This week, a Palestinian human rights group took the UK government to court over its role in supplying parts for the F-35 fighter jet. The case, Al-Haq v. Secretary of State for Business and Trade, began at the High Court on Tuesday and will finish on Friday. The Jerusalem Post spoke to two lawyers with knowledge of the case to explain the impacts inside and outside the courtroom.
If Al-Haq's case succeeds, the British government may have to reverse its September decision not to include F-35 parts in its license suspensions, a move which affected 30 other arms exports to Israel but not the fighter jet itself.
Anne Herzberg, a human rights expert and the legal adviser to NGO Monitor, is sitting in the courtroom for the four days of the hearing. She told the Post that Al-Haq brought dozens of lawyers to the first day, and that the room was packed with pro-Palestine supporters.
According to Herzberg, Al-Haq's primary argument is that the UK government should have considered, but failed to consider, whether the remaining arms licences should have been suspended because of the evidence of genocide.
In other words, the claim is that "the UK had the obligation and the responsibility to do everything it can to prevent what's going on in Gaza."
Herzberg said the legal arguments presented were weak, and there was no mention of Israel's perspective or its need for arms, no mention of the hostages, and also no discussion of Iran, Qatar, and Hamas.
Banning F-35 parts would affect UK's economy and security
The government's central defense is that banning the export of F-35 parts would have a significant detrimental impact on the UK's security, something which Herzberg said Al-Haq provided no answer to.
"It was all about the UK's obligation to Palestinians but not to Israel or the hostages," Herzberg told the Post. "The message was that UK security doesn't matter, only Palestinian security."
Herzberg said that the UK government did a good job of exposing the holes in Al-Haq's case during the third day of the trial.
"One of the more dramatic moments was when the government made reference to October 7, and the judge said, 'this is the first time we've heard about October 7.'"
"The position in international law is that States Parties to the Genocide Convention must employ all means reasonably available to them so as to prevent genocide so far as possible," Chief Executive of UK Lawyers For Israel Jonathan Turner told the Post.
"In our view, given Hamas's threats to repeat the genocidal atrocities of October 7, 2023 again and again, this means that Israel has an obligation to employ all reasonably available means to ensure that Hamas is not able to do this – i.e. more or less the opposite of Al Haq's position."
"If Al Haq is right that there was an obligation on the British government to consider the point, the next question is whether the government did consider it. If yes, the government's consideration could only be challenged if no rational government could have reached the same conclusion, which is very difficult to show. If, however, the government did not consider this point, then the Court may conclude that the decision was unlawful and that the government must consider it. If the government then considers the point and still decides not to suspend the remaining licences, this could only be challenged on the basis that no rational government could reach that decision."
Misused power in original suspension of export licenses
Turner also told the Post that he suspected that "power was misused" in the original suspension of 30 arms export licenses in September 2024. "There have been no findings that Israel had misused any of the arms that were supplied," he added.
He argued that the government's allegations at the time – that there was a risk that Israel had not complied with its obligations under IHL, especially relating to the provision of aid to Gaza – were false at the time of the suspension itself.
The Post additionally asked Turner how the arms export suspensions sat in line with similar export decisions regarding arms to other countries. Turner said Israel was "singled out," and that he believed the move was mainly to "placate anti-Israel voters" following the Labour win in July.
Turner noted arms continue to be supplied to Saudi Arabia, "despite the murder of a journalist in Turkey and other violations of human rights." He referred here to Saudi's assassination of Saudi dissident journalist Jamal Khashoggi in 2018 at the Saudi consulate in Istanbul, Turkey.
The UK is one of the leading arms suppliers to Saudi Arabia, having supplied about £10 billion to the country since it began its military intervention in Yemen in 2015. The decision to supply the arms was briefly suspended following a successful legal case brought by the group CAAT (Campaign Against Arms Trade), during which the Court of Appeal ruled it was "unlawful" for the UK to grant licenses for the export of arms to Saudi Arabia for use in Yemen without considering the allegations of past by Saudi Arabia. The suspension ended in 2020.
Turner explained that even if the conditions under the criteria are satisfied in order to suspend the licenses, it is still at the government's discretion to do so, provided ir has taken into account all relevant considerations. However, in the case that there is a suspension without correct justification or reasoning under the same criteria, that is "unlawful."
If the court rules in Al-Haq's favour and does not suspend its order pending an appeal, the government would have to immediately suspend the licenses, but it may subsequently decide to unsuspend them, Turner added.
Turner said that the court will most likely struggle to go against the government's argument that suspending the licenses for F-35 parts would be damaging for Britain's defense and security; "If the government says it will cause serious strategic damage, the judiciary will generally accept it as being true. The court will be reluctant to overturn a government decision based on strategic foreign policy and defense considerations," he added.
Worried about the courts decision
Nevertheless, Turner said he was "worried" about the possibility that "the government might pull its punches."
Suspending F-35 exports may impact relations with America, so it would be "convenient" to have a court decision stopping supply, Turner explained. "They can then tell American officials, 'we have no choice, the evidence of Israel's violations was so serious that the court made this decision.'"
Also worrying is that the people involved in preparing the UK government's defense may believe some of Hamas's lies, Turner added. "There is sometimes a tendency [of the UK government] to accept bogus allegations, which could lead to an incorrect result in the case."
Turner cited Baron Richard Hermer, the main legal advisor to the government and the Attorney General for England and Wales since July 2024. Despite being Jewish, Hermer has been historically hostile towards Israel.
On October 17, 2023, just ten days after Hamas's massacre, Hermer joined eight prominent Jewish lawyers in writing an open letter calling on Israel to follow international law. He also wrote a chapter in a book called ‘Corporate Complicity in Israel's Occupation: Evidence from the London Session of the Russell Tribunal on Palestine.' Hermer also strongly opposed an anti-BDS bill.
"His fingerprints are all over the [original arms export suspension] case," said Turner. He added that the UK government's September claim about Israel not adhering to IHL "opened the door for Al-Haq's case."
"The tribunal may be significantly prejudiced by media coverage and of the view that Israel is conducting [its] campaign in a grossly disproportionate manner," he said.
