BBritain’s history of developing and upholding international law should be a source of pride. Britain once led the way in prosecuting war crimes, enshrining international human rights and developing the Geneva Conventions. But recent governments have treated international law with contempt: Conservative governments passed laws allowing the EU trade deal to be broken within months of ratification, breached the Refugee Convention in relation to the Rwanda Plan and repeatedly threatened to withdraw from the European Convention on Human Rights.
The general election provided an opportunity for a fresh start. One of the first actions of the Starmer government was to abandon Britain’s attempt to block the International Criminal Court’s arrest warrant against Benjamin Netanyahu and his defense minister, Yoav Gallant. The new prime minister also restored funding to UNRWA.
But these positive steps do not tell the whole story. In opposition, David Lammy called for the publication of legal advice on British arms sales to Israel. Since coming to power, Lammy has claimed that publishing the advice was “a quasi-legal process and it is important that I follow up on the action in an appropriate manner”. The government has full powers to publish information under section 78 of the Freedom of Information Act 2000. The decision not to publish this information is a political one.
However, we can get a hint of the government’s legal position from its submissions in the ongoing case against British arms sales to Israel (the Starmer government continues to defend the case). The government’s position appears to remain broadly that the sales are lawful because Israel is not violating international law. But it relies heavily on assurances given by Israel itself. It is not clear, at least on the record, whether the UK has made any serious effort to verify Israel’s claim.
The case against the government over arms sales is a matter of domestic law. But Britain also has obligations (and potential liabilities) under international law. In May, the UN’s independent international commission of inquiry concluded that Israel had committed war crimes and crimes against humanity, including torture, murder, sexual violence and starvation of civilians as a method of war. In July, the International Court of Justice (ICJ) ruled that Israel’s occupation of the West Bank and Gaza was illegal, finding that Israel had violated the Palestinians’ right to self-determination and their right to freedom from “racial discrimination and apartheid”.
Following the ICJ ruling, development NGO Global Justice Now commissioned me to provide legal advice on whether Britain (and individuals in government) may have breached international law by supporting Israel’s activities. If a state or individual provides “aid and support” that enables a war crime, crime against humanity or breach of other international law, they can be treated as if they had committed the wrong themselves. For example, if British weapons or intelligence were used in operations that involved torture or murder, a court can rule that Britain contributed to those wrongs.
In most cases, a state or individual is only liable if they provided “aid and assistance” knowing that their assistance would contribute to the commission of the wrong “in the normal course of things”. For the most serious crimes, such as genocide or violation of the right to self-determination, it is not necessary to prove knowledge. Britain’s relations with Israel are largely shrouded in secrecy, making it impossible to know the full extent of Britain’s assistance or knowledge. But there are significant reasons for concern.
British “aid and support” to Israel goes far beyond arms sales. The UK-Israel trade agreement gives both states access to each other’s markets on favorable terms. The occupied territories are integrated into the Israeli economy. Some companies do business in the territories before bringing the products to Israel for export. It is difficult to believe that government officials are unaware that trade facilitation that allows Israel and/or Israeli companies to profit from the occupied territories encourages and supports the Israeli occupation. Rather than negotiating an even closer agreement, one might have expected a review at the time – especially given that a deal that helps Israel profit from its unlawful occupation would almost certainly put Britain in breach of international law.
Britain also shares intelligence and provides military aid (and sells arms too). There is reason to believe the government knows this encourages injustice. Foreign Office whistleblower Mark Smith said of Israel’s attack on Gaza: “Anyone with a basic understanding of these things can see that war crimes are being committed… shamelessly, openly and regularly.” In March, Alicia Kearns, the (then) chair of the Foreign Affairs Select Committee, told a Conservative fundraiser that she believed the government had received legal advice that Israel was breaking international law.
The UN investigation concluded that Israel’s conduct reflected the Dahiya doctrine, which requires the deliberate use of disproportionate force against civilians to deter resistance. If the government has reason to believe that the Dahiya doctrine is being applied in Gaza, it is difficult to deny that supporting and assisting Israel’s operations “in the normal course of things” will encourage injustice. Although Lammy distinguishes between the supply of “offensive” and “defensive” weapons, it is notable that Israel’s operations in Gaza are all supposedly for “self-defense.”
There is a real possibility that Britain, or individuals within it, are guilty of aiding and abetting Israel in proven and alleged breaches of international law. The truth lies in the information on arms sales, intelligence sharing, trade and legal advice that the Government continues to withhold from the public. Paradoxically, only the Government knows for sure whether Britain is breaking international law. As a member of the UN Security Council, Britain has a special duty to model respect for the law – while the Labour Government now has the opportunity and the obligation to do better than its predecessors.
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Sam Fowles is a lawyer, author and broadcaster. His full legal advice to Global Justice Now can be found here
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