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18 January 2024

Government responds to Al Haq’s proceedings regarding export of weapons to Israel

5 mins

Al Haq’s case is that it is unlawful for the Secretary of State for Business and Trade, Kemi Badenoch, to grant licences to export weapons to Israel because it is a breach of Export Licensing Criteria, which require that licences won’t be granted if there a clear risk that weapons will be used to commit or facilitate serious breaches of international humanitarian law; or if it is inconsistent with the Arms Trade Treaty.

The Arms Trade Treaty requires that States can’t authorise transfers of weapons if to do so would violate international obligations; or if the State knows that the weapons will be used to commit genocide, crimes against humanity, or breaches of Geneva Conventions.

We sent a pre-action letter on 16 October asking that the Secretary of State suspend all existing licences and cease granting new licences. We received no reply, so we issued judicial review proceedings on 5 December. We received the Secretary of State’s Defence late on Friday 12 January.

The Secretary of State explained in her Defence that there have been four risk assessments of licences to export weapons to Israel since 7 October 2023. As part of this process the Foreign Office wrote to Israel on 21 November 2023 focusing on a limited number of issues:

  • Five incidents identified in Amnesty report from 20 October 2023;
  • The air strikes on the Jabalia refugee camp on 31 October 2023;
  • Operations on Al Shifa hospital;
  • Strikes on an ambulance outside Al Shifa on 3 November 2023;
  • Strike on a humanitarian convoy reported by the ICRC;
  • Israeli government’s position in relation to the evacuation instruction on 12 October 2023;
  • Israel’s position in relation to claims that Israel is engaged in collective punishment;
  • Whether Netanyahu’s statement as to restrictions that Israel is placing on essential supplies represents policy; and
  • Requesting information about humanitarian relief.

Israel responded on 26 November 2023. It maintained that it is committed to complying with international humanitarian law, it set out how its structures enable it to do so, and it asserted that it has complied to date. Israel said that the practices of Hamas require it to target civilian objects, and set out measures it had taken to mitigate civilian harm.

However, Israel declined to respond in relation to the specific incidents identified in the Foreign Office letter and gave no reasons for restricting the quantities of supplies of food, water and medical supplies to Gaza.

As the Government’s risk assessments noted, Netanyahu has said publicly that access to essential supplies will only be given in return for the release of hostages. The Foreign Office considered this raised concerns as to Israel’s commitment to its obligations under international humanitarian law not to arbitrarily deny access to humanitarian assistance.

However, the Secretary of State is satisfied that Israel is acting in accordance with what it believes to be its legal obligations. She explained in her Defence that it doesn’t follow from the fact that Israel may take a different view of its obligations under international humanitarian law to that of the UK, that Israel is not committed to following it.

As a result, the Secretary of State decided on 18 December not to suspend licences to export weapons to Israel and to continue granting new licences, on the basis that there was no clear risk that the weapons would be used to commit or facilitate serious violations of under international humanitarian law. Al Haq considers that it has set out copious evidence and arguments in relation to:  

  • The scale of civilian harm;
  • The extensive damage to civilian objects;
  • The targeting of safe zones;
  • The expulsions and executions in the West Bank;
  • The serious risk of genocide; and
  • The scale of explosive capacity dropped on Gaza, including reports of the use of white phosphorous, an incendiary material that burns human flesh and can cause lifelong suffering.

The Secretary of State chose to engage with none of this in her Defence.

She makes no comment on statements by the Israeli prime minister, the Israeli president, and numerous senior ministers including the Defence Minister, which Al Haq believe dehumanise the Palestinian people, conflate Palestinian civilians with the Hamas military wing, deny that there is such a thing as an uninvolved citizen and call for the starvation, siege, expulsion and ethnic cleansing of Palestinian people.

She does not respond to our query as to whether it is true that the UK has previously supplied white phosphorous to Israel.

She does not engage with the expressions of condemnation of Israel’s practices from the international community, including the UN Security Council, the ICRC, the UN General Assembly, the UN Secretary General and the UN High Commissioner for Human Rights.

She argues that Al Haq should be ordered to pay her full legal costs because the claim is not a matter of general public importance.

While we’ve been waiting for this response, South Africa applied to the ICJ for a declaration that Israel cease hostilities on the basis that it is committing genocide against the Palestinians.

According to the Ministry of Health in Gaza, as at 7 January 2024, at least 23,084 Palestinians had been killed since 7 October 2023, of whom over 10,000 are said to be children. Many more face death from starvation and disease.

For more details on the case, and to read the Defence in full, please visit Global Legal Action Network’s case page here.

To find out more about our Political, Diplomatic and International Law services, please see our page here.

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