Al-Haq v. UK Secretary of State for Foreign & Commonwealth Affairs et al.
Al-Haq, in cooperation with solicitor Phil Shiner of Public Interest Lawyers (PIL), has filed a claim for judicial review before the High Court of England and Wales challenging the government of the United Kingdom over its failure to fulfill its obligations
under international law with respect to Israel’s activities in the Occupied Palestinian Territory (OPT). These obligations arise in the context of Israel’s breaches of peremptory norms of international law, namely denial of the Palestinian right to self-determination, de facto acquisition of territory by force, and breach of “intransgressible” principles of international humanitarian law.
Those violations of international law, and the obligations they entail for third states, existed well before Israel’s most recent attacks on the Gaza Strip between 27 December 2008 and 18 January 2009. However, the widespread civilian death and destruction caused during “Operation Cast Lead,” coupled with the distinct failure on the part of the international community to take any immediate measures to uphold international law, have forced Al-Haq to challenge third states directly, starting with the UK, in order to seek an end to the “business-as-usual” approach in relations with Israel.
Pre-action protocol letter to Secretary of State for Foreign & Commonwealth Affairs David Miliband, 3 February 2009
(The same letter was also sent to Secretary of State for Defence John Hutton and Secretary of State for Business, Enterprise and Regulatory Reform Peter Mandelson)
Response of the Secretaries of State, 20 February 2009
Grounds for Judicial Review Claim, lodged with the High Court, 24 February 2009
The Legal Basis for the Claim
Over the past 42 years, Israel’s occupation of the West Bank, including East Jerusalem, and the Gaza Strip, has aggressively targeted both the land and the people of the OPT. That the Palestinians are a people with the right to self-determination is undisputable under international law. Israel‘s denial of the Palestinian right to self-determination is comprehensive. Through its prolonged military occupation and violation of the territorial integrity of the OPT, its illegal settlement policy and denial of the Palestinians‘ permanent sovereignty over their natural resources, Israel has prevented the population of the OPT from freely determining its political status and freely pursuing its economic, social and cultural development. The right to self-determination is established in international law as giving rise to obligations erga omnes, whereby all states, including the UK, are bound to ensure its realisation. The UK has breached this obligation by failing to take meaningful action towards the cessation of Israel‘s policies in violation of the Palestinian right to self-determination.
Similarly, the UK has failed to fulfill the duty, confirmed by the International Court of Justice (ICJ) in its 2004 advisory opinion, not to recognise or assist the illegal situation created by Israel‘s purported annexation of occupied East Jerusalem and construction of the Wall in the West Bank, a measure described by the ICJ as potentially "tantamount to de facto annexation." The prohibition on the acquisition of territory through the threat or use of force is one of the pillars upon which contemporary public international law is built, and is established as a peremptory norm of international law (jus cogens) which is universally binding on states and from which no derogation is permitted.
Al-Haq‘s claim is further based on the UK‘s failure to prevent Israel‘s persistent violations of fundamental principles of international law. The recent "Operation Cast Lead" in the Gaza Strip resulted in the death of more than 1,350 Palestinians, majority of whom were civilians, including more than 310 children, and the further wounding of over 4,000 more. Documentation gathered to date by Al-Haq‘s fieldworkers in the Gaza Strip includes prima facie evidence of war crimes amounting to grave breaches of the Fourth Geneva Conventions.
As a High Contracting Party to the Geneva Conventions, the UK has clear international obligations regarding Israel’s actions in the OPT, both pre and post “Operation Cast Lead.” Pursuant to the 2004 advisory opinion of the ICJ, "all the States parties to the Fourth Geneva Convention, while respecting the Charter and international law, are under an obligation to ensure compliance by Israel with international humanitarian law as embodied in that Convention." Article 1 and Article 146 of the Fourth Geneva Convention itself oblige all High Contracting Parties to "ensure respect" for the Convention, and to search for and prosecute perpetrators of grave breaches of the Convention respectively. As well as demonstrating the UK‘s failure to fulfill those obligations, Al-Haq‘s claim argues that the UK is complicit in Israel‘s violations of international humanitarian law through its arms and arms-related trade with Israel, the details of which are outlined in the claim, and which also form the basis for the case of Saleh Hasan v Secretary of State for Trade and Industry, currently pending appeal before the House of Lords.
In spite of numerous interventions from Al-Haq to urge the UK to take concrete action regarding Israel‘s actions in the OPT in general, and the recent military attacks on Gaza in particular, no meaningful measures have been taken by the UK, demonstrating a clear reluctance to compel Israel to abide by its obligations under international law and to ensure the protection of the fundamental rights of the Palestinian people. It is in this light and in the interests of justice and accountability that Al-Haq has felt compelled to pursue legal action against the UK in order to seek compliance with its legal responsibilities.
On 3 February 2009, PIL submitted, on behalf of Al-Haq, a pre-action protocol letter for the purposes of a claim for judicial review. Al-Haq called on the relevant Secretaries of State of the UK Government to set out in clear terms what evidence or actions they point to if their position is that the UK has complied with its legal obligations, both before and after "Operation Cast Lead." In the eyes of Al-Haq and PIL, the response of the Secretaries of State for Foreign and Commonwealth Affairs, for Defence and for Business, Enterprise and Regulatory Reform failed to do so, and as a result proceedings were filed before the UK High Court on 24 February 2009.
Al-Haq calls publicly for the UK Government, through this legal action, to:
Publicly denounce Israel’s unlawful actions in the Gaza Strip and its continuing construction of illegal settlements and the Wall in the West Bank.
Suspend with immediate effect the UK‘s arms-related export licencing approval system so that no more UK companies can export arms related products until Israel complies with its human rights obligations.
Insist that the EU suspend the preferential trading agreement with Israel until Israel demonstrates full respect for its human rights obligations.
Suspend all UK Government financial, military or ministerial assistance either directly to Israel or to UK companies exporting military technology or goods to Israel.
Place before the police any evidence of war crimes committed by Israel’s agents intending to enter UK jurisdiction.