretary of State to reconsider the export licenses in light of the court's findings, emphasizing the necessity for a more rigorous evaluation of historical IHL compliance.

Analysis

Precedents Cited

The judgment extensively references previous legal precedents to establish the framework for judicial review and the duty of public authorities. Notably, cases like Secretary of State for Education and Science v Tameside MBC [1977] AC 1014 and R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (Admin) were pivotal in defining the "Tameside duty." This duty mandates that decision-makers must take reasonable steps to inform themselves with relevant information before making a decision.

Additionally, the court drew upon the principles established in R (Hoareau and Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin) to emphasize that judicial review is not an avenue to contest policy decisions but to ensure lawful decision-making processes.

The court also acknowledged the authority of international bodies and NGOs like Amnesty International and Human Rights Watch, referencing cases such as R (EM (Eritrea)) v SSHD [2014] AC 134 (UKSC), which underscored the credibility and importance of reports from these organizations in informing public and governmental understanding of IHL compliance.

Legal Reasoning

The crux of the court's reasoning centered on the interpretation and application of Criterion 2c from the EU Common Position, which requires assessing whether there is a "clear risk" that exported arms might be used in serious violations of IHL. The court found that the Secretary of State failed to adequately assess Saudi Arabia's historical compliance with IHL, specifically neglecting to determine if a "pattern of violations" existed.

The court emphasized that while the Secretary of State had access to extensive information beyond what NGOs and the UN Panel of Experts possessed, the failure to engage with CAAT's substantial evidence indicating a pattern of IHL breaches rendered the decision-making process irrational. The court highlighted that assessing past violations is integral to predicting future compliance and risks associated with arms exports.

Furthermore, the court clarified that the Secretary of State was not bound by non-binding guidance like the User's Guide but was required to follow the legal standards set out in the Export Control Order 2008 and the EU Common Position. The decision to omit a systematic assessment of historical violations breached the duty of rationality, as established in prior cases.

Impact

This judgment sets a significant precedent for future arms export licensing decisions, underscoring the necessity for thorough historical assessments of a recipient country's compliance with IHL. Governments must ensure that export decisions are grounded in a comprehensive evaluation of past behavior to mitigate risks of contributing to future violations.

The ruling also reinforces the role of NGOs and international bodies in shaping policy decisions by providing credible evidence that must be duly considered. Failure to engage with such evidence may lead to judicial intervention, ensuring that export controls effectively uphold international humanitarian standards.

Moreover, this case may influence legislative and regulatory frameworks beyond the UK, encouraging other jurisdictions to adopt similar rigorous assessment processes in arms export licensing to align with international law and ethical standards.

Complex Concepts Simplified

International Humanitarian Law (IHL)

IHL, also known as the laws of war, aims to limit the effects of armed conflict by protecting those who are not participating in hostilities and by regulating the means and methods of warfare. Key principles include distinction (differentiating between civilians and combatants), proportionality (ensuring that military advantage outweighs civilian harm), and precautions in attack (taking all feasible measures to minimize civilian casualties).

Export Control Order 2008

This is UK legislation that governs the export of military and dual-use goods. It sets out criteria and procedures that must be followed to ensure that exports do not contribute to human rights abuses or be used in the commission of serious crimes or violations of IHL.

Judicial Review

A judicial review is a process by which courts examine the lawfulness of decisions or actions made by public bodies. It does not reassess the merits of the decision itself but ensures that the decision was made following proper procedures and legal principles.

Conclusion

The judgment in CAAT v. Secretary of State for International Trade serves as a pivotal reminder of the imperative for governments to rigorously assess the historical compliance of arms export recipients with international humanitarian law. By allowing the appeal on the grounds of insufficient historical assessment, the court reinforced the necessity for lawful and rational decision-making processes in arms trade, ensuring that exports do not inadvertently support or exacerbate human rights abuses.

This case not only bolsters the accountability of governmental bodies in the arms trade but also highlights the indispensable role of credible evidence from NGOs and international organizations in safeguarding humanitarian principles. Moving forward, governments are urged to integrate comprehensive historical evaluations into their arms export frameworks to uphold international standards and prevent the perpetuation of conflict-related atrocities.

Ultimately, the ruling supports the broader legal context of ensuring that state actions, especially those with significant ethical and humanitarian implications like arms exports, are subject to stringent legal scrutiny to maintain the rule of law and protect human rights globally.