Arms Exports to Saudi Arabia in the High Court: what is a “serious violation of international humanitarian law”?

As readers will be aware, the UK High Court is presently considering a high-profile case challenging UK arms exports to Saudi Arabia. Arguments in the judicial review proceedings brought by Campaign Against Arms Trade were heard in February and judgment is awaited.

Although brought under English law, the case potentially implicates various international law questions. This post focuses on the interpretation of the expression “serious violation of international humanitarian law” (“IHL”) which the government appears to be advancing in the case. By narrowing the concept to include only war crimes, its position has significant implications for the international law regulation of the arms trade in general. This post will argue that the proposed definition should be rejected.

For further information on this and other international law issues arising in the case, the claimant has posted much of the open documentation produced by both sides on its website. This post draws heavily on those documents, and on the author’s notes of the open hearings.

The Issue Before the Court

The claimant challenges the government’s decisions to continue granting licences (and not to suspend existing licences) for arms exports to Saudi Arabia. That challenge is based primarily on alleged breaches of IHL by Saudi forces involved in the ongoing armed conflict in Yemen. Criterion 2(c) of the UK statutory guidance applicable to arms exports (the “Consolidated Criteria”) prohibits granting a licence “if there is a clear risk that the items might be used in the commission of a serious violation of international humanitarian law”. The claimants argue that given the evidence of previous breaches, the government should have concluded that such a clear risk existed.

Much of the analysis depends upon English administrative law rules for assessing government decisions. However, the nature of the risk to be considered – a serious violation of IHL – necessitates at least some engagement with international law. Not only does the expression directly refer to IHL, but it is identical to that used at Article 7 of the UN Arms Trade Treaty (“ATT”) of 2013, which also requires states to assess the risk of such violations when considering arms export licences.

The focus of this post is the effect of the qualifier “serious”, in both the Consolidated Criteria and the ATT. Since the Consolidated Criteria are supposed to be sufficient to ensure the UK’s compliance with the ATT, it appears that the government’s interpretation of the expression in the former would of necessity apply equally to the latter. This post will proceed on that basis.

Violations of IHL

IHL obligations arise under both treaty and customary law. Of particular relevance here are those obligations to be observed by states in launching an attack. They include prohibitions on targeting civilians, obligations to take all feasible precautions to minimise civilian losses, and a prohibition on launching an attack where such losses may be expected to be excessive in relation to the anticipated military advantage. Failure by a state or organised armed group to comply with these obligations will amount to a violation of IHL, giving rise to its responsibility under international law.

Certain specified violations of IHL are in addition capable of giving rise to criminal responsibility on the part of their individual perpetrators. These include violations described as “grave breaches” in the relevant IHL treaties, and other violations established as crimes under customary law. The Rome Statute of the International Criminal Court includes a list of war crimes over which that court has jurisdiction, comprising both grave breaches and some (but not all) of the customary crimes. In this post “war crimes” will be used to describe all of these categories of criminal breach.

In keeping with their criminal law nature, war crimes generally require not only that one of the specified IHL rules be breached, but that the individual perpetrator have a particular mental attitude in relation to their conduct. For the obligations of interest here, this requires at least knowledge of the probable consequences of the attack (see Ryan Goodman’s helpful summary of the difference in this respect between war crimes and other IHL breaches here). As Ryan’s summary makes clear, an attack which lacks the required intent or knowledge, but the consequences of which for civilians should have been known to be excessive or could have been reduced with further precautions, can violate IHL (giving rise to State responsibility) without amounting to a war crime (to which individual criminal responsibility attaches).

The Government’s Position

In its Skeleton Argument (p 38), the government claims that:

the term ‘serious violation’ has a particular meaning as a matter of IHL and is synonymous with ‘war crimes’ and ‘grave breaches’ as defined, in particular, in the four Geneva Conventions, Additional Protocol 1 and in Article 8 of the Rome Statute of the International Criminal Court.

This is followed by citation of a guide connected with the European Union’s Council Common Position on military exports, which includes a Criterion 2(c) identical to that in the Consolidated Criteria. The guide states that serious violations of IHL “include” grave breaches, and adds that the Rome Statute “includes other serious violations […] which it defines as war crimes”. It therefore mentions the same violations as the government, although its list is not stated to be exhaustive.

That the violations included in these definitions would amount to serious violations is uncontroversial. The issue is what is omitted. On its face, this formulation excludes all violations of IHL which do not amount to war crimes from constituting serious violations for these purposes.

The government’s wording could also raise a question as to whether war crimes established under customary law but not defined in the relevant treaties are included. This would be particularly relevant in a non-international armed conflict, where the treaty-defined war crimes are less extensive. However, this post will argue against limiting the definition to war crimes at all, whether or not those arising under customary law are included.

Implications of the Proposed Definition

On the government’s definition of a “serious violation”, however high the probability that the arms will be used for violations which are not war crimes, it would seemingly not require denial of a licence under Consolidated Criterion 2(c) or Article 7 of the ATT. Since not all IHL rules give rise to criminal liability, this narrows the range of conduct which can give rise to a violation. But most significantly, the use of mental elements devised for criminal liability appears inherently ill-suited to the assessment required in the arms exports context. Adding a need to predict the mental state of the relevant decision-makers (as the government has done) significantly increases the inherent difficulty associated with assessing the future probability of another state’s armed forces using certain equipment for IHL violations. Even when considering past violations as potential evidence of future risk, unless the state receiving the arms is prepared to share detailed and probably sensitive information about specific incidents, such a requirement will frequently make it difficult to conclude whether such violations were in fact serious. It also raises questions, not clearly answered in the government’s submissions, as to whose mental state must be considered: that of individual military personnel carrying out the attack, or their commanders, or some form of imputed intent of the recipient state as a whole?

It should be noted that, from the documents provided, it is unclear whether the government is in fact taking quite such a narrow approach to applying the test in practice. The first witness statement of Neil Crompton of the Foreign & Commonwealth Office (see paragraphs 30(c), 58 and 59) cites government documents which focus heavily on “deliberate” breaches. They do however seem to suggest that a “consistent pattern of non-deliberate incidents (with the same cause and without remedial actions being taken to address that cause)” would be considered. The statement also refers at one point to looking at the “actus reus” (and so perhaps by implication not the relevant mental state requirements) for war crimes under the Rome Statute. This statement might therefore suggest a somewhat less restrictive approach to the question of what amounts to a serious violation.

Nonetheless, the government’s oral arguments explicitly referred to the expression as importing the same elements as war crimes, including the attitude or intention of the perpetrator. Even if its application of the test involves a more nuanced interpretation than its legal argument suggests, that legal argument requires a clear response. The following sections will consider the grounds for assessing that argument. They will focus on the ATT, as the international instrument, rather than the Consolidated Criteria: however since Criterion 2(c) was introduced to the Consolidated Criteria as part of an update responding to the UK’s entry into the ATT, its use of the same expression should be interpreted consistently. Readers with an interest in further detail on the specific topic addressed here will find helpful discussion in Stuart Casey-Maslen’s chapter on Article 7 of the ATT in “The Arms Trade Treaty: A Commentary”.

“Serious Violation” as an IHL Term of Art?

The government’s suggestion that the expression “serious violation” has a “particular meaning as a matter of IHL” will be considered first.

Some of the documents issued by the International Committee of the Red Cross (“ICRC”) in connection with the ATT could be read as supportive of the government’s view in this regard. An explanatory note commences by remarking that “Serious violations of [IHL] are war crimes. The two terms are today interchangeable.” A separate ICRC leaflet comments that “’serious violation of IHL’ is another term for ‘war crime’”. A suggested list of “serious violations” in the ICRC’s “Practical Guide” on Arms Transfer Decisions only lists war crimes (although it does at least explicitly include customary war crimes as well as treaty ones).

None of these documents however specifically proposes importing the required mental elements of war crimes into the assessment, and two of the three include general descriptions of its meaning which focus on the effects of the breach or the values at stake without mentioning such an element. For instance the explanatory note mentioned above goes on to say that violations “are serious, and are war crimes, if they endanger protected persons (e.g. civilians, prisoners of war, the wounded and sick) or objects (e.g. civilian objects or infrastructure) or if they breach important values.”

Other sources might suggest a broader definition. Additional Protocol I to the Geneva Conventions refers at Article 90 to “facts alleged to be a grave breach […] [as defined in the relevant IHL treaties] or other serious violation [of those treaties]” (emphasis added), demonstrating that the concepts are not in that context synonymous. The ICRC commentary on that treaty (Articles 89 and 90) discusses possible categories of serious violation not amounting to grave breaches, including breaches which occur frequently or are systematically repeated.

In a similar vein, the claimant referred in oral argument to the ICTY Appeals Chamber’s highly influential jurisdiction ruling in Prosecutor v Tadić, which held that to be “serious” a violation of IHL “must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim”. The ruling did not describe the concept of a “serious” violation as co-extensive or synonymous with criminal liability, but rather as one specific condition of such liability. The same reasoning appears to underlie the formulation adopted by Philippe Sands and Andrew Clapham in a 2015 legal opinion which addressed the point.

The Tadić ruling and Additional Protocol I are of course not addressed to the interpretation of the ATT. However if as the government suggests the serious violation expression does indeed carry a particular meaning in IHL, its discussion in the context of a widely ratified IHL treaty and a landmark ruling of an international court presumably deserve some consideration.

By contrast, while certain treaties might appear to tie the concept of “serious violations” to war crimes (see here, at Article 8, here, at Article 15, here at Article 1 and here at Article 1), they only do so for the purpose of defining or labelling war crimes. They do not provide any support for the proposition that only war crimes can be serious violations.

“Serious Violation” as used in the ATT

The broader definition which some of the above sources suggest is supported by consideration of the ATT’s text and its object and purpose.

The ATT’s object as stated in Article 1 is “to […] establish the highest possible common international standards for regulating or improving the regulation of international trade in conventional arms” (as well as tackling the illicit arms trade and the risk of diversion). As its model for regulation focuses on the transferring state’s assessment of the risk of future breaches by the recipient, adopting an interpretation which as noted materially increases the difficulty of accurately carrying out such an assessment appears dubious. The purpose of the treaty, which includes “Reducing human suffering”, also supports interpreting “serious” by reference to the scale and impact of the breach on its victims rather than the mental state of the perpetrator.

The ordinary meaning of the word “serious” (“Weighty, grave; important, significant, of great consequence” under the most relevant definition in the Oxford English Dictionary) provides no support for a more limited view either. In this respect, it can usefully be compared with another provision of the ATT. Article 6, which sets out a separate restriction on exports which would be used for certain purposes, explicitly mentions “grave breaches […] or other war crimes […]”, instead of “serious violations”. Had the intention been to limit the conduct referred to in Article 7 in this way one would expect similarly explicit language to have been used instead of the more general formulation which was employed.

Failures to take all feasible precautions in attack, or to adhere to the principle of proportionality, breach IHL rules of fundamental importance. Where they involve grave consequences for their victims, they should be considered serious violations under the ATT regardless of the attacker’s intent. Accordingly, whatever the High Court may decide as to the process of risk assessment and the probability of violations required to prohibit exports, the narrow definition of a serious violation which appears to be advanced by the government should be clearly rejected.