Why pretend it’s anything but political, Part 2: from the ICC to arms licences

We appear now to have a second instance of the new UK Government disingenuously attempting (presumably as a fig leaf for its change of attitude towards its ally Israel) to hide behind the rule of law when making controversial decisions on Israel. Once again, it begs the question as to why our politicians are resorting only to legal defences for their decisions on Israel, instead of claiming that the decisions are based on policy/political considerations.

The first such decision – covered in a previous piece on here – was the Government’s shelving of a planned legal objection (drafted but not yet filed by its Conservative predecessors) to the jurisdiction of the International Criminal Court over pending arrest warrant applications against Benjamin Netanyahu and Yoav Gallant.

The new Labour administration decided against filing that objection, citing its much-vaunted belief in the rule of law and the separation of powers, and that, because of that belief, it was only appropriate that the question of jurisdiction was “for the Court to decide”. In a shock to absolutely nobody, the Court wasn’t suddenly prevented from freely deciding the case – jurisdiction, merits and all – because one national government or any other body planned to intervene. It was as if the UK Government thought its planned intervention – important as it was – to be so important that it would magically rob the Court of all of its powers in broad daylight.

And that is all before it is even noted that not only is a legal intervention plainly not a danger to the Court’s ability to function as an independent court, but that the Court positively granted the UK and others the right to intervene in this way, under Rule 103 of the Court’s own Rules of Evidence and Procedure. It is beyond disingenuous to suggest that the UK Government – together with all those other states, NGOs and other bodies, all of whose interventions in this case are explicitly further to their legal right in Rule 103 – thought they were somehow undermining the Court’s ability or power to make a decision in this matter.

As such, with no other reason being offered up, I argued that the UK Government plainly took its decision on nakedly political grounds. This was, I suggested, part of an increasing tendency in public political life for politicians to shy away from justifying, in political terms, perfectly legitimate (even if controversial) political decisions on which people reasonably disagree. The law, in that case, was an easy but clearly dishonest shield for the Government to invoke for a legitimate but controversial decision.

And this is where we come to the next such decision of concern. On 2 September, the UK Government announced it was to immediately suspend 30 out of a total of around 350 arms export licences to Israel, owing to a “clear risk military exports to Israel might be used in serious violations” of International Humanitarian Law (IHL). It cited the UK’s robust export licensing system, which forbids the Government from issuing export licences “if the items might be used to commit or facilitate serious violations” of IHL (more on that later).

As a brief aside, it is worth bringing up the decision on the ICC arrest warrants again while reading the Government’s arms licensing announcement to Parliament, as the Government notably did not opine on whether or not Israel is currently violating IHL – Foreign Secretary David Lammy MP, said:

This government is not an international court. We have not – and could not – arbitrate on whether or not Israel has breached international humanitarian law. This is a forward-looking evaluation, not a determination of innocence or guilt. And it does not prejudge any future determinations by the competent courts.

Those last few words might well confuse readers who, just a few seconds earlier in this piece, read that the Government’s decision to drop its opposition to the ICC arrest warrant applications was apparently out of concern for prejudging the Court’s ability to make an independent decision. If the UK Government recognises the separation of powers so clearly on the arms licences issue (the government is “not an international court”, has “not made a determination of innocence or guilt”, and its decision “does not prejudge any future determinations by the competent courts”), one can only ask how they were so concerned about the threat to the rule of law and separation of powers on the arrest warrants decision. Without more, this demonstrates yet again how these types of decisions are very much not legal, but political.

And, turning to the arms export licensing decision, that appears to be the case here as well. Pressed to defend such a controversial (but legitimate) political judgment, the ministers concerned yet again rushed behind legal cover. Just as last time, the Prime Minister Sir Keir Starmer KC MP, said this was a “legal decision, not a policy decision”, that it followed a legal review of export licences launched shortly after the new Government took office, and that “it is important that we are committed to the international rule of law”.

And yet? Just as last time, this use of legal cover is more than questionable. The Government’s rationale is lifted almost verbatim from the wording of the applicable criterion, which is criterion 2c of the UK’s Strategic Export Licensing Criteria (SELC): the Government will “not issue export licenses if there is a clear risk that the items might be used to commit or facilitate serious violations of international humanitarian law”. This appears to be the only criterion in the SELC the Government have relied upon in this decision (albeit while mentioning that several factors went into it).

The problem is, on the Government’s own analysis, there is a curious absence of a link between “the items” under export to be used by Israel, and the possible breaches of IHL. Conceptually, it is obvious from this wording that the UK’s arms licensing scheme clearly intends to prevent breaches of IHL being committed only in activities which use those “items”, i.e. military activities and hostilities in armed conflict. Yet, in its accompanying policy paper, the Foreign, Commonwealth & Development Office (FCDO) stated that this “clear risk”, as applied to Israel, was of breaches in relation only to 1) the provision of humanitarian aid, and 2) the treatment of detainees.

However well-founded those alleged breaches may or may not be, these are clearly not conceptually related to “the items” concerned. The only plausible conceptual link the Government could be thinking of is that such arms could have been used in mistreating detainees. Let alone that this is very hard to imagine in general terms, the FCDO’s policy paper offers no such elaboration of the alleged abuses – only “credible claims of the mistreatment of detainees” which, while very concerning, are completely unparticularised in this policy paper. And obviously, the “items” wouldn’t conceivably be used in preventing Israel from “reasonably doing more to facilitate humanitarian access and distribution”, as the paper alleges.

What, then, does the policy paper make of the only plausible scenario in which the “items” could be used? Here is where the legal flaw is laid completely bare. The policy paper states:

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.

There you have it. The Government’s own analysis admits it has not been able to decide that there is a “clear risk” of the “items” being used to seriously breach IHL, in the only plausible scenario in which such a risk can exist. It has failed to identify any legal basis by which it is able to decide on whether the use of UK-licensed arms in Gaza is at clear risk of seriously violating IHL. And yet the licences were suspended under that very test.

Of course, a valid counter to the points raised above is that they show only a decision with bad legal reasoning, and not that the decision was political. If that is the case, what is to be made of the fact that not only have the Government misapplied their own criteria, but that these are just “criteria”, set by the Government and not Parliament? The criteria do exist under a legal framework provided by Acts of Parliament and secondary legislation, but the application of those criteria in a particular case does not result in a legal prohibition enacted by Parliament, which binds the Government to a certain decision. The criteria are, ultimately, the Government’s policy on whether or not to grant or suspend arms export licenses under the law. As senior government lawyers have told The Times, the decision is ultimately a political one, following advice on the application of the law by government lawyers.

So, while the “legal framework is clear” as the Prime Minister said, the decision that results from applying that framework is not a legally compelled decision. Of course, it is prudent and correct that the Government follows its own policy, but that makes the compulsion to act only a political one, not a legal one. It is the mere fact that the decision has a degree of legal character to it, which the Government has relied on in order to mischaracterise it as a legal decision. If it were a legal decision, the previous Conservative Government, who instituted this framework, would have been left with no choice but to suspend arms licences to Israel. And Governments of all stripes would have had no choice but to suspend arms licences to countries with far more obvious and established breaches of IHL in their use of the exported items.

For these reasons, even if you agree with the Government’s decision, either on the law or on the policy, it is extremely difficult to believe anything other than that this is yet another political decision exposed naked, cowardly hiding behind a legal fig leaf.

And this takes me back, in conclusion, to my  central point in the last piece: why pretend it’s anything but political at all? As with the decision on the ICC arrest warrants, there is nothing inherently wrong with the UK Government taking this decision for political reasons, proudly stating that it was following its own robust policy framework, and for people choosing either to support it or (as I do) to strongly disagree with it on its political merits. But once again, the politically charged issue of Israel’s war in Gaza is yet another example of our elected politicians shying away from justifying difficult decisions for reasons of policy and confronting the political cost. I hold no hope whatsoever that this post is the final one lamenting the expediency our politicians have, nowadays, in pretending such decisions were never political at all.