LPHR welcomes the new UK government’s decision that the UK will suspend arms export licences to Israel for use in military operations in Gaza, following a review of Israel’s compliance with international humanitarian law.
It has been clearly apparent since the opening days of Israel’s devastating military response to the atrocities perpetrated on 7 October, that its actions in Gaza flagrantly trespassed the civilian protection boundaries provided by international humanitarian law (IHL). It is deeply intolerable that it has taken until the twelfth month of hostilities, and only after the killing and maiming of many tens of thousands of Palestinian civilians, for the legally obligatory decision to suspend around 30 arms export licenses to have been taken by the UK government.
LPHR notes that the UK government has published an accompanying policy statement summarising its decision following a review of Israel’s compliance with IHL in Gaza. It highlights three factors as being key in reaching its determination that there is a clear risk that certain items, if exported, might be used to commit or facilitate a serious violation of IHL. They are: ‘humanitarian’, ‘treatment of detainees’, and ‘conduct of hostilities’. These factors merit initial analysis here.
Under the heading ‘humanitarian’, the UK government critically asserts that Israel has failed in its legal duties to ensure and/or enable passage of supplies essential to the survival of the population of Gaza. This finding corresponds with the distinct emphasis placed on starvation-related crimes taken by ICC Prosecutor, Karim Khan KC, in his 20 May 2024 announcement of application of warrants for arrest against Israel’s Prime Minister and Defence Minister.
Under the heading ‘treatment of detainees’, the UK government finds ‘there have been credible claims of the mistreatment of detainees’ and that ‘the volume and consistency of these allegations suggest at least some instances of mistreatment contrary to IHL.’ It implicitly criticises Israel for not providing access for the International Committee of the Red Cross to places of detention.
The UK’s government’s summary then states: ‘The concerns regarding Israel’s compliance and commitment [to IHL] in the areas of humanitarian relief and treatment of detainees give cause for concern about its attitude and approach to the conduct of hostilities.’ The linkage made between findings for the first two factors and its assessment of the factor of ‘conduct of hostilities’ is notable.
Under the heading ‘conduct of hostilities’, the UK government makes the very concerning admission that ‘despite the mass casualties of the conflict, it has not been possible to reach a determinative judgment on allegations regarding Israel’s conduct of hostilities’. It states this ‘is in part due to the opaque and contested information environment in Gaza and the challenges of accessing the specific and sensitive information necessary from Israel, such as intended targets and anticipated civilian harm’. It also states ‘this is further complicated by credible reports that Hamas embeds itself in a tightly concentrated civilian population and in civilian infrastructure.’
LPHR is acutely aware that this precise concern – the UK government claiming it is unable to assess whether Israel in Gaza is adhering to key international humanitarian law principles of distinguishing between civilian and military targets, proportionality, and precautions in attack – is not new.
It first came to light in a court document dated 12 January 2024 submitted by the UK government to the High Court in defence of a legal challenge brought by the Global Legal Action Network and Al Haq. Page 12 of the UK government’s ‘summary grounds‘ provides an illuminating excerpt from the first IHL assessment carried out by the IHL Compliance Assessment Process (IHLCAP) team, which is based in the Foreign, Commonwealth and Development Office. IHLCAP states in its 10 November 2023 IHL assessment, covering the period of 7 October 2023 to 03 November 2023:
“Given the paucity of information, the scale and intensity of the conflict, the death toll, the unusual civilian population density coupled with their inability to evacuate and the concomitance mounting effects of the conflict on civilians, HMG’s current inability to come to a clear assessment on Israel’s record of compliance with IHL poses significant policy risks.” [italics added by LPHR for emphasis]
LPHR has subsequently raised this specific concern in meetings with UK government officials, expressing deep concern that its inability to reach a determination on key IHL obligations governing the conduct of hostilities does indeed present major policy risks to the UK government. This is not only in its ability to take the correct legally required decision in relation to arms export licenses, but moreover that its inability to pronounce on whether Israel is acting disproportionately or indiscriminately, may be dangerously interpreted as the UK government providing tacit acceptance that Israel’s targeting actions in Gaza are lawful, thereby diminishing the protection and promotion of IHL in this conflict with potentially cascading effects for respect for IHL in other conflict zones.
LPHR notes that the policy statement issued yesterday by the UK government clarifies that the UK government still remains unable to reach a decision on the lawfulness of Israel’s conduct of hostilities in Gaza since 7 October 2023. However, rather than using this as a bar to taking action on arms licenses, it has apparently found a solution to the clear policy and civilian protection risks that this impasse presents, by extrapolating that its concerns over Israel’s compliance and commitment to IHL in relation to humanitarian relief and treatment of detainees can properly be applied to its assessment on Israel’s compliance with IHL in the context of its conduct of hostilities.
This apparently novel solution to an IHL assessment impasse seems more pragmatic than it is ideal. LPHR sustains its view that it remains deeply problematic that the UK government takes the position that it is unable to make a determination on Israel’s compliance in Gaza with the key IHL civilian protection principles of distinction, proportionality and precautions in attack. We note that, in stark contrast, the UN independent international Commission of Inquiry reported on 27 May 2024 that it has found Israel to have acted indiscriminately and disproportionately in its military targeting actions in Gaza. We suggest this contrasting position by an expert body should give the UK government a clear basis for continued reflection over the effectiveness and adequacy of its own IHL assessment process, notwithstanding the legitimate difficulties it has highlighted.