The case and the High Court’s 2017 judgment have already received some commentary (see here). Simply put, the case concerns a public law challenge against the government’s continued approval of licenses for arms exports to Saudi Arabia, on the grounds, inter alia, that the Secretary of State’s conclusion that there is not a ‘clear risk that the items might be used in the commission of a serious violation of international humanitarian law’, in the context of the Saudi-led coalition in Yemen, was irrational (criterion 2(c) of the Consolidated Criteria set out in European Council Common Position 2008/944/CFSP and adopted by the Secretary of State as the policy to be followed in granting or refusing export licenses). The High Court found against the Campaign Against the Arms Trade, concluding that the determinations made by the Secretary of State permitting continued export of arms to Saudi Arabia were rational.
The present post focuses on what is submitted is an error of law made both by the government in its determinations as to whether to grant or refuse export licenses and by the High Court in its judgment. Specifically, both the government and the High Court appear to have mistakenly taken the view that a certain subjective mens rea threshold necessarily applies before one can say that there has been a serious violation of international humanitarian law. This issue has received some commentary in relation to the High Court hearings and judgment (see here and here). It is the purpose of the present post to set out clearly why no such subjective threshold (whether intention, recklessness, negligence or otherwise) applies at least as a general matter.
The Government’s Position and the High Court Judgment
The government’s submissions indicate a clear preoccupation with the question of whether or not particular acts alleged to be inconsistent with humanitarian law were intentional. For example, the regular updates on international humanitarian law in Yemen that are produced by the Middle East and North Africa Directorate in the Foreign and Commonwealth Office and that were sent to the Foreign Secretary contain frequent references to evidential insufficiency regarding a purported general subjective element in the determination of compliance with humanitarian law: ‘[t]he update notes that intent is a key element in assessing International Humanitarian Law compliance, and acknowledges that there is often insufficient information to determine intent’ (para 153 of High Court judgment). Indeed, in its skeleton argument (at para 38), the government argued that ‘serious violation’ was identical to ‘war crime’ (and thus incorporated the latter’s mens rea requirements).
Importantly, this arguably appears to have had an impact on the High Court’s approach to the law, as its judgment too suggests a preoccupation with a purported subjective element in its assessment of the evidence. This is notwithstanding the Court’s clarification early in the judgment that ‘serious violations of international humanitarian law’ and ‘war crimes’ are not identical concepts; the Court nonetheless seemed to take the view that a subjective standard (even if not intention) was still one component of the former concept: ‘[i]n our view, the generic term “serious breach” would include reckless as well as deliberate or intentional acts’ (para 18). Indeed, the Court still proceeded in some instances entirely to conflate the relevant international humanitarian law standards (which, as will be shown, do not generally contain a subjective threshold) and international criminal law standards (which do contain a subjective threshold, as they set out the conditions for individual criminal responsibility as opposed to State responsibility) (see, e.g., para 24 drawing on the international criminal law standard for proportionality). The impact of such an approach on the Court’s interpretation and application of the law is clear in the following statement that wrongly attributes a subjective test to the international humanitarian law rule on distinction:
The fact that civilian casualties have occurred does not without more mean that a breach of International Humanitarian Law has taken place, still less a serious breach. Customary international law and International Humanitarian Law have long recognised that civilian casualties in military conflicts will occur. The ‘Principle of Distinction’ prohibits intentional attacks against civilians … (para 208) (emphasis added)
This reflects a clear error of law: international humanitarian law prohibits attacks against civilians, whether intentional, reckless, negligent or simply mistaken (as shown below). The potential importance of this error for the Court’s conclusions is clear when it states in its concluding paragraphs that the ‘Secretary of State was rationally entitled to conclude as follows: (i) the Coalition were not deliberately targeting civilians …’ (para 210).
The idea of a subjective threshold clearly played an important role in the government’s and High Court’s reasoning. It is clear that there is no explicit reference to a subjective threshold in criterion 2(c) itself (quoted above). Any such threshold would therefore need to come from one of three sources, each of which is implicated in criterion 2(c): general international law (specifically the law of State responsibility), international humanitarian law, or the notion of ‘serious violations’. It will be shown that under none does such a threshold exist as a general matter.
General International Law
In many areas, international law is not concerned with questions of intention, recklessness, negligence or other ‘subjective’ standards of responsibility. There are exceptions (see, e.g. Article II of the 1948 Convention Against Genocide, on which see here), though it is instructive that no general rule was set out in this regard in the International Law Commission’s 2001 Articles on State Responsibility (ASR), with the choice instead being left to specific (primary) rules of international law. Indeed, as stated in the commentary to Article 2 ASR, ‘[i]n the absence of any specific requirement of a mental element in terms of the primary obligation [e.g. the rules of international humanitarian law], it is only the act of a State that matters, independently of any intention’ (para 10, Commentary to Article 2 ASR). The general position under international law has been set out clearly by James Crawford:
Once more, it should be stressed, State responsibility is predicated on a principle of “objective” liability, in the sense that once the breach of an obligation owed under a primary rule of international law is established, this is prima facie sufficient to engage the secondary consequences of responsibility. Unless otherwise provided, no delinquency, culpability or mens rea need be proved … And this conclusion is desirable as a matter of policy, since the “intention” underlying State conduct is a notoriously difficult idea, quite apart from questions of proof (Crawford, State Responsibility: The General Part (CUP, 2013), p 61–2).
This illustrates the non-exceptional nature of ‘objective’ responsibility in international law, that is, the ubiquity of international legal obligations the breach of which does not depend on any subjective element such as intention or recklessness. Indeed, against this background, one might presume the absence of any such element without a clear indication in the particular primary rule at issue. In the case of criterion 2(c), any such subjective element would have to be manifest in either the particular rules of international humanitarian law or in the notion of ‘serious violations’ thereof.
International Humanitarian Law
The quotes above indicate that the government and High Court took the view that the relevant rules of international humanitarian law themselves contain a subjective element. This, however, does not appear to be the case at least for certain of the most important relevant rules. There are a number of rules of humanitarian law that are in issue in this particular context, including the principles of distinction (between lawful and unlawful targets) (Articles 48, 51(2) and 52(2) of Additional Protocol I to the Geneva Conventions, Article 13(2) of Additional Protocol II) and proportionality (between expected civilian casualties and anticipated military advantage) (Articles 51(5)(b) and 57 of Additional Protocol I). Notwithstanding the limited application of the so-called Hague rules to non-international armed conflicts as a matter of treaty-based humanitarian law, it is uncontroversial that they apply as a matter of custom (see 2005 ICRC Customary IHL Study).
Rather than examine all of the relevant rules, let us consider briefly the principle of distinction, given that this was one of those rules to which the High Court attributed a certain mens rea requirement (see above). With respect to the principle’s application to individuals, Article 13(2) of Additional Protocol II states ‘[t]he civilian population as such, as well as individual civilians, shall not be the object of attack.’ The ICRC Customary Law Study expresses the principle in the following terms: ‘The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.’ The rule is expressed in objective terms, with no reference to the intention or state of mind of the particular actor. Nor is a subjective element present in any of the definitions of the terms used in these sources (e.g. the definitions of ‘civilian’ in Article 50(1) of Additional Protocol I and Rule 5 of the ICRC Study are objective—and the controversy over the definition of ‘civilian’ in non-international armed conflicts does not concern this point).
There is also no indication in the travaux of the treaty rules on distinction that a subjective element was intended. On the contrary, the context of these provisions confirms their objective content. For example, Article 85(3) of Additional Protocol I includes as a grave breach (i.e. those violations that entail individual, in addition to State, responsibility) ‘making the civilian population or individual civilians the object of attack’, only ‘when committed wilfully’. The specific inclusion in the criminal law standard of a mens rea requirement as a supplement to the basic principle of distinction (the humanitarian law standard) confirms the absence of such a requirement in that basic principle itself.
There has been some practice suggesting an intention requirement within the principle of distinction. Most explicitly, Israel has suggested, with reference to the Additional Protocol I standard, that ‘a commander‘s intent is critical in reviewing the principle of distinction during armed conflict’ (Ministry of Foreign Affairs, The Operation in Gaza, 27 December 2008 – 18 January 2009: Factual and Legal Aspects, para 110). As demonstrated above, however, this is not accurate: whilst intent is fundamental in the case of individual criminal responsibility, the humanitarian law standard, a violation of which engages the State’s responsibility, does not contain any such subjective threshold. It is also worth emphasising that such limited practice could not approach the threshold required in order to effect a modification in the law through subsequent practice.
Other relevant rules of international humanitarian law do potentially incorporate a certain subjective element. The principle of proportionality, for example, prohibits attacks that ‘may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’ (Article 51(5)(b) of Additional Protocol I). References to ‘may be expected’ and ‘military advantage anticipated’ indicate the relevance of the information available at the time of the attack. However, even this does not necessarily set out a truly subjective test. The Trial Chamber of the International Criminal Tribunal for the former Yugosavia, for example, in Prosecutor v Galić (at para 58) viewed this as setting a reasonable person test.
In the absence of any generally-applicable subjective standard either in the law of State responsibility or international humanitarian law (where, as noted, at least certain rules, such as the principle of distinction, are purely objective), such a general standard could only otherwise come from the reference in criterion 2(c) to ‘serious violations’ of humanitarian law. This position was also argued by the UK government in its skeleton argument: ‘the term “serious violation” has a particular meaning as a matter of IHL and is synonymous with “war crimes” and “grave breaches”’ (para 38). Furthermore, as noted, the High Court took the view that the notion of ‘serious violation’ incorporated a certain subjective test (para 18 of the High Court judgment).
This particular point has been explored well in a previous blog post, and I will not repeat the points made there. It suffices to repeat here that the notion of ‘serious violations’, though associated with, is not identical to the notion of ‘war crimes’. As the International Criminal Tribunal for the former Yugoslavia noted in its Tadić jurisdiction decision, ‘serious violation’ is defined as ‘a breach of a rule protecting important values, and the breach must involve grave consequences for the victim’ (para 94). This was one amongst other (e.g. mens rea) conditions for individual criminal responsibility to follow from a violation of international humanitarian law; the categories of ‘serious violation’ and ‘war crime’ are thus not coterminous. Similarly, the notion of ‘serious violations’ of humanitarian law in Article 7 of the Arms Trade Treaty, on which criterion 2(c) is based, does not appear to have been intended to refer exclusively to war crimes (and thus incorporating a subjective element) (see Clapham, Casey-Maslen, Giacca and Parker, The Arms Trade Treaty: A Commentary (OUP 2016), paras 7.39 to 7.49).
Both the government and the High Court appear to have wrongly taken the view that the reference in criterion 2(c) to ‘serious violations of international humanitarian law’ includes a general subjective standard, whether one of intention, recklessness or otherwise. At times, this appeared to lead to a conflation of international humanitarian law and international criminal law. This is not an accurate reflection of the law. Given the absence of a general subjective standard in the law of State responsibility, and the entirely ordinary omission of a fault-based standard for responsibility in international law, any subjective standard would have to be expressed clearly in either the relevant primary rules of international humanitarian law or in the concept of ‘serious violations’ thereof. It is clear that there is no general subjective element in the relevant rules of humanitarian law, and certainly in the case of the principle of distinction the test is entirely objective. Moreover, it seems clear that the concept of ‘serious violations’ was not intended as incorporating any mens rea requirement.
References in the High Court judgment and the government’s submissions either to a general subjective threshold before one can determine that there have been ‘serious violations of international humanitarian law’ or to a specific requirement of intent or recklessness in finding a breach of the principle of distinction are thus errors of law. Indeed, this is one of the grounds on which the Campaign Against the Arms Trade is appealing (see especially Claimant’s Reply to Respondents’ Updated Statement (28 March 2018) at paras 12–15), and it is one of the grounds on which the Court of Appeal granted leave (see Court of Appeal ruling of 4 May 2018 at para 13). Of course, the test in criterion 2(c) is forward-looking, requiring the government to assess the risk that arms would be used in the commission of serious violations of humanitarian law; determining whether there is sufficient evidence to conclude that past violations have occurred is thus not exhaustive of the test. It is, however, an important consideration in applying that test, and it is therefore essential that the content of the relevant rules be set out clearly.