Britain’s decision to allow the export of F-35 fighter jet components to Israel, despite accepting they could be used in breach of international humanitarian law in Gaza, was lawful, London’s high court has ruled.
The ruling after more than 20 months of litigation will be a relief to ministers who feared that if the court declared the UK sale of F-35 parts illegal, British involvement in the highly lucrative Lockheed Martin F-35 consortium would be put at risk.
In a 72-page comprehensive ruling Lord Justice Males and Mrs Justice Steyn said they had rejected all the grounds of challenge to a Labour government decision in September to suspend 30 arms export licences to Israel but to continue to sell F-35 parts to Israel via a global supply pool.
The government argued that disruption to the F-35 supply chain would weaken the west and Nato at an acutely sensitive moment. The UK provides about 16% of the parts for the F-35s, and the court was told in closed session that the Lockheed Martin global pool was not structured to permit the UK to insist its parts were withheld from Israel F-35s.
The judges ruled that the “acutely sensitive and political issue” was “a matter for the executive which is democratically accountable to parliament and ultimately to the electorate, not for the courts”.
The case had been brought by the Palestinian human rights group Al-Haq and Global Legal Action Network (Glan), supported by Human Rights Watch, Oxfam and Amnesty International.
The judges said: “The issue is whether it is open to the court to rule that the UK must withdraw from a specific multilateral defence collaboration which is reasonably regarded by the responsible ministers as vital to the defence of the UK and to international peace and security, because of the prospect that some UK-manufactured components will or may ultimately be supplied to Israel, and may be used in the commission of a serious violation of IHL [international humanitarian law] in the conflict in Gaza.”
The court rejected all 13 grounds for complaint mounted by Al-Haq’s lawyers, and in so doing moved to protect ministers from judicial review based on their international law obligations.
Campaign Against Arms Trade (CAAT) called the judgment cowardly, after the court determined that it had no clear jurisdiction to rule on UK compliance with international law obligations if the law was not incorporated into UK law.
Despite the ruling, the case has revealed serious weaknesses of the UK arms export regime and the case ministers have mounted in parliament to justify F-35 sales.
In parliament ministers have held that it is only for a competent international court, and not politicians, to assess the existence of a genocide. But in pleadings in court, lawyers revealed that in July 2024 the government had assessed there was no serious risk of a genocide occurring in Gaza, and claimed not to have seen evidence that women and children were deliberately targeted in Gaza.
The case also revealed that in assessing whether the Israeli Defense Forces had acted disproportionately, one of the key tests of a breach of IHL, the government evidential requirements were set impossibly high.
By September 2024, when Israel, according to the Hamas-controlled health ministry, had killed 40,000 Palestinians and launched over tens of thousands of airstrikes on Gaza, the government had examined just 413 of these individual incidents – and of those it found only one possible violation of international law. That possible breach was the World Central Kitchen attack on 1 April 2024 that killed seven foreign aid workers.
This means the government had not found any possible breach of IHL in respect of any incident that killed exclusively Palestinians. Al-Haq argued in court that ministers should not have focused solely on the potential Israeli justifications for a specific bombings, but also looked at the overall pattern to gather a sense of proportionality.
Dearbhla Minogue, a senior lawyer at Glan, said: “The judges declined to review the defendant’s genocide assessment on grounds that it is not an area suited to the court. This should not be interpreted as an endorsement of the government, but rather a restrained approach to the separation of powers.”
Sara Husseini, of the British Palestinian Committee, said: “Now the courts have kicked the issue back to the ministers, it is a matter for MPs and the electorate to hold the government to account.”
Yasmine Ahmed, the UK director of Human Rights Watch, said: “Judicial deference to the executive in this case has left the Palestinians in Gaza without access to the protections of international law, despite the government and the court acknowledging that there is a serious risk that UK equipment might be used to facilitate or carry out atrocities against them. The atrocities we are witnessing in Gaza are precisely because governments don’t think the rules should apply to them.”
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