A Palestinian human rights organisation has lost a High Court challenge over the Government’s decision to continue exporting parts of fighter jets to Israel amid the conflict in Gaza.
Al-Haq took legal action against the Department for Business and Trade (DBT) over its decision to continue licensing exports of components for F-35 fighter jets, telling a hearing in May that it was unlawful and “gives rise to a significant risk of facilitating crime”.
In September last year, the Government suspended export licences for weapons and military equipment following a review of Israel’s compliance with international humanitarian law in the conflict.
But an exemption was made for some licences related to parts for F-35s, which are part of an international defence programme.
The DBT defended the challenge, with its barristers telling a four-day hearing in London that the carve-out is “consistent with the rules of international law”.
In a 72-page ruling on Monday, Lord Justice Males and Mrs Justice Steyn dismissed the legal challenge.
The senior judges said that “the conduct of international relations” is a matter for the executive, rather than the courts, and that it would be unnecessary to decide whether there was a “significant risk” that the carve-out could facilitate crimes.
They added: “The grave risk to life in the ongoing military operations in the Gaza Strip is not created by the F-35 carve-out, and would not be removed by suspension of the export from the UK of F-35 parts into the F-35 programme.”
The High Court was previously told that the decision to “carve out” licences related to F-35 components followed advice from Defence Secretary John Healey, who said a suspension would impact the “whole F-35 programme” and have a “profound impact on international peace and security”.
The F-35 programme is an international defence programme which produces and maintains the fighter jets, with the UK contributing components for both assembly lines and an international pool.
Israel is not one of the “partner nations” of the programme, the court heard, but is a customer and can order new F-35 aircraft and draw on a pool for spare parts.
The two judges later said they agreed with barristers for the DBT, who said it was not possible for the UK to “unilaterally” ensure that UK-made parts did not reach Israel.
Lord Justice Males and Mrs Justice Steyn said: “In short, the Secretary of State reasonably concluded that there was no realistic possibility of persuading all other partner nations that F-35 exports to Israel should be suspended.”
“Accordingly he was faced with the blunt choice of accepting the F-35 carve-out or withdrawing from the F-35 Programme and accepting all the defence and diplomatic consequences which would ensue,” they added.
The two judges also said the case was about a “much more focused issue” than the carve-out itself.
They continued: “That 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 international humanitarian law in the conflict in Gaza.
“Under our constitution that acutely sensitive and political issue is a matter for the executive which is democratically accountable to Parliament and ultimately to the electorate, not for the courts.”
