Campaigners have lost a high-profile case calling for UK arms sales to Saudi Arabia to be stopped over humanitarian concerns, as the high court ruled exports could continue.
Campaign Against the Arms Trade (CAAT) launched the judicial review of the government’s decision to continue granting weapons-export licences to Saudi Arabia despite widespread concern over the civilian death toll of its two-year bombing campaign in Yemen.
CAAT called the ruling a “green light” for the UK government to sell arms to “brutal dictatorships and human rights abusers”.
Delivering an open judgment in the high court in London, Lord Justice Burnett, who heard the case with Mr Justice Haddon-Cave, said: “We have concluded that the material decisions of the secretary of state were lawful. We therefore dismiss the claim.”
The court is also handing down a closed judgment, following a case in which half of the evidence was heard in secret on national security grounds.
UK and EU arms sales rules state that export licences cannot be granted if there is a “clear risk” that the equipment could be used to break international humanitarian law. Licences are signed off by the secretary of state for international trade, Liam Fox.
The UK government’s arms sales to Saudi Arabia have come under sustained scrutiny from NGOs and MPs since the start of the campaign in Yemen, where the Saudi-led bombing campaign is accused of killing civilians and damaging vital infrastructure. But the kingdom is the UK’s largest weapons client and has bought more than £3bn of British arms in the past two years.
The case, which was heard over three days in February, included uncomfortable disclosures for the government, including documents in which the export policy chief told the business secretary, Sajid Javid, then in charge of licensing, “my gut tells me we should suspend [weapons exports to the country]”.
Documents obtained by the Guardian showed that the UK was preparing to suspend exports after the bombing of a funeral in Yemen in October 2016 killed 140 civilians. But the foreign secretary, Boris Johnson, advised Fox that sales should continue, adding: “The ‘clear risk’ threshold for refusal … has not yet been reached.”
CAAT presented “many hundreds of pages” of reports from the UN, European parliament, Red Cross, Médecins Sans Frontières, Amnesty International and others documenting airstrikes on schools, hospitals and a water well in Yemen, as well as incidents of mass civilian casualties.
The reports “represent a substantial body of evidence suggesting that the coalition has committed serious breaches of international humanitarian law in the course of its engagement in the Yemen conflict”, the judges wrote. “However, this open source material is only part of the picture.”
Thanks to close military cooperation and diplomatic ties, the UK government has “considerable insight into the military systems, processes and procedures of Saudi Arabia adopted in Yemen”, the ruling said.
As the government faced increasing scrutiny of its arms sales to Saudi Arabia, the Foreign Office and the Ministry of Defence (MoD) devoted considerable energy to tracking the conflict’s impact on civilians, even though the UK is not part of the coalition, the case revealed.
The Foreign Office compiles a regular report on international humanitarian law in Yemen, based on information provided by the MoD. These reports frequently recorded concerns – the October 2015 update found “worrying levels of civilian casualties in some reports” – but said there was not enough evidence to establish whether these were deliberate.
Johnson sees all applications for weapons that are likely to be used by the Royal Saudi Air Force and provides a decision on all “particularly sensitive or finely balanced applications”, the court heard.
The Saudi government had conducted its own investigations into allegations of concern, the judges noted, dismissing CAAT’s concern that the Saudi civilian casualty tracking unit was working too slowly and had only reported on 5% of the incidents. The kingdom’s “growing efforts” were “of significance and a matter which the secretary of state was entitled to take into account” when deciding whether British weapons might be used to violate international humanitarian law.
There was “anxious scrutiny – indeed what seems like anguished scrutiny at some stages” within government of the decision to continue granting licences, the judges wrote. But the secretary of state was “rationally entitled” to decide that the Saudi-led coalition was not deliberately targeting civilians and was making efforts to improve its targeting processes, and so to continue granting licences.
Burnett said he would consider an application for an appeal, which CAAT and its solicitors, Leigh Day, said they would be lodging immediately.
The CAAT spokesman, Andrew Smith, said: “This is a very disappointing verdict and we are pursuing an appeal. If this verdict is upheld then it will be seen as a green light for government to continue arming and supporting brutal dictatorships and human rights abusers like Saudi Arabia that have shown a blatant disregard for international humanitarian law.
“Every day we are hearing new and horrifying stories about the humanitarian crisis that has been inflicted on the people of Yemen. Thousands have been killed while vital and lifesaving infrastructure has been destroyed.” The case had exposed the UK’s “toxic relationship” with Saudi Arabia, he added.
Rosa Curling of Leigh Day said: “The law is clear: where there is a clear risk UK arms might be used in the commission of serious violations of international law, arms sales cannot go ahead.
“Nothing in the open evidence, presented by the UK government to the court, suggests this risk does not exist in relation to arms to Saudi Arabia. Indeed, all the evidence we have seen from Yemen suggests the opposite: the risk is very real … Our government should not be allowing itself to be complicit in the grave violations of law taking place by the Saudi coalition in Yemen.”
James Lynch, Amnesty International’s head of arms control, said: “Irrespective of this ruling, the UK and other governments should end their shameless arms supplies to Saudi Arabia. They may amount to lucrative trade deals, but the UK risks aiding and abetting these terrible crimes.”
Mark Goldring, chief executive of Oxfam GB, said: “This sets back arms control 25 years and gives ministers free rein to sell arms to countries even where there is clear evidence they are breaching international humanitarian law. With little legal oversight on arms sales, it is now imperative that parliament holds the government to account.”
An online poll conducted by ICM for Avaaz at the weekend found that two-thirds of the 2,011 respondents opposed arms sales to Saudi Arabia, with 14% in support.