Al-Haq is disappointed by the judgment of the Court of Appeal of England and Wales of 25 Feb 2010, refusing Al-Haq’s application for permission for judicial review. The Court’s decision cannot be further appealed and the judgment therefore brings an end to the case. Al-Haq however continues to assert the validity of the legal principle on which claim was brought, and to advocate for third states - including the UK - to abide by their international obligations in respect of Israel.
The case concerned an application by Al-Haq for judicial review of the UK government’s actions toward Israel in the aftermath of ‘Operation Cast Lead’. Public Interest Lawyers represented Al-Haq in the case. The UN ‘Goldstone Report’ and other authoritative reports evidence Israel's serious breaches of the Geneva Conventions and the commission of war crimes in Gaza. The 2004 ICJ Advisory Opinion on the Wall sets out Israel’s de facto annexation of land in the West Bank and its denial of the Palestinian right to self-determination. The claim argued that in light of Israel’s well-established breaches of these peremptory norms of international law, the UK is bound by customary international law not to recognise as lawful Israel’s actions, nor to render aid or assistance to them. Furthermore the UK must co-operate with other states to bring an end to Israel’s violations. The UK’s sale of arms to Israel, which increased in 2008, and its membership of the EU-Israel association agreement are examples of the on-going political, economic and military support provided by the UK to Israel, which puts the UK in flagrant breach of its international obligations.
The basis of the application for judicial review was therefore that: (1) customary international law and, therefore domestic law, provide a set of obligations applicable to the UK government’s actions towards Israel, which the domestic courts are competent to determine; (2) the UK government’s actions towards Israel clearly breach those obligations; (3) the government’s actions are therefore unlawful under the domestic law, and the courts can and must intervene.
The court, in rejecting the claim, re-iterated the objections of the court of first instance. It held that the claim was non-justiciable because it concerned an examination of a foreign state’s actions and of UK foreign policy. The proposition that the court should be entitled in principle to review the legality of executive decisions in this instance, was not satisfactorily addressed, nor was the assertion that UK foreign policy towards Israel is in fact unlawful.
The court essentially opted in favour of the principle that foreign policy is an area of ‘forbidden territory’ that is non-justiciable. Al-Haq maintains that this arbitrary approach of ring-fencing issues of illegality simply because the illegal policy is a foreign policy is unsustainable in an age in which customary international law (and therefore domestic law) clearly deems certain actions of states vis-a-vis other states unlawful. Thus, whilst states have a very wide discretion in the field of foreign policy not all foreign policies can and will be lawful; a foreign policy that entails the support of another states’ peremptory breaches of international law is clearly unlawful, and the domestic courts must be able to scrutinise the unlawful activities of their own governments.
Al-Haq will continue to assert the legal validity of the claim brought, and to advocate for all states not to recognise as lawful or to aid or assist Israel's serious breaches of international law.