Al-Haq v Secretary of State for Business and Trade: Court of Appeal refuses permission to appeal F-35 export licensing decision

The Court of Appeal has refused permission to appeal against the Divisional Court's decision upholding the lawfulness of the "F-35 Carve Out"—the Government's decision to exempt F-35 component exports from a broader suspension of military export licences to Israel. The judgement, delivered on 12 November 2025 by Lord Justice Dingemans, Lady Justice Whipple, and Lady Justice King, addresses significant questions about the justiciability of international law obligations in domestic courts.

Al-Haq, a Palestinian human rights organisation, challenged the Secretary of State for Business and Trade's decision of 2 September 2024. Whilst the Government suspended export licences for military equipment that might be used in Israeli military operations in Gaza—on the basis that Israel was not committed to complying with international humanitarian law (IHL)—it carved out F-35 components from this suspension. The rationale was that suspending these exports would critically disrupt the F-35 programme, affecting international peace and security, particularly given the UK's position as the second-largest partner contributor.

The appellant argued that continued exports violated various international obligations, including Article 1 of the Geneva Conventions, the Arms Trade Treaty, and the Genocide Convention. They contended that the Strategic Export Licensing Criteria (SELC) provided a "domestic foothold" enabling courts to adjudicate on compliance with unincorporated international treaties.

The Court of Appeal's analysis

The Court dismissed three grounds that proceeded to oral hearing and refused to reopen a fourth ground under CPR 52.30.

On the first ground concerning the "domestic foothold" argument, the Court upheld the Divisional Court's crucial finding of fact: the Secretary of State had not purported to apply the SELC policy when making the F-35 Carve Out. Rather, this was an exceptional measure taken outside the policy framework, as expressly contemplated when SELC was announced. The Court found the appellant's suggestion that the Secretary of State departed only from Criterion Two(c) whilst maintaining adherence to Criterion One "unrealistic." As the policy had been disapplied, no domestic foothold existed for judicial interpretation of international law obligations.

Regarding customary international law (CIL), the Court found no error in the Divisional Court's conclusion that the relevant obligations had not been received into common law. Whilst the test from Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62 requires widespread, representative and consistent state practice, no such practice existed where one state assesses another as uncommitted to IHL compliance. Moreover, constitutional principles precluded reception of such obligations where Parliament had specifically legislated through the Geneva Conventions Act 1957 and International Criminal Court Act 2001, and where matters of national security and foreign relations fall within executive competence.

The fifth ground, concerning whether determining the case required adjudicating on Israel's conduct under international law, similarly failed. The Court noted this ground could not circumvent the finding that the SELC had been disapplied.

The reopening application

The Court refused to reopen Ground 3 under CPR 52.30, which challenged the rationality of the decision-making process. The appellant argued that Andrews LJ failed to appreciate a shift in the respondent's position between interlocutory proceedings and trial. The Court found that Andrews LJ had properly grappled with the issues and that the respondent's essential case remained consistent throughout: whatever the risks from Israel's IHL non-compliance, the F-35 considerations would outweigh them.

This decision reinforces established principles about judicial restraint in matters involving foreign policy, national security, and unincorporated international treaties, whilst clarifying the circumstances in which government policy documents might create justiciable domestic obligations regarding international law compliance.

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