Israeli arms exports could be used to violate international law, the court said

The government continued to send parts of F-35 fighter jets to Israel despite knowing there was a “clear risk” that they could be used to commit “a serious violation” of international humanitarian law ( to commit or facilitate IHL), the Supreme Court was told.

Al-Haq, a Palestinian human rights organization, is taking legal action against the Ministry of Business and Trade over several decisions not to suspend licenses for the export of weapons and military equipment.

In September, the Labor government suspended around 30 permits following a review of Israel’s compliance with IHL in the ongoing conflict, after the previous Conservative government refused to do so in December last year and April and May this year.

But an exception was made for some licenses covering parts of F-35 fighter jets, and about 330 others remained unchanged, covering things like training and air defense equipment.

Al-Haq is now seeking the green light to challenge the decision not to suspend all licenses in September, the move to remove licenses for F-35 components from suspension, and the former Tory government’s decisions to suspend the not to suspend licenses in September. December 2023 and April and May this year.

The government is resisting the legal challenge, with its lawyers telling the court that licensing of arms exports to Israel is “under close and constant scrutiny.”

In written submissions to a hearing on Monday, Sir James Eadie KC, on behalf of the department, said the suspension took place after Foreign Secretary David Lammy concluded that Israel is “not committed to upholding” IHL.

This in itself was based on the conclusion that “Israel had committed potential violations of IHL regarding humanitarian access and the treatment of detainees,” which led the State Department to advise the Ministry of Commerce and Trade that there should be a “ There was a clear risk that certain military equipment to be deployed in Gaza could be used to violate international law.

But Sir James said the decision to ‘abolish’ licenses relating to F-35 components followed the advice of Defense Secretary John Healey, who said a suspension would impact the ‘entire F-35 programme’ and would have a ‘profound impact on international peace’. and safety”.

Mr Healey added that this would “undermine US confidence in Britain and NATO at a critical time in our collective history and undermine relations”, and could allow “adversaries” to take advantage of any perceived weakness.

Sir James said: “It did not follow from this (September) review that all permits to Israel should be suspended, but only those for which there is a clear risk that they could be used to commit a serious breach of the law or to facilitate. IHL.

“Despite the ‘clear risk assessment’, for the reasons given in the advice of the Minister of Defence, it has been determined that there is a good reason to deviate from the strategic export licensing criteria and to restrict exports to the F- 35 program.

“The F-35 carve-out accepts that there is a clear risk that F-35 components could be used to commit or facilitate a serious violation of IHL, but notes that in the exceptional circumstances presented by the Minister of Defense have outlined, these exports must nevertheless continue. ”

The war between Israel and Hamas, which began on October 7 last year, has left tens of thousands dead and millions displaced.

The Health Ministry in Gaza says about 43,800 Palestinians have been killed in the war, but the ministry does not distinguish between civilians and fighters.

However, it is said that women and children make up more than half of the fatalities.

The court was told that at the time of the suspension in September, 361 licenses had been issued for arms exports to Israel.

In her written submissions, Phillippa Kaufmann KC said on behalf of Al-Haq that the government used a “categorically wrong” and “highly inappropriate” approach to assessing whether Israel had violated IHL, leading to “flawed” decisions on whether to grant permits to suspend.

She said: “What is at issue here is whether (Israel’s) declared commitment is a real commitment, and to establish that determination the best evidence is the way Israel has handled these hostilities.

“What people are looking for, for example, are patterns that indicate systematic non-compliance with international humanitarian law.

“The defendant simply does not have information from Israel about individual military actions, strikes and destruction.

“The country doesn’t have that, because Israel doesn’t want to give it to them.”

Ms Kaufmann added that the challenge to previous decisions “raises important issues of principle” that were “strongly in the public interest”.

But speaking in court in London, Sir James went on to say that “historic decisions” made by the previous government had been “replaced” by the September decision, making the challenges facing them “academic”.

The hearing for Mr Chamberlain is expected to conclude later on Monday.