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UK looked for ways to suspend F-35 parts to Israel, court documents reveal

Senior UK defence officials asked US for options to suspend UK-made fighter jet parts without disrupting global fleet, but concluded there were 'significant obstacles'
F-35 fighter jets roll on the tarmac during a multinational aerial exercise at the Ovda air force base in Israel in 2019 (Emmanuel Dunand/AFP)
F-35 fighter jets roll on the tarmac during a multinational aerial exercise at the Ovda air force base in Israel in 2019 (Emmanuel Dunand/AFP)

Senior British defence officials asked their US counterparts running the F-35 fighter jet programme if there were options available to stop UK-made components from reaching Israel without disrupting the global fleet, new court documents reveal.

But the UK had concluded by last July that there were "significant obstacles" in the way of any such ban, with Defence Secretary John Healey warning Business and Trade Secretary Jonathan Reynolds that month that the programme, a backbone of British and Nato air power, would be disrupted "within weeks" if the parts were suspended.

Six weeks later, the UK government announced it was suspending 30 licences for the export of arms to Israel, but UK-made components for the F-35, which has been critical to Israel's air war on Gaza, sent through third countries to Israel were not on the list.

The revelation of the UK's engagement with the US over the programme is among further details which have emerged in the legal challenge brought by the UK-based Global Legal Action Network (Glan) and the Palestinian human rights organisation Al-Haq in the High Court over UK arms exports to Israel.

Campaigners have accused the UK government of breaching its own human rights and international law obligations by continuing to allow the export of F-35 parts for possible use by Israel despite determining that there is a clear risk that they could be used to commit war crimes.

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The groups argue in their most recent filing that while the government has assessed the risk of suspending the licences for F-35 parts sent indirectly to Israel and decided against it given the threat to the entire F-35 programme, it has not thoroughly assessed the risk to Palestinians, nor to the international rule of law, of failing to follow its own guidelines and international treaty obligations.

According to those guidelines, the UK should suspend licences for arms exports if it determines that there is a clear risk that British weapons might be used in serious violations of international humanitarian law.

 'The UK government is displaying utter contempt for Palestinian life and the fundamental principles of international law'

- Shawan Jabarin, Al-Haq general director

On Tuesday, Shawan Jabarin, Al-Haq's general director, said: "It is outrageous that, despite acknowledging the clear risk that F-35 components could be used by Israel to commit serious violations of international law, including genocide, the government continues to exports the components."

"In doing so, the UK government is displaying utter contempt for Palestinian life and the fundamental principles of international law."

The government maintains in a recent court filing that the guidelines, known as the Strategic Export Licensing Criteria, are a statement of government policy, but are not enshrined in domestic law.

It also says that because of the current inability of the F-35 programme to separate out components specifically destined for Israel - or, as MEE understands, for any other specific country - the UK would have had to suspend all exports to the programme in order to divert parts from Israel.

UK concerns 

The government lays out, in more detail than has been previously been made public, the fallout it anticipated if it proceeded with suspending all such exports.

According to the filing, the UK currently operates a fleet of 34 F-35 aircraft, with another 13 scheduled to be in service by the end of the year, which the government says is both a critical component of the UK's ability to conduct air missions from naval carriers and also a key part of the UK's commitment to Nato.

The F-35 is "a central pillar" of Nato's air power and is "a significant element of Nato's defence posture, particularly against Russia," Healey told Reynolds in a detailed letter in July. 

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An inability to deploy F-35s in sufficient numbers could reduce Nato's ability to gain control of the air in a future conflict and risk a protracted battle on land which would result in much higher casualty rates, Healey advised.

Any disruption to the fleet, he said, would undermine Nato's warfighting plans and a prolonged disruption might require Nato countries like Denmark and the Netherlands to pause a planned transfer of F-16s to Ukraine.

Also illuminating in the court filing is the government's explanation of how the F-35 programme is governed and why, therefore, it says it would be difficult for the UK alone to instruct the contractors to either stop sending parts to Israel or using them in fighter jets provided to the country.

Under a 2006 MOU, the programme is overseen by an executive steering board which is chaired by the US, comprises of representatives of participating states, and makes decisions by consensus.

According to the filing, all participant states would have to agree for components being used in Israeli F-35s to be limited and logistics that are not currently used would have to be put in place to separate out components destined for Israel.

There are also further details about the role of the F-35 in maintaining global peace and security, the UK's engagement with participant states over attempts to avoid a disruption to the programme and obstacles preventing a solution which the government says are laid out in closed documents.

As with an earlier judicial review, which saw the Campaign Against the Arms Trade challenge UK arms exports to Saudi Arabia, some of the hearings in the current challenge are heard in closed sessions in which campaigners are represented by security-cleared special advocates.

'No red lines'

In response to the government's grounds, campaigners do not dispute the gravity of the predicted fallout for the F-35 programme if the UK were to suspend components, but rather argue that the government has failed to fully assess and weigh the consequences of allowing the components to continue to be exported.

'The UK has made it clear that Israel can commit whatever depraved atrocity it pleases in Palestine, and nothing will stop the supply of British war plane components'

- Gearoid O Cuinn, Glan legal director

There could be risks, they argue, to international peace and security and the international legal order for the UK to continue supplying weapons to a state which it has assessed is not committed to complying with international law and in circumstances in which international bodies have concluded that Israel is committing or at risk of committing genocide.

They contend that the UK's line of reasoning effectively means that there is no situation, including the potential for UK-made components to be used by Israel to commit war crimes and crimes against humanity against Palestinians in Gaza, which could trump the breakdown of the F-35 programme and cause the government to suspend components.

Glan's legal director Gearoid O Cuinn said: "The UK has made it clear that Israel can commit whatever depraved atrocity it pleases in Palestine, and nothing will stop the supply of British war plane components.

"The government has shamelessly and openly put US interests and the contracts protecting arms manufacturers above its own international legal obligations."

The court will now decide how the case should proceed and is expected to set a date for a new hearing this week.

In a response received following publication of this article, an MOD spokesperson said: “Due to the nature of the F-35 as an international collaborative programme, it is not currently possible to suspend licensing of F-35 components for use by Israel without prejudicing the entire global F-35 programme.”

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