Challenge to export of military parts that might be used by Israel fails in the High Court
4 July 2025
The Secretary of State for Business and Trade decided in September 2024 to suspend licences authorising the export of items that might be used in carrying out or facilitating military operations in the conflict in Gaza. He did so explicitly because the Government had formed the view that Israel was not committed to compliance with international humanitarian law (‘IHL’) in the conflict in Gaza and that there was therefore a clear risk that such items might be used in that conflict to commit or facilitate a serious violation of IHL. However, the Secretary of State excluded from that suspension licences for the export of components for F-35 combat aircraft which could not be identified as destined for Israel. In this claim for judicial review the Claimant, supported by the Interveners, challenged the lawfulness of this exclusion, which has been referred to as the ‘F-35 Carve Out’.
In reaching these decisions, together referred to as ‘the September Decision’, the Secretary of State received advice from the Defence Secretary and the Foreign Secretary. In short, the advice of the Defence Secretary, set out in a letter dated 18th July 2024, was that:
(1) the multinational F-35 joint strike fighter programme (‘the F-35 Programme’1) is significantly dependent on the United Kingdom as the largest national provider of component parts outside the United States;
(2) it was not currently possible to suspend licensing for export of F-35 components for use by Israel without having an impact on the entire F-35 Programme;
(3) a suspension of licensing for all F-35 nations would have a profound and immediate impact on international peace and security, would undermine US confidence in the UK and NATO at a critical juncture, would seriously undermine the credibility of the UK as a trusted partner on the international stage, and would undermine a key capability allowing the UK and its closest allies and partners to address current security challenges.
The Claimant “Al-Haq”, an independent Palestinian non-governmental human rights organisation based in Ramallah, contended that the F-35 Carve Out was unlawful. Al-Haq was supported by Oxfam, Amnesty International and Human Rights Watch. This was a “rolled up” hearing, in which permission to bring judicial review proceedings is considered at the same time as the merits of the claim.
Background Facts
(1) the multinational F-35 joint strike fighter programme is significantly dependent on the United Kingdom as the largest national provider of component parts outside the United States;
(2) it was not currently possible to suspend licensing for export of F-35 components for use by Israel without having an impact on the entire F-35 programme;
(3) a suspension of licensing for all F-35 nations would have a profound and immediate impact on international peace and security, would undermine US confidence in the UK and NATO at a critical juncture, would seriously undermine the credibility of the UK as a trusted partner on the international stage and would undermine a key capability allowing the UK and its closest allies and partners to address current security challenges.
The F-35 Lightning II is a fifth-generation, stealth multirole combat aircraft developed by Lockheed Martin. It is a multinational programme involving the United States and several partner nations, including the United Kingdom. The UK is a Tier 1 partner, meaning it not only operates the F-35 but also manufactures critical components, such as wings and advanced systems, which are integrated into every F-35 produced globally. These parts are supplied through a tightly integrated, just-in-time global supply chain.
Israel is one of the largest non-partner operators of the F-35, having received dozens of aircraft, which have been used in military operations, including in Gaza. The UK’s role in the F-35 programme is such that any suspension of licensing for components destined for Israel would necessarily impact the entire F-35 supply chain, affecting deliveries to all partner and customer nations.
Legal Framework
The Export Control Act 2002 grants the UK Government wide powers to control the export of military and dual-use goods. Section 9 of the Act requires the Secretary of State to issue guidance on the principles to be followed in exercising licensing powers. This includes consideration of the UK’s obligations under:
• United Nations and OSCE sanctions
• Arms Trade Treaty (ATT)
• Geneva Conventions
• Other multilateral arms control agreements
Strategic Export Licensing Criteria (SELC)
The Strategic Export Licensing Criteria (SELC) are the Government’s published guidelines for assessing export licence applications. Key criteria include:
• Criterion Two: Respect for human rights and IHL in the destination country. Licences must not be granted if there is a clear risk that the items might be used to commit or facilitate serious violations of IHL or human rights.
• Criterion Seven: The risk that exported goods might be diverted to undesirable end-users or uses.
The Secretary of State has discretion to apply or depart from the SELC in specific cases, provided reasons are given and Parliament is informed.
Arguments before the Court
Al-Haq, supported by several NGOs, advanced multiple grounds for judicial review:
• Breach of International Law: The Claimant argued that the UK was obliged under customary international law (including the duty to prevent genocide and to ensure respect for the Geneva Conventions) not to authorise exports where there was a serious risk of their use in violations of IHL or genocide.
• Ultra Vires: The Claimant asserted that the F-35 carve-out was beyond the Secretary of State’s powers under the Export Control Act 2002, as it facilitated potential criminal offences under the Geneva Conventions Act 1957 and the International Criminal Court Act 2001.
• Irrationality: The Claimant contended that the carve-out was irrational, as it was based on a “logical error or critical gap” in the Government’s reasoning, particularly in balancing security considerations against the risk of facilitating serious violations of IHL.
Inconsistency with the UK’s Duty to Prevent Genocide: The Claimant maintained that the duty to prevent genocide was engaged as soon as there was a “serious risk” of genocide occurring, and that the UK was failing to uphold this duty by continuing to export F-35 components to Israel.
Permission was refused.
The Court’s Reasoning and Decision
Justiciability
The High Court held that the decision to continue exports of F-35 components was not justiciable. The Court found that decisions involving arms exports, especially those entangled with foreign policy, national security, and international alliances, are matters for the executive and Parliament, not the judiciary. The Court emphasised the constitutional limits on judicial intervention in areas of high policy and international relations.
“The decision to withdraw from the F-35 programme because of the prospect that some UK manufactured components will or may ultimately be supplied to Israel, and may be used in the commission of a serious violation of IHL in the conflict in Gaza, was an acutely sensitive and political issue which was a matter for the executive not for the courts.”
Powers Under the Export Control Act 2002
The Court reviewed the powers conferred by the Export Control Act 2002 and the SELC. It found that the Secretary of State had acted within the scope of these powers. The Act grants broad discretion to the executive to balance competing considerations, including security commitments and international legal obligations, when deciding whether to grant or suspend export licences.
Application of International Law
The Court distinguished between binding legal obligations under treaties and customary international law, and political declarations such as UN General Assembly Resolutions. The Court noted that while the UK is bound by the Genocide Convention and the Geneva Conventions, not all international norms are directly justiciable in domestic courts. The duty to prevent genocide, for example, is a matter of state responsibility under international law and does not automatically translate into a domestic legal duty enforceable by the courts.
The F-35 Programme and Supply Chain
The Court accepted the Government’s evidence that it is not possible to suspend licensing of F-35 components for use by Israel without impacting the entire F-35 programme. The nature of the supply chain means that UK-manufactured parts are integrated into all F-35 aircraft, and there is no mechanism to restrict their use by one customer (Israel) without affecting all others, including NATO allies.
The Issue of Genocidal Intent and Israel’s Actions in Gaza
The question of whether Israel is motivated by genocidal intent in its actions in Gaza was central to the Claimant’s arguments. The Court noted that while there is substantial evidence of serious violations of IHL and human rights in Gaza—such as attacks on civilians, destruction of infrastructure, and blockades of humanitarian aid—the determination of genocidal intent is a complex factual and legal question typically reserved for international tribunals, such as the International Court of Justice (ICJ).
The UK Government acknowledged the existence of “clear risks” of IHL violations by Israel, which was the basis for suspending other arms exports. However, the Court found that the duty to prevent genocide under international law is triggered by a “serious risk” of genocide, but the assessment of such risk and the appropriate response remain matters for the executive’s judgment, particularly where national security and alliance commitments are at stake.
Consistency of Extant Licences with the UK’s Duty to Prevent Genocide
The Claimant argued that continuing to licence F-35 components was inconsistent with the UK’s duty to prevent genocide. The Court, however, found that the Government had considered its obligations under the Genocide Convention and the Arms Trade Treaty, and had made a reasoned policy decision to balance those obligations against the operational realities of the F-35 programme and the UK’s security commitments.
The Court also noted that the Strategic Export Licensing Criteria require the Government not to grant a licence where there is a clear risk of use in serious violations of IHL, but that the criteria allow for the exercise of discretion in exceptional circumstances, such as the F-35 carve-out.
The Limits of the Court’s Role and Non-Justiciability of Certain Arguments
The Court made clear that parts of the Claimant’s arguments were not justiciable in a domestic court:
• Foreign Policy and Security: Decisions about arms exports, especially those affecting multinational defence programmes and alliances, are inherently political and not suitable for judicial determination.
• International Law vs. Domestic Law: While the UK is bound by international law, not all international obligations are directly enforceable in domestic courts. UN General Assembly Resolutions, for example, are political declarations and do not create binding legal obligations for states under domestic law.
• Separation of Powers: The Court reiterated the constitutional principle that the judiciary should not usurp the executive’s role in matters of high policy, particularly where Parliament has conferred broad discretion on ministers under primary legislation (the Export Control Act 2002).
Parliamentary and Public Debate
The case has generated significant debate in Parliament and civil society. The International Development Committee, for example, questioned whether the F-35 carve-out is compatible with the UK’s obligations under the Arms Trade Treaty and the Genocide Convention, and pressed the Government on the legal basis for balancing security considerations against the risk of facilitating serious violations of IHL. NGOs and rights groups have criticised the judgment, arguing that the UK is failing to uphold its duty to prevent genocide and protect human rights in Gaza. Al-Haq’s representative Alice Hardy, a partner at the law firm Bindmans, said “This is a disappointing judgment …. If ever there was a case for the court to decide, this was it.”
Comment
The High Court’s judgment in this case underscores the complexity of reconciling the UK’s international legal obligations with its defence and security commitments, particularly in the context of multinational programmes like the F-35. The Court held that the decision to continue exporting F-35 components to Israel, despite the suspension of other military exports, was a matter for the executive and not justiciable. The judgment clarifies that it is not currently possible to suspend licensing of F-35 components for use by Israel without affecting the entire F-35 programme and the UK’s obligations to its allies.
The case also highlights the distinction between binding legal obligations under international law and political declarations by bodies such as the UN General Assembly. The Court reaffirmed the limits of judicial intervention in matters of foreign policy and national security, leaving such decisions to the executive and Parliament, subject to political and public scrutiny:
“Under our constitution that acutely sensitive and political issue is a matter for the executive which is democratically accountable to parliament and ultimately to the electorate, not for the courts.
Despite the skill with which the claimant’s arguments were presented, once the true nature of the issue is identified it is clear that the claim must fail.”
