How international law could force Britain to stop arms sales to Israel

The devastated area around Gaza's Al-Shifa hospital, which was once the largest health facility in the Gaza Strip, following a two-week Israeli raid.
The devastated area around Gaza's Al-Shifa hospital, which was once the largest health facility in the Gaza Strip, following a two-week Israeli raid. - AFP

No politician wants to spend their twilight years in the dock at the Hague, so it is with some seriousness that David Cameron and Rishi Sunak will have read the 17-page legal letter sent to them on Monday evening by 600 of the nation’s top lawyers.

Whitehall officials, too, will be pouring over the detail of the text which was signed among others by three former Supreme Court justices, including Lord Sumption. They will be well aware that, in matters of international law pertaining to genocide, the defence of ‘I was only following orders’ is no defence at all.

The letter makes the case, with some considerable force, that UK ministers and officials could be charged with the crimes of “complicity to genocide” and “aiding and abetting genocide” unless the country rapidly changes course in its relations with Israel.

It argues not only that arms sales to Israel should be stopped to avoid this risk, but that Britain’s “strategic partnership” with Israel should be suspended.

It even call for sanctions to be placed on prominent individuals – almost certainly including the Israeli defence minister Yoav Gallant – who have made statements inciting genocide.

Israeli Prime Minister Benjamin Netanyahu has called the allegations of genocide which the International Court of Justice (ICJ) is investigating “outrageous”, and said Israel has an “unwavering commitment to international law”.

He was supported yesterday by the former home secretary Suella Braverman, who briefly worked as a lawyer in the areas of planning and immigration. Israel is “absolutely not” in breach of international law, she said, adding that the very suggestion was “absurd”.

What is the gist of the legal argument for an arms embargo?

The letter says that “serious action” is needed to “avoid UK complicity in grave breaches of international law, including potential violations of the Genocide Convention”.

It points out that the ICJ has ruled it is “plausible” Israel is committing genocide in Gaza and that Britain is a signatory to the Genocide Convention.

Britain therefore has a legal duty to “take immediate measures to bring to an end … acts giving rise to a serious risk of genocide,” it says.

Failure to comply with these obligations “would incur UK state responsibility for the commission of an international wrong, for which full reparation must be made”.

The Foreign Secretary Lord Cameron has been quite firm with Israel, so is the UK really in legal jeopardy?

Unfortunately words are not enough.

The Convention says signatories must take “all measures to prevent genocide which [are] within its power,” if they are to stay on the right side of the law.

“Serious action is … needed to avoid UK complicity in grave breaches of international law, including potential violations of the Genocide Convention,” say the lawyers.

The UK cannot wait until the IJC decides for certain whether or not a genocide is being committed, they add. “It must act now in accordance with its obligation to prevent genocide.”

What does the law say about UK arms sales specifically?

The letter calls on the government to suspend the provision of “weapons and weapons systems” to Israel. It says the provision of “military assistance and material” to Israel may render the UK “complicit in genocide”.

It adds that the UK could also be charged with “aiding and assisting” war crimes under other elements of international law.

“Such transfers are prohibited even if the exporting State does not intend the arms to be used in violation of the law – or does not know with certainty that they would be used in such a way – as long as there is a clear risk,” it quotes UN legal experts as saying.

Finally, the lawyers say that continued arms exports to Israel are likely in breach of UK domestic law.

The UK’s Strategic Export Licencing Criteria (“SELC”) requires the UK government to refuse to licence military equipment for export where there is “a clear risk that the items might be used to commit or facilitate a serious violation of international humanitarian law,” it says.

What does the government’s own internal legal advice say?

No one knows for sure because it has not been published but it is unlikely to differ from the advice contained in the experts’ letter.

Alicia Kearns, head of the foreign affairs select committee, said last week she had been told that government lawyers believed Israel was committing human rights violations.

On Thursday, there were calls in Parliament for the government’s own legal advice to be published.

David Lammy, the shadow foreign affairs secretary, urged ministers to “publish the legal advice now.”

“If it says there is a clear risk that UK arms might be used in a serious breach of international humanitarian law, it’s time to suspend the sale of those arms,” he added.

Has the UK ever suspended arms sales to Israel before?

Yes. In July 2009, Britain revoked five export licences for weapons on Israeli navy missile boats because of their use during the Gaza Strip in the 2008-2009 war.

The licences covered spare parts for guns on Israel’s Sa’ar 4.5 ships, which reportedly fired missiles and artillery shells into the Palestinian coastal territory during the three-week conflict, which started in late December.

At the time, the foreign office in London insisted the rare move did not constitute an embargo but was the application of normal UK and EU export licensing criteria. Still, it linked the decision directly to Operation Cast Lead – the Israeli codename for the attacks.

Later, during the 2014 war, a government-led review into the UK’s licensed exports to Israel identified 12 licences for military components which could be used in Israeli equipment in Gaza, including radar systems, combat aircraft and tanks.

When the review was published, in August 2014, a ceasefire had been called. The UK government said it would suspend the 12 licences “in the event of a resumption of significant hostilities”. It also said that the UK would continue to not grant new licences while the conflict persisted.

How big an arms exporter is Britain to Israel?

The vast bulk – 69 percent – of Israel’s weapons imports between 2013 and 2022 came from the US. Germany accounted for 30 per cent of Israel’s arms imports during this period, while less than 0.1 per cent came from the UK.

Although our exports are small – just £42 million in 2022 – the ICJ is unlikely to see that as a defence were a legal case to be brought against the UK in future.

Our exports to Israel include explosive devices, assault rifles and military aircraft, including parts for drones.

Have any countries already stopped arms sales to Israel?

Yes. Canada, the Netherlands, Japan, Spain and Belgium have all suspended arms sales in the wake of Israel’s offensive in Gaza.

What does the public think?

A poll conducted by the charity Action for Humanity and conducted before the strikes which killed seven western aid workers this week, found a majority of UK voters – 56 per cent – are in favour of a ban of arms exports to Israel. By a majority of 59% to 12% voters say Israel is violating human rights in Gaza.

Other than an export ban on arms, what else does the expert legal letter to the government call for?

Other than an arms embargo, the letter says the UK must put in place four other measures if it is to be reliably in compliance with the Genocide Convention. These are to:

  • Work actively and effectively to secure an “immediate and permanent” ceasefire

  • Take all available measures to get aid into Gaza, including a commitment to continue aid payments to the UN’s Palestinian refugee agency

  • Impose sanctions on those who have made statements inciting genocide

  • Suspend steps for furthering the UK’s “strategic partnership” with Israel; and initiate urgent reviews into the suspension of current bilateral trade agreement with Israel

Although an arms embargo would have symbolic power, it is these measures that might have the most real-world impact on Israel given the small scale of UK arms exports.

But surely Israel has a right to self defence?

Absolutely. But international law requires that violence employed in self defence must be proportionate and remain within the rules of war.

Speaking on BBC Radio 4’s Today programme on Thursday, Lord Sumption emphasised this point.

The “framework of international law around war” did not mean countries can act as they want, even when provoked or attacked “outrageously”, as happened on October 7.

”[Defence] doesn’t mean to say that you can indiscriminately slaughter innocent civilians and children. It doesn’t mean to say you can attack aid convoys, you can withdraw the visas of aid workers. It doesn’t mean to say you can spend two weeks flattening hospitals.

“There are limits to what people can do, even in self-defence,” he said.