‘War crimes’ defence against Israel company protest convictions fails in Supreme Court
7 February 2014
The tactics of protesters engaging in demonstrations, or acts of civil disobedience, frequently raise interesting questions of law. A demonstration by two activists opposed to the Israeli occupation of the Palestinian Territories, who entered a shop in Covent Garden which sold produce from the Dead Sea, produced on an Israeli settlement, recently resulted in the Supreme Court addressing two such questions.
First, in what circumstances can someone who trespasses on premises and disrupts the activities of the occupiers avoid prosecution by arguing that those activities were in some way unlawful?; and second (obliquely) is the construction of Israeli settlements on the West Bank an offence under English law? The short answers were (1) only when the unlawfulness is integral to the occupier’s activity; and (2) probably not.
Until it closed in 2011, Ahava was a shop in Covent Garden, London, which sold cosmetic products manufactured on the Dead Sea. The products were manufactured in an Israeli settlement on the West Bank, with the settlement (which was encouraging Israeli citizens to move to the West Bank) holding a minority shareholding in the company. The defendants objected to the Israeli occupation of the Palestinian Territories, and in particular to the growth of Israeli settlements. Aiming to draw attention to the situation, they and some others entered the Ahava store in Covent Garden on 2 October 2010, carrying a concrete tube. They locked their arms together through the tube with a padlock to which they claimed to have no key, then refused, or were unable, to leave the store when asked to do so by an employee. The store had to close while police officers arrived, freed the defendants using tools, and arrested them.
Aggravated trespass, and “lawful activity”
The defendants were charged with aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994, which provides that:
(1) A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by him to have the effect—
(a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,
(b) of obstructing that activity, or
(c) of disrupting that activity…
(2) Activity on any occasion on the part of a person or persons on land is ‘lawful’ for the purposes of this section if he or they may engage in the activity on the land on that occasion without committing an offence or trespassing on the land…”
According to the Supreme Court, this offence can be broken down into four essential elements:
i) the defendant must be a trespasser on the land;
ii) there must be a person or persons lawfully on the land (that is to say not themselves trespassing), who are either engaged in or about to engage in some lawful activity;
iii) the defendant must do an act on the land;
iv) which is intended by him to intimidate all or some of the persons on the land out of that activity, or to obstruct or disrupt it.
It follows that, if the activity being carried on by those on the land is unlawful, the trespassers may have a defence.
In this case, the defendants had no defence to i), iii) or iv), but contested their prosecution on the grounds that the activity being carried out by Ahava, namely the retail selling of products produced in a West Bank settlement, was itself unlawful, for four reasons:
i) Ahava was aiding and abetting a war crime i.e. Israeli settlement construction;
ii) the products were the products of that war crime;
iii) Ahava was cheating the Inland Revenue by importing these products as if they were Israeli products, whereas they were in fact produced in the Occupied Palestinian Territories;
iv) the products were misleadingly labelled as coming from the “Dead Sea, Israel”
Degrees of lawfulness
The question for the Supreme Court was whether the words “lawful activity” in the Act should be limited to acts or events that are “integral” to the activities at the premises in question. It began by observing that:
i) an offence, for the purposes of the Act, means an offence under English law;
ii) the Crown is not required to disprove the commission of every conceivable offence by those present on the land in order to make out an aggravated trespass charge. It is for the defendant to raise the issue of which offences they say were being committed by those on the land – Ayliffe v DPP  EWHC 684 (Admin) at 
iii) where the defendant satisfies the evidential burden, it is for the Crown to disprove the assertion that the offence was being committed on the land.
However, for a defendant seeking to rely on this defence, merely showing that there was some degree of unlawfulness about the activities being carried on will not be enough. The court must first address the question of what the overall activity of those on the premises is, then ask whether or not it is unlawful. It should not enquire into the defendant’s motives, but rather focus on the broader activity – . The Supreme Court’s answer was therefore that any potential offence raised by the defendant must be “integral” to the activity – .
“Integral” is to be understood to mean that “the criminal offence must be… not collateral to or remote from [the activity of the occupants]. It does not mean that the illegality must be so obvious as not to call for more than the barest enquiry” – , qualifying the Divisional Court’s view that the activity must be “patently unlawful”.
On the facts of this case, the Supreme Court agreed with the District Judge who had originally convicted the defendants that the potential offences which they relied on were, at best, merely collateral to Ahava’s lawful activity – selling products in their shop – so that the defence was not available.
Is settling Israelis in the West Bank a crime in English law?
The Supreme Court’s approach to this secondary was somewhat cursory, as its decision on the primary question disposed of the case. Similar issues have, however, been raised in other cases where protesters have committed acts of civil disobedience and claimed that they were preventing war crimes from being committed – R v Jones  UKHL 16, where activists were convicted of criminal damage at a military base and claimed that they were trying to prevent the Iraq war. Courts in this country have traditionally been reticent to make judgments on the legality of the conduct of foreign governments, including Israel. However, the Supreme Court did note at  that the transfer by an occupying power of part of its own civilian population into a territory which it occupies is potentially a crime in English law (where the offender is resident in this country), by virtue of the International Criminal Court Act 2001.
This case clearly raises a broader question as to how the criminal law should deal with acts of civil disobedience with a political aim. Lord Hoffmann said in Jones at  that “civil disobedience on conscientious grounds has a long and honourable history in this country”. However, a willingness on the part of protestors who break the law to gain attention for their cause to accept subsequent arrest and conviction very frequently forms part of the deal.
Sign up to free human rights updates by email, Facebook, Twitter or RSS
- Police ‘containment’ of Palestinian solidarity protester was lawful, rules High Court
- Kettling: Can a public interest motive justify a deprivation of liberty or not? – Robert Wastell
- Ask and you shall receive – finally, an English translation of the Rachel Corrie judgment
- “Hell on earth” Gaza judge reprimanded