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Home Posts tagged "Saudi Arabia"

Appealing the High Court’s Judgment in the Public Law Challenge against UK Arms Export Licenses to Saudi Arabia

Published on November 29, 2018        Author: 
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In May of this year, the Court of Appeal granted leave to appeal the 2017 High Court ruling in Campaign Against the Arms Trade v Secretary of State for International Trade.

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. Read the rest of this entry…

 

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 Use of Cluster Munitions by Saudi Arabia in Yemen and the Responsibility of the United Kingdom

Published on March 7, 2017        Author: 
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In December 2016, after repeated denials, Ahmed Asiri, a spokesman for the Saudi-led coalition fighting in Yemen, said: ‘It has become apparent that there was limited use by the coalition of the UK-manufactured BL755 cluster munition in Yemen’. This admission opened up questions about the United Kingdom’s potential responsibility for the use of cluster munitions by the Kingdom of Saudi Arabia. Britain’s Defence Secretary Michael Fallon informed the Commons that the munitions used by Saudi Arabia had been delivered in the 1980s, well in advance of the entry into force for the United Kingdom of the Convention on Cluster Munitions (‘the Convention’) on 1 November 2010. The treaty was implemented through the Cluster Munitions (Prohibitions) Act 2010 (‘the Act’).

 A judicial review of the granting of export licences to Saudi Arabia is currently taking place in the English High Court, following an application by the Campaign Against the Arms Trade (see here). The application focuses on export licences for weapons in general, and follows allegations of violations of international humanitarian law by Saudi Arabia, including, but not limited, its use of cluster munitions.

In this post, I focus on the specific responsibility of the UK arising under the Convention on Cluster Munitions for the use by Saudi Arabia of UK-provided aircraft, and support by British personnel.

The post addresses three issues: first, whether issuing export licences for aircraft to Saudi Arabia can be construed as a breach of Article 1(c) of the Convention; second, whether the exception on interoperability in Article 21 of the Convention covers the acts by the UK in respect to the use of cluster munitions by Saudi Arabia; and third, whether the UK’s responsibility could also arise also under Article 16 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (‘the 2001 Articles’). Read the rest of this entry…