The ruling by London’s High Court that Britain’s sale of F-35 fighter jet parts to Israel is lawful may have offered legal comfort to Labour (and past Conservative) ministers, but it raises troubling questions. Questions about moral complicity and about the function of international law. And questions about the politics of judicial restraint and the justice of political restraint.
This was not a ruling that denied the possibility of grave violations of international humanitarian law in Gaza. This was not a ruling where the court disputed that UK-made components may be used in airstrikes which kill civilians. Nor was it a ruling that suggested that the government’s own legal advice had ruled out that possibility. Instead, it simply decided that the matter was too “sensitive and political” for judges to challenge. It was a washing of the hands. Even a Macbethian one. For it handed the issue back to politicians, who have thus far failed to act.
On a fundamental level this has been an abdication. Some might even call it a shameful one.
A court may operate within the confines of domestic law, but where that law permits executive decisions that facilitate violations of international norms, we must ask whether the law itself is fit for purpose. The court’s deference to ministerial discretion on arms exports to Israel, even in the face of an almost certain risk of war crimes, questions the very notion of a rules-based order.
The facts that came to light during the case can’t be ignored.
The UK government accepted that British-made parts could be used in breaches of international humanitarian law. It has continued to supply them regardless, hiding behind the architecture of a global F-35 supply chain, where accountability is as diffuse as it is deniable.
Ministers argued that to withdraw from the programme would imperil NATO and the Western alliance. In doing so, they made clear that the commercial and strategic value of the arms trade outweighs the lives of Palestinian civilians. They also made it implicitly clear that BAE Systems, the makers of the F-35 parts, has an influence in politics that far outweighs pro-Palestinian voices.
We know that in the war in Gaza, tens of thousands have died. According to Gaza’s health authorities, more than 50,000 Palestinians have been killed since October 2023. Of the thousands of Israeli airstrikes that have reduced whole neighbourhoods to rubble, the British government scrutinised only 413 incidents. From these, it found just one possible violation of international law: the killing of seven foreign aid workers from World Central Kitchen.
None of the incidents resulting in the deaths of only Palestinian civilians were deemed worthy of concern, it seems.
This smacks of a wilful blindness to patterns of harm. It smacks of a failure to realise that international humanitarian law hinges not only on individual proportionality assessments, but on a broader understanding of systematic conduct. And it smacks of something rotten: this government’s refusal to recognise the scale of harm in Gaza, and the court’s refusal to interrogate it, illustrates the frailty of both legal and political accountability.
Campaigners such as Al-Haq and GLAN did not ask the court to pronounce on battlefield tactics. They asked it to decide whether the UK’s own arms export guidelines, ones that prohibit sales where there is a clear risk of misuse, were being followed in good faith. That the court chose instead to shield ministers behind the veil of discretion and foreign policy prerogatives suggests that even these guidelines are ornamental.
Indeed, the judgment offers a lesson in how legalism can be used to neuter the law.
Rather than engage substantively with the facts of Gaza’s destruction, the judges preferred to stress the limits of judicial reach. The separation of powers may be a constitutional virtue, but it becomes a vice when it serves as a mechanism of avoidance.
This case should (of course) prompt Parliament to revisit the arms export control regime. They won’t. But the next time the UK claims to have one of the most rigorous export control regimes in the world, eyebrows might be raised. For when that regime permits the continued supply of weapons (or parts thereof) despite a mountain civilian deaths and credible allegations of war crimes, all credibility has collapsed.
We have seen this play out before.
British-made bombs were used in the Saudi-led war in Yemen. The government insisted its export system was robust, only to be found by the Court of Appeal in 2019 to have acted unlawfully. Ministers then promised reforms. Yet here we are again, watching another court step aside, not because the risk is absent, but because the bar for intervention has been set so high as to be unreachable.
No law compels Britain to supply F-35 parts to Israel. It is a choice. And it is a choice that renders the UK, if not legally complicit, then morally entangled in the consequences.
The High Court may have deemed the exports lawful. But in a world where legality is detached from justice, such lawfulness should give no comfort.
It should provoke outrage and action. The burden now falls, as the judges have reminded us, on Parliament. But it also falls on us, the public, to demand that Britain stop arming atrocity.
We can only do that with our voices. And these need to be raised until all politicians can hear the cry for justice.
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