Why pretend it’s not political, Part 3: a gift-wrapped clue on arms sales

The newly-installed UK Government has today given us further reason – perhaps accidentally, out of showing extra solidarity with Israel on the first anniversary of October 7 – to suspect that its decision to suspend certain arms export licences was inherently political.

To take such decisions, and hide disingenously behind the cover of the law – something I have already covered regarding both this issue and Labour’s dropping of a legal objection to ICC arrest warrant requests – is an abdication of the constructive forces that help maintain trust in politics. And for Israel, it is shameful that Labour have now appeared to do this twice, rather than to explain honestly and with candour that the decisions are in fact political ones, which represent its changed policy positions towards its ally, the Jewish state, in comparison to previous administrations.

On the ICC arrest warrants issue, it was virtually impossible to spot the legal reasons Labour said were clearly there when it decided to drop its intervention – simply a “belief in the international rule of law” and that it was “for the court to decide” the relevant issues. This is problematic not only because it’s beyond obvious that it was only ever going to be the Court that decided those issues (who else?), but because such interventions by third parties are legal rights specifically granted by the Court itself – in Rule 103 of its Rules of Evidence and Procedure. And that right exists precisely to help the Court make better decisions. That right was then specifically granted to the UK Government by the Court in this matter, as well as to scores of other interested third parties, including several NGOs – all under Rule 103. So where was the Government’s perceived danger to the rule of law and the Court’s independence?

Then, on the arms sales issue back in September, we saw the Prime Minister, Sir Keir Starmer KC MP, claim that this was a “legal decision, not a policy decision”, which followed a recent legal review of export licences, and reflected a “[commitment] to the international rule of law”. His Under-Secretary of State also told the House of Lords on 5 September: “This is not about punishing Israel. Israel is our ally, and we support it and support its right to defend itself. This decision is consistent with the law we are obliged to follow.”

As I sought to explain previously, the review of the UK’s arms export licences is a process provided by the law set by Parliament, but the decision that ultimately results on whether to issue, suspend or revoke licences is not a legally mandated one – it is only a policy decision, taken following policy criteria that the legal framework allows the Government to set.

In the case of Israel, the Government relied on just one of its mandatory policy criteria (regarding the potential use of the exported items to commit or facilitate serious breaches of international humanitarian law – criterion 2c of its Strategic Export Licensing Criteria (SELC)), assessed the facts and its legal advice against that criteria, and decided, as a result, that it would suspend 30 of the arms licences. However – and it is obviously prudent that a Government should follow its own policy – the ultimate decision followed only from that policy. The law’s place in all this was solely to provide the relevant minister with the power to make a decision, and not to make their decision for them.

If you needed any further clue that this is the case, the Prime Minister then gave you one, gift-wrapped, today – October 7^th, 2024.

Responding in the House of Commons to a question by the Labour MP, Zarah Sultana (whose strong and repeated public calls for the UK to institute a full arms embargo have become a well-worn slogan of hers over the past few months), Sir Keir replied with a sharp, curt “no”. The full text of the exchange is as follows:

Zarah Sultana: On the anniversary of the horrific 7 October attacks, I again repeat the call for the immediate release of all hostages. In light of Israel’s genocidal assault in Gaza, the violence in the west bank and the invasion of Lebanon, does the Prime Minister believe that Israel’s right to self-defence justifies a death toll that, according to research by US medical professionals who have worked in Gaza, has now surpassed 118,000, as well as the 2,000 people killed in Lebanon? Will he do what is morally and legally right and end the Government’s complicity in war crimes by banning all arms sales to Israel, including the F-35 fighter jet, and not just 30 licences—yes or no?

Sir Keir Starmer: No, but it is a really serious point. Banning all sales would mean none for defensive purposes—

Zarah Sultana: F-35 fighter jets.

Sir Keir Starmer: It would mean none for defensive purposes. On the anniversary of 7 October and days after a huge attack by Iran into Israel, that would be the wrong position for this Government and I will not take it.

So there we have it. A Prime Minister who told you that his Government’s decision to revoke 30 out of 350 arms export licences was “a legal decision, not a policy decision”, whose ministers have told you it was due to “the law we are obliged to follow”, has now told you that his Government will not end all arms sales to Israel – when by his own previously stated logic, it isn’t up to the Government to decide in the first place.

Which is it?

If the Prime Minister is now saying the Government can freely decide on arms export licences, following its own policy criteria under the powers given to it by the law, its decision to revoke 30 arms licences to Israel can only ever have been political. This is precisely the reason why the previous Conservative Government, who were perceived as much friendlier to Israel, could be accused of doing nothing about arms sales to Israel, and sitting on legal advice which purportedly said there was a risk that the arms would be used to commit or facilitate serious breaches of international humanitarian law.

This inherently political and policy-driven process is all very nicely summed up in the House of Commons Library’s research briefing on the matter (emphases added):

During the 2023/24 Israel-Hamas conflict, some MPs in the UK Parliament have raised concerns about UK arms exports to Israel, citing a risk that [under criterion 2c of the SELC, mentioned above] they could be used to violate international humanitarian law.

Following several reviews between October 2023 and May 2024 carried out under the UK’s arms export criteria, the Conservative government concluded that no licences needed to be suspended or revoked.

[…]

Upon taking office in July 2024 the Labour government undertook a fresh review. On 2 September, the Foreign Secretary, David Lammy, announced the suspension of around 30 licences, out of about 350, to Israel. […] Mr Lammy said he had decided to suspend licences because he had concluded [again, in reference to criterion 2c of the SELC] for certain arms exports to Israel “there exists a clear risk that they might be used to commit or facilitate a serious violation of international humanitarian law.

If the law would have bound either of these Governments to a decision, the ban on these arms licences would have come a lot earlier, and against the policy wishes of the Conservative Government. 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 international humanitarian law in their use of the exported items.

This is all further proof, if ever more were needed, that the revocation of those 30 arms licences was a political choice, not a legally compelled decision. And that the new UK Government is beginning to tread a very dangerous pattern whereby it cannot be honest with its own people – and its own ally – about precisely why it is taking decisions that (in however minor a way) undermine that ally’s ability to defend itself, physically and morally.