Policy paper

Summary of the IHL process, decision and the factors taken into account

Published 2 September 2024

The Export Control Act 2002 and the Export Control Order 2008 establish strategic controls over military and dual-use goods, prohibiting their export from the UK without a Government-issued licence. The Secretary of State for Business and Trade has overall responsibility for the UK’s export licensing process, including the decision to grant or refuse an export license, and, where necessary, to amend, suspend or revoke extant licences.  Licencing decisions are made on a case-by-case basis against the UK’s Strategic Export Licensing Criteria (SELC), statutory guidance pursuant to section 9(3) of the 2002 Act.   

Whilst all of the Criteria have been carefully considered, in relation to Israel, the most significant Criterion since 7 October 2023 has been Criterion 2(c), because, as a result of Israel’s participation in armed conflict in Gaza since that date, international humanitarian law (IHL) is the body of rules which is most likely to be engaged by the use of items being exported. Criterion 2(c) states:

Having assessed the recipient country’s attitude towards relevant principles established by instruments of international humanitarian law, the Government will: (c) Not grant a licence if it determines there is a clear risk that the items might be used to commit or facilitate a serious violation of international humanitarian law.

When taking decisions, the Trade Secretary seeks advice from, principally, the Foreign Secretary and Defence Secretary.   

The Foreign Secretary is responsible for providing advice on the application of Criterion 2(c).  In preparing this advice, an assessment of Israel’s capability and commitment to comply with IHL in relation to the conflict in Gaza has been considered. The assessment addresses Israel’s record of compliance in relation to the conduct of hostilities, provision and facilitation of humanitarian relief and treatment of detainees. The assessment also considers wider aspects of the Israeli government’s attitudes to and actions regarding IHL, for example, relevant statements by key Israeli decision-makers. This approach to applying Criterion 2(c) reflects a methodology upheld in previous litigation.   

The assessment process gathers information from a wide range of sources, including: reporting from NGOs on the ground; reports from other FCDO desks and from Posts; reporting in the media; statements from the UN, NGOs and other organisations; and reporting from HMG engagement with Israeli counterparts. The process also draws on a log of military incidents (such as air strikes or ground operations) and statements by political actors, which is prepared on a regular basis. This information is analysed to focus on incidents in Gaza for which there is credible information and/or reliable evidence, and broader thematic issues of particular concern.  When judged appropriate, specific incidents of concern are subject to greater investigation, which can include commissioning legal analysis. All this information and analysis feeds into the overarching assessment.  

Having considered the most recent assessment, the Government has determined that there is a clear risk that certain items, if exported, might be used to commit or facilitate a serious violation of IHL. The following factors were key to the judgement:   

Humanitarian

The assessment concluded that Israel has not fulfilled its duty as Occupying Power to ensure - to the fullest extent of the means available to it - those supplies essential to the survival of the population of Gaza.  It has concluded that the level of aid remains insufficient. While Israel does not accept it is the Occupying Power, it accepts the separate obligation to allow the free passage of humanitarian relief by others, such as the UN.  While Israel has both a right to conduct security inspections and an obligation to deconflict aid from military activities, and while there are credible allegations of Hamas looting aid, it was assessed that overall, Israel could reasonably do more to facilitate humanitarian access and distribution. For example, Israel should establish a speedier and more effective system for deconflicting humanitarian aid from military operations. It could also better resource security control procedures and adopt a less restrictive approach to dual-use items (those with both military and civilian uses).  

Treatment of detainees

There have been credible claims of the mistreatment of detainees. The volume and consistency of these allegations suggest at least some instances of mistreatment contrary to IHL. Israel has launched investigations into these allegations. However, the sufficiency of those investigations is unclear, partly because Israel continues to deny access to places of detention for the International Committee of the Red Cross (ICRC). IHL requires such access, ‘except for reasons of imperative military necessity, and then only as an exceptional and temporary measure’.  Israel has not provided satisfactory reasons.  

The concerns regarding Israel’s compliance and commitment in the areas of humanitarian relief and treatment of detainees give cause for concern about its attitude and approach to the conduct of hostilities.

Conduct of hostilities

Despite the mass casualties of the conflict, it has not been possible to reach a determinative judgment on allegations regarding Israel’s conduct of hostilities. This is in part due to the opaque and contested information environment in Gaza and the challenges of accessing the specific and sensitive information necessary from Israel, such as intended targets and anticipated civilian harm. This is further complicated by credible reports that Hamas embeds itself in a tightly concentrated civilian population and in civilian infrastructure.