The ‘lawfare’ waged against arms sales to Israel reveals a dangerous Western delusion

Activist politics is increasingly being conducted via an expansive reading of the law, to our enemies’ glee

Countries like Britain and the United States are friendly to Israel. That is the official position. After the October 7 attacks, both governments immediately condemned the atrocities and supported Israel’s right to selfdefence.

Yet if one counts up all those governments’ public pronouncements on the Israel-Gaza conflict, one finds the great majority are criticisms of Israel. Ministers do not defend Hamas, of course, but they usually mention it only in passing, or not at all.

President Biden and, here, the Foreign Secretary, Lord Cameron, keep up a running commentary on Israel’s defects. This week, it concerns the delivery of aid.

In formal terms, there is some justification for this. Israel, after all, is a democratic state with a rule of law. As such, it recognises the duties involved and the right of other states to criticise shortcomings. It also needs the support of countries like ours. Our public pronouncements may therefore have some influence.

In addition, Britain (with other powers) claims that Israel has been, in international law, the “occupying power” in Gaza even after it left the place in 2005. This is a strange idea, since the definition of occupation is “effective control”, which Israel even now does not have over the whole of Gaza. Such occupation makes Israel legally responsible for the welfare of civilians still under Hamas’s heel. Thus Palestinians, who detest Israel’s occupation in principle, also like it in practice: they can hold it responsible for everything bad.

Hamas, by contrast, is neither a state, nor a democracy. It rules not by law, but by murder and fear. So there is little point in appeals to Hamas on the grounds of legality, international obligations or even common humanity.

The imbalance is weird. From most discourse in Parliament, in international forums or on the BBC, let alone from the chants of demonstrators on the streets of

London every weekend, you would not know that Israeli civilians had been the victims of Hamas-led massacres and continue to be the victims of kidnapping, or that many thousands of them are currently persons displaced by attacks from Hezbollah. And if there is a story about malnutrition, the delivery of aid and the like, Hamas’s role in blocking or looting aid is barely mentioned. The word “genocide” is used against Israel, not against the Islamist perpetrators of October 7.

Look at how people seek to deploy the law. In 2014, David Cameron’s coalition government ratified the Arms Trade Treaty. (The United States signed, but did not ratify, and therefore is not bound by its full terms.)

Any decent person would agree that the arms trade can be a dirty business. Its regulation is desirable. But most decent people also agree that nations are sometimes right to defend themselves. For this they must have arms. Therefore, it is positively morally right, in some circumstances, for a country to manufacture and/or trade arms. Without them, more innocent lives would be lost, and more peoples enslaved.

Yet 21st-century international lawyers and activists see each new treaty as a platform, like the European Court of Human Rights, on which to build. Their actions are all “expansive” (I almost wrote “colonising”, but I would not wish to cause offence).

The “lawfare” waged by organisations such as the Campaign Against Arms Trade (CAAT) is relentless and carries all the usual baggage of those for whom protest is a way of life. (“The police are institutionally racist”, “The police are part of the arms trade”, says CAAT’s website.) In such hands, the “international rules-based order” degenerates into politics by other means.

In the present case, it is safe to say that, if Israel did not make, buy and sell arms with great skill, it would long ago have been destroyed. It follows that since a government like ours is friendly to Israel, it should resist the use of international law to assist through courts the undermining of a country, which its enemies have so far failed to achieve in 75 years of intermittent violence.

Just now, however, attempts are being made within Government to find Israeli breaches of international humanitarian law. If these are pushed forward, ministers will be under great pressure to act.

The process would go thus: Foreign Office lawyers recommend that Israel is in breach and therefore licences to export arms to Israel should be blocked. If Lord Cameron, as Foreign Secretary, agrees to this, it would go, for ultimate decision, to the Secretary of State for Business and Trade, currently Kemi Badenoch.

There is always a career risk in supporting Israel, rarely one in opposing it

There is good reason to think that the ministers involved – Mrs Badenoch, Grant Shapps, the Defence Secretary, Rishi Sunak, the Prime Minister, and even Lord Cameron himself who, despite currently leading our most famously Arabist department, has always been a supporter of Israel – would not want such an outcome. Yet it could happen, partly because the fear of Judicial Review or some other form of inquiry could frighten ministers. There is always a career risk in supporting Israel, rarely one in opposing it.

If this did happen, it would be, to use everyone’s current favourite word, “performative”. Unlike the United States, we are not Israel’s arms lifeline. Britain sells less than £50million worth of arms-related material to

Israel annually. We buy much more from the Israelis than we sell them. Some of what they get from us is useful in tasks like reclaiming Gazan tunnels from Hamas, but its loss would not be materially large.

Think of the propaganda sensation achieved by an embargo, though. It would be a big political chance to show off, like that which South Africa took by bringing Israel to the International Criminal Court.

It would turn us against an ally. It would break our trust with Israel, which has grown deep in matters of intelligence and may even be helping find some of the hostages. Israelis who feel that the West’s response is almost as if the October 7 massacres were their fault would be dismayed. The “from the river to the sea” marchers here at home would be emboldened, not placated.

It would make it much harder for Britain to conduct future arms sales to countries like Saudi Arabia, whose help will be needed if plans for a durable Middle Eastern peace are revived. It would make Vladimir Putin, Xi Jinping and Iran gleeful.

A delegation of worried Conservative MPs went to see Lord Cameron about the matter this week. On balance, it seems likely that ministerial and backbench resistance will see off the moves for an export embargo. Israel is starting to concede more on the aid front, promising to “flood” Gaza with it, and thus allowing people like Lord Cameron to claim that progress is being made without recourse to law.

But there are lessons in the IsraelGaza case that go wider. In its obsession with “lawyering up”, the West is allowing a strange ideological equivalent of the Nazi-Soviet Pact to be forged between two apparently antagonistic groups which hate its values.

The first group is the lawintoxicated activist internationalists who dream of a world without borders but with universal high-minded jurisdictions. The second group consists of autocrats who hold all law in contempt but love it when it ties their opponents up in knots – Putin,

Xi, Hamas etc. They note that our deepening engagement with international legal processes seems increasingly to mean that we are losing the stomach for any long fight.

Europeans called Putin “delusional” when he invaded Ukraine, but the sad truth may be that we are the more deluded.