“Criterion Two: Respect for human rights and fundamental freedoms in the country of final destination as well as respect by that country for international humanitarian law. - Having assessed the recipient country’s attitudes towards relevant principles established by international humanitarian rights instruments, Member States shall: (a) …; (b) exercise special caution and vigilance in granting licences, on a case-by-case basis and taking account of the nature of the equipment, to countries where serious violations of human rights have been established by the competent bodies of the United Nations, the European Union or by the Council of Europe; … - Having assessed the recipient country’s attitude towards relevant principles established by instruments of international humanitarian law, Member States shall: (c) deny an export licence if there is a clear risk that the military technology or equipment to be exported might be used in the commission of serious violations of international humanitarian law.” - Having assessed the recipient country’s attitudes towards relevant principles established by international humanitarian rights instruments, Member States shall: (a) …; (b) exercise special caution and vigilance in granting licences, on a case-by-case basis and taking account of the nature of the equipment, to countries where serious violations of human rights have been established by the competent bodies of the United Nations, the European Union or by the Council of Europe; … - Having assessed the recipient country’s attitude towards relevant principles established by instruments of international humanitarian law, Member States shall: (c) deny an export licence if there is a clear risk that the military technology or equipment to be exported might be used in the commission of serious violations of international humanitarian law.”
“While Member States, where appropriate, may also take into account the effect of proposed exports on their economic, social, commercial and industrial interests, these factors shall not affect the application of the above criteria.”
“The respect for human rights and fundamental freedoms in the country of final destination as well as respect by that country for international humanitarian law. Having assessed the recipient country’s attitudes towards relevant principles established by international humanitarian rights instruments, the Government will: a) …; b) exercise special caution and vigilance in granting licences, on a case-by-case basis and taking account of the nature of the equipment, to countries where serious violations of human rights have been established by the competent bodies of the UN, the Council of Europe or by the European Union; c) not grant 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 purpose of these best practices is to achieve greater consistency among Member States in the application of the criteria set out in Article 2 of [the EU Common Position] by identifying factors to be considered when assessing export licence applications. They are intended to share best practice in the interpretation of the criteria rather than to constitute a set of instructions; individual judgement is still an essential part of the process, and Member States are fully entitled to apply their own interpretations. The best practices are for the use of export licensing officials and other officials in government departments and agencies whose expertise inter alia in regional, legal (e.g. human rights, public international law), technical, development as well as security and military related questions should inform the decision-making process.”
“2.1. [The EU Common Position] applies to all exports of military technology or equipment by Member States … Thus a priori Criterion Two applies to exports to all recipient countries without any distinction. However, because Criterion Two establishes a link with the respect for human rights as well as respect for international humanitarian law in the country of final destination, special attention should be given to exports of military technology or equipment to countries where there are indications of human rights violations or violations of international humanitarian law.” “2.2. Information sources: A common EU base of information sources available to all member States consists of EU HOMs reports, EU human rights country strategies and in certain cases EU Council statements/conclusions on the respective recipient countries. These documents normally already take into account information available from other international bodies and information sources. However, because of the essential case-by- case analysis and the specificity of each licence application, addition information might be obtained as appropriate from: • Member States’ diplomatic missions and other governmental institutions, • Documentation from the United Nations, the ICRC and other international and regional bodies, • Reports from international NGOs, • Reports from local human rights NGOs and other reliable local sources, • Information from civil society.” “2.10. The relevant principles established by instruments of international humanitarian law. International humanitarian law … comprises rules which, in times of armed conflict, seek to protect people who are not or are no longer taking part in hostilities (e.g. civilians and wounded, sick and captured combatants), and to regulate the conduct of hostilities (i.e. the means and methods of warfare). It applies to situations of armed conflict and does not regulate when a State may lawfully use force. International humanitarian law imposes obligations on all parties to an armed conflict, including organised armed groups. The main principles of international humanitarian law applicable to the use of weapons in armed conflict are the rule of distinction, the rule against indiscriminate attacks, the rule of proportionality, the rule on feasible precautions, the rules on superfluous injury or unnecessary suffering and the rule on environmental protection. The most important instruments of international humanitarian law are the four Geneva Conventions of 1949 and their Additional Protocols of 1977. They are complemented by treaties on particular matters including prohibitions of certain weapons and the protection of certain categories of people and objects, such as children and cultural property …” “2.11. Serious violations of international humanitarian law include grave breaches of the four Geneva Conventions of 1949. Each Convention contains definitions of what constitutes grave breaches (Articles 50, 51, 130, 147 respectively). Articles 11 and 85 of Additional Protocol I of 1977 also include a broader range of acts to be regarded as grave breaches of that Protocol. For the list of these definitions, see Annex V. The Rome Statute of the International Criminal Court includes other serious violations of the laws and customs applicable in international and non- international armed conflict, which it defines as war crimes (Article 8 sub-sections b, c and e…)” “2.13 Clear risk. A thorough assessment of the risk that the proposed export of military technology or equipment will be used in the commission of a serious violation of international humanitarian law should include an inquiry into the recipient’s past and present record of respect for international humanitarian law, the recipient’s intentions as expressed through formal commitments and the recipient’s capacity to ensure that the equipment or technology transferred is used in a manner consistent with international humanitarian law and is not diverted or transferred to other destinations where it might be used for serious violations of this law. Isolated incidents of international humanitarian law violations are not necessarily indicative of the recipient country’s attitude towards international humanitarian law and may not by themselves be considered to constitute a basis for denying an arms transfer. Where a certain pattern of violations can be discerned or the recipient country has not taken appropriate steps to punish violations, this should give cause for serious concern. Common Article 1 of the Geneva Conventions is generally interpreted as conferring a responsibility on third party states not involved in an armed conflict to not encourage a party to an armed conflict to violate international humanitarian law, nor to take action that would assist in such violations, and to take appropriate steps to cause such violations to cease. They have a particular responsibility to intervene with states or armed groups over which they might have some influence. Arms producing and exporting states can be considered particularly influential in “ensuring respect” for international humanitarian law due to their ability to provide or withhold the means by which certain serious violations are carried out. They should therefore exercise particular caution to ensure that their export is not used to commit serious violations of international humanitarian law … Relevant questions to be considered include: Relevant questions to be considered include: • Is there national legislation in place prohibiting and punishing violations of international humanitarian law? … • Have the same measures been taken to ensure respect for international humanitarian law by other arms bearers which operate in situations covered by international humanitarian law? • Have mechanisms been put in place to ensure accountability for violations of international humanitarian law committed by the armed forces and other arms bearers, including disciplinary and penal sanctions? • Is there an independent and functioning judiciary capable of prosecuting serious violations of international humanitarian law?”
“Could a rational decision-maker, in this statutory context, take this decision without considering these particular facts or factors? And if the decision-maker was unaware of the particular fact or factor at the time, could he or she nevertheless take this decision without taking reasonable steps to inform him or herself of the same?”
“The reality of the position is that the Secretary of State has available to him and his advisers a significant amount of information relating to the conflict in Yemen and the conduct of Saudi Arabia as part of the Coalition. There is no sustainable public law criticism of the scope of the inquiries made on his behalf or the quality of the information available to him. The evidence shows beyond question that the apparatus of the state, ministers and officials, was directed towards making the correct evaluations for the purposes of the Consolidated Criteria.”
“Ground 2: Failure to apply the “suspension mechanism”, the Divisional Court at paragraphs [194]-[198] addressed CAAT’s submission that the Secretary of State had wrongly failed to suspend the transfer of arms to Saudi Arabia. Having quoted the policy of the Government as articulated in a statement to Parliament on7 February 2012 , the Court rejected CAAT’s criticism, expressing its conclusion at paragraph [198] as follows: “In our judgment, however, the Secretary of State was reasonably able: (i) to assess the gaps in his knowledge and “known- unknowns” against what information and materials he did have and how critical or not the gaps were; (ii) to test and assess the reliability of the UNs’ and NGO’s findings against the other sources of information at his disposal; and (iii) to assess the significance of his knowledge (or lack of it) as to Saudi Arabian investigations into individual incidents. Moreover these matters were factors in an overall assessment to be made by the Secretary of State in relation to Criterion 2c in the light of the wide range of sophisticated first-hand and other evidence available to him. In these circumstances the Secretary of State’s decision not to suspend at any stage cannot be said to have been irrational or unlawful.”
“In our view, the fact that senior officials were advising the Secretary of State that the decision was “finely balanced”, and the Secretary of State himself expressly acknowledged that this was the case, is instructive. It points to the anxious scrutiny - indeed at what seems like anguished scrutiny at some stages - given to the matter and the essential rationality and rigour of the process in which the Secretary of State was engaged. The picture was acknowledged to be far from a black and white. The decision involved balancing a series of complex and competing factors. Such self-evidently finely balanced judgements are paradigm matters for evaluation and decision by the Executive in conformity with the scheme established by Parliament. They are, of course, subject to scrutiny in the High Court, but with a suitable recognition of the institutional competence of those charged with the decision-making process. So it is in this case. The Claimant appeared at one stage to suggest that because the Government themselves considered the decision to be finely balanced that would enable a Court more readily to interfere. On the contrary, 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 judgements.”
“In conclusion, in our judgment, the open and closed evidence demonstrates that the Secretary of State was rationally entitled to conclude as follows: (i) the Coalition were not deliberately targeting civilians; (ii) Saudi processes and procedures have been put in place to secure respect for the principles of International Humanitarian Law; (iii) the Coalition was investigating incidents of controversy, including those involving civilian casualties; (iv) the Saudi authorities have throughout engaged in constructive dialogue with the UK about both its processes and incidents of concern; (v) Saudi Arabia has been and remains genuinely committed to compliance with International Humanitarian Law; and (vi) that there was no “clear risk” that there might be “serious violations” of International Humanitarian Law (in its various manifestations) such that UK arms sales to Saudi Arabia should be suspended or cancelled under Criterion 2c.”
“…judicial review is an important mechanism for the maintenance of the rule of law. It serves to correct unlawful conduct on the part of public authorities. However, judicial review is not an appeal against governmental decisions on their merits. The wisdom of governmental policy is not a matter for the courts and, in a democratic society, must be a matter for the elected government alone. … Judicial review is not, and should not be regarded as, politics by another means.”
“The general principles on the Tameside duty were summarised by Haddon-Cave J in R (Plantagenet Alliance Ltd) v Secretary of State for Justice[2014] EWHC 1662 (Admin) at paras. 99-100. In that passage, having referred to the speech of Lord Diplock in Tameside, Haddon-Cave J summarised the relevant principles which are to be derived from authorities since Tameside itself as follows. First, the obligation on the decision-maker is only to take such steps to inform himself as are reasonable. Secondly, subject to a Wednesbury challenge, it is for the public body and not the court to decide upon the manner and intensity of enquiry to be undertaken: see R (Khatun) v Newham LBC[2004] EWCA Civ 55 ,[2005] QB 37 , at para. 35 (Laws LJ). Thirdly, the court should not intervene merely because it considers that further enquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the enquiries made that it possessed the information necessary for its decision. Fourthly, the court should establish what material was before the authority and should only strike down a decision not to make further enquiries if no reasonable authority possessed of that material could suppose that the enquiries they had made were sufficient. Fifthly, the principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from a duty of procedural fairness to the applicant but rather from the Secretary of State’s duty so to inform himself as to arrive at a rational conclusion. Sixthly, the wider the discretion conferred on the Secretary of State, the more important it must be that he has all the relevant material to enable him properly to exercise it.”
“31. The essential argument of the Claimant on ground 1 is that both the Secretary of State and the Divisional Court made a fundamental error of approach in relation to the independent OPEN evidence showing a pattern of violations of IHL, some of them serious. Where, as here, there is a body of independent evidence demonstrating such a pattern, rationality requires the Secretary of State to consider that evidence and reach a view about whether such a pattern has been shown or not. This is because the existence of a pattern of violations is, given the Secretary of State’s own policy and the considerations set out in the User’s Guide, obviously and centrally relevant to the question whether there is a “clear risk” that UK-supplied weapons might be used to commit serious violations in the future. 32. The Claimant’s argument before the Divisional Court was not that the Secretary of State had reached the wrong factual conclusion on this question. It was that, on his own evidence, he had failed to reach any conclusion (even in private); and that as a result he had failed to have regard to a centrally and obviously relevant factor. This was a classic public law error, which vitiated his decision (which the evidence showed had been “finely balanced”). The Divisional Court’s failure to identify this error was itself an error of approach, which this Court can and should correct.”
“As Mr Watkins explained, the sources of information available to the MoD include, notably: (i) coalition fast-jet operational reporting data passed to the UK Liaison Officers; (ii) sensitive MoD sourced imagery which can represent a more comprehensive, high resolution and immediate picture than that provided by third party commercial imagery; and (iii) other reports and assessments, including UK Defence Intelligence reports and some initial battle damage assessment which makes an assessment of the impact of a strike on the intended target. Much of this information is sensitive and necessarily cannot be referred to in detail in open session for national security reasons, but we have had sight of it in closed material.”
“Overall assessment of Saudi compliance with IHL From all of the information available, we have not reached the view that there has been a violation (including a serious violation) of IHL by Saudi Arabia…”
“At these meetings we have raised our concerns over reports of alleged violations of International Humanitarian Law, as well as stressing the importance of conducting transparent investigations into incidents where it is alleged that International Humanitarian Law has been breached. The Saudis have given us assurances that they are complying with International Humanitarian Law, and we have offered advice and training to demonstrate best practice and to help ensure continued compliance with International Humanitarian Law.”
“I regularly review the situation with my own advisers and have discussed it on numerous occasions with my Saudi counterpart. Our judgement is that there is no evidence that IHL has been breached, but we shall continue to review the situation regularly.”
“7. … • MOD have been tracking 114 incidents of potential IHL concern; only a very, very small percentage of the overall coalition airstrikes carried out, have been tracked. Preliminary analysis of the UN Panel of Experts’ Report has identified a further 19 incidents, and MOD have separately become aware of a number of other allegations, bringing the total to “approximately 145”. • Based on “all the information available”, however, FCO maintain that “we have not established any violations of IHL by the Coalition in this conflict”. • FCO do acknowledge that there are gaps in their knowledge but they say there are “always some gaps in our knowledge when we are conducting Consolidated Criteria assessments in relation to exports to any country”
“We have not assessed that there has been a breach of IHL by the coalition.”
“I regularly review the situation with my own advisers and have discussed it on numerous occasions with my Saudi counterpart. Looking at all the information available to us we have been unable to assess that there has been a breach of IHL by the Saudi- led coalition. The situation is kept under careful and continual review.”
“On review of the open and closed material … (1) In particular, the ‘Tracker’ does not generally provide any assessment of whether the actions of the responsible party are compatible with IHL or not. In its initial format the Tracker included a question for each incident: “IHL breach?”, but in no case was an assessment of this question addressed in the box provided. That question was removed from subsequent versions of the Tracker (the SAs have asked D – in their Submissions on Further Disclosure/ Supplementary Evidence dated11 January 2017 – to clarify when this was done and why). (2) The Ministerial Statement making corrections in relation to Parliamentary Questions and Debates stated: “It is important to make clear that neither the MOD nor the FCO reaches a conclusion as to whether or not an IHL violation has taken place in relation to each and every incident that comes to its attention. This would simply not be possible in conflicts to which the UK is not a party, as is the case in Yemen”
“When the Tracker was initially created it was thought that the MOD would be able to come to conclusions in relation to individual allegations of breaches of IHL. Although it was quickly realised that this was not the case this was not immediately rectified administratively. The decision to change the column heading was reached in approximately July 2016. There are no documents recording this decision.”
“14. As regards the Human Rights Watch reports published since the Saudi-led coalition’s intervention in Yemen in March 2015, the organisation has conducted field research in the north and south of Yemen, including the Sana’a, Aden, Sa’ada, Hajjah, ’Amran, Ibb, Taiz, and Hodeidah governorates. When conducting investigations into possible unlawful airstrikes, Human Rights Watch sought to gather a range of information, including interviews with victims, witnesses, and medical workers (in person or by telecommunication), site visits, analysis of satellite imagery, review of individual medical records and hospital log books, and examination of physical evidence such as weapons’ remnants, craters and physical destruction, videos and photos, including by arms experts. Human Rights Watch has also conducted dozens of interviews with local activists, domestic and international human rights and humanitarian organizations, lawyers representing victims, and Yemeni government officials. Human Rights Watch analysed public statements that the Joint Incidents Assessment Team (‘JIAT’) produced over the last two years, as well as statements by coalition officials posted on government websites. All interviewees provided consent to be interviewed and were informed of the purpose of the interview and how their information would be documented or reported. No interviewee received remuneration for giving an interview. 15. Further, Human Rights Watch has repeatedly written to the coalition, its current and former member countries and the coalition’s investigative mechanism since 2015 after conducting research, seeking information on coalition attacks documented by Human Rights Watch and any investigations the coalition has undertaken into these attacks. The purpose of such letters is to provide an opportunity for member states, or for JIAT on behalf of the coalition, to confirm or deny the findings and their factual basis. As one example, before publishing its most recent report in August 2018, Human Rights Watch wrote to JIAT in early 2017, and to current and former coalition member countries in mid- 2017. Human Rights Watch then published the letters but still received no reply. In 2018, Human Rights Watch again wrote to JIAT, and sent a copy to Saudi Arabia, the United Arab Emirates, Yemen, Qatar, Bahrain, and Kuwait, who sat on JIAT when it was initially announced. No current members of the coalition responded. Qatar provided a response in June 2018, which was included as an annex to the report. 16. As regards Amnesty International’s work in the field, between February 2015 and May 2018, Amnesty International conducted seven field missions in the north and south of Yemen, covering Sana’a, Saada, Amran, Hodeidah, Ibb, Ta’iz, Lahj, and Aden. When conducting investigations, Amnesty International gathers information by interviewing survivors, victims, witnesses, medical and NGO personnel, journalists, lawyers and government officials on the ground, either in person or by telecommunication. All interviews are conducted in Arabic. Amnesty International investigates and corroborates the circumstances and impact of attacks by examining satellite imagery, medical reports, physical evidence (such as remnants from munitions used in attacks), and photos and videos with the original metadata. Images of weapon remnants are analysed by weapons experts, and images of the impact site are sent for ballistic analysis where possible. Amnesty International has repeatedly written to the Saudi authorities, detailing its findings and requesting information about the choice of targets, the decision-making process, and the rationale behind the airstrikes documented in its reports. Amnesty International has also requested that the Saudi authorities share the findings of any investigations that may have been carried out so far into documented airstrikes. No responses have been received.”
“This submission does not entail that the SoS [Secretary of State] must form a concluded view about each and every incident where an IHL violation is alleged. But he does have to have evidence that is rationally capable of displacing the prima facia OPEN evidence of a pattern.”
“Rule 13 Attacks by bombardment by any method or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilian or civilian objects are prohibited.” “Rule 13 Attacks by bombardment by any method or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilian or civilian objects are prohibited.”
“Sa’dah has suffered the most damage of all cities targeted for airstrikes, with at least 226 buildings having been destroyed only less than two months after the beginning of the airstrikes.”
“The high number of civilian casualties was a result of the point of detonation being close to the emergency department and waiting hall of the patients. The car that was used to transport injured individuals was also destroyed and its occupants killed.”
“This is the explosive weight of the Mark 82 variant high explosive (HE) Aircraft (A/C) bomb. The crater profile is highly indicative of that typically caused…”
“On15 August 2016 [i.e. the evening of the incident], the Saudi Arabia-led coalition acknowledged its responsibility for the air strike and stated to MSF that “the objective of the air strike was a moving vehicle that had entered the hospital compound”
“Doctors without borders (MFS (sic)) posted a statement on its official website claiming that the coalition forces struck Abs- Hospital in Abs city, Hajjah Governorate, on15 August 2016 , resulted with (7) people dead, and (13) injured. The JIAT investigated the facts and the circumstances of this incident, and found out that on15 August 2016 the coalition forces received intelligence information about presence of Houthi Leadership gathering northern Abs City, thus they were targeted and attacked by coalition Air Force. After that the aircrew observed that a vehicle leaving the site, and proceeding south. The fighters followed the vehicle, and struck it next to a building that does not bear any marks that would indicate before the strike that it is a hospital, which has appeared later that it is (Abs-Hospital). In light of the facts, the JIAT have found that, damages inflicted on the building were because of the targeted vehicle (which was a legitimate military target) next to the building which were unintentional. Thus, the JIAT have found that, the coalition forces must extend an apology for this unintentional mistake, and provide the proper assistance to the families with affected persons. The coalition forces must also investigate those responsible for that, to identify extent of their violation of the approved Rules of Engagements (ROEs), and take the proper actions in this regard.”
“A significant number of Houthi-Saleh-affiliated military and political leaders were expected to attend”
“It was noted that the KSA authorities and military appeared to be increasingly engaged with the importance of IHL compliance and were making efforts to decrease the risk of IHL violations. They had initiated urgent investigations [into the Great Hall incident]. It was noted that the complexity of the circumstances were unprecedented.”
“it is not necessary, nor is it practical, for a judgement to be made by reference to IHL about every past incident to make an assessment under Criterion 2c… An inquiry into “the recipient’s past and present record" does not require a quasi-judicial examination of every previous incident in which a breach of IHL is suspected … The October 2016 update … reflects the evaluative nature of the exercise performed by the Secretary of State. It recognises, for example, that the fact that it cannot be said that a series of events were violations of IHL (or serious violations) does not render consideration of the incidents irrelevant.”
“In its initial format the Tracker included a question for each incident: “IHL breach?”, but in no case was an assessment of this question addressed in the box provided. That question was removed from subsequent versions of the Tracker.”
“it was clear from the evidence that, far from being immune to international criticism and concern as to civilian casualties alleged to have been caused by the Coalition in the Yemen conflict, Saudi Arabia has been mindful of the concerns expressed, in particular by the UK. It is also clear from the evidence that Saudi Arabia has sought positively to address these concerns, in particular by conducting investigations into incidents and setting up a permanent investigatory body.”
“Thus, the term ‘serious violation’ is a general term in IHL which includes ‘grave breaches’ and ‘war crimes’ as defined, in particular, in the four Geneva Conventions, Additional Protocol I and in article 8 of the Rome Statute…”
“…it is arguable that there was an elision of meaning between ‘grave breaches’ of IHL, ‘war crimes’ and ‘serious violations’ of IHL, which may have been material because of some of the advice bearing on the decision”
“Article 8 of the ICC Statute requires a mental element for a ‘grave’ ‘breach’, i.e. a wilful or deliberate or intentional act. In our view, the generic term ‘serious breach’ would include reckless as well as deliberate or intentional acts.”
“153. The October 2015 update summarised the alleged incidents of IHL violations and included, in Annex B, a summary of the MoD’s analysis of the most recent allegations in spreadsheet form. The update, at paragraph 7, 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 often insufficient information to determine intent. However, it is also clear from the update that those making the assessment were well aware that ‘a consistent pattern of non-deliberate incidents (with the same cause and without remedial actions being taken to address that cause) could amount to a breach’ (emphasis added). … 156. The update records that a consistent pattern of non- deliberate incidents that have the same cause and where remedial action is not taken to address that cause could amount to a breach.”