We have previously reported1 on the Court of Appeal's (CoA) decision in June 2019 to uphold an appeal by the Campaign Against Arms Trade (CAAT) against the UK Secretary of State for International Trade (the Secretary), concerning military exports to Saudi Arabia which might be used in the conflict in Yemen. The Secretary was directed by the CoA to review his previous decisions to issue licences and, in particular, to determine if there had been a pattern of breaches of international humanitarian law (IHL) by Saudi Arabia and its coalition partners. During this review, the Government announced that it would not grant any new licences for exports to Saudi Arabia and its coalition partners that might be used in the conflict in Yemen.
On 7 July 2020, the (new) Secretary informed2 Parliament that the Government had completed its review and had not identified a historic pattern of IHL breaches, with the result that the previous licensing decisions presumably remained unaffected. Moreover, the Government would begin the process of clearing the backlog of applications that had formed since the CoA's judgment.3
Review of decisions to issue existing licences
The key issue in the CoA case was Criterion 2c of the Consolidated EU and National Arms Export Licensing Criteria, which the Government uses to assess export licence applications. Criterion 2c states that a licence will not be granted "if there is a clear risk that the items might be used in the commission of a serious violation of international humanitarian law".
In this context, the CoA found that the Secretary had failed to determine whether there had been a historic pattern of breaches of IHL by Saudi Arabia and its coalition partners. As a result, the license decision-making process was irrational and therefore unlawful. The Secretary had been directed to reconsider the licensing decisions in accordance with the correct legal approach.
The Secretary's statement on 7 July 2020 states that, in order to address the CoA's judgment, the Government had reviewed its licensing decisions using a revised methodology to assess alleged breaches of IHL. This methodology involved two elements:
- First, where an allegation relating specifically to fixed-wing aircraft had been made, the Government conducted a detailed analysis of the allegation and evaluated whether it possibly constituted a breach of IHL. The focus on fixed-wing aircraft was intended to reflect "the factual circumstances that the court proceedings concerned" – to wit, CAAT's evidence focussed on airstrikes by Saudi Arabia. Importantly, a "possible" breach was regarded by the Government as a breach for the purposes of its review. The Government then sought to determine whether any breaches were indicative of: (i) any patterns of non-compliance; (ii) a lack of commitment on the part of Saudi Arabia to comply with IHL; and/or (iii) a lack of capacity or systemic weaknesses which might give rise to a clear risk of IHL breaches.
- Second, the Government also looked for patterns across incidents which had been assessed as unlikely to be IHL breaches, and also those for which there was insufficient information to make an assessment.
On the basis of this methodology, the Government did not identify any patterns, trends or systemic weaknesses relating to IHL breaches, concluding that the incidents which it had assessed as being possible violations of IHL were "isolated incidents". It further concluded that, despite these isolated incidents, "Saudi Arabia has a genuine intent and the capacity to comply with IHL", and therefore, for the purpose of Criterion 2c, there was not a clear risk that arms or military equipment exported to Saudi Arabia might be used in the commission of serious IHL violations. Therefore the original decisions to issue existing licences were presumably unaffected (although this is not expressly stated in Secretary's statement).
Existing licence applications
Following the CoA's decision last June, the Government gave an undertaking to the CoA that it would not grant any new licences for the export of arms or military equipment to Saudi Arabia for possible use in Yemen, pending completion of its review. It then gave a broader commitment to Parliament that it would not grant such licences for exports to Saudi Arabia's coalition partners (UAE, Kuwait, Bahrain and Egypt).
The Government also stopped new registrations for six new Open General Export Licences (OGEL)4 . In July, it published revised versions of these OGELs which did not permit exports to Saudi Arabia and its coalition partners5 . In September 2019, the Secretary informed Parliament of certain breaches of the abovementioned undertaking and commitment.6 Subsequently in December the Government again made changes to certain OGELs, and also issued new OGELs and Open General Trade Control Licences (OGTCL), which reflected restrictions on exports and brokering to Saudi Arabia and a wider range of coalition partners: Bahrain, Egypt, Jordan, Kuwait, Sudan and UAE.7
The Secretary's statement on 7 July states that, since the Government has complied with the CoA's decision, the Government's undertaking and broader commitment to Parliament have both fallen away. The Government will now therefore begin the process of clearing the backlog of licence applications that has built up since the CoA's judgment. Notably, the Secretary's statement did not refer to the OGELs and OGTCLs that have been affected by the undertaking and commitment, but presumably these will again be revised in the near future to permit (in some degree) exports and brokering to Saudi Arabia and its coalition partners.
The Government has advised that it may take some months to work through the backlog of existing licence applications, and this process may cause delays in processing new applications. This will effect both UK exporters, and non-UK companies that have UK exporters in their supply chains. As noted above, we anticipate that affected OGELs and OGTCLs will be revised to permit (to some degree) exports and brokering to Saudi Arabia and coalition partners, which may give UK exporters some more options. Meanwhile, restrictions on exports to Saudi Arabia remain in place in other countries: Germany, for example, recently extended its export restrictions on Saudi Arabia until 31 December 2020.8 Exports to Saudi Arabia will therefore continue to pose challenges for many defence and aerospace players.
1 "UK Government must reconsider arms export licences to Saudi Arabia", James Ford, Jason Hungerford and Paul Whitfield-Jones, 9 July 2019, Mayer Brown website: https://www.mayerbrown.com/en/perspectives-events/publications/2019/07/uk-government-must-reconsider-arms-export-licences-to-saudi-arabia
2 See "Notice to exporters 2020/11: progressing licence applications for military exports to Saudi Arabia" dated 7 July 2020, available at: https://www.gov.uk/government/publications/notice-to-exporters-202011-progressing-licence-applications-for-military-exports-to-saudi-arabia/notice-to-exporters-202011-progressing-licence-applications-for-military-exports-to-saudi-arabia; and the Secretary's written statement to Parliament on 7 July 2020 available at: https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2020-07-07/HCWS339/
3 The Secretary also informed Parliament that the government would withdraw the appeal it had filed with the Supreme Court challenging the CoA's June 2019 judgment.
4 "Notice to exporters 2019/09: Court of Appeal judgment about military exports to Saudi Arabia", 25 June 2019, available at: https://www.gov.uk/government/publications/notice-to-exporters-201909-court-of-appeal-judgment-about-military-exports-to-saudi-arabia/notice-to-exporters-201909-court-of-appeal-judgment-about-military-exports-to-saudi-arabia
5 "Notice to exporters 2019/11: 6 new OGELs issued", 17 July 2019, available at: https://www.gov.uk/government/publications/notice-to-exporters-201911-6-new-ogels-issued/notice-to-exporters-201911-6-new-ogels-issued
6 "Statement on breaches of the undertaking given to the Court of Appeal not to grant new licences for export to Saudi Arabia of arms and military equipment for possible use in the conflict in Yemen", 26 September 2019, available at: https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2019-09-26/HCWS1833/
7 "Notice to exporters 2019/16: open general licences updated", 5 December 2019, available at: https://www.gov.uk/government/publications/notice-to-exporters-201916-open-general-licences-updated/notice-to-exporters-201916-open-general-licences-updated
8 "Germany sells arms to members of Saudi-led Yemen coalition", 2 April 2020, dw.com, available at: https://www.dw.com/en/germany-sells-arms-to-members-of-saudi-led-yemen-coalition/a-53000044