Will the High Court order Britain to denounce Israel?

The High Court challenge lodged yesterday by a Palestinian organisation raises some important and difficult legal issues.

As I understand it, this is an application for permission to seek judicial review of decisions taken — or not taken — by the British Government. The claimants want the court to declare that ministers are in breach of their international obligations towards Israel arising from Israel’s military operations in Gaza.

The claimant is an organisation called Al-Haq, which is based in Ramallah, on the West Bank. Phil Shiner, the solicitor representing Al-Haq, says it is a human rights organisation with an “impeccable track record”.

Gerald Steinberg, who runs the Jerusalem-based research organization NGO Monitor, says Al-Haq’s general director, Shawan Rateb Abdullah Jabarin, has been denied exit visas by Israel and Jordan on account of his alleged ties to a terrorist group, the Popular Front for Liberation of Palestine.

On July 7, adds Prof Steinberg, the Israeli Supreme Court upheld the refusal of a visa to Mr Jabarin on the strength of “reliable information” that he was “among the senior activists of the Popular Front terrorist organisation”.

But what matters here is whether Al-Haq has the necessary legal standing to bring this application. Claimants usually have to be individuals or organisations affected by — or potentially affected by — the decision being challenged.

It would be unusual for a court to grant standing to a law centre representing, or campaigning for, aggrieved individuals — whether it had an impeccable record or links to terrorism. I would expect Al-Haq to bring in some individual claimants before long.

Much more fundamental is whether Britain’s obligations under international law are “justiciable” in the courts of England and Wales. In other words, will the domestic courts enforce the duties that Britain owes to other states under treaties and the customary obligations that are regarded as binding between states?

Not surprisingly, Al-Haq says these obligations are enforceable in “domestic” — or national — courts. Equally unsurprisingly, the Government says they are not.

If the High Court decides that Britain’s obligations under international law are justiciable, the next question to be decided is what these obligations are. Mr Shiner says these include denouncing Israel’s military actions in Gaza. He does not, incidentally, argue that Britain is required to denounce Hammas for launching missile attacks on Israeli civilians.

Does English common law really impose a binding duty on the British Government to denounce the actions of a friendly state with which it has full diplomatic relations?

It sounds far-fetched to me. In my experience, the courts usually regard international relations as best left to the government.

But the claim, as I understand it, has been put together by four leading barristers practising in the field of human rights. And I’m merely a journalist.

Time alone will tell. But it is of interest to note that a similar attempt by Al-Haq to seek judicial review was rejected by the High Court in 2007, a year after the case was lodged.

An appeal was dismissed last November. Although the case was not brought under al-Haq's name — no doubt for the reasons given above — the organisation makes it clear here that it, and Mr Shiner, were behind the claim.

Posted at February 25, 2009 01:07 AM