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Saudi Arabia's Conduct Iri Yeme:N-A Llo"".S the UK to Resume Its Arms Sale to Saudiarabia

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Saudi Arabia's Conduct Iri Yeme:N-A Llo Received by NSD/F ARA Registration Unit 09/15/2017 6:49:38 PM Coleman,_Notm .B •. From: C()Jeinan, Norm Sent: Monday, July 10, 2017 _2:59 Pl\/! To: Kinzler, David (Foreign Relations) (Oavid_Kinzler@for'eign.sen:ate.gov) Cc Fri_dman, Ari Subject: FW: For Oistrib.ution Today: UK_ High Court Rule_s in Favor of KSA Atta chm.en~: Courts and Tribunals Judiciary.Judgement Full-Text_Saudi A1:ri'is Sale.pdf; Full Teict- UK Justi_ce 'Arms Sale Reportpdf; Military Targeting in Yemen - Fact Sheet- May 2017 (4).pdf oa:vid, I thought Senator Corker would be interested in the:attached material. A judgme.nt IA'a~i.s_sued today in the UK High Court of Justice that rejected daim.s t_hat the.Saudi-led Coalition Supporting Legitimacy in Yemen has violated international humanitarian law. This ruling-based on extelis_iile political and mUitary 1ingagementto determine Saudi Arabia's conduct iri Yeme:n-a_llo"".S the UK to resume its arms sale to SaudiArabia. The court wrote: .. ·"'·,.,.1 "In co.nf:.lu_sion, in our Judgment, the open and dosed evidence demonstrates tffat the Secretary of Sto_te .. .. was rationally entitled to coric/ude as fol/ows: (i) the Coalition were not deliberately targeting civil/ans; {ii} Saudi processes and procedures have been. putin place. to secure respect fo.r the prin~iples of International Humanitarian L_o""; (iii) the Coalitiorr was investigating incidents of contro.ver$JI, lnduding those involving civilian casualties; (iv) the Saudi authorities have ttiroughou.t.e_ngagedlncarrstruttlve dialogue with the UK abau_t bo_th its processes and incidents ofcancern;. (v) Saudi Arabia h_as been cind remains·genuinely committed to compliance r.vith Jntern_atio_n_a/Hiiman_itarian Law; and (vi) that there was ria ~c1e·a, risk" thot _there might be "serious violations" of International Humanita_tian Law (In its various manifestations) such that UK arms sales to Sa_udi Arabio shpuld be suspended or cancelled under Criterio.n ?~- » Attached is a sµmrnary of tt:i:e ruling am:! the full text. Also attached is a fact sheet explaining Sa_udi Ara_bia's miii~ary targeting.process in Yemen All my best, Norm Sjji1ator N_o_rm CC\111.m.an Of Counsel H_ogan Lovens·us LLP Columbia Square 55·5 Thirteenth Street, NW Washington, DC 20004 Tel: +1 202 637 5440 Cell: +1 651 694 3901 Fax: +1 202 637 5910 Email: [email protected] www.hoganlovells.com Please consider lhe environment-before printing this e-mail, 1 Received by NSD/FARA Registration Unit 09/15/2017 6:49:38 PM Received by NSD/FARA Registration Unit 09/15/2017 6:49:38 PM l'~.e Queen (on the application of Campaign Against The Arms Trade) v The.Secretary ofSt~te for International Trade and interveners (Case No: CO/1306/1016) PRESS SUMMARY - [IO July 20171 BACKGROUND TO THE JUDICIAL REVIEW The co11fiict in Yemen. Since early 2015, parts of Yemen have·b:c,E:n int.he ~on_trol of Shia­ Zaydi Houthi rebels loyal to former President Salah (39). On 25th March 2015; a CoaUti.on l~ by Saudi Arabia responded to a request for assistance by President Hadi and commenced military opf!l'.ations against the Houthi in Yemen [41J. Terrorist organisations, such as Al0 Qaeda and Daesh op·erate·in Ye~er:i 1441, Saµcii.Arabia use UK-supplied arms in the Yemen conflict (48]. · Legal regime. The Secretary of Sta.le for ll)ternatio1c1al Trade has responsibility for licensing the export of arms on advice from the FCO and MoD [1]. Since 2!)14, the Se:cret.ary of S(ate has adopted much of the European Council Common Position 20.08/944/CFSP ('fhe Coll?,!Don Rules Governing the Control of Exports of Military Technology and Equipment") as tile releva.11t ftu.idance under s.9 of the Export Control Act 2002. Criterion 2c of the guidance provides tha.t the GoVerr:i:i,tc:n_t '\vi// 1101 grant a licence if there is a clear risk that 1/Je items might be used in the compiissio11 of a sel'ious i•ioltrtion of fntemational Hwncmitarian law" [8). Claimants case. The Claimant challenges the Govemi:nc::nfs c011tjriued gra_nt of licences for UK arms .sales to Saudi Arabia principally on the ground that the Secretary of State act.ea lrrationally in deciding Criterion 2c was not met. A substantial body of evidence from NGO:S a):(d n,,.t.etnatio'1Jil. bodies suggests there was a 'l:lear risk" of a '!erious vioft,.tio11 " of lriternational Humanitaria:,:i L.aw. No .other conclusion was open to the Secretary of State in the face of the evidence, and it is no longer la:,Vful to license il1e s.alc: o.f arms to Saudi Arabia (Sls54]. The Claimant's case was strongly supported by the lnterveriors. [S.5-S6] Respondent's case. The Secretary of State submits tha.t the UK Government ope:rate a robust system for determining whether Criterion .2c is met and uses more sophis.ticated so1.(rc:Cs of information than those available to the sources relied upon by the Claimants.. His conclusion that Criter.i.on 2c ,vE(s not mCct is rationa.l and not open to challenge on public law grounds. [S7- 58). JUDGME.NT (L,ord Justice Burnett and Mr Justice Haddon-Cave) For the reasons set out in the Open and Closed Judgments, the Claimant's claim for judicial revie,v is d}smissed. (213-214( REASONS Having studied a large volume cifmaterial st1ppli.cd by the p_arties comprising both Open and Closed material (which for national security reasons cannot be referred to in open court a:nd is dea.lt with in. the Closed Judgment), the Court drew the following conclusions:- Ttie reports relied upon by the Claimant represent a.substantial body of eviclence suggesting that the Coalition h!(s collfr\ljtted serious breaches of International Humanitarian Law in the course of. its engagement in the Yemei:i conflict. However, t)J.is open source material is· only part ofthe picture. Received by NSD/F ARA Registration Unit 09/15/20 I 7 6:49:38 PM The MoD had access to a wid~r and qualitatively more sophisticated range o.f information than that available to the Clain1ant's sources, in particular (i) Coalition fast-jet operational reporting data;· (ii) high-resolution Mop-sourced imagery; and (iii) UK Defence Intelligence r"1'orts·and battle damage assessment (rriil_cll of which is sensitive is in Closed material) (1171. The exercise carried out by the MoD and FCO ha_s a_ll the halhnarks ofa rigorous .and.robust, 111uJti-~yered process of analysis carried out by n_umerou.s expert Government and military personnel, upo1_1 which the Secretary of State could properly rely [1201, The UK has consi,derable i,;isight into the military systems, processes and pri:>ced11res of Saudi Arabia adopted in Yemen, due to i)s close and high level contacts. The MoD also provides significant training to the S_aiidi armed forces in relation to targeting and compliance wit)l International Humanitarian Law (1211. Ther_e has been extensive political and military engagement with Saudi Arabia with respect to the co1_1d(lct of mtlitary operations in Yemen and In_t_e_rnational Humanitarian Law compliance [1261. Saudi Arabi/I has sought positively to address concerns /!bout International Humanitarian Law and set up a pet1):l_a,nent.investigatory body (128). Saudi ofli_cials'made regular statements confirming Saudi Arabia's comm_in:n~nt to compliance with Interha!ional Ht1manitarian Law (134]. The regular updates produced by !he FCO on International Hiimanitaria_n Law risks with regard to Yemen show a rigorous process of analysis (lSOff.J .. There was no pubic _law (Tameside) failure as regards !he scope o_f the inquiries made or the questions asked by the Secretary of State. In particular, there was no du_ty on the Secretary of State to make a determination of the likelihood of a breach of International Humanttar_i_an Law having been committed by the Coalition in rcla_tion to every past reported incident of concern IF7i. The Secretary of State's decisi_on not to S:uspend export licences to the Kingdom ofSalid_i Ai:abia was not irrational or unlawful (1931. In swwnary, the C_oiirt hllJ_d tl}at ':. .the Open and Closed evidence demonstrated that t_h_e Secretary of State was rationally entitl_ed to conclude as follows: (i) !he Coalition were not. deliberately targeting civilians; (ii) Saudi proc:es_s_tj; and procedures· have been put in place to ~lire respect for the principles of Internatio.n,al Hli_l)l@itarian Law; (iii) the Coalition was investigating incidents of controversy, including· tho_se involving civilian casualties; (iv) the Saudi authorities h_as throughout engaged in .constructive dialogue with the UK about both its processes and incid<#tts of coi:i_cem; (v) Saudi Arabia has been, and remains, ge~_uin,ely committed to compliance ,vith Ii:i_t~tional Humanitarian Law; and (vi) tliere was no ·~·ectl risk" that there might be 'serious violatio11;, ·•· of International Humanitarian Law (in its various manifestations) such that UK ann sales to S_auai Arabia shm1ld be suspended or cancelled under Criterion 2c." (199] In an area ,vhere the Co~t is not possessed of !he institutiona_l expertise to make the judgments in question, it should be especiaHy cautious before interfering wi(h a finely balanced decision reached are careful and anxious consideration by those who do Ii.ave. the relevant expertise to make the necessary judgemen(s. (209). Closed m(lteria_l. The Closed material provides valuable additional suppoi:t fo_f the conclusion that !he decisions ma.de by t_he Secretary of State not to suspend or cancel arms saJes to Saucii Arabia were rational and is c\ealt with ip.
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