Campaign Against Arms Trade, R (On the Application Of) v The Secretary of State for International Trade

Factual and Procedural Background

This appeal concerns the lawfulness of the UK Government's grant of export licences for arms and military equipment to the Kingdom of Saudi Arabia, potentially for use in the Yemen conflict. The appellant, Campaign Against Arms Trade ("CAAT"), sought judicial review of the Secretary of State for International Trade's failure to suspend existing licences and the decision to continue granting new licences. The Divisional Court dismissed CAAT's claim in July 2017. The appeal proceeded with both open and closed materials, and this document is the court’s open judgment.

The Yemen conflict context involves Saudi Arabia and a coalition of nine states conducting military operations against Houthi rebels controlling parts of Yemen since 2015. There have been numerous allegations of serious breaches of international humanitarian law ("IHL") by Saudi Arabia, including indiscriminate airstrikes affecting civilians and civilian infrastructure, supported by extensive reports from the UN, NGOs, and other bodies.

Legally, the export of arms is regulated by the Export Control Act 2002 and related Orders, and guided by the EU Common Position 2008/944/CGSP, which requires case-by-case assessment of export licence applications against criteria including respect for human rights and IHL (Criterion 2). The UK Government adopted Consolidated Criteria based on the EU Common Position, with guidance provided in a User's Guide outlining best practices for assessing risk of serious violations of IHL.

CAAT initiated judicial review proceedings in December 2015, challenging the Secretary of State’s ongoing decisions to grant export licences to Saudi Arabia. The Divisional Court heard the claim in early 2017 and dismissed it after detailed consideration of extensive open and closed evidence, including government assessments, reports from NGOs and the UN, and information on Saudi Arabia’s conduct and investigations into alleged violations.

Legal Issues Presented

1. Whether the Secretary of State lawfully assessed the risk of serious violations of international humanitarian law in granting export licences to Saudi Arabia under Criterion 2c of the EU Common Position and the Consolidated Criteria.
2. Whether the Secretary of State failed to ask relevant questions identified in the User's Guide, including those concerning Saudi Arabia's legislation, accountability mechanisms, and judiciary relating to IHL violations.
3. Whether the Divisional Court applied the correct standard of judicial review in assessing the Secretary of State's decision.
4. Whether the term "serious violations" of IHL in Criterion 2c should be interpreted as synonymous with "grave breaches" or war crimes, or more broadly, and the legal implications of that interpretation.

Arguments of the Parties

Appellant's Arguments

• The Secretary of State failed to properly consider whether there was a historic pattern of breaches of IHL by Saudi Arabia, which was central to assessing the risk of future violations.
• CAAT contended that the Secretary of State did not reach any conclusion, even privately, on the question of past violations, amounting to a public law error and irrationality.
• The Secretary of State failed to ask essential questions from the User's Guide regarding Saudi Arabia’s legal framework and accountability mechanisms for IHL violations.
• CAAT argued that the Secretary of State wrongly equated "serious violations" with war crimes or grave breaches requiring a mental element such as intent, which is incorrect under international law.
• CAAT did not seek suspension of licences but requested that the Secretary of State re-take the licensing decisions on a lawful basis, taking into account all relevant evidence.

Respondent's Arguments (Secretary of State)

• The assessment required under Criterion 2c is prospective and predictive, involving complex evaluation of risk based on a wide range of information, including intelligence and diplomatic contacts not available to NGOs or the public.
• The Secretary of State was entitled to assess the risk of future violations without making definitive findings on each past incident, which would be impractical and inappropriate for a non-party to the conflict.
• The User's Guide provides non-binding best practice guidance; the Secretary of State was not required to ask every question listed therein if it was not relevant to the circumstances.
• The Divisional Court correctly applied the standard of judicial review, giving due respect to the executive's institutional expertise and discretion in a finely balanced decision.
• The term "serious violations" encompasses but is not limited to grave breaches or war crimes; the Divisional Court correctly recognized the broader scope of IHL obligations beyond individual criminal responsibility.
• The Secretary of State emphasized the UK Government's extensive engagement with Saudi Arabia to promote compliance with IHL and the sophisticated, multi-layered analysis conducted by government officials.

Interveners' Arguments

• Major NGOs and the UN Panel of Experts have conducted rigorous, detailed investigations on the ground in Yemen, providing substantial and well-founded evidence of serious IHL violations by the Saudi-led Coalition.
• NGOs have repeatedly sought information and responses from the Coalition, which have largely gone unanswered, underscoring concerns about accountability.
• The Interveners contended that the Secretary of State should have given proper weight to this evidence and engaged with it critically, rather than discounting it in favor of government intelligence alone.

Table of Precedents Cited

Court's Reasoning and Analysis

The court emphasized that judicial review is limited to assessing the lawfulness of the Secretary of State’s decision-making process, not the merits of arms export policy. The threshold for irrationality is high, requiring that the process adopted be one not reasonably open to the Secretary of State.

On Ground 1, the court found that the Secretary of State failed to make any assessment, even in closed sessions, as to whether there was a pattern of historic violations of IHL by Saudi Arabia. Given the volume and quality of evidence from NGOs, the UN Panel, and other sources indicating serious breaches, the court held that such an assessment was centrally relevant and required by Criterion 2c and the User’s Guide. The failure to attempt this assessment was irrational and unlawful.

The court acknowledged that while making definitive findings on every past incident would be impractical, an overall evaluation of whether a pattern of violations existed was feasible and necessary. This assessment was critical to evaluating the future risk of violations and the effectiveness of UK engagement with Saudi Arabia to promote compliance with IHL.

On Ground 2, the court rejected the argument that the Secretary of State was required to ask every specific question listed in the User's Guide, including those about Saudi Arabia's national legislation and judiciary. The User's Guide is non-binding best practice guidance, and the Secretary of State was entitled to exercise judgment on which questions were relevant in the circumstances. The court found no irrationality in the Secretary of State’s approach on this ground.

On Ground 4, concerning the interpretation of "serious violations" of IHL, the court held that the Divisional Court correctly interpreted the term as broader than "grave breaches" or war crimes and not synonymous with individual criminal responsibility. The Secretary of State did not err in his understanding or application of this term in the decision-making process.

Overall, the court allowed the appeal on Ground 1, concluding that the Secretary of State’s failure to assess the existence of a pattern of past violations was unlawful, but dismissed the appeal on Grounds 2 and 4.

Holding and Implications

The court’s core ruling is to allow the appeal on Ground 1 and dismiss the other grounds. The Secretary of State is required to reconsider the export licensing decisions in accordance with the correct legal approach, specifically by making a proper assessment of whether there is a pattern of past serious violations of IHL by Saudi Arabia.

The direct effect is that the Secretary of State must re-evaluate export licences with due regard to this requirement. The decision does not set new precedent beyond clarifying the scope of the Secretary of State’s duty under Criterion 2c and the User’s Guide, nor does it alter the standard of judicial review applicable to such decisions.