UK Foreign Office legal advisers were unable to conclude that Israel was in compliance with international humanitarian law (IHL) in its bombardment of Gaza, court documents reveal.
After reviewing specific potential breaches of IHL cited in a report by Amnesty International, the Foreign Office initially concluded it had “serious concerns” about breaches.
The UK Department for Business and Trade is being challenged by the Global Legal Action Network in a judicial review over its decision not to revoke arms export licences to Israel.
The evidence presented by the business department in its defence, prepared by Sir James Eadie KC, shows a far more intensive investigation was under way inside the government about Israel’s compliance with international law than suggested by the foreign secretary, David Cameron. Giving evidence to the foreign affairs select committee a fortnight ago, he said no special internal review had been made.
The evidence shows there were four separate assessments, one of which prompted the receipt of assurances from the Israeli embassy.
Soon after Israel attacked Gaza, an internal stocktake of 28 existing licences and 28 pending applications began, leading to an initial assessment on 10 November, followed by further reviews completed on 27 November, 8 December and 29 December.
The 27 November Foreign Office internal assessment unit concluded “the volume of strikes, total death toll as proportion of those who are children raise serious concerns”.
It said the Foreign Office had “concerns around the basis on which Israel is granting or withholding consent for humanitarian access”. It added that the government’s inability to make a conclusion on Israel’s compliance with IHL “posed significant policy risks”.
But even after receiving a lengthy letter of reassurance from the Israeli embassy on 26 November, the government joint assessment unit said the UK and Israel had different views of what compliance with IHL required. It concluded it did not have sufficient information on compliance, and left the decision to ministers.
As a result the government export control joint unit wrote to Lord Cameron on 8 December offering him three options: continuing exports but keeping them under review; suspending exports specifically likely to be used in Gaza; or suspending all arms sales to Israel.
Cameron on 12 December opted for the first option and concluded there was “good evidence to support a judgment that Israel is committed to complying with IHL”.
On the basis of this advice the business and trade secretary, Kemi Badenoch, formally endorsed the continuance of arms export licences to Israel on 18 December.
In another damaging revelation, the government lawyers also refused to tell the court whether they agreed Israel was entitled to cite article 23 of the Geneva convention and prevent free passage of humanitarian supplies on the basis there was a risk the aid may be diverted.
The Foreign Office lawyers also asserted that Israel as an occupying power did have a legal duty to provide supplies, but conceded Israel did not believe this obligation extended to Israel itself providing aid, but instead only to allowing others to do so in certain circumstances.
The government’s lawyers also claimed there was no obligation on the UK to block arms exports on the basis it must prevent a potential genocide, saying any obligation applied only when a genocide had actually occurred. “Actual knowledge that genocide is taking place or would take place is required,” the government lawyers said.
The Labour MP Zarah Sultana said: “These documents expose that whilst ministers were giving public reassurances about Israel’s compliance with IHL in private there were major concerns in the Foreign Office about Israel’s behaviour.”
Emily Apple of the Campaign Against Arms Trade said: “Cameron should have shared this evidence with the foreign affairs committee. He chose not to, and was evasive despite intensive questioning.”
She challenged ministers to explain why the Foreign Office inquiry was limited to asking the Israeli embassy to respond to allegations about five specific incidents set out in a report prepared by Amnesty International, rather than officials compiling a dossier of their own.
