A judge has dismissed an attempt by pro-Palestinian activists to privately prosecute a British-Israeli IDF reservist as “vexatious” and an ‘abuse of court process’.
Campaigners sought to use a Victorian-era law to criminalise the actions of dual national who returned to Israel to serve in the IDF following the October 7 massacre.
The International Centre of Justice for Palestinians (ICJP), a UK-based organisation of lawyers with a high-profile advisory board listed on its website including Liberal Democrat MP Layla Moran and former Tory minister Sir Alan Duncan, attempted to prosecute the unnamed individual, who returned to Israel on October 8 2023 to rejoin his reservist unit.
In a scathing judgment delivered after a private hearing at Westminster Magistrates’ Court on March 12, Judge Paul Goldspring refused the application, concluding that it “is legally flawed, evidentially deficient, and procedurally defective.”
Goldspring described the ICJP’s application as “an abuse of the process of this court” driven by “an improper motive”.
He ruled the organisation’s “dominant motive” was “the advancement of a political and ideological agenda, not the pursuit of justice for a specific criminal act”.
And he lambasted the ICJP’s “use of the criminal courts as a platform for political posturing” as “an abuse of process”.
Courts “must not be used as a vehicle for political debate,” added the judge, who warned against attempts to “expose” individuals for alleged wrongdoing outside the scope of criminal law.
In damning language, the judge said he feared the application had been brought to “cause embarrassment to individuals” and noted it was “surprising” that the initial application sought anonymity in public court listings and proceedings given the subsequent publicity around the case.
“It appears that the approach to anonymity may have been calculated to allow ICJP to control the narrative and enhance its public profile. That possibility only serves to reinforce the concerns expressed later in this ruling,” the judge wrote.
At the heart of the case was the Foreign Enlistment Act 1870 (FEA), a law that restricts Britons from joining foreign militaries to fight in wars with states that the UK is at peace with.
The court held that the Victorian-era act does not apply to dual nationals serving in the armed forces of their other country.
“The FEA, properly understood, does not apply to dual nationals serving in the armed forces of their other state of nationality. Even if it did, the [ICJP] cannot establish the element of ‘enlistment’ on the facts alleged.
“There is no evidence of a ‘state of war’ in the legal sense required by the Act,” the judge said.
He pointed to the fact that successive UK governments have “explicitly stated that the FEA does not apply to British nationals serving in the IDF”.
The ICJP had argued that the term “British subject” should extend to any Commonwealth citizen, but the court rejected this as “an absurd overreach” that would criminalise Indian or Pakistani citizens enlisting in their own national armies.
Goldspring also found “profound and serious” breaches of the duty of candour, ruling that ICJP had withheld information and failed to accurately present the UK government’s clear and repeated position that allows dual nationals to serve in the IDF.
The judge found that this omission was “serious and inexcusable” with “no credible explanation”.
Concerns were also raised over the group’s undisclosed links with solicitors, Bindmans, and the judge criticised the independence of an expert witness, who had undisclosed involvement in an ICJP WhatsApp group.
This, alongside the witness’s social media, “reveals her to be a campaigner and activist committed to the political agenda pursued by this prosecution, rather than an independent expert,” the judge said and dismissed her evidence as “partisan and misleading,” more akin to “propaganda” than analysis.
In his conclusion, Goldspring said: “When combined with the partisan and misleading expert evidence, the vexatious nature of these proceedings is clear.
“It is entirely improper for these proceedings to have been brought. The application for a summons is refused.”
Following the ruling, a spokesperson for campaign group UK Lawyers for Israel said the judgment “provides important reassurance for British-Israeli nationals who serve in the IDF, particularly reservists who return to duty in times of crisis”.
It was clear, they said, that such individuals “are not to be treated as having unlawfully enlisted in the armed forces of a foreign state.”
UKLFI added that the ruling “sends a strong message that misuse of the criminal law to advance a political agenda will not be countenanced by English courts.”
Responding to the judgment, a spokesperson for the ICJP defended its application as a “test” of UK law.
“This case was brought to test whether existing UK law can be used to ensure accountability where individuals participate in foreign military activity in circumstances that raise serious legal and ethical concerns,” the ICJP spokesperson said.
“While the Court has taken a narrow view of the legislation and the role of the courts in this area, the underlying issue remains unresolved: whether there is, in practice, any meaningful legal mechanism to scrutinise such conduct,” the statement went on, adding, “ICJP will continue to pursue accountability through lawful and appropriate means.”
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