Al-Haq v. Secretary of State for Foreign and Commonwealth Affairs

Court	High Court of Justice of England and Wales, Divisional Court, Great Britain (UK)
Case number	C0/1739/2009
Decision title	Judgment
Decision date	27 June 2009
Parties	Al-Haq Secretary of State for Foreign and Commonwealth Affairs
Categories	War crimes
Keywords	accountability, arms trade, humanitarian law, self-determination, war crimes
Links	Judgment

Summary

Can a state be held legally responsible for not taking a strong stance against human rights violations committed by another state? In this case, a Palestinian human rights organization requested a UK court to give its legal opinion about UK foreign policy, in relation to Israeli actions in the Gaza Strip during the Winter of 2008/2009 (‘Operation Cast Lead’ or the ‘Gaza War’). The court most important statement was that it did not consider itself authorized to rule on foreign policy. According to the court, foreign policy is made by the government’s executive branch and it should remain within that exclusive domain.

Procedural history

On 3 February 2009, Palestinian human rights organisation Al-Haq sent a pre-action protocol letter to Secretary of State for Foreign & Commonwealth Affairs David Millebrand requesting information on the UK’s compliance with international law with respect to Israel’s attacks on the Gaza Strip between 27 December 2008 and 18 January 2009. The government rejected this demand on 20 February 2009.

On 24 February, Al-Haq applied for judicial review of UK’s foreign policy towards Israel, specifically in light of Operation Cast Lead, the operation in the Gaza Strip between 27 December 2008 and 18 January 2009. Sir Andrew Collins of the High Court of Justice in London requested a preliminary hearing by the Divisional Court. The UK Government argued that courts should not rule on matters of foreign policy, while Al-Haq considered this argument to be outdated. It requested the court to accept that the case ‘is seeking adjudication on the legality of the UK Government’s actions, and inaction, in relation to egregious and established breaches of international humanitarian and human rights law committed by the State of Israel’.

Legally relevant facts

On 27 December 2008, Israel started Operation Cast Lead in the Gaza Strip, stating that this was to stop Hamas rocket fire from the area and to prevent weapons smuggling into the Gaza Strip. Al-Haq, an independent non-governmental Palestinian human rights organisation, alleged that Israel had committed serious breaches of peremptory norms of international law in Gaza during Operation Cast Lead (paras. 4-5). Furthermore, Al-Haq argued that by reason of treaty obligations and customary international law, the UK should not recognise the unlawful acts or render aid and assistance to Israel (para. 10).

Core legal questions

Does the domestic court have jurisdiction to deal with this claim?
If it does have jurisdiction, should it exercise it in the circumstances?
Does the claimant have the necessary locus standi?

Specific legal rules and provisions

Convention on Certain Conventional Weapons.
Chapter VII of the UN Charter.
Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949.

Court's holding and analysis

The Court held that this case is essentially about the conduct of Israel and whether that state is in breach of its international obligations. The Court stated that it is beyond the competence of courts of England and Wales to decide on this (para. 41). The Court furthermore considers that the plaintiffs presented a domestic element to justify the Court in considering the claim: remedy is sought against the UK government. However, as this decision affects foreign policy, it is non-justiciable (paras. 43 and 58) and foreign policy should remain within the sphere of the executive (para. 46).

Standing was denied as well. The Court considered that in the present case ‘there is no right even arguably to be claimed and the claimants should not be granted standing to make the claim they seek to make’ (para. 48).

Further analysis

A.N. Guiora & D.J. Luban, ‘Was the Gaza Campaign Legal?’, ABA National Security Law Report, 2009, Vol. 31, pp. 1-6;
A. Herzberg, ‘NGO 'Lawfare' Exploitation of Courts in the Arab-Israeli Conflict’, SSRN, 1 September 2008.