LONDON

The UK High Court on Monday refused permission for a landmark judicial review brought by Palestinian human rights group Al-Haq, which sought to challenge the UK’s continued exports of F-35 fighter jet components that are ultimately used by Israel in its genocidal campaign in Gaza.

In their ruling, Lord Justice Males and Justice Steyn concluded that the so-called “F-35 carve-out” – a policy exception allowing the UK to continue exporting parts for the multinational F-35 combat aircraft program despite suspending some other military export licenses related to the Gaza conflict – was lawful and could not be overturned by the courts.

The claim centered on the UK’s legal obligations under international humanitarian law, including the Geneva Conventions, the Arms Trade Treaty, and the Genocide Convention.

Al-Haq, backed by Oxfam, Amnesty International UK, and Human Rights Watch, argued that the carve-out contravened these obligations, given the risk that F-35 components could be used in violations of international humanitarian law in Gaza.

But the judges ruled that the government’s decision, taken after advice from both the foreign and defense secretaries, was not amenable to judicial review.

“We have concluded that the claim cannot surmount this hurdle,” they wrote, “and that permission to bring a claim for judicial review must be refused.”

The court accepted that the government had reassessed Israel’s conduct.

Last July, official assessments shifted, finding that Israel was no longer committed to compliance with international humanitarian law. Foreign Secretary David Lammy, then new to his office, advised there was a “clear risk that military equipment exported to Israel … might be used to commit or facilitate a serious violation” of international humanitarian law.

The government concluded it could not identify F-35 components definitively destined for Israel, given the structure of the global supply chain.

“The true nature of the F-35 Carve Out was not that the UK would continue to supply F-35 components to Israel … but that the UK would not cease to participate in the F-35 Program,” said the ruling, even if that meant some components might ultimately reach Israel.

Judges: Treaty breaches not for domestic courts to decide

The court declined to judge the broader legal question of whether the UK’s conduct breached international treaties not incorporated into domestic law.

“The conduct of international relations is a matter for the executive and not the courts,” the judges ruled, invoking a longstanding constitutional principle that “international treaties do not form part of English law” unless enacted by Parliament.

‘Live-streamed genocide’

Al-Haq had advanced a series of legal arguments, including that the carve-out violated the UK’s duty to prevent genocide.

The claim cited “conduct which could, in principle, satisfy the physical component of genocide” and accused Israel of “a live-streamed genocide” in Gaza.

But the court declined to engage with the substance of those allegations, saying such determinations are within the remit of international bodies like the International Court of Justice (ICJ), not domestic courts.

Despite the ruling, the court acknowledged that the challenge “raises important and difficult questions” and said Cabinet ministers had acted in good faith. “The process of assessing Israel’s commitment to compliance with IHL (international humanitarian law) was conducted with care and thoroughness,” the judges said.

Despite international calls for a ceasefire, the Israeli army has killed more than 56,000 Palestinians in a deadly onslaught in the Gaza Strip since October 2023.

Last November, the International Criminal Court issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his former Defense Minister Yoav Gallant for war crimes and crimes against humanity in Gaza.​​​​​​​

Israel also faces a genocide case at the International Court of Justice for its war on the enclave.