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Home Articles posted by Ed Robinson

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

Published on April 3, 2017        Author: 

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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. Read the rest of this entry…

 

The European Convention on Human Rights in Non-International Armed Conflict – Revisiting Serdar Mohammed

Published on August 22, 2016        Author: 

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The UK Government’s re-commitment in May to replacing the Human Rights Act (HRA) immediately followed the Supreme Court’s further hearings on one of the more controversial cases under the Act – the Serdar Mohammed claim against the Ministry of Defence (on which additional hearings are expected later this year). The claimant, who on the assumed facts was a Taliban commander detained by the UK military in Afghanistan for 110 days in 2010, alleges a breach of his right to liberty under the European Convention on Human Rights (ECHR).

As readers will recall, the lower courts upheld this claim, prompting controversy in the press and in academia. Preventative detention (or “internment”) of the enemy is widely regarded as an essential incident of armed conflict. The suggestion that the ECHR prohibited the UK from detaining a Taliban commander to prevent his engagement in hostilities against British forces raised obvious concerns about the application of the ECHR in armed conflict, also fuelling further criticism of the HRA.

Since international humanitarian law (IHL) norms designed for the context of hostilities do not prohibit internment in non-international armed conflicts (NIACs) like the Afghan conflict in 2010, much of the legal debate focused on the content of these norms and their relationship with the ECHR. The High Court decision, declining to use IHL to override the ECHR, was criticised as “an outright rejection of the applicability of IHL to the question of who may be detained for what reasons and following which procedure” in NIACs.

Rather than rehearsing the extensive debates (see a small sample here and here) over whether IHL norms authorise detention in NIACs, this post challenges an assumption about the interpretation of the ECHR which underlies the arguments raised by both parties to the claim. Its focus is on a specific provision of the ECHR and its application to situations like that in which the claimant was detained – state participation in NIACs outside their own territory (extra-territorial NIACs).

The result is an alternative approach, based on a context-sensitive interpretation of the ECHR complemented by IHL, which helps address the concern that the ECHR and HRA are inherently unsuited to conditions of armed conflict. Read the rest of this entry…