David Cameron personally recommended that the UK should continue to sell arms to Israel two days after three British aid workers were killed in an Israeli airstrike.
James Kirby, 47, from Somerset, James Henderson, 33, from Cornwall and John Chapman, 57, from Dorset, members of World Central Kitchen, were killed on 1 April.
Lord Cameron recommended arms sales continue two days later, with the decision confirmed by the business secretary on 8 April. Cameron said earlier this week that the strike that killed the aid workers revealed systemic and personal failures by members of the Israel Defense Forces.
The foreign secretary’s decision appears to have been made based on an assessment of Israel’s compliance with humanitarian law that did not cover the aid workers’ deaths because of a time lag in the government’s process for deciding if British arms exports are at risk of being used to commit war crimes.
Indeed it appears possible, according to court documents, that the business department’s assessment did not cover any incidents after 28 January, so at the time of decision excluding 70 days of war.
An update on the handling of arms export licences was prepared taking events into account up until the end of February, but the Foreign Office has declined to say if this was included in the advice given to ministers.
Labour MPs claim the time lag means it is possible no comprehensive ministerial-level assessment of Israel’s conduct of the war over the past three months has been made.
The conclusion is one shared by lawyers and campaigners who have examined the often-fragmentary evidence the Foreign Office has been forced to make public, mainly to fend off a request for judicial review in a court case brought by two NGOs.
The court case has so far proven to be the most effective way to prise open anything about the Foreign Office’s opaque decision-making process.
Calls by the shadow foreign secretary, David Lammy, for the government’s legal advice to be published have been rejected on the grounds that all legal advice given to ministers is confidential as a matter of policy. Ministers have tried to maintain that confidentiality by providing the briefest replies to numerous written and oral questions submitted by MPs.
Two ministers – one from the Foreign Office and one from the business department – failed last week to appear to give evidence in front of the business select committee despite being given 20 days’ notice to appear.
The business committee took charge of scrutinising arms exports in January, after a previous specialist committee failed to function.
The committee chair, Liam Byrne, said: “There has been an absence of parliamentary accountability about arms exports for six years.”
Byrne was reduced to setting out all the questions that he would have asked the ministers “about the things we do not know”, including whether only issues of intent and capacity are considered in assessing the risk of granting arms export licences, or whether real world outcomes – in this case the death of 34,000 Palestinians – can or should be considered.
Two NGOs, Global Legal Action Network and Al-Haq, have taken the government to court to try to get answers MPs have been unable to secure, to the question of how ministers can maintain the view that international law has been applied by Israel over the last six months.
The judicial review process has revealed the existence of a unit housed in the Foreign Office Middle East department responsible for compiling reports on which ministers draw and known as the international humanitarian law compliance assessment process (IHLCAP) unit. It has been overseen since January by the new Foreign Office deputy political director, Caroline Hurndall.
To 27 March it had produced eight “sets of evidence bases”. But the task of compiling this evidence has become so time-consuming that ministers agreed updates of the evidence base should be made only every six weeks, instead of the original target of once every fortnight.
Yet sometimes there are long intervals between assessments. For instance, between 7 February and 18 March the unit produced no assessment, something that the government lawyer James Eadie KC described to the court as “an unexplained hiatus”.
The court hearings have also revealed that Israel has refused to discuss individual incidents of concern with the UK government officials, saying they are subject to internal investigation. Foreign Office officials put five incidents highlighted in an Amnesty International report of 20 October to the Israeli embassy, and was given no response.
A Foreign Office international humanitarian law assessment in November concluded: “Without accurate information on real-time IDF decision-making and operational planning, we have been unable to make a case-by-case assessment on Israel’s compliance with IHL for specific strikes or ground operations during the current conflict in Gaza.”
The Foreign Office in witness statements argues that if it is unknown what Israel intended to achieve with a specific attack that killed innocent lives, it is harder to find an IHL breach.
Even now, Israel’s engagement over specific incidents is patchy. Cameron admitted to peers this week that the IDF has never provided “a proper satisfactory explanation” for why it dropped a 1,000lb smart bomb on a Medical Aid for Palestine residential compound on 18 January.
But the court process, focusing as it must on the rationality of government decision-making, has its limits, providing only glimpses of highly charged negotiations with the Israelis. That process is simultaneously bureaucratic, and highly political, often involving discussions with Israeli officials about its processes that seem closer to a negotiation than an assessment.
Hurndall has also made it clear the Foreign Office plans to maintain secrecy. The bases of IHLCAP’s assessment and the foreign secretary’s conclusion could not be disclosed in her witness statement, she said.
She also signalled her intention to maintain secrecy when the case comes to court fully in October. She said she would be applying for a closed material application that prevents lawyers of the appellants viewing material protected on national security grounds.
A government spokesperson said: “We have one of the most robust arms export systems in the world, enshrined in law through the Export Control Act, and implemented through our strategic export licensing criteria. The rigour in this process was recognised by the courts when this case was first brought and a judicial review rejected. We cannot comment further on ongoing legal proceedings.”
