France’s highest administrative court rejected on 27 January 2023 the appeal of several NGOs asking for the suspension of arms exports to members of the Saudi-led coalition involved in the war in Yemen. The court remained silent as to whether the arms export licenses issued by the government were in line with France’s international obligations.
This decision follows the action initiated in May 2018 by the NGO Action Sécurité Éthique Républicaines (ASER) before the Paris Administrative Tribunal to overturn the Prime Minister’s refusal to suspend arms export licences to countries involved in the Yemen war.
According to the NGO, the licences violate France’s obligations under the Arms Trade Treaty and the EU Common Position on arms exports [1].These texts provide that a State must not authorise arms exports when there is a risk that they could be used in violations of international humanitarian law.
On 8 July 2019, the Administrative Tribunal ruled it had jurisdiction to examine the legality of a decision from the Prime Minister regarding arms exports but rejected the request to suspend the licences. The NGO appealed and on 26 September 2019 the Administrative Court of Appeal once again rejected the request of ASER and other NGOs who had joined the action (Sherpa, Action des Chrétiens pour l’Abolition de la Torture, Action contre la faim, Médecins du monde, Salam for Yemen). As a last resort, the NGOs filed an appeal with the Conseil d’Etat, France’s highest administrative court.
On 27 January 2023, the highest administrative court upheld the decision of the Court of Appeal: it refused to rule on the legality of arms export licences issued to countries involved in the Yemen war. The court considers that the Prime Minister’s refusal to suspend arms export licences involves France’s international relations and, as such, is an act of State that falls outside the jurisdiction of the courts. Simultaneously, the court rejected the NGOs’ request to declassify information about the licences which could have helped assess France’s compliance with its arms export’s obligations. This decision thus represents an additional barrier to the control of French arms sales, which is already severely hampered by the lack of transparency in licensing decisions.
The administrative court’s refusal to review a decision relating to arms exports does not imply licences are in conformity with international law and companies carrying out exports based on these licences will be absolved of responsibility.
Thus, Sherpa, the European Centre for Constitutional and Human Rights and Mwatana for Human Rights, with the support of Amnesty International France, filed a complaint in June 2022 against French arms manufacturers for their alleged complicity in war crimes and crimes against humanity in Yemen. Companies have a duty to respect international humanitarian law and must not export arms when there is a risk that these will be used to commit international crimes.
