Legal Challenge to UK Government Ban on Arms Sales to Israel
September 8, 2024
The UK Government is facing a Judicial Review of its decision to suspend some arms export licences to Israel. UK Lawyers for Israel (UKLFI) has sent a formal letter to the Government threatening legal action unless it cancels the decision to suspend around 30 licences for the export of arms to Israel.
The letter notes that the Government’s decision is based on criterion 2c of the Strategic Export Licensing Criteria (SELC). This says that the Government will “Not grant a licence if it determines there is a clear risk that the items might be used to commit or facilitate a serious violation of international humanitarian law.”
However, according to the statement made by the Foreign Secretary, David Lammy MP, as well as the Government’s Press Release and Policy Paper, the Decision was made on two grounds, which had nothing to do with whether the banned items might be used to violate international humanitarian law. These were:
That Israel could have done more to ensure that humanitarian assistance reaches the Gaza population and
That there were credible allegations of mistreatment of Palestinian detainees, who were denied access by the Red Cross.
UKLFI’s letter points out that, even if these alleged risks exist, they are not connected with the particular arms whose export licences are being suspended. Therefore the decision is not justified under criterion 2c of the SELC.
The Government’s statements also ruled out justification based on the conduct of the hostilities, in which the arms would be used. These said that “it has not been possible to reach a determinative judgment on the allegations regarding Israel’s conduct of hostilities”
UKLFI’s letter also criticises emails by the Solicitor-General, Sarah Sackman MP, responding to some of her constituents. These emails asserted that “The UK Government can only grant export licenses for arms if it is confident that the those [sic] arms will not be used in breach of international humanitarian law.”
The Solicitor-General’s emails were inaccurate and misstated the legal test. Under Sackman’s test, any country trading with the UK would be treated as guilty of war crimes until proven innocent. If she was right then the entire UK defence industry would find it impossible to make any exports.
This reverses the burden of proof in criterion 2c: as stated above, licences can only be refused under this provision if “the Government determines that there is a clear risk that the arms might be used to commit or facilitate a serious violation of international humanitarian law”.
UKLFI’s letter requests a substantive response by 20 September 2024.
Jonathan Turner, UKLFI Chief Executive, said: “We consider that there is a strong case that the Government’s decision was unlawful. In truth, it was a political decision to appease members of the public who hate Israel based on misinformation and biased media coverage of the war. As such, it was a misuse of the power granted by the legislation.”
