R (Al-Haq) v Secretary of State for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Mr Justice Cranston |
| Judgment Date | 27 July 2009 |
| Neutral Citation | [2009] EWHC 1910 (Admin) |
| Docket Number | Case No: CO/1739/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 July 2009 |
[2009] EWHC 1910 (Admin)
Lord Justice Pill and
Mr Justice Cranston
Case No: CO/1739/2009
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Michael Fordham QC, Mr Raza Husain and Mr Zachary Douglas (instructed by Public Interest Lawyers) for the Claimant
Mr James Eadie QC and Mr Sam Wordsworth (instructed by Treasury Solicitor) for the Defendant
Hearing date: 18 & 19 June 2009
This is an application for a declaration that the United Kingdom (“UK”) Government is responsible for a breach of the UK's international obligations and for a mandatory order that the Government use its best endeavours to meet those obligations. The proposed defendants are selected as the government departments with the relevant responsibilities and I will refer to them collectively as “the Government”. The obligations are said to be under customary international law in respect of the Government of Israel's actions in the course of Operation Cast Lead in Gaza since 27 December 2008.
The claimant, Al-Haq, is a non-governmental human rights organisation (“NGO”) based in Ramallah in what the claimants describe as Occupied Palestinian Territory (“OPT”) and I adopt, for present purposes, that description of the West Bank, without considering its implications in legal terms. The claimant has special consultative status with the United Nations Economic & Social Council and is affiliated to other NGOs. Evidence has been submitted describing its role in documenting alleged violations of the individual and collective right of Palestinians by the Government of Israel (“Israel”).
Collins J has referred the application for permission to apply for judicial review to this court on a specific basis:
“It seems that there are at least three main issues of principle:
(1) Does the domestic court have jurisdiction to deal with this claim?
(2) If it does have jurisdiction, should it exercise it in the circumstances?
(3) Does the claimant have the necessary locus standi?
… I am entirely satisfied that mandatory orders would not be appropriate but, if the claim is allowed to go forward, and if there is any successful outcome some sort of declaratory relief may result. I am not persuaded that I should refuse permission without a court hearing submissions on jurisdiction and standing and whether on the facts as presented by the claimant, if there is jurisdiction and the claimant has standing, the court would exercise its jurisdiction. I do not grant permission, but direct that these three issues be decided not on the basis of arguability but as if permission had been granted limited to them. Due to their importance, the issue should be decided by a Divisional Court next term.”
Assumed facts
As we have been told repeatedly on behalf of the claimant, the court must determine the issues referred on the basis of “the facts as presented by the claimant”. It is necessary to assume the accuracy of the “factual background” as described by the claimant. The court is invited to consider the preliminary issues on the premise that Israel has committed serious breaches of peremptory norms of international law in Gaza in Operation Cast Lead.
The allegations against Israel are set out in considerable detail in the claimant's grounds. It is alleged:
(a) Operation Cast Lead began with an intensive bombardment of the Gaza Strip area of the OPT followed by a full ground assault.
(b) There have been many civilian casualties, including women and children. Thousands of residences have been destroyed, completely or partially. The buildings bombarded included UN and UNRWA buildings. Civic facilities, Mosques, workshops, factories and educational and health institutions have been at least partially destroyed.
(c) There have been multiple reports of the targeting of ambulances and hospitals. Particular incidents are described.
(d) There have been widespread reports of intensive use of white phosphorus bombs throughout the Gaza Strip, contrary to the Convention on Certain Conventional Weapons, Geneva 1980.
(e) There has been a wanton destruction of civilian, cultural and governmental infrastructure, including factories, legislative buildings, farmland and civic institutions. Tunnels giving means of access to Egypt have been bombed and a naval blockade established.
(f) It is noted that Israel commenced a unilateral ceasefire on 18 January 2009, though there have since been several violations by both sides.
It was submitted that Israel is in breach of peremptory human rights norms through the nature and intensity of force used during the incursion into Gaza. International law recognises the right to self-determination which Israel has denied to the Palestinian people. Israel's occupation of Palestinian territory is unlawful, it was submitted. The breaches of Israel's obligations have been extended and intensified by Operation Cast Lead. It involved breaches of the peremptory norms of self-determination and the non-acquisition of territory by force, it was submitted. There have been breaches of the Geneva Convention 1949. Given the scope of the present application to this court, I do not propose to set out in detail the international instruments and decisions of international organisations which Israel is said to have breached or ignored.
The UK's relationship with Israel is described in the claimant's grounds. A substantial quantity of military equipment is sold by the UK to Israel under Standard Individual Export Licences (SIELS). Military equipment is also purchased from Israel. Under the EU-Israel Association Agreement provision is made for preferential trading with Israel.
The claimant seeks an order requiring the UK government:
“(a) To publicly denounce Israel's actions in Operation Cast Lead and the construction of the Wall.
(b) To suspend all SIEL approvals to Israel.
(c) To suspend all UK government financial or ministerial assistance directly given to UK companies exporting military technology or goods to Israel.
(d) To request that the EU suspend the EU-Israel Association Agreement on article 79 [of the Treaty] grounds [which are claimed to permit suspensions] and use best endeavours to ensure it is so suspended.
(e) To seek out and suspend any other financial or military assistance given by the UK government to Israel.
(f) To call a Conference of the Parties to be convened to address Israel's grave breaches.”
Accepting that there are limits to the extent to which the courts can direct the UK government how to conduct its foreign relations, steps to be taken by the Government are suggested:
“a. the exercise of universal jurisdiction to prosecute or extradite any individuals involved in grave breaches,
b. the enforcement of the system for suppression of such breaches,
c. significant diplomatic pressure,
d. the introduction of measures to the Security Council under Chapter VII of the UN charter (the Security Council's powers to maintain peace);
e. clear public denunciation,
f. lawful sanctions,
g. application of pressure through withdrawal of preferential trading terms, or
h. convening a meeting of the Conference of the Parties.”
Submissions and authorities
Mr Fordham QC, for the claimant, submitted that when jurisdiction to deal with a claim such as the present is in issue the courts operate on a case-by-case basis depending on the subject matter of the dispute. Mr Fordham relied on the statement of Lord Phillips MR in R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598, at paragraph 85:
“The issue of justiciability depends, not on general principle, but on subject matter and suitability in the particular case.”
Treaty obligations and customary international law impose obligations on the UK. By reason of these obligations, the United Kingdom is under an obligation, in its domestic law, it was submitted, not to recognise the unlawful acts or to render aid and assistance to the Government causing them. It is for the courts to ensure that the Government carries out the UK's international law obligations.
Central to Mr Fordham's submissions is the Advisory Opinion of the International Court of Justice (“ICJ”) of 9 July 2004 on the “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” (“the Wall Opinion”). In its Opinion, the court described the wall and stated that the request for an Opinion was limited to the legal consequences of the construction of those parts of the wall situated in the OPT. The court concluded that the construction of the wall and its associated regime were contrary to international law (paragraph 142). The court advised that the legal consequences for Israel included ceasing forthwith the works of construction in the OPT and the dismantling forthwith of those parts of the structure within the OPT (paragraph 151). Israel was also under an obligation to return land and other immovable property seized for purposes of constructing the wall in the OPT or, if that is impossible, to compensate the persons in question for the damage suffered (paragraph 153).
In the following paragraphs of its Opinion, the court considered the legal consequences as regards other states of the internationally wrongful acts flowing from Israel's construction of the wall (paragraph 154). The court concluded, at paragraph 159:
“Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to...
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