The Corruption Tracker has reported 10 cases involving the sale of arms by companies based in the United Kingdom (UK), including notable instances such as the South African Arms Deal, the Al Yamamah Arms Deals, and the Rolls-Royce Hawk Jet Deal. These cases highlight the UK’s historical involvement in corrupt international arms sales. This analysis will investigate the connection between the arms trade in the UK and the ongoing genocide in Palestine, focusing on the role of export licenses. The piece will also briefly discuss the potential for such a case in Australia, given the authors work on a recent CT case regarding Australia, as well as the parallels between the UK and Australian legal systems, their political roles on the global stage, and the presence of the same arms companies actively operating in both countries. It is notable that Canada, which also shares similar political and legal frameworks, suspended arms sales to Israel in March 2024. Additionally, a Dutch court halted the export of F-35 parts (relevant to both the UK and Australia because of their involvement in the same production) in February 2024.
During the ongoing genocide in Palestine, the involvement of various nations, including the UK and Australia, in the sale of arms and the granting of licenses for such sales has come under scrutiny from numerous advocacy groups. One key export is component parts for F-35 fighter jets, a program where the UK and Australia, along with six other nations, are global coalition partners with the USA. Currently, 79 companies in the UK are registered under a government open license to support the F-35 program, while in Australia, there are over 70 companies involved.
At time of writing (27 August 2024), official figures released by the Gaza Ministry of Health report that 40,000 Palestinians have been killed since the escalation in conflict in October 2023. However, a recent analysis published in The Lancet estimates that the death toll could exceed 186,000, accounting for both direct and indirect deaths. This article is written in the context of the International Court of Justice (ICJ) recently calling for provisional measures to prevent a genocide, and also ruling that states can not further support the occupation. We argue that this situation warrants serious attention from governments worldwide, and we aim to examine the role that export licenses play in this context
The UK High Court case
The matter of arms export licensing to Israel was brought before the UK High Court in December 2023, when Al-Haq and the Global Legal Action Network (‘GLAN’) (the complainants) filed a judicial review case regarding the decision to maintain the issuance of licences. Al-Haq is an independent Palestinian non-governmental human rights organisation, and GLAN is an advocacy group who pursue legal action across the world to challenge injustice. This particular case is a form of judicial review, which pertains to the branch of law that scrutinises executive decision-making. In this case, the specific decision in question is:
Secretary of State for Business and Trade’s (the “SST”) decision to continue granting export licenses and to maintain existing export licences for military and dual-use equipment being exported to Israel either directly or where Israel is the final-destination “and essentially requested that the Court order both a suspension and a further pause on the granting of licenses to sell both arms and military equipment to Israel.[1]
Initially dismissed by the Court on December 9, 2023, the case gained momentum after a successful appeal led to the case being reopened, granting the complainants the opportunity for further proceedings.
Since then, the case has advanced with the Court granting permission for additional parties, namely Amnesty International, Oxfam, and Human Rights Watch, to join and provide supplementary evidence.
Granting of licences
This case represents an instance of utilising judicial processes to scrutinise government support for Israel via recent arms exports. The issuance of licenses that permit the export of military or dual-use goods enables further conflict. This political stance is well supported by many advocacy and civil groups. Moreover, there exists not just a political case to be made, but also a legal imperative to consider. This is because the licensing regimes in the UK (and Australia) require the government to consider compliance with international law before granting licences. Given the mounting evidence and international consensus regarding the illegality of the Israeli Defence Force’s actions in Gaza, there is a legal onus on governments granting licences to properly review this information.
In the United Kingdom, the case is a judicial review case. This means it is a review of a decision made by the executive branch of government, and essentially examines whether they made the correct decision through their interpretation of the relevant law. The law in this case is the Strategic Export Licensing Criteria, and how they were applied by the Secretary of State for Business and Trade. More specifically, the criteria considered are criteria 1(b), 2(c) and 7(g).
1(b)
As summarised in Al-Haq’s Summary of Facts and Grounds, section 1(b) comprises of the following obligation:
“Respect for the UK’s international obligations and relevant commitments, in particular sanctions adopted by the UN Security Council, agreements on non-proliferation and other subjects, as well as other international obligations.
The Government will not grant a licence if to do so would be inconsistent with, inter alia:
…
- b) the UK’s obligations under the United Nations Arms Trade Treaty”.
The United Nations Arms Trade Treaty specifically prohibits authorising the transfer of weapons when it is known that they are ‘facilitating genocide, crimes against humanity, grave breaches of the Geneva Convention or attacks directed against civilian objects or civilians protected’.[2]
While the application of ‘when it is known’ is complicated, Al-Haq submits that ‘th[is] duty to prevent is engaged where the State is merely “aware” of a “serious danger” that genocide might occur’.[3] In their submission on this point, Al-Haq/GLAN submit that the SSBT did not appropriately apply this point of law, given the facts that we now know about the situation in Gaza.
Regarding facts, in the case before the UK Court, GLAN has submitted three separate factual updates imploring the UK government to properly assess the situation on the ground in order to align their analyses with international and national law. It is also relevant to note the International Court of Justice (ICJ) ruling on the 24th of May, which states that:
‘Israel shall, in conformity with its obligations under the convention on the prevention and punishment of the crime of genocide, and in view of the worsening conditions of life faced by civilians in Rafah governorate … immediately halt its military offensive and any other action in the Rafah governorate which may inflict on the Palestinian group in Gaza conditions of life that would bring about its physical destruction in whole or in part’.
These facts feed into the other arguments advanced by the applicants and highlight the factors that the government needs to consider when making decisions on this topic.
2(c)
The next related provision is 2(c) which states:
- c) 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. In considering the risk that items might be used to commit or facilitate internal repression, or to commit or facilitate a serious violation of international humanitarian law, the Government will also take account of the risk that the items might be used to commit or facilitate gender-based violence or serious acts of violence against women or children”
The applicant then sets out the relevant principles under international humanitarian law (such as distinction, proportionality and protected groups) that the Government needs to consider under 2(c). The argument from the applicant is extended, and this article cannot seek to adequately address all of the relevant IHL points, such as the principle of distinction (differentiating between civilians and combatants), the principle of proportionality, and the principle of precaution. However, this is one example of where the principles of IHL have actually been ratified into domestic law, and as such need to be considered by the Government.
7(g)
Criterion 7(g) is broad, and states that ‘the risk of an undesirable end-use either by the stated end-user or another party’ needs to be taken into account when making decisions. The primary submission on this point from the applicant is that ‘It is clear that a serious breach of IHL or international law (e.g. the Genocide Convention) would amount, on any sensible construction, to “an undesirable end-use” of a military export’.[4]
As such, similar to 2(c), the Applicant calls on the Government to consider the relevant factual updates it has provided, and that the Government ought to be aware of, when making these decisions.
Overall application
As such, it is clear that these provisions in domestic law lead to an obligation to consider factors such as prevention of genocide, IHL principles and obligations under general international law when making licencing decisions.
The applicants primary arguments under these points will now be considered further by the Court in October.
Justice Delayed
At a recent London event, a Palestinian woman with family in Gaza asked a panel of legal experts, “How do these legal interventions help my family who are in a tent in Gaza right now?”. Her question highlights the urgency of action to stop arms exports that facilitate war crimes and genocide. It is a reality that the legal procedures undertaken take too long to realise tangible legal outcomes. For instance, when Campaign Against Arms Trade filed a similar injunction over UK arms exports to Saudi Arabia in 2016, it took until 2019 for the government to be ordered to reconsider its decisions. In the case of arms exports to Israel, the wheels of justice are moving too slowly to by themselves stop an ongoing genocide, as illustrated by the fact that the court will only consider the case in October 2024, a full year after the beginning of the escalation. Even then, because of the way the legal system is structured to privilege executive decision making about arms exports, success is far from guaranteed. Lawyers are well aware of this reality, which is why legal campaigns must be embedded within larger political efforts. These campaigns can leverage interim rulings and results, as well as the increased scrutiny that comes with legal proceedings, to advance political ends.
Australia
In Australia, similar criticisms have arisen regarding the government’s complicity in the export of weapons (or parts of weapons) to Israel. Despite these concerns, the Australian government has unequivocally denied any involvement in such exports.
According to reports from Michelle Fahy, an independent journalist who researches the arms trade, it is unclear whether the Department of Defence has halted existing permits. Regarding new permits, “[t]he Senate Estimates and FOI [Freedom of Information] evidence together show that Defence approved one export permit to Israel prior to October 7 and two in the period October 25–31.”
The process for approving or maintaining export permits in Australia is governed by the Customs (Prohibited Export) Regulations 1958 (PE Regulations) and the Defence Trade Controls Act 2012 (DTC Act). Both of these acts in turn reference the Defence and Strategic Goods List (DSGL).
When granting a permit, the Minister must consider 12 criteria (from PE Regulations 13E(4)). A number of these criteria are relevant to this potential case, and illustrate obligations that are present in Australia’s own domestic law. The following criteria are relevant to this case:
13E(4)(2) The risk that the goods or the DSGL technology may go to, or become available to, a country where they may be used in a way contrary to Australia’s international obligations or commitments
13E(4)(3) The risk that the goods or the DSGL technology may be used to commit or facilitate serious abuses of human rights
13E(4)(4) Whether the export of the goods or the DSGL technology:
(a) may aggravate:
(i) an existing threat to international peace and security or to the peace and security of a region; or
(ii) a particular event or conflict of concern to Australia; or
(b) may otherwise contribute to political instability internationally or in a particular region
13E(4)(5) Whether the goods or the DSGL technology may: … (b) further militarise conflict within a country
13E(4)(9) The risk that the goods or the DSGL technology may go to, or become available to, a country: …. (c) whose actions or foreign policies pose a risk of major disruption in global stability or the stability of a particular region
These criteria clearly demonstrate the considerations the Minister must weigh when making decisions about export permits. Given the well-documented situation in Gaza and the reports from official departments and organisations, there is a potential for breaches of these criteria if exports continue.
While no challenge has been brought in Australia, in principle, a judicial review similar to the one in the UK could be brought, applying the same principles to challenge any licences granted under these criteria. However, while the situation regarding new licences remains unclear, it remains unlikely such a case will be brought. Nonetheless, we would urge the Australian government to continue to review new information when assessing its obligations under these statutory frameworks, and appropriately ensure that international humanitarian law is upheld and the current facts are incorporated into decision making.
Conclusion
In summary, challenging the application of licensing regimes could be an effective strategy to scrutinise continued support for Israel by Western governments. It is unclear how this legal challenge in the UK will resolve in October, however it remains a creative way to force the government to consider broader principles of international law (and common sense). This approach has already seen success in other Western nations, for similar exports (e.g. F-35 parts), as was the case in the Netherlands.
Further, as the law is slow and delayed, it can be a mechanism for prolonged media attention, placing the Government under judicial scrutiny and further public scrutiny. Similarly, it is a mechanism to extract further information about how the Government is making decisions and what licences they are granting. Bringing legal cases also legitimises the political arguments through relying on judicial processes, that are respected by large fractions of the society that may not be as amenable to activist arguments.
Ultimately, the effectiveness of international frameworks incorporated into domestic licensing laws depends on whether decision-makers genuinely consider these provisions, rather than treating them as mere symbolic gestures in legislation.
We strongly urge the governments of the UK, Australia, and other nations that have not yet reviewed their application of licensing regimes to conscientiously evaluate their legal responsibilities. In both the UK and Australia, these responsibilities stem not only from international law commitments but also from domestic legal frameworks, to which the government must be held accountable.
Footnotes
[1] Applicants Summary of Grounds and Facts [1]
[2] ATT 6(3)
[3] This is in reference to other international law principles, see [44] of the Applicants Summary of Grounds and Facts.
[4] [49]