The Government continued sending F-35 fighter jet components to Israel despite knowing there was a “clear risk” that they could be used to “commit or facilitate a serious violation” of international humanitarian law (IHL), the High Court has been told.
Al-Haq, a Palestinian human rights organisation, is taking legal action against the Department for Business and Trade over several decisions not to suspend licences to export weapons and military equipment.
In September, the Labour Government suspended around 30 licences 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 exemption was made for some licences related to components of F-35 fighter jets, and around 330 others continued unaltered, which concerned items such as training and air defence equipment.
The F-35 carve out accepts that there is clear risk that F-35 components might be used to commit or facilitate a serious violation of IHL, but determines that in the exceptional circumstances outlined by the Defence Secretary, these exports should nonetheless continue.
Al-Haq is now seeking the green light to challenge the decision not to suspend all licences in September, the move to “carve out” licences for F-35 components from the suspension, and decisions by the former Tory government not to suspend licences in December 2023 and April and May this year.
The Government is opposing the legal challenge, with its lawyers telling the court that the licensing of arms exports to Israel “is being kept under close and continuous review”.
In written submissions for a hearing on Monday, Sir James Eadie KC, for the department, said that the suspension was made after the Foreign Secretary, David Lammy, had concluded that Israel is “not committed to complying” with IHL.
This was itself based on a conclusion that “Israel had committed possible breaches of IHL in relation to humanitarian access and the treatment of detainees”, which led the Foreign Office to advise the Department for Business and Trade that there was a “clear risk” that some military equipment to be deployed in Gaza could be used to breach international law.
But Sir James said that the decision to “carve out” licences related to F-35 components followed advice from Defence Secretary John Healey, who said a suspension would impact the “whole F-35 programme” and have a “profound impact on international peace and security”.
Mr Healey added that it would “undermine US confidence in the UK and Nato at a critical juncture in our collective history and set back relations”, and could cause “adversaries” to “take advantage of any perceived weakness”.
Sir James said: “It did not follow from this (September) assessment that all licences to Israel had to be suspended, but only those in respect of which there is a clear risk that they might be used to commit or facilitate a serious violation of IHL.
“Notwithstanding the ‘clear risk’ assessment, for the reasons given in the Defence Secretary’s advice, it has been determined that there is a good reason to depart from the strategic export licensing criteria and not to suspend exports into the F-35 programme.
“The F-35 carve out accepts that there is clear risk that F-35 components might be used to commit or facilitate a serious violation of IHL, but determines that in the exceptional circumstances outlined by the Defence Secretary, these exports should nonetheless continue.”
The war between Israel and Hamas, which began on October 7 last year, has left tens of thousands dead and millions displaced.
What is in question here is whether its (Israel’s) stated commitment is a true commitment, and in order to make that determination the best evidence is how has it gone about these hostilities.
The Gaza health ministry says around 43,800 Palestinians have been killed in the war, but the ministry does not distinguish between civilians and combatants.
It has however said women and children make up more than half the fatalities.
The court was told that at the time of the September suspension, 361 licences had been issued for arms exports to Israel.
In her written submissions, Phillippa Kaufmann KC, for Al-Haq, said the Government was using a “categorically wrong” and “highly improper” approach to assess whether Israel had breached IHL, which led to “flawed” decisions being made as to whether to suspend licences.
She said: “What is in question here is whether its (Israel’s) stated commitment is a true commitment, and in order to make that determination the best evidence is how has it gone about these hostilities.
“What one is looking for is, for example, patterns indicating systemic non-compliance with international humanitarian law.
“The defendant simply does not have information from Israel about individual acts of military action, strikes, demolitions.
“It does not have that because Israel would not give it to them.”
Ms Kaufmann added that the challenge to earlier decisions “raise important issues of principle” which were “strongly in the public interest”.
But speaking in court in London, Sir James continued that “historic decisions” taken by the previous government had been “superseded” by the September decision, making challenges to them “academic”.
The hearing before Mr Justice Chamberlain is expected to conclude later on Monday.
