In the hallowed halls of British justice, a familiar narrative recently played out: a clash between the government’s sovereign power in foreign affairs and its obligations under international law. The High Court’s approach to Al-Haq’s challenge to the UK’s continued export of F-35 fighter jet components to Israel is a stark reminder of the formidable legal and political hurdles faced by those seeking to hold the executive to account for its role in international conflicts. While the court’s judgment, dismissing the claim on grounds of non-justiciability and deference to the executive [paras 112, 118, 207], was perhaps predictable, it prompts a crucial question: could this case have been argued differently? Was there a path through the dense thicket of judicial avoidance that might have led to a more searching inquiry into the legality and morality of the UK’s complicity in the devastation in Gaza? A critical re-examination of the legal strategy suggests that a more domestically-focused and procedurally-oriented challenge, rather than a direct assault on the ramparts of executive prerogative, might have yielded a different outcome, forcing the court to grapple more substantively with the profound issues at stake.
In an era when the United Kingdom must proclaim its dedication to the rule of law at home and abroad, the High Court’s approach to Al-Haq’s challenge to the “F-35 carve-out” represents a missed opportunity to enforce binding international norms and to inject genuine accountability into our strategic export control regime. From the outset, the case turned on the Strategic Export Licensing Criteria (“SELC”), adopted under the Export Control Act 2002 (ECA 2002) and updated in December 2021, which expressly incorporated the UK’s obligations under the Arms Trade Treaty (ATT) and the preventive duties of Common Article 1 (CA1) of the Geneva Conventions (GC). The government’s own framework mandated that once a “clear risk” of serious IHL violations was established, all relevant licences must be suspended; any departure from that rule required transparent, rigorous justification. As this analysis reveals, the judgment ultimately placed political expediency above the UK’s professed legal commitments, raising difficult questions about the future of judicial oversight in arms control.
Dualist Constraints on Direct Treaty Enforcement
The claimant’s case, as outlined in the judgment, rested heavily on the direct application of unincorporated international treaties, such as the Geneva Conventions and the Arms Trade Treaty (ATT) [paras 7, 54, 55]. This approach, while morally compelling, ran headlong into the deeply entrenched dualist tradition of the UK legal system, which generally requires an Act of Parliament to give domestic legal effect to international treaties. The court’s reluctance to trespass on the executive’s domain of foreign policy is a constitutional reality, as famously articulated in cases like Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (CCSU). By framing the challenge as a direct enforcement of international law against the executive, the claimants arguably invited the very judicial abstention they sought to overcome. The court, as expected, retreated behind the shield of non-justiciability, deeming the interpretation of contentious international legal obligations and the assessment of foreign state conduct to be matters beyond its constitutional competence [paras 46, 51, 59, 64]. A more successful strategy might have sought not to bulldoze this constitutional barrier, but to find a way around it, by grounding the legal challenge more firmly in the soil of domestic law.
Integrating International Norms into Domestic Statutory Interpretation
A more potent line of argument could have been constructed around the interpretation of the UK’s own domestic legislation governing arms exports, primarily the SELC, which expressly incorporated the UK’s obligations under the Arms Trade Treaty (ATT) and the preventive duties of Common Article 1 of the Geneva Conventions.
Rather than treating international law as an external standard to be imposed upon the executive, it could have been presented as an intrinsic part of the interpretive context for the 2002 Act. The principle of legality, a cornerstone of UK public law, dictates that Parliament does not legislate in a vacuum and that statutes should be read, where possible, in a way that is compatible with fundamental rights and the UK’s international obligations. As Lord Hoffmann stated in R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, “Parliament must squarely confront what it is doing and accept the political cost.” The claimants could have argued that the discretionary powers granted to the Secretary of State under the 2002 Act are not unfettered and must be exercised in a manner consistent with the UK’s solemn commitments under international humanitarian law. This would not be to ask the court to directly enforce the Geneva Conventions or the ATT, but rather to interpret the domestic statute in a way that presumes Parliament intended to legislate compatibly with these fundamental norms. This approach has found favour in other contexts, for instance, in the application of the Human Rights Act 1998, and there is a compelling case for its extension to the realm of arms control, where the consequences of executive action are so grave. For instance, influential scholars like Sir Jeffrey Jowell have argued for a more robust application of the principle of legality to constrain executive power, a line of reasoning that could have been powerfully deployed in this case.
Challenging Irrationality through the Wednesbury Lens
Furthermore, the challenge based on irrationality, while raised, could have been sharpened and made more penetrating. The court’s application of a highly deferential standard of review, the so-called ‘Wednesbury unreasonableness’ test, is common in national security cases [para 185]. However, the claimants could have argued that the decision to create the ‘F-35 Carve Out’ was so self-contradictory as to be irrational even on this deferential standard. The government itself had concluded that there was a “clear risk” that military materiel exported to Israel might be used to commit or facilitate a serious violation of IHL [para 26]. To then carve out an exception for components of a weapons system as central to the Israeli military’s offensive capacity as the F-35, without a transparent and compelling justification that goes beyond vague assertions of “profound and immediate adverse impact upon international peace and security” [para 4], arguably verges on the absurd. The argument would not be that the court should substitute its own view for that of the executive on matters of national security, but that the executive’s own stated logic is internally inconsistent and fails to withstand even minimal scrutiny. The claimants could have drawn on jurisprudence from other common law jurisdictions that have shown a greater willingness to scrutinize executive decisions in the national security context where fundamental rights are at stake, as seen in cases like Canada (Justice) v. Khadr [2008] 2 SCR 125 in the Supreme Court of Canada.
Customary International Law and Jus Cogens as Constitutional Limits
The argument concerning customary international law (CIL) also presented an opportunity that was arguably not fully exploited. The court’s reasoning that the reception of CIL into domestic law is constrained by the separation of powers [paras 125-128] is a significant hurdle. However, a more forceful argument could have been made about the unique status of certain CIL norms, particularly jus cogens norms such as the prohibition of genocide and war crimes. There is a strong argument in international legal scholarship, that jus cogens norms create obligations erga omnes, owed by every state to the international community as a whole. As this case demonstrates, the UK’s judiciary abdicated its role in upholding these universal norms, with profound implications for the integrity and credibility of its export control regime. The claimants could have argued that the executive’s prerogative in foreign affairs does not extend to aiding or assisting in the commission of such grave breaches of international law. This would not be an attempt to incorporate CIL wholesale into domestic law, but to argue that there are certain fundamental principles of international law that act as a constitutional constraint on executive power, even in the realm of foreign policy. The claimants could have pointed to the Nuremberg trials as a historical precedent for the principle that individuals and states cannot hide behind the shield of national law or executive orders to justify complicity in international crimes.
Procedural Fairness and Legitimate Expectations under the SELC
Finally, the claimants could have made more of the government’s own public commitments to an ethical foreign policy and its specific undertakings within the framework of the ATT. While the court dismissed the government’s statements of intent as non-justiciable ‘window dressing’ [para 117], a more focused procedural challenge could have been mounted. The claimants could have argued that the government’s published policies, such as the Strategic Export Licensing Criteria (SELC), create a legitimate expectation that decisions on arms exports will be made in accordance with certain principles and procedures. The decision to depart from the SELC in the case of the F-35s [para 113-114] could have been challenged not just on substantive grounds, but also on the basis of procedural unfairness. Was the decision-making process transparent? Were all relevant considerations, including the detailed evidence of IHL violations presented by human rights organizations, properly taken into account? By focusing on the procedural integrity of the decision-making process, the claimants might have been able to persuade the court to exercise a more intrusive form of review without directly challenging the substantive merits of the foreign policy decision itself.
Conclusion: Strategic Considerations for Future Accountability Challenges
In conclusion, while the Al-Haq case represents a significant legal setback for those seeking to promote accountability for arms exports, it should not be seen as the final word. The path to justice is often long and winding, and each legal battle, even in defeat, can offer valuable lessons for the future. A future challenge, armed with a more sophisticated legal strategy that navigates the treacherous waters of justiciability with greater dexterity, could yet succeed. By grounding the claim more firmly in domestic law, by sharpening the irrationality challenge, by forcefully asserting the constitutional limits imposed by jus cogens norms, and by focusing on procedural fairness, future litigants may be able to persuade the UK courts to abandon their traditional posture of deference and to embrace their role as guardians of the rule of law, even when the government’s actions reverberate on the world stage. The alternative is a legal landscape where the executive enjoys a near-absolute immunity from judicial scrutiny in matters of life and death, a prospect that should be deeply troubling to anyone committed to the principles of justice and human rights.
