A FOUR-DAY High Court hearing begins on Tuesday in which Al-Haq, a Palestinian human rights organisation, is challenging the government’s decision to continue granting licences to sell F-35 fighter jet components and other weapons to Israel. Oxfam, Amnesty International and Human Rights Watch have intervened in the case.

Public statements by Israeli officials make it clear that F-35s are regularly used in military attacks on Gaza. The British government accepts there is a “clear risk that the items might be used to commit or facilitate serious violations of international law.” It has also admitted that Israel is not committed to complying with international humanitarian law. However, it says that stopping the F-35 licences would “cause disruption to the global supply chain,” which will have a profound impact on international peace and security.

Al-Haq considers that this is an extraordinary position to take. According to its general director, “Gaza is destroyed, it is unliveable. Palestinians in Gaza have been killed and erased by weapons whose components are supplied to Israel by the British government, acting in full knowledge of the consequences.”

The Arms Trade Treaty of 2014 regulates the international trade in conventional arms. Authorising the export of weapons and related items is prohibited if a government knows that the arms or items would be used in the commission of genocide, war crimes, crimes against humanity, grave breaches of the Geneva Conventions of 1949 or attacks on civilian objects or protected civilians.

The relevant UK statute is the Export Control Act 2002. Under section 9, the Secretary of State for Business and Trade may issue guidance concerning the grant of such licences. The Strategic Export Licencing Criteria are the current guidance.
Some of the criteria are mandatory in that an export licence must be refused if the criterion is not met. The mandatory criteria include that the government will not grant a licence if there is a clear risk that the items might be used to commit or facilitate internal repression or a serious violation of international humanitarian law.

International Humanitarian Law (IHL) applies in armed conflicts and situations of occupation, and therefore to the occupied Palestinian territories. The relevant principles are codified in the Four Geneva Conventions of 1949 and in customary international law.

The IHL “principle of distinction” requires that belligerents “shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”

The IHL “principle of proportionality” prohibits an attack on a military objective in the knowledge that the incidental civilian injuries will be clearly excessive in relation to the military advantage.

Under the Genocide Convention, the crime of “genocide” requires an intention to destroy, in whole or in part, a national, ethnic, racial or religious group. It is committed when with such intent someone kills or causes serious bodily or mental harm to members of a group, or deliberately inflicts on the group conditions of life calculated to bring about its physical destruction in whole or in part.

As a signatory to the Convention, Britain has undertaken to prevent and punish genocide. It must “take appropriate measures to prevent violations.” Once it learns of a serious risk of genocide, it must employ all means reasonably available to it “to prevent genocide so far as possible.”

According to the treaty known as the Rome Statute, “crimes against humanity” include the following acts when committed as part of a widespread or systematic attack directed against a civilian population: murder; extermination; the persecution of any identifiable group on political, racial, national, ethnic, cultural or religious grounds; the crime of apartheid; and “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”

Approximately 2.2 million Palestinians live in Gaza, an area the same size as the Isle of Wight. Over 70 per cent of them are refugees and their descendants from towns and villages in what is now Israel. To date, the military assault on Gaza has killed over 42,000 Palestinians (including over 14,000 children), wounded over 97,000 others, displaced almost 2.3 million adults and children and brought them to the brink of famine. According to Oxfam:

“The Israeli forces’ assault on Gaza has escalated to a horrifying level of atrocity. Northern Gaza is being wiped off the map. Under the guise of evacuation, Israeli forces have ordered the forced displacement of an estimated 400,000 Palestinians trapped in northern Gaza, including Gaza City. This is not an evacuation — this is forced displacement under gunfire … no food has been allowed into the area, and civilians are being starved and bombed in their homes and their tents.”

The UN reports that the Israeli army has “unlawfully and wantonly attacked and destroyed without military necessity a number of food production or food processing objects and facilities (including mills, land and greenhouses), drinking-water installations, farms and animals in violation of the principle of distinction … with the purpose of denying sustenance to the civilian population, in violation of customary law.” Israeli snipers have intentionally “killed and gravely injured civilians who were neither participating directly in hostilities nor posing an imminent threat to life,” including children, paramedics, journalists, and persons with disabilities, despite them not presenting an imminent threat.

The scale and ferocity of Israel’s attacks make a comprehensive summary difficult. However, the evidence is that Israel’s military attacks have involved civilian death and injury on an unprecedented scale; the destruction of civilian infrastructure and property; grave violations against children; targeting civilians and individuals who are hors de combat; the use of mass evacuation orders as a tool of displacement; the imposition of a siege; attacks on deconflicted targets and UN personnel; the obstruction of humanitarian aid; the destruction of the healthcare sector; attacks on medical and educational personnel and facilities; and the disappearance, deportation, torture and ill-treatment of detainees.

In the case of South Africa v Israel, the International Court of Justice (ICJ) found on the evidence that there was a real and imminent risk of irreparable prejudice to the “right of the Palestinians in Gaza to be protected from acts of genocide,” conspiracy to commit genocide, direct and public incitement to genocide, attempt to commit genocide and complicity in genocide.

In November 2024, the International Criminal Court’s pre-trial chamber issued warrants for the arrest of Prime Minister Netanyahu, the then Israeli Defence Minister Yoav Gallant and Hamas leader Mohammed Diab Ibrahim Al-Masri. The chamber held that there were reasonable grounds to believe that Mr Netanyahu and Mr Gallant intentionally and knowingly deprived the civilian population in Gaza of objects indispensable to their survival, including food, water, and medicine and medical supplies, as well as fuel and electricity. There were also reasonable grounds to believe that the lack of food, water, electricity and fuel, and specific medical supplies, created conditions of life calculated to bring about the destruction of part of the civilian population in Gaza, which resulted in the death of civilians, including children due to malnutrition and dehydration.

In short, there is overwhelming evidence of crimes against humanity and serious breaches of international humanitarian law, and at the least a prima facie case of genocide. The fact that there was sufficient evidence to justify the arrest, charge and trial of Netanyahu and Gallant is a significant matter to which the Secretary of State for Business and Trade must give due weight.

Today, I am proud to be a lawyer. Bindmans Solicitors, Phillippa Kaufman KC and the team supporting Al-Haq and Global Legal Action Network have done humanity a great service by bringing this case before the courts.

Anselm Eldergill was, until recently, a judge in the Court of Protection. He is a solicitor, an associate at Doughty Street chambers and an honorary professor at Queen’s University Belfast.