Essay

Courts & politics

Print edition : September 13, 2019

After a Saudi-led air strike hit a food factory in Sanaa in Yemen. A file photograph. Photo: Hani Mohammed/AP

A recent judgment by an English court against British arms exports to Saudi Arabia on the grounds that the government had not assessed the risk of their use in violation of human rights is in striking contrast to the Indian Supreme Court’s stance on Kashmir.

The sensational judgment delivered by the Court of Appeal in England on June 20, 2019, on the unlawfulness of British arms exports to Saudi Arabia deserves close study in India. About 40 per cent of all British weapons exports go to Saudi Arabia. They include fighter jets and precision-guided bombs. Thousands of jobs depend on these exports.

The Campaign Against Arms Trade (CAAT) contended that the risk the equipment would be used to violate human rights and international law in Yemen was too high for export licence to be granted. British law states that weapons exports should not be approved if there is a risk that the equipment could be used for human rights abuses. In their ruling, the Appeal Court judges explicitly said that the British government had not assessed that risk “and made no attempt to do so”. They ruled that this process was “unlawful”. The decision will trigger only a review of certain exports and not an immediate halt. Being forced to assess the human rights impact of their exports before granting licences could put the British government in a difficult position. Such exporters usually sell entire weapons systems to buyers. Those deals typically include years-long maintenance and access to high-tech substitute components.

The case was heard for a mere three days. There were no judicial “outbursts”. The judgment was brief, couched in simple prose. It was intended to adjudge a dispute, not to earn the judge a place in history or the applause of the populace. There were no quotes from Shakespeare or Milton; or, for that matter, from Tagore.

The appeal was heard by the Master of the Rolls, Sir Thomas Etherton, Lord Justice Irwin and Lord Justice Singh. The judgment delivered by the Master of the Rolls was unanimous. Amnesty International, Human Rights Watch, Rights Watch UK and Oxfam International intervened. The reports of Amnesty International and Human Rights Watch, which the Indian government treats with scorn when they expose New Delhi’s misdeeds in Kashmir, were received with respect.

The CAAT submitted that a large body of evidence demonstrated overwhelmingly that Saudi Arabia had committed repeated and serious breaches of international humanitarian law (“IHL”) during the conflict in Yemen. It claimed, in particular, that Saudi Arabia had used indiscriminate or deliberate air strikes against civilians, including ones that employed “cluster” munitions, and targeted schools and medical facilities. The CAAT’s evidence ran to many hundreds of pages, and included reports from the United Nations, the European Parliament, the Council of the European Union, the International Committee of the Red Cross, Medecins Sans Frontiers, Amnesty International, Human Rights Watch, parliamentary committees, and the press.

The law is embodied in the Export Control Act, 2002. It confers on the Secretary of State the power to grant licences. There is also the Export Control Order 2008. More to the point, the member states of the European Union adopted the “Council Common Position 2008/944/CGSP” of December 8, 2008, defining common rules governing control of exports of military technology and equipment (“the EU Common Position”). Article 1.1 provides that each member state shall assess export licence applications made to it for items on the E.U. Common Military List on a case-by-case basis against the criteria of Article 2. Article 1.2 provides that those export licence applications include applications for physical exports and applications for licences for any intangible transfers of software and technology by means such as electronic media, fax or telephone. The relevant criterion in Article 2 is that set out in Article 2.2 (“Criterion 2”) as follows, so far as relevant:

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.”

Article 10 provides that “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.”

Article 13 provides that “the User’s Guide to the European Code of Conduct on Exports of Military Equipment” shall serve as guidance for the implementation of the E.U. Common Position.

On March 24, 2014, the Secretary of State set out in a written statement to Parliament what were described as “Consolidated E.U. and National Arms Export licensing Criteria” (“the Consolidated Criteria”). These were based on the E.U. Common Position. The written statement said that it was guidance given under the 2002 Act S.9.

The relevant and current version of the User’s Guide is dated July 20, 2015. Chapter 2, titled “Criteria Guidance”, sets out “best practices” for the criteria in the Common Position, including Criterion 2. The court considered at length the principles of international humanitarian law.

The reliefs claimed were: (1) an order prohibiting the defendant (the government) from granting further export licences for the sale or transfer of arms or military equipment to Saudi Arabia, for possible use in Yemen, pending a lawful review by the Secretary of State as to whether such sales comply with the E.U. Common Position and/or the Consolidated Criteria; (2) a mandatory order requiring the defendant to suspend extant licences pending such a review; and (3) a quashing order quashing the decision to continue to grant new licences. The Divisional Court dismissed the petition. The Appeal Court quashed its order while praising that judgment and analysing it at length.

Grounds for appeal

There were four open grounds of appeal. Ground 1 was that the evidence showed that the Secretary of State’s consideration of Saudi Arabia’s past and present record of respect for IHL, including whether a pattern of violations could be discerned, was fundamentally deficient. Ground 2 was that the Secretary of State failed to ask the questions identified in the User’s Guide, and in particular failed to answer the following matters specified in the User’s Guide: (1) whether the state in question has legislation in place prohibiting and punishing violations of IHL; (2) whether there are mechanisms in place to ensure accountability for violations of IHL committed by the armed forces; and (3) whether there is an independent and functioning judiciary capable of prosecuting violations of IHL. Ground 3 was that the Divisional Court adopted an incorrect approach to the standard of review in the present case. Ground 4 was that the Divisional Court had failed to answer the question whether the term “serious violations” of IHL in Criterion 2C was synonymous with “grave breaches” of the Geneva Conventions and war crimes under international law or, as the CAAT submitted, referred to serious violations of IHL more generally, and should have resolved that issue in the CAAT’s favour.

The proceedings were conducted in the open as well as in camera. Three senior officials gave evidence on the process of decision-making. Incidents of violations of IHL were recorded in a tabular form. This document was known as “the Tracker”.

True to form, the Foreign and Commonwealth (FCO) Office said, as the Indian Ministry of External Affairs would have said, that on the basis of “all the information available... we have not established any violations of IHL by the [Saudi-led] Coalition in this conflict”.

The Appeal Court made light of it. It relied on international non-governmental organisations (NGOs), instead—the interveners. The court said: “The submissions of all the interveners emphasise the long line of authority recording the importance of evidence from organisations such as NGOs and the U.N. There is no need for long recital of these cases. The ECTHR [The European Court of Human Rights] in Saadi v Italy (2009) 49 EHHR 30, NA v United Kingdom (2009) 48 EHHR 15, and in Sufi and Elmi v United Kingdom (2012) 54 EHRR 9, and the Court of Appeal in MS (Bangladesh) v SSHD [2018] EWCA Civ 1258 make the point firmly as to the general authority of Amnesty International and Human Rights Watch. Similarly, in R (EM) (Eritrea) v SSHD [2014] AC 134 (UKSC), the Supreme Court emphasised the authority of the UNHCR, Amnesty and Human Rights Watch. The broad proposition is hardly in doubt....

“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 air strikes 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 air strikes. No responses have been received.”

It said that the Appellant did not submit that “the Secretary of State was bound by the conclusions or opinions of the NGOs or the U.N. Panel. It was open to the Secretary of State to differ from their conclusions. However, given that their evidence and conclusions were relevant, consistent and apparently well-founded, rationality required that those conclusions were either accepted or that proper reasons were formulated to reject them.” India refuses permission to Amnesty to visit Kashmir.

Saudi excesses in their war were set out at length. This passage in the Appeal Court’s judgment deserves notice. “We accept that the major NGOs, including the Interveners, and the U.N. Panel of Experts had a major contribution to make in recording and analysing events on the ground in the Yemen conflict. The NGOs did have the capacity to introduce representatives on the ground and to interview eyewitnesses, which the Secretary of State could not do. It is the case, however, that the Secretary of State could access a great deal of information which the NGOs and the U.N. Panel could not see. As we have indicated, the CLOSED evidence makes that clear. In the very crudest terms, the NGO and U.N. Panel evidence often establishes what happened, but the further information available to the Secretary of State could assist as to why events of concern had happened. Both may of course be highly relevant to whether a violation of IHL had taken place and to the risk of future violations.”

The court concluded: “We emphasise that we have borne fully in mind the complex and difficult nature of the decisions in question, the fact that this is an area particularly far within the responsibility and expertise of the executive branch and that, as a consequence, rationality alone can properly found interference by way of judicial review. We agree with the Divisional Court (judgment paragraph [35]) that in such a case as this, the courts must accord considerable respect to the decision-maker. It is in the application of that test that we have concluded it was irrational and therefore unlawful for the Secretary of State to proceed as he did.” Irrationality renders executive acts unlawful. The appeal was allowed on Ground 1 but dismissed on all other grounds.

The Appeal Court’s Order of June 20 said, inter alia: “The defendant’s decisions (1) not to suspend extant export licences for the sale of transfer of arms and military equipment to Saudi Arabia for possible use in the conflict in Yemen and (2) to continue to grant further such licences are quashed; and the matter is remitted to the Secretary of State to re-take the decisions on the correct legal basis.”

Contrast in approach

In stark contrast is our Supreme Court’s approach on judicial review where personal liberty is at stake, as two cases show: one concerns Punjab in 1984 after Operation Blue Star and the other the outrages in Kashmir after August 5, 2019.

Appalled at the conduct of Operation Blue Star and what followed in its train, Ram Jethmalani filed personally a habeas corpus petition for the release of Harchand Singh Longowal and others. None had ever accused him of instigating violence. The Government of India’s White Paper did not. It was mis-titled “White Paper on Punjab Agitation”. The case came up before the vacation judge Justice E.S. Venkatramaiah (Ram Jethmalani v Union of India [1984] 3 Supreme Court Cases 696). On June 19, 1984, he gave a judgment that reflected a disgraceful abdication of judicial office in the face of a patent denial of personal liberty.

The judgment did not care even to set out the facts and the petitioner’s case. Even his name is not mentioned. The judge had developed cold feet. He gave a long lecture on national unity and referred the case to a larger Bench—well after the vacation, that is: “I, however, feel that the questions involved are too large and complex for the shoulders of a Single Judge to bear.”

This was false. The case simply concerned a habeas corpus petition. The judge, in trepidation, went beyond it. “May I say that there can be no compromise on the following matters, namely, unity and integrity of India, the secular and democratic form of the Indian government and the supremacy of the Indian Constitution? They must be upheld in any event. There cannot be any doubt about the right of the established government to run the administration of the country. We should remember that India is no doubt a Union of States, but the boundaries of the States are not unalterable There is only one citizenship in India and that all of us—Indian citizens—belong to the whole of India and the whole of India belongs to all of us. ... The above words appear to be relevant in the present Indian context too…”

He added: “Even if allegations of serious offences against the state may be forthcoming against the arrested persons, the court may still consider whether it is not possible to enlarge at least some of them, who may be in a repentant mood, on bail to facilitate early restoration of normalcy in the State. The court may at some stage have occasion to consider whether it should recommend to Parliament to pass an Act of Indemnity which may be an act of great sagacity, thus drawing the curtain on this unhappy page of the history of the Indian Republic. There may be many other things which may be done and they are within the domain of my learned Brothers who may hear these cases. If this court in the end can succeed in establishing peace and harmony in the country, it would be its finest hour.” He rose to become Chief Justice of India.

The case of Kashmir

Admittedly the arrests made in Kashmir on and after August 4-5, 2019, were “preventive” but preventive against what? They were meant to prevent protests by the people against the humiliating break-up of the State of Jammu and Kashmir. The politicians arrested were not advocates of violence.

There was no outbreak of violence. What was being crushed was the right to free speech and to freedom of assembly. The Supreme Court knew all that, and yet it accepted the government’s narrative. On August 13, a Bench of Justices Arun Mishra, M.R. Shah, and Ajay Rastogi rankly said “The government has to be believed” and “let the situation improve”. It is precisely in difficult situations that the hapless citizen seeks its help—only to be rebuffed. “Nobody knows the reality. Activists may have the inputs. You have no source of information.” Sample this: “Not even one per cent chance can be taken” —of what? The people’s protest, of course.

On August 16, 11 days after the crackdown, the court through a bench headed by Chief Justice Ranjan Gogoi said: “We would like to give it a little time. I have read in the papers that the landlines will be restored by the evening.” Justice Bobde said he had spoken to the Chief Justice of the Jammu and Kashmir High Court. The BSNL lines were working well, but not those of the citizens. This was on a petition filed by Anuradha Bhasin, executive editor of Kashmir Times, who has kept alive the brave tradition of her fearless father, Ved Bhasin.

Four thousand people have been detained (The Hindu, August 20). They include an entire political class. Mehbooba Mufti’s daughter, Iltija Javed, asks in a brilliant letter, why me?

In their hour of dire need, the Supreme Court of India has failed the people of Kashmir.

Significantly one notorious, self-confessed Intelligence Bureau (I.B.) man was not arrested. All the noted unionists were removing the divide between them and the separatists. New Delhi has no use for them, but only for Jammu politicians. The crime of August 5, 2019, aims to destroy Kashmir’s identity. The curbs cannot last forever. When they are lifted, the people will speak out in unison.

One is reminded of Lord Atkin’s words spoken in 1942 during the Second World War when judges could see and hear bombs being dropped on London. “I view with apprehension the attitude of judges who on a mere question of construction when face-to-face with claims involving the liberty of the subject show themselves more executive minded than the executive. ... In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I.” He did not spare his brother judges or the Attorney General (Liversidge v Anderson (1942) Appeal Cases, page 206).

In England, the majority ruling was discarded. Atkin is honoured and his dissent is law. One wonders what history will say of judges who shut the doors of justice when justice is most needed.

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