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Judgment handed down in the case of Al-Haq v Secretary of State for Foreign and Commonwealth Affairs
REF.: 32.2009E
29، Jul 2009

Al-Haq is disappointed to inform you that the Divisional Court in the High Court of Justice of England and Wales has refused Al-Haq’s application for permission to seek judicial review of the UK Government’s actions in light of breaches of international law by Israel in the Occupied Palestinian Territory (OPT).

Al-Haq’s written claim was submitted in February 2009, and its oral pleadings were argued before the Court by its team of barristers headed by Michael Fordham QC in June 2009. The claim was based on the legal obligations incumbent on the UK government in light of Israel’s breaches of three specific peremptory norms of international law: its continuing obstruction of the exercise of the right of the Palestinian people to self-determination; its unlawful acquisition of territory in the OPT, including by virtue of the construction of the Wall through the West Bank; and its persistent violation of intransgressible principles of international humanitarian law, most recently during “Operation Cast Lead” in the Gaza Strip.

    The claim presented both general and specific courses of action which should be adopted by the UK in order to uphold its obligations under international law, including with respect to its arms-related trade with Israel.  Obligations arising for States in relation to such breaches are encapsulated in the International law Commission’s Articles on State Responsibility and include the duty not to recognise, aid or assist the unlawful situation created by the breaches, as well as the duty to co-operate with other states  to take all possible steps to bring the breaches to an end. These obligations are integral to the rules of state responsibility under the corpus of public international lawand have been confirmed on numerous occasions by the International Court of Justice (ICJ), including in relation to the OPT in its 2004 Advisory Opinion on the Wall. Moreover, Al-Haq argued, with the force of several precedents, that such international obligations are automatically incorporated into the domestic law of England and Wales.

In its judgment in this case, however, the Court’s two judges found against Al-Haq on grounds of both justiciability and standing.

On the question of justiciability—that is, the jurisdiction of a court to deal with a given claim—the Divisional Court adopted an extremely narrow approach that misrepresented the arguments of the claim. The substance of the claim was concerned with the UK government’s compliance with its own international legal obligations, rather than, as Lord Justice Pill characterised it, “condemnation of Israel.” By shifting the focus away from the UK’s legal obligations, the Court allowed itself to characterise the case as relating to the UK’s diplomatic policy in the context of an extraneous conflict, rather than a case examining  the clearly defined legal obligations the UK has a duty to uphold. Such “matters of high policy,” Justice Cranston concluded, under common law jurisprudence “lie within the exclusive purview of the executive.” According to Justice Pill, by contrast, “there may, exceptionally, be situations in which the court will intervene in foreign policy issues,” but in his view this case is not one of them.

As Al-Haq argued, the House of Lords’ decision in Kuwait Airways Corporation v Iraqi Airways Co demonstrated the power of the domestic courts to rule on violations of international law by foreign governments(in this precedent in the context of Iraq’s invasion and occupation of Kuwait). Both justices, however, agreed that “unlike Kuwait, this is not a case in which the breach of international law is plain and acknowledged.” With countless UN resolutions, reports of treaty bodies, human rights special mechanisms and fact-finding committees, and an Advisory Opinion from the ICJ all available, it is extremely difficult to contend that it is not “plain and acknowledged” that the Palestinian people has been denied its right to self-determination, that Israeli policies have resulted in the de facto annexation of East Jerusalem and other parts of the West Bank, or that Israel’s occupying forces often violate international humanitarian law. The Court plainly failed to acknowledge that these breaches were presented in the claim, and the judgment appears to reduce the claim’s scope to encompass only Operation Cast Lead, thus exempting itself from addressing the UK’s obligations as set out in, for example, the ICJ Advisory Opinion. Justice Cranston bluntly dismisses the Advisory Opinion as inapplicable to the case on the basis that it “is not directly applicable to Gaza.” Lord Justice Pill likewise declares that “the Wall Opinion considers different issues and there has been no authoritative judgment upon Operation Cast Lead as a starting point for the court’s consideration of whether to act.”

A similarly inexplicable stance taken in the judgment to support the finding that the case is not justiciable is the blind acceptance of the defendant’s position that “compelling the government to take a public position on the matters in the claim would risk hindering the United Kingdom’s engagement with peace efforts in the Middle East.” Again, Al-Haq reiterates that the matters in the claim pertain to the UK’s obligations under specific rules of international law, and moreover, that fulfilling those obligations and upholding international law are in fact essential, rather than detrimental, to the success of the Middle East peace process.

On the question of standing—that is, whether the claimant is properly entitled to bring a given claim—both judges dispense of the issue in no more than two paragraphs. The test to be applied for standing is liberal but in this case Al-Haq is refused standing primarily on the basis that “no one in the United Kingdom has sought judicial review of United Kingdom foreign policy regarding Israel’s actions in Gaza” and that granting Al-Haq standing would mean that “any NGO, anywhere in the world, would have standing to bring a claim for judicial review”. This pronouncement is made without considering the issue at hand in its specificity, and despite the judgment having earlier noted that a claim to standing must be considered in the specific legal and factual context in which the claim arises.  It is surprising that in a case which raises issues of public importance such as the UK’s compliance with obligations under International law (including obligations arising out of instransgressible principles of international humanitarian law), that the court has refused to accept that Al-Haq has sufficient standing.

Al Haq, finances permitting, fully intends to appeal this disappointing and conservative ruling in which application of the relevant law has been sacrificed for the purposes of not intervening in “politics,”. Al-Haq expresses its sincere gratitude to its UK solicitors, Public Interest Lawyers, and its team of barristers for taking this case forward on a pro-bono basis, and to the Human Rights Legal Aid Fund for the financial contribution it provided.

Al-Haq will continue to keep you informed of any developments in the case, and will persist in seeking to uphold human rights and the rule of law in all available forums. On a positive note, Al-Haq is pleased to report that the UK government did, after the claim was filed, order a review of all licences for arms sales to Israel, and has recently placed an embargo on the export to Israel of certain weapons and machinery that were used during Operation Cast Lead.

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