In the United Kingdom, scrutiny of the conduct of Israeli military forces in their ongoing invasion of Gaza has grown amid concerns that UK-supplied weapons are at risk of being used to perpetrate violations of international humanitarian law (IHL). Following the intensification of the conflict, the UK Government has affirmed its support for Israel’s right of self-defense against Hamas, but called on Israel to exercise force in line with the principle of proportionality.

The UK Government’s rhetorical emphasis on IHL compliance, however, appears to be inversely related to its approach towards the supply of arms to Israel. In the first weeks of the conflict, a report by openDemocracy alleged that “the UK government has no plans to suspend arms sales to Israel, despite human rights campaigners warning its exports have been used to kill civilians.” In late November, when pressed in the House of Commons, the current Defence Secretary Grant Shapps rebuffed the idea of the UK suspending its arm sales to Israel. Global Legal Action Network – in partnership with the Palestinian rights NGO Al-Haq – are currently “raising funds to challenge the government decisions that allow these British arms to be sold to the Israeli Defence Force and other major war aggressors.” The legal frontier of the UK’s response to the ongoing Israel-Hamas conflict, it seems, is in a volatile period. The question is whether the UK government will conduct a bona fide IHL assessment of arms exports to Israel according to the existing legal framework that is enforced by the courts.

UK Arms Export Control – The Factual and Legal Context

According to research by Campaign Against the Arms Trade (CAAT), the UK has licensed approximately £472 million in arms exports to Israel since 2015. These exports consist of a variety of components, equipment and technology, including for fighter aircraft and drones. This benchmark, however, is not a precise figure. As James Butler observes, “the headline figure is taken from the value of standard licences, but the UK also operates a system of open licences that permit transfers of unlimited – and unspecified – quantities of particular military goods” (LRB, Up in Arms (2018)).

The export of arms and military equipment from the UK to Israel is regulated by the Export Control Act 2002. Arms and other specified products can be legally exported only under a licence issued by the Secretary of State. Section 9(2) of the 2002 Act provides that the Secretary of State may give guidance about any matter relating to the exercise of his licensing power, and Section 9(3) provides that the Secretary of State must give guidance about the general principles to be followed when exercising any such licensing power.

The current guidance on arms exports, hereafter called the Consolidated Criteria, was laid before Parliament on March 2014. Criterion 2(c) sets out that the UK “will … not grant a licence if there is a clear risk that the items might be used in the commission of a serious violation of international humanitarian law.” Whilst the Consolidated Criteria incorporated EU export control law, including the EU Common Position of 8 December 2008, 2008/944/CFSP, references to these provisions were removed following the UK’s departure from the European Union. Notwithstanding this omission, the revised guidance still makes explicit reference to respect for IHL as a criterion in the assessment of licence applications. Under the existing guidance, the UK will “[n]ot 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.” To that extent, whilst the Consolidated Criteria enjoys the status of policy under domestic law, the applicable standards (and Criterion 2(c) in particular) derive from public international law and IHL principles governing the conduct of armed hostilities.

The Court of Appeal’s judgment in R (CAAT) v Secretary of State for International Trade [2019] EWCA Civ 1020 provides useful insight into how well-established principles of “irrationality” apply in the international arms trade context, and the extent to which the latitude afforded to the executive in this policy area affects this process. In that case, the Claimant challenged the grant of licences for the export of arms to the Kingdom of Saudi Arabia, where those arms could be utilized in the conflict in Yemen (see Zoe Chapman’s analysis in Just Security of the points raised by counsel during proceedings in the High Court). CAAT’s argument was that rationality required the Secretary of State to either accept the conclusions of reports by NGOs and a U.N Panel of Experts regarding patterns of serious IHL violations by Saudi Arabia or give proper reasons for rejecting them. The Court of Appeal accepted this argument and concluded that the question of whether there was a historic pattern of IHL breaches was a question that had “to be faced.” Even if the question could not be answered by the Secretary of State in every case, “at least the attempt had to be made” (para. 138).

Israel’s Intervention in Gaza: UK Support and Mounting Evidence of IHL Violations

Israel’s effective siege of the Gaza Strip and air and ground invasion was initiated following a multi-pronged invasion of southern Israel by Hamas-led Palestinian militants, which included a horrific attack directed at the Re’im Music Festival on October 7, 2023 and against other members of the civilian population in southern Israel. The UK expressed reserved support for Israel’s actions at the outset, with then-Foreign Secretary James Cleverely calling for “restraint and discipline” in the military response to Hamas. On November 15, 2023, the U.N Security Council passed a resolution (Resolution 2712 (2023)) which called for the immediate release of all hostages by Hamas and for “urgent and extended humanitarian corridors” throughout Gaza. The United Kingdom, along with the United States, abstained on the basis that the resolution did not condemn Hamas’ attack against Israel on October 7.

Since the escalation of the conflict, there have been widespread credible reports of potential IHL violations by Israeli military forces (as well as Hamas-led militants). The following catalogue outlines but a few of the potential IHL violations identified by analysts:

  • Three days after the Re’im Music Festival massacre and associated attacks in southern Israel, the U.N. Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem and Israel, said that there was “already clear evidence that war crimes may have been committed.” The Commission of Inquiry had been collecting and preserving evidence of war crimes committed by “all sides” since 7 October 2023, when Hamas launched a complex attack on Israel and Israeli forces responded with airstrikes in Gaza.
  • On October 12, 2023, Human Rights Watch reported that Israel had used white phosphorus in Gaza, one of the most densely populated areas in the world, in violation of the IHL principle of distinction between civilians and combatants and magnifying the risk of civilians suffering serious and long-term injuries.
  • That same day, Amnesty International issued a public statement describing the blockade on Gaza as “illegal and inhumane” and as “collective punishment,” a war crime prohibited in both international and non-international armed conflict.
  • A subsequent analysis by Amnesty published on October 20, 2023 identified “damning evidence” of IHL violations arising from aerial bombardments on Gaza, including “failing to take feasible precautions to spare civilians” and “carrying out attacks that may have been directed against civilian objects.”
  • Professor Fionnuala Ni Aolain, former U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, stated that “it appears that impartial humanitarian access, an absolute and uncontested imperative of international humanitarian law, is being rhetorically and practically held hostage to the release of those same hostages” held by Hamas (in Just Security’s compendium of comments from “top law-of-war experts” on access to humanitarian aid in Gaza).

Is There a “Clear Risk” that Arms Exported to Israel Will Be Used in IHL Violations?

Though a fascinating conceptual exercise in the abstract, a comprehensive analysis of the grounds and merits of a potential challenge to the licensing of arms exports to Israel falls outside the scope of this piece. A more fruitful line of inquiry, however, emerges from the CAAT judgement. The decision of the Court of Appeal, as well as the outcome of the Claimant’s second challenge in the Divisional Court (hereafter referred to as CAAT II), serves as a useful barometer against which the definition of “clear risk” and “serious violation” of IHL in Criterion 2(c) of the Consolidated Criteria can be tested in the context of the present conflict.

In reaching its decision, the Court of Appeal accepted CAAT’s argument that a “clear risk” does not require a risk of “a whole future series of violations” (para 101). Rather, in the words of the Court, “a clear risk of another bombing of an additional MSF Hospital would be enough” (para.101). Against this backdrop, CAAT’s submissions on the assessment of a “clear risk” was subdivided into three strands. First, “the quality of the information and the evidence from the UN and the NGOs was of such range and depth that it called for a full engagement and critique by the Secretary of State.” Second, incidents that were “so striking and so suggestive of violation” called for detailed assessment as to whether a violation had taken place. Finally, with regard to the “iterative process of assessment of the real risk of future violations,” the reliability and effectiveness of assurances of IHL compliance simply could not be judged “in the absence of an assessment of violation” (para.102).

The salient issue that emerges from the Court’s observations on this point is not that the Secretary of State is bound to reach a particular conclusion on the “clear risk” of items being used in the commission of serious IHL violations, but that they are bound to reach a conclusion. Indeed, in CAAT II, the Divisional Court rejected CAAT’s subsequent challenge to the decision to resume licensing arms to Saudi Arabia, concluding that there was no basis for treating the categorization of any of the incidents of concern, and the Secretary of State’s approach to identifying patterns amongst those incidents, as irrational.

What bearing, then, does this have on assessing whether there is a “clear risk” of UK arms being used in serious IHL violations by Israel? As a general point, the wide margin of appreciation afforded to the executive in the realm of international trade policy could preclude the success of a claim that a decision in the negative by the Secretary of State was irrational. However, if the Secretary of State is found to have not reached any conclusion (whether negative or positive) as to the “clear risk” criterion, the CAAT case may yet serve as a powerful precedential tool in a claimant’s legal armory.

The outcome of any germinating legal challenge, however, should not detract from recognition of the profound human costs of the ongoing armed conflict between Israel and Hamas. On November 15, 2023, a coalition of 125 opposition MPs voted (albeit unsuccessfully) in favor of an amendment to a government motion on its plans for the year ahead, calling for all parties to the Israel-Hamas conflict to agree to an immediate ceasefire. The question remains as to how, if at all, parliamentarians in different jurisdictions can corral political consensus on the humanitarian crisis that has been perpetuated by the conflict.

Photo credit: Britain’s Prime Minister Rishi Sunak (C) poses for a photograph alongside Britain’s Chancellor of the Exchequer Jeremy Hunt (centre right) and Britain’s Secretary of State for International Trade Kemi Badenoch (centre left) at the first cabinet meeting under the new Prime Minister, Rishi Sunak in 10 Downing Street in central London on October 26, 2022 (Stefan Rousseau/POOL/AFP via Getty Images)