Case BriefsForeign Courts

United Kingdom Court of Appeal (Civil Division): A 3-judge Bench of Sir Terence Etherton MR, Lord Justice Stephen Irwin and Lord Justice Rabinder Singh allowed an appeal from an order of the Divisional Court of the Queen’s Bench concerning the lawfulness of a grant by the UK Government of export licenses for sale or transfer of arms or military equipment to the Kingdom of Saudi Arabia, for possible use in conflict in Yemen.

The case describes a background for the arising conflict in Yemen. Central and Southern Yemen has been in the control of Houthi rebels for which the UN passed Security Council Resolution affirming the legitimacy of President Hadi and condemning actions by Houthis. An appeal was filed by ‘Campaign Against Arms Trade’ (hereinafter “CAAT”) contesting the grant by the UK government of export licenses to be indiscriminate and to be violative of UN treaties, Geneva Conventions and other humanitarian laws.

Issues: The following questions of law were dealt with during the trial:

  • Is there national legislation in place prohibiting and punishing violations of international humanitarian law?
  • Whether same measures have been taken to ensure respect for international humanitarian law by other arms bearers which operate in situations covered by international humanitarian law?
  • Whether mechanisms have 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?

The principles of international humanitarian law which were brought into light for contesting violation and abuse of the same were as follows: Four Geneva Conventions of 1949 which include obligation to take feasible precautions in attack, advance warnings of attacks which may affect the civilian population, protection of objects indispensable to civilian population, prohibition of indiscriminate and disproportionate attacks, attacks directed against civilian objects and/or civilian targets. The principle of distinction prohibiting attack on civilians and principle of proportionality prohibiting attack on military despite knowing that injuries would be caused to civilians is brought to light to question the acts of Secretary of State.

The appeal, argued by Martin Chamberlain, was contested on four grounds. Ground one suggested that evidence showing Secretary of State’s consideration of Saudi Arabia’s past and present record with respect to International Humanitarian Law (hereinafter, IHL) depicted a pattern of violations. Secondly, Secretary of State failed to answer the fundamental matters in user’s guide which pertains to prosecuting violations of IHL. Thirdly, it is contested that the Divisional Court adopted an incorrect approach to the standard of review. Fourthly and lastly, it was argued that the Divisional Court had failed to answer questions pertaining to breach of the Geneva Conventions.  The Secretary of State, on the other side, quoted the UK-Saudi diplomatic relations to defend any violations of IHL.

The Court elaborated on principles of law and mechanism pertaining to judicial review. It stipulated that it is not the function of the Court to adjudicate on underlying merits. If however, in the present case, the Secretary of State would have erred as a matter of law in the approach taken to the assessment of those merits, it would be the role of the Court to do so. The principal error of law which was alleged to be committed by the Secretary of State was that he acted irrationally in the process which he adopted in order to make the assessment for granting arms to Saudi Arabia. The Court held that for assessing ground one in the appeal the only legal error which is alleged to have been committed is founded on the public doctrine of irrationality. Reliance was placed on Secretary of State for Education and Science v. Tameside Metropolitan Borough Council, [1976] 2 All ER 665 where it was held that the duty is to take reasonable steps to acquaint oneself with the relevant information in order to assess.

The general principles as elaborated by the Court were as follows: (i) obligation lies on the decision-maker is to collect reasonable information; (ii) it is for the public body and not the Court to decide upon the manner and intensity of enquiry to be undertaken; (iii) Court should not intervene merely because it considers that further enquires would have been sensible or desirable; (iv) decision-maker 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; and (v) decision-maker must call for his own attention to considerations relevant to his decision.

It was concluded that the licenses were granted without following due procedure and were susceptible to be rendered unlawful. Possible misuse of the weapons was held to be violative of international humanitarian law. The Court opined that the Secretary of State was liable to make an assessment regarding a pattern of breaches of international humanitarian law which was grossly neglected and hence, the supply of these arms stayed. Further, no concluded assessments of the same were made or presented and thus rendered it feasible to avoid violations of international humanitarian law; which is not to conclude that licenses were to be suspended on an immediate basis but a reconsideration of the matter was advisable.[R v. Secretary of State for International Trade, [2019] EWCA Civ 1020, decided on 20-06-2019]

Call For PapersLaw School News

International Humanitarian Law (IHL) in modern times is being continuously challenged by the changing nature of contemporary armed conflict. A wide array of new technologies has entered the modern battlefield. Cyberspace has opened up a potentially new war-fighting domain. Remote controlled weapon systems such as drones are increasingly being used by the parties to armed conflicts. Automated weapons systems are also on the rise and certain autonomous systems such as combat robots are being considered for future use in the battlefield. There can be no doubt that IHL applies to these new weapons and the employment of new technology in warfare. However, these new means and methods of warfare pose legal and practical challenges in terms of ensuring their compliance with existing IHL norms, and also that due regard is given to the foreseeable humanitarian impact of their use. Another recent challenge for IHL has been the tendency of States to label all acts of warfare committed by non-State armed groups against them as acts of ‘terrorists’, especially in non-international armed conflicts.

While armed conflict and acts of terrorism are different forms of violence governed by different bodies of law, they have come to be perceived as almost synonymous due to constant conflation in the public domain. Thus, the conference aims to spread awareness and initiate discussions on contemporary challenges and prevailing scope of IHL on realities of modern warfare and its impact on protection of victims of armed conflicts.

About the organisers

The Vivekananda School of Law & Legal Studies (VSLLS) of Vivekananda Institute of Professional Studies (VIPS) is committed to realizing the words of Swami Vivekananda: “Man Making, Character Building and Nation Building”. Vivekananda Institute of Professional Studies is affiliated to Guru Gobind Singh Indraprastha University (GGSIPU), recognized by Bar Council of India and University Grants Commission (UGC) under section 2(f), with NAAC ‘A’ accreditation.

The International Committee of the Red Cross (ICRC) is an independent and non-political organisation with a large scope of strictly humanitarian activities which it undertakes through its presence in over 80 countries around the world. It has a universally recognised responsibility to promote IHL and to respond to the needs of people affected by situations of humanitarian concern, in particular armed conflict and violence.

Themes of the conference

Prospective delegates can send their submissions on the following or related themes:

  • Terrorism and IHL
  • Criminalisation of Humanitarian Actors/Organisations
  • IHL and UN Peacekeeping Operations
  • Challenge of Enforcement of IHL
  • IHL and South Asia : Challenges and Way Forward
  • New Technology of Warfare: Cyber Warfare, Autonomous Weapon System, Airburst
  • Weapon System etc.
  • Analysing Critically 70 years of Geneva Conventions
  • Domestication of IHL : Case study of countries in South Asia
  • Child soldiers: Victims or Combatants?
  • Protection of Emblems

Submission guidelines

To qualify as delegates for the conference, applicants will have to submit abstracts of not more than 300 words. The abstracts have to be submitted HERE .

Authors of approved abstracts will be intimated by 15th December, 2018. Authors of selected papers will have to pay a participation fees of Rs. 1000/- not later than 18th December, 2018.

The last date for submission of full length papers is January 7, 2019. To view the submission guidelines, please see the weblink at the end of this document.

Eligibility criteria

Academicians, professionals, research scholars, post-graduates in law and students pursuing LL.M. from any recognised university shall be eligible to participate in the conference, subject to selection of their abstracts.

Important dates

  • Last date of abstract submission 10th December, 2018
  • Communication of short-listed abstracts 15th December, 2018
  • Early-bird payment and registration 16th December, 2018
  • Last date of payment and registration 18th December, 2018
  • Submission of full length papers 7th January, 2019
  • Day of Conference 19th January, 2019

Venue

Vivekananda Institute of Professional Studies, AU- Block, Outer Ring Road, Pitampura, Delhi, 110034.

Contact

For more information, click HERE .

If there is any query, you may write to vipsicrc2019@gmail.com.