In a case that has drawn significant attention to the UK’s arms export regime, the High Court in London found that the government acted lawfully when deciding to continue the supply of F-35 fighter jet parts to Israel via a global supply pool. The judges, while accepting that they could be used to breach international humanitarian law, ruled that the ‘acutely sensitive and political issue’ is ‘a matter for the executive, which is democratically accountable to parliament and ultimately to the electorate, not the courts’.

The case was brought by Palestinian NGO Al-Haq against the UK Department of Business and Trade over its decision to exempt the parts when it suspended 30 arms export licences to Israel in September last year. The government argued that withdrawing from the F-35 joint strike fighter programme would have a ‘profound and immediate impact’ on national security and undermine US confidence in the UK and NATO at a critical juncture.

‘The first most important ground really at the heart of the case, was the contention that the Secretary of State’s decision to make the F-35 carveout was inconsistent with the UK’s international law obligations,’ says Jennine Walker, a senior lawyer at Global Legal Action Network who represented Al-Haq in the case. The claimants argued that the UK’s decision to maintain the F-35 carveout was unlawful under international and domestic law and that its consideration of the relevant risk factors, of international humanitarian law breaches versus national security implications, was irrational.

In September, the UK government suspended 30 licences authorising the export of items that might be used for Israeli military operations in Gaza after concluding that they may be used to commit or facilitate serious violations of international humanitarian law. The decision followed Al-Haq launching its original lawsuit over the weapons exports, which was amended in January to specifically target the F-35 carveout. The F-35 programme is an international collaborative defence programme led by the US that produces and maintains F-35 combat aircraft. The UK is the second largest national provider of component parts and said it would not be possible to suspend the indirect supply of parts to Israel without impacting the entire programme.

The case also revealed detailed information about the government’s assessment of Israel’s compliance with international humanitarian law in its war on Gaza. The court heard that in July 2024 the government had assessed there was no serious risk of genocide occurring in Gaza. When assessing Israel’s compliance with international humanitarian law up until September, the government looked at 413 individual incidents and found only one – the World Central Kitchen attack that killed seven foreign aid workers – to be in breach. ‘There have been thousands of incidents, but not only individual incidents, there are patterns,’ says Walker. ‘When an entire healthcare system, education system, when 90 per cent of buildings have been destroyed, when the population has been displaced multiple times at scale like that, there's only so many conclusions you can draw.’

Francesca Albanese, the UN special rapporteur on the situation of human rights in the occupied Palestinian territory, Amnesty International and Baroness Helena Kennedy, the Director of the IBA’s Human Rights Institute, have all described Israel’s warfare in Gaza as a genocide. In 2023, South Africa filed a case against Israel with the International Court of Justice alleging that the state is responsible for violations of the Genocide Convention in respect of its war on Gaza. In an interim judgment last year, the court ruled that South Africa had the right to bring the case against Israel and that Palestinians in Gaza had a plausible right to be protected from genocide. The court issued six provisional measures including that Israel refrains from acts under the 1948 Genocide Convention but did not order Israel to suspend its military campaign.

Israel rejects accusations of genocide, and justifies its military operation in Gaza by saying it has a right to self-defence. The Israeli army also claims it is acting in compliance with international humanitarian law, or the law governing armed conflicts.

The UK Department of Business and Trade said in a statement to Global Insight: ‘The Court has upheld this Government’s thorough and lawful decision making on this matter. This shows that the UK operates one of the most robust export control regimes in the world. We will continue to keep our defence export licensing under careful and continual review. This government has worked to secure an immediate ceasefire in Gaza, the release of all hostages, a surge of aid into Gaza and opening a path to long-term peace for Palestinians and Israelis.’

Dill believes that the case will stand as a reference point in debates over arms trade ethics, the limits of judicial power and foreign affairs. ‘I think the key for this case, and taking this outside the situation in Gaza, is that it raises serious questions about who can hold the UK government accountable to its international obligations when the courts declare the issue off limits,’ she says. Dill says whether political scrutiny or public pressure will be enough to influence government policy ‘remains to be seen’ and that the international community should start to ‘look seriously’ to criminal prosecutions at the ICC and other international courts for nations that are ‘directly aiding the atrocities in Gaza’. 

‘We're at an inflexion point where the government must determine whether it wants to continue in… creating a stain on the reputation of the UK government for complicity in war crimes and other atrocities and what historical narrative that it wants to be written about this particular point in history,’ Dill says.

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