The government continued to send components for F-35 fighter jets to Israel despite knowing there was a “clear risk” that they could be used to “commit or facilitate a serious violation” of international humanitarian law ( IHL), said the High Court.

Al-Haq, a Palestinian human rights organization, is taking legal action against the Department of Business and Commerce over several decisions not to suspend arms and military equipment export licenses.

In September, the Labor government suspended around 30 licenses following a review of Israel’s compliance with IHL in the ongoing conflict, after the previous Conservative government refused to do so in December last year and April and May this year.

But an exemption was made for some licenses related to components of the F-35 fighter jets, and about 330 others continued unchanged, covering items such as training and air defense equipment.

Al-Haq is now seeking the green light to challenge the decision not to suspend all licenses in September, the decision to “exclude” licenses for F-35 components from the suspension, and the former Conservative government’s decisions not to suspend licenses in December 2023 and April and May this year.

The government opposes the legal challenge, with its lawyers telling the court that the licensing of arms exports to Israel “is kept under close and continuous control”.

In written submissions to a hearing on Monday, Sir James Eadie KC, for the department, said the suspension was made after Foreign Secretary David Lammy concluded that Israel was “not committed to complying” with IHL.

This was based on the conclusion that “Israel has committed possible violations of IHL in relation to humanitarian access and treatment of detainees”, prompting the Foreign Office to inform the Department of Business and Trade that there was a “clear risk” that some military equipment that to be deployed in Gaza could be used to violate international law.

But Sir James said the decision to “release” licenses related to F-35 components followed the advice of Defense Secretary John Healey, who said a suspension would impact “the entire F-35 program” and have “a profound impact on international peace”. and security”.

Mr Healey added that it would “undermine US confidence in the UK and NATO at a critical time in our collective history and undo the relationship” and could lead “adversaries” to “exploit any perceived weakness”.

Sir James said: “It did not follow from this assessment (September) that all licenses for Israel should be suspended, but only those for which there is a clear risk that they could be used to commit or facilitate a serious violation of IHL.

“Despite the “clear risk” assessment, for the reasons set forth in the Secretary of Defense’s opinion, it has been determined that good cause exists to deviate from the strategic export licensing criteria and not suspend exports to the F-35 program.

“The F-35 exemption accepts that there is a clear risk that F-35 components will be used to commit or facilitate a serious violation of IHL, but establishes that, in the exceptional circumstances outlined by the Secretary of Defense, these exports should still continue. “

The war between Israel and Hamas, which began on October 7 last year, has left tens of thousands dead and millions displaced.

Gaza’s Health Ministry says an estimated 43,800 Palestinians have been killed in the war, but the ministry does not distinguish between civilians and combatants.

However, he said women and children accounted for more than half of the deaths.

The court was told that at the time of the September suspension, 361 licenses had been issued for arms exports to Israel.

In her written submissions, Phillippa Kaufmann KC, for Al-Haq, said the government was using a “categorically wrong” and “grossly inappropriate” approach to assessing whether Israel had violated IHL, leading to “flawed” decisions regarding suspending licenses.

She said: “What is at issue here is whether its (Israel’s) stated commitment is a true commitment, and to make that determination, the best evidence is how these hostilities have gone.

“What is being looked for are, for example, patterns that indicate systemic non-compliance with international humanitarian law.

“The defendant simply does not have information from Israel about individual acts of military action, strikes, demolitions.

“He doesn’t have that because Israel wouldn’t give it to them.”

Ms Kaufmann added that challenging the previous decisions “raises important issues of principle” which are “strongly in the public interest”.

But speaking in court in London, Sir James continued that “historic decisions” made by the previous government had been “superseded” by the September decision, calling them “academic”.

The hearing before Mr Justice Chamberlain is expected to conclude months later.