On 10 July 2017 the UK High Court delivered its open judgment in a high-profile challenge to the UK arms exports to Saudi Arabia, brought by the Campaign Against Arms Trade. A separate closed judgment was delivered based on the confidential evidence. As readers will be aware, the case involves various domestic and international law considerations.
The primary question was whether the Secretary of State for International Trade (the Government) was legally obliged to suspend extant and cease granting new export licences to the Kingdom of Saudi Arabia. Such an obligation would stem from the requirement to deny such licences where there is “a clear risk that the arms might be used in the commission of a serious violation of International Humanitarian Law”.
This condition is contained in Criterion 2 of the Common Rules Governing the Control of Exports of Military Technology and Equipment (European Council Common Position 2008/944/CFSP, December 2008). The Government adopted much of the Common Position as Guidance under s.9 of the Export Control Act 2002 and it accordingly represents the policy that will be applied when considering the grant of export licences. The Consolidated Criteria are thus intended to ensure the UK’s compliance with the UN Arms Trade Treaty (ATT), and the text of Criterion 2 links to its Article 7.
This blog post sets out initial thoughts on the open judgment, specifically focusing on its approach to ‘serious violation’ and ‘clear risk’, before examining the deference granted to the executive and its implications for the fulfilment of the ATT’s overarching purpose. Ultimately unsuccessful, the claim underscores the narrow ambit of judicial review and the unwillingness of UK courts to become embroiled in the merits of certain government action.
The arguments of the parties covered the interpretation of ‘serious violation’ in Criterion 2 and, implicitly, the ATT. The Government had advanced a definition of ‘serious violation’ importing the same elements as war crimes, including the intent of the perpetrator, and submitted that “the term ‘serious violation’ has a particular meaning as a matter of IHL and is synonymous with ‘war crimes’ and ‘grave breaches’”. This position has previously been comprehensively analysed in this forum by Ed Robinson.
Drawing from paragraph 2.11 of the User’s Guide (Common Position, Article 13), the Court implicitly diverts from the Government’s position, concluding that “the term ‘serious violation’ is a general term in International Humanitarian Law which includes ‘grave breaches’ and ‘war crimes’…“ [para 16 of the open judgment].
By emphasising ‘includes’, the Court arguably implies that the list of ‘serious violations’ is broader than the Government’s submission. This distinction is also evident in the Court’s approach to the mens rea, acknowledging that “Article 8 of the ICC Statute requires a mental element for a ‘grave’ breach i.e. a wilful or deliberate or intentional act.” It goes on to state that “the generic term ‘serious breach’ would include reckless as well as deliberate or intentional acts” .
Despite any interpretative steps that could be inferred, the Court however refrains from directly applying the relevant rules of international law. Providing an overview of the evidence submitted by NGOs and other organisations, and notably:
“paus[ing] to observe that these materials represent a substantial body of evidence suggesting that the Coalition has committed serious breaches of International Law in the course of its engagement in the Yemen conflict” ,
the Court does not rule on whether ‘serious violations’ have taken place. It is cognisant of its limited role when it comments that “it was not the function of this Court to find in these proceedings that Saudi Arabia had breached international law” .
The gravamen of the Claimant’s claim was a public law challenge of the Government’s alleged ‘irrationality’ – that the open evidence “raised a presumption of a ‘clear risk’ under Criterion 2c which could not rationally rebutted” . This materialised through three grounds:
- Failure to ask correct questions or make sufficient inquiries’
- Failure to apply the ‘suspension mechanism’’ and
- Irrational conclusion that Criterion 2c was not satisfied. 
In reply, the Government argued that the decision-making processes had been conducted at the highest levels of government, and on the basis of careful assessments of relevant information, much of which is derived from confidential diplomatic and military sources . Importantly, the Government characterised the question it was required to ask as prospective and predictive; “[k]nowing what [it] knows, is there a clear risk that materials [it supplies] to foreign states might be used in breach of International Humanitarian Law?” .
In determining whether the Government had acted irrationally, the Court outlined an approach which aimed at evaluating the scope and reliability of the relevant materials that the Government availed itself of, and understanding the processes, procedures, and actual operational practice of interpretation and evaluation .
The evidence detailed “a rigorous and robust, multi-layered process of analysis carried out by numerous expert Government and military personnel” . It also highlighted a high degree of UK access to and knowledge of Saudi Arabian military operations, arising from extensive co-operation and communication between the two governments at the uppermost diplomatic and military echelons.
On the evidence, the Court rejected all three of the Claimant’s grounds. Importantly, it accepted the Government’s assertion that Criterion 2c “is focused on a prospective assessment based on an overall judgment of all the information and materials which [the Defendant] considers appropriate and has available to it.” . It noted that although “past and present conduct is one indicator as to future behaviour and attitude towards international law”, it is not determinative, citing paragraph 2.13 of the Consolidated Criteria’s User’s Guide. This served to reduce the Claimant’s evidence of alleged violations to a factor among many warranting consideration.
The Court further relied on the vast qualitative differential between the evidence of the parties. It accepted that the Defendant possessed significant levels of sophisticated knowledge, and considered that this knowledge was given “anxious scrutiny…[in] the essential rationality and rigour of the [Defendant’s] process” . In contrast, it noted that the Claimant’s “open source material is only part of the picture”  and detailed the relative weaknesses of their evidence [201.ii)]. This aided the Court’s conclusion that “no sustainable public law criticism of the scope of the inquiries made on [the Government’s] behalf or the quality of the information available...” .
We suggest, however, that the Court’s confidence in the Government’s risk assessment procedures raises a serious question about the efficacy of the ‘clear risk’ threshold. ‘Clear risk’ is not defined by the Consolidated Criteria, nor by the ATT (which uses ‘overriding risk’). The judgment is littered with admissions of Governmental ignorance and deficiencies in information required to determine whether an IHL breach has occurred. Two examples of this are:
- “Up until 1st August 2016, the MoD was tracking 208 incidents of potential concern…Of these probable Coalition strikes, the MOD has been unable to identify a legitimate military target for the majority of strikes” . Further, by July 2016, the MoD had realised it was not possible for it to determine definitively whether there had been individual allegations of breaches of IHL with respect to each of the incidents logged in its Tracker ; and
- The October 2015 Foreign Office update to the Government:
“expressed concern at the “worrying levels of civilian casualties in some reports” and noted that “high levels of civilian casualties can raise concerns particularly around the proportionality criteria”. The 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” .
Gaps in Governmental knowledge such as these led Edward Bell, the Head of the ECO, to advise the Secretary of State:
“my gut tells me we should suspend [arms trade with the Saudis]. This would be prudent and cautious given the acknowledged gaps in Saudi operations” .
It is not readily apparent as to how, given the inability to properly determine whether there had been breaches, the Government could continue to inform itself appropriately as to the ‘clear risk’ of their occurrence. The Court, however, appears to downplay the significance of the above by acknowledging that “there would be inherent difficulties for a non-party to a conflict to reach a reliable view on breaches of [IHL] by another sovereign state” [181,ii)]. It points to the Government’s knowledge and experience of Saudi Arabia as making up for those knowledge gaps in its continued prospective assessment [201, iv)].
Deference to Executive
It is clear that the wide margin of judicial deference ultimately proved crucial to the decision. The judgment concludes that:
“In an area where the Court is not possessed of the institutional expertise to make the judgments in question, it should be especially cautious before interfering with a finely balanced decision reached after careful and anxious consideration by those who do have the relevant expertise to make the necessary judgments” .
This deference is both required by UK domestic law and provided for by the Common Position. Domestic judicial review is limited in scope, and the UK judiciary has frequently given substantial deference to the Government, particularly in the context of cases brought on matters of defence. It is well known that “the Courts will be very slow to review the exercise of prerogative powers…” and will avoid being drawn “into an area which, in the past, they have entered, if at all, with reluctance and the utmost circumspection” (per Lord Bingham in R v Jones). Further, the ‘User’s Guide’ identified that ultimately “individual judgment is still an essential part of the process, and Member States are fully entitled to their own interpretations” .
In the present case, the Court drew parallels to national security assessments, and noted that “as matters of judgement and policy [they] are recognised primarily as matters for the executive” . It further justified a wide latitude of deference by stating that “the particular context of this case necessitates that considerable respect should be accorded to the decision-maker by the court” .
While appearing to be a legally appropriate decision, a full understanding is hampered by an unknown quantity of the evidence and ratio unrevealed in the closed judgment. It was ultimately a case for judicial review in a sphere of government that the courts have traditionally granted the executive much leeway. The Campaign Against Arms Trade has stated that it intends to appeal the judgment, but given the robustness the Court attributed to the Government’s risk assessment procedures, and the overarching judicial deference in this area, an appeal will likely have difficulty.
This result may be unpalatable to some, particularly if viewed as a test of the efficacy of the ATT in achieving its stated purpose to “contribut[e] to international and regional peace, security and stability” and “reduce human suffering”. It serves as an example of the tension between universality and effectiveness that permeates the negotiation and implementation of many weapons treaties. In many instances, the exact steps that states need to take to be compliant with the ATT are unclear or open to domestic interpretation. For example, the treaty includes repeated use of phrases such as ‘pursuant to their national laws’, ‘where necessary’, and ‘may include’. Issues with the undefined ‘overriding risk’ were discussed above. This lack of clarity reflects the political trade-offs that were part of the negotiation process, and the present case has shown that these interpretive margins allow for ‘finely balanced decisions’ to fall on the side of continued arms trade.