In rejecting the Saudi arms sales lawsuit, UK court cites the Shamima Begum case

The High Court based its decision that British arms sales to Saudi Arabia were legal despite concerns about war crimes on a Supreme Court decision that supported the UK government's stance against allowing Shamima Begum to return to the nation. Campaigners and attorneys claim that judges in both cases have sided with the government's position and restrained those attempting to oppose it by relying on secret evidence heard in closed-door hearings. Earlier this week, the High Court dismissed the protest groups' lawsuit challenging the transfer of British weaponry to Saudi Arabia for use in its conflict in Yemen.

The verdict stated that the court's responsibility was restricted to examining how government decision-making was done. Decisions made by ministers assessing the risk that UK arms could be used by Saudi Arabia in the commission of serious violations of international humanitarian law in Yemen should "command considerable respect", it said. Government decision-making surrounding arms sales, the ruling said, was "informed by diplomatic and security expertise which the Court does not possess", and had "parallels with making national security assessments". "That expertise means that the Executive's assessments in this area are entitled to great weight," the judgment said.

It highlighted a 2017 court ruling that said judicial review of military sales to Saudi Arabia shouldn't "stray into areas that are properly the domain of the executive" In addition, it was said that it was not the responsibility of the court to give ministers "some abstract definition of the concept of'serious violations' of IHL [international humanitarian law]".

Photo of Shamima Begum[/caption] It said that the Supreme Court's ruling in favor of the government against Begum, a British lady who had her citizenship revoked in 2019 and was still being held in a Kurdish-run camp in northeastern Syria, in 2021 confirmed these views.

'Impenetrable deference'

Begum's attorneys urged that she should be permitted to return to the UK to personally challenge the loss of her citizenship. Begum visited Islamic State-controlled Syria in 2015 when she was 15 years old. The government's determination that Begum posed a threat to national security, however, should not take precedence over Begum's right to a fair hearing, the Supreme Court decided. An immigration court later upheld Begum's citizenship being revoked despite the judge agreeing that there was a reasonable suspicion that she was a sex trafficking victim. Begum's attorneys criticized that decision, claiming the Supreme Court verdict had given the Secretary of State "an almost impenetrable deference in reaching conclusions where national security is raised," thereby tying the court's hands in considering Begum's appeal. Even while the Begum judgment was only briefly mentioned in Tuesday's decision, campaigners and attorneys claimed that the broader argument raised concerns about the willingness and ability of British courts to hold policymakers accountable. Emily Apple, spokesperson for the Campaign Against Arms Trade (CAAT) which filed the legal challenge against the government over arms sales to Saudi Arabia, said the court's approach was "both worrying and insulting".

"The court has used the appalling decision in Shamima Begum's case to absolve the judges from having to properly scrutinise government decisions that have led to death and destruction as a result of UK arms dealers," Apple told Middle East Eye.

"The court is essentially saying that issues of 'national security' are effectively beyond reproach, even from war crimes. This is both worrying and insulting to all the Yemeni people whose lives have been devastated by war crimes committed by the Saudi-led coalition aided by the UK arms trade."

Closed sessions were held in both CAAT's legal challenge and Begum's appeal for parts of the proceedings that dealt with matters of national security, therefore some of the evidence on which the decisions were based is still secret. In addition to the decision from Tuesday, the High Court also rendered a separate private judgment that was only accessible to CAAT's special advocates, or the attorneys hired to represent the group in closed session. It is becoming more and more challenging for cases to be heard successfully in court, according to Fahad Ansari, a lawyer specializing in immigration and citizenship disputes.

"It is evident that the term 'national security' is now being utilised by the government to effectively hamstring the judiciary of any independent oversight of its actions," Ansari told MEE.

"We hope that the senior courts will begin to push back against this trend in order to give effect to the 'separation of powers' doctrine in order to protect against tyranny."

Details still missing

While some of the government authorities' decision-making on the continuation of arm sales to Saudi Arabia was made clear by this week's judgement, crucial details are still undisclosed. After the Saudi-led coalition bombed a crowded burial hall in Sanaa in October 2016, MEE repeatedly submitted Freedom of Information requests to several government departments in order to get correspondence between officials regarding arms deliveries to the kingdom. In the airstrike, which UN observers concluded to have breached international humanitarian standards, more than 140 people died and more than 500 were injured. In the ruling, the judges cited a December 2019 'Decision Paper' which addressed international humanitarian law analysis and said the funeral hall attack was one of two incidents of "most concern" that the UK government had raised with Saudi Arabia.

"The Great Hall Strike raised very serious concerns about targeting. The UK immediately engaged with Saudi Arabia. Systemic improvements were rapidly observed," the ruling said, citing the paper.

But there is little information in the public domain about the details of those concerns and conversations in the days following the bombing. MEE's FOI requests have all been denied.