INTRODUCTION

1. For more than a century, the British State has been responsible for colonisation, ethnic cleansing and apartheid in Palestine. From the Balfour Declaration of 1917 to the Nakba of 1948 and all the way up to its present complicity in the ongoing genocide of Palestinians in Gaza, the British State has played a critical role in the persecution of the Palestinian people. It has done so pursuant to its enduring policy of Zionism, an ideology that is the root of the violence in historic Palestine.

2. Harakat al-Muqawamah al-Islamiyyah (the Islamic Resistance Movement or ‘Hamas’) is an organised resistance movement that exercises the right of the Palestinian people to resist Zionism and the colonisation, occupation, apartheid and, genocide carried out in its name. The legitimacy of the struggle of the Palestinian people for independence, territorial integrity, national unity and liberation from colonial and alien domination and foreign occupation by all available means, including armed struggle, is moral, legitimate and explicitly enshrined in international law.

3. In accordance with Part II of the Terrorism Act 2000 (‘the 2000 Act’), Hamas seeks its removal from the list of proscribed organisations in sch.2 to the 2000 Act. The political wing of Hamas was added to that list on 26 November 2021.

4. This application presents the Secretary of State for the Home Department with a historic opportunity to depart from the British State’s morally and legally indefensible policy of siding with the Zionist oppressor against the oppressed people of Palestine. As the depravity of the crimes of the Zionist State˙ in historic Palestine reaches unprecedented depths, institutions like the International Court of Justice (‘ICJ’) and International Criminal Court (‘ICC’) are, reluctantly, recognising by name some of those crimes. Similarly, organisations such as Amnesty International and Human Rights Watch (‘HRW’) are now, too, acknowledging the apartheid and genocide imposed upon the Palestinian People. The Secretary of State should join them and concede that its ‘little loyal Jewish Ulster’¹ is a genocidal ‘mad dog’² that must be stopped.

5. The continued proscription of Hamas means support for – and complicity in – the unrelenting colonisation of Palestine and crimes against humanity and acts of genocide being perpetrated by the Zionist State. That support and complicity is irreconcilable with the obligations of the British State under both international and domestic law. This deproscription application seeks to remedy that ongoing illegality.

6. In summary, Hamas submits:

1. Its proscription is contrary to the duties of the British State to (a) end genocide, (b) end crimes against humanity, (c) bring to an end the occupation of the occupied Palestinian territory (‘oPt’), and (d) recognise the Palestinian people as full members of the human family, equal in dignity.

2. Proscription is incompatible with arts.10, 11 and 14 of the European Convention on Human Rights ('ECHR’), because it unlawfully restrict the freedom of speech and assembly of those with whom the British State politically disagrees.

3. Proscription is not proportionate because Hamas does not pose any threat to Britain or British citizens; it undermines the democratic process by seeking to eliminate from the political process the party which has won the only free and fair election in the oPt; it impedes humanitarian relief efforts; and results in the mass criminalisation of Palestinians.

TERMINOLOGY

7. ‘Israel’: This application will use anti-Zionist, and generally anti-colonial, terminology. Hamas places ‘Israel’ in quotation marks, to signal that it is a colonial term, reflective of a racist attempt to impose an ethno-exclusionary State on a pluralistic and ethnically diverse population. Instead, Hamas refers to ‘Israel’ as the Zionist State, which accurately reflects both reality and its genealogy.

8. ‘Terrorism’: Although this term originally emerged in the French Revolution, it has since morphed into a colonial designation, one used to malign, morally judge, and defame people and organisations, many of whom are more properly characterised as ‘freedom fighters’. The question of whether the Secretary of State should malign and penalise Palestinians as ‘terrorists’ sits at the heart of this application for deproscription. Application of the term terrorism has the effect of erasing the history and political context of violence. Violence becomes ‘just evil’, coming out of nowhere, rather than being historically situated and (often) a product of preceding structural violence and oppression. Without a history, the State using the term can then claim to be acting in self-defence, erasing its responsibility for helping to create conditions that make such violence more likely. In the case of ‘Israel’, this means sidestepping its history of settler-colonial expansion and continued occupation, including its obligations towards Gaza as an occupying power.³

9. ‘Antisemitism’: Antisemitism is an abhorrent form of racism that must be combated like all other forms of racism. However, the International Holocaust Remembrance Alliance (‘IHRA’) working definition of the term is irredeemably broken and must therefore be rejected. The IHRA working definition is poorly drafted, internally incoherent, hopelessly vague, vulnerable to political abuse, and not fit for purpose. Indeed, it does not even fulfil the most elementary requirement of a definition, which is to define. The definition states that “antisemitism is a certain perception of Jews” but fails to spell out what this perception is. Instead, through the examples it provides, it seeks to suppress political speech by conflating Judaism with Zionism in assuming that all Jews are Zionists and that the Zionist State in its current apartheid form embodies the only viable expression of the right of self-determination of all Jews.

10. Although vacuous, it is not innocuous. Kenneth Stern, the lead author of the definition, has rejected its adoption as a campus hate speech code, arguing that it ‘will harm not only pro-Palestinian advocates, but also Jewish students and faculty, and the academy itself’.⁴ Stern successfully urged the American Bar Association not to adopt the definition because it has been used as ‘a blunt instrument to label anyone an antisemite’.⁵

11. As Professor Avi Shlaim explains in his expert report, what the IHRA working definition does do, with the help of its examples, is shift the focus from real antisemitism to the legitimate and growing phenomenon of anti-Zionism. Distinguishing clearly between antisemitism and anti-Zionism is imperative. Antisemitism should be defined as ‘hostility towards Jews because they are Jews’.⁶ Zionism is a nationalist, political ideology that calls for the creation and maintenance of a Jewish State and now supports the continued existence of ‘Israel’ as such a State.

12. ‘Anti-Zionism’: Anti-Zionism is opposition to the racially exclusive character of the Zionist State and to Israeli policies, particularly its continued occupation of the oPt. Antisemitism relates to Jews anywhere in the world; anti-Zionism relates only to the Zionist State and those complicit in perpetuating its existence as a project of settler-colonial apartheid. The IHRA working definition is susceptible – perhaps purposefully – to political abuse because it enables conflation of legitimate anti-Zionism with nefarious antisemitism. Many of the Zionist State’s apologists, deliberately and routinely, conflate the two distinct phenomena. To criticise the definition for its vacuity risks missing a central point: its very vagueness confers a political advantage on Zionism. It enables the defenders of ‘Israel’ to weaponise the definition, especially against left-wing and anti-Zionist opponents, and to portray what in most cases is valid criticism of Israeli behaviour as the vilification of the Zionist State.⁷

DOCUMENTS

13. This application is supported by the following documents and expert reports.

BACKGROUND

14. The general factual background to the Palestinian struggle is lengthy, spanning as it does more than a hundred years of history. The Secretary of State is invited to consider the abovenamed expert reports, annexed to this application, which deal with the topics below. While we have no doubt that the Secretary of State will read the reports in full, these submissions have incorporated parts of those reports both for ease of reference and to assist in her comprehension of the nature of Hamas; the context in which it was established and continues to operate; and Britain’s role in creating and perpetuating the criminal actions of the Zionist State.

15. It is critical to appreciate the roots of the Zionist State as a settler colonial project and how Hamas is simply one of the more recent embodiments of Palestinian resistance to that project, which stretches back to the era of the British mandate. While the historical record, as the pages that follow will detail, is unequivocal on the fact that Zionism is a settler colonial movement and ‘Israel’ is a settler colonial state, the contemporary political debate is not. Today, despite the presence of nearly 800,000 illegal ‘Israeli’ settlers – who are recognised as such internationally including by the British government – in the West Bank, East Jerusalem, and the Golan Heights, it is still a regular occurrence to find commentators rejecting the applicability of the label ’settler-colonial’ in the ‘Israeli’ case; a tendency that has intensified in the context of the Zionist State’s 2023-2025 genocide in Gaza and the growing international solidarity campaign with the Palestinian people.⁸

16. While this application is not about Operation Toofan Al Aqsa, Hamas is conscious that the Secretary of State may wish to consider the events on and immediately following 7 October 2023 as part of this application. To that end, Dr Mousa Abu Marzouk, the senior member of Hamas who is bringing this application on the movement’s behalf, has prepared a witness statement in which he provides a detailed account of the operation. Additionally, the background section will summarise some of the stated motivations behind the operation and the conditions that existed in the oPt on its eve.

Harakat al-Muqawamah al-Islamiyyah (Hamas)

Foundation and Purpose

17. Hamas is a Palestinian Islamic national liberation and resistance movement that draws its inspiration from the Qur’an and the traditions of the Prophet Muhammad (peace be upon him). Hamas was founded in 1987, following the start of the First Palestinian Intifada, which itself marked the 20^th anniversary of the military occupation of the oPt by the Zionist State. Hamas conceives of itself as one of the links in the chain of the struggle against Zionist colonial settlers, going back to the armed resistance by Shaykh Izz ad-Din al-Qassam, the foremost figure responsible for the Great Arab Revolt that erupted in 1936.

18. Hamas’ goal is to liberate Palestine by confronting the Zionist project. Its frame of reference is Islam, which determines its principles, objectives and means.

19. Hamas initially operated as a street-level resistance movement, issuing communiqués and organizing demonstrations as a counterpoint to initiatives led by the Palestinian Liberation Organisation ('PLO’). This led to low-level violence such as throwing stones and Molotov cocktails, and knife attacks against occupying Israeli soldiers.⁹

20. The First Intifada led to the formation of the operationally independent armed wing, the Izz al-Din al-Qassam Brigades (‘Qassam Brigades’) in 1991. The Qassam Brigades is an organised resistance movement which: (a) is commanded by a person responsible for his subordinates, (b) has a fixed distinctive sign recognisable at a distance; (c) is carrying arms openly; and (d) conducts its operations in accordance with the laws and customs of war.

21. The Qassam Brigades was proscribed by the Secretary of State in 2001 during the Al-Aqsa Intifada. Hamas was proscribed in its entirety in 2021. Neither Hamas nor the Qassam Brigades pose any a threat to foreign States. Indeed, there is simply no evidence that they have ever conducted attacks outside of ‘Israel’ and the oPt.

22. Hamas has a policy of non-interference in the internal matters of foreign States. The decision to proscribe the Qassam Brigades in 2001 appears to have been driven by Britain’s response to the attacks in the United States on 11 September 2001, rather than any fundamental changes in the Qassam Brigades’ tactics. Indeed, the decision to proscribe the entirety of Hamas in 2021 also appears to have been motivated by political considerations, rather than any changes to the relationship between its political and military wings or its actions.¹⁰

23. Hamas is often criticised for the content of its founding Charter from August 1988. However, the views, policies and practices of the group have developed significantly since that time. Hamas has published a series of other documents since then, the most recent of which was its Document of General Principles and Policies in 2017.

Oslo Accords and Elections

24. Following its foundational period, the 1990s represented a turning point for Hamas as it sought to adapt to the geopolitical realities created by the Oslo Accords. The Accords and subsequent addendums provided for limited Palestinian governance in the oPt. The West Bank was divided into Areas A, B and C. This led to the establishment of the Palestinian Authority (‘PA’) in 1994. The PA – dominated by the largest party of the PLO, Fatah, and the figure of Yasser Arafat in particular – assumed notional autonomy over Area A, constituting a mere 17% of the West Bank, the ‘sovereignty’ of which was routinely violated by Israeli occupation forces. The PA was responsible for administrative matters in Area B, but occupation forces retained security control. Area C – comprising 60% of the West Bank – was exclusively controlled by the Israeli occupation.¹¹

25. Hamas, alongside other factions – such as the Popular Front for Liberation of Palestine (‘PFLP’) – and prominent Palestinians, opposed the Oslo Accords on the grounds that there were no provisions for a Palestinian State. Instead, they claimed it would merely facilitate the ongoing expansion of Israeli settlements, and serve to entrench the occupation. Edward Said, for example, labelled the Accords a ‘Palestinian Versailles.’¹²

26. Hamas reaffirmed its commitment to armed resistance, rejecting the Oslo Accords as a betrayal of Palestinian rights. However, internal and external pressures compelled it to consider alternative strategies, including political engagement and international dialogue.

27. The Oslo Accords and subsequent addendums also led to the Palestinian Legislative Elections in 1996. For Hamas, this occasioned internal debate and even the formation of a nascent political party. However, they boycotted the elections on the ground that participation would implicitly validate the Oslo process. The movement also had concerns vis-à-vis overall transparency and fairness. Indeed, for much of the Oslo process (1993-2000), the PA worked in close cooperation with occupation forces to repress Hamas. Nonetheless, Hamas refused to let itself be drawn into internecine violence with the PA despite the arrests and torture of many of its cadres.¹³

28. In a memo prepared at the request of Western diplomats in the late 1990s entitled ‘This is what we struggle for’, Hamas articulated a more pragmatic stance. While reaffirming its rejection of the Oslo Accords, the memo emphasised the movement’s national liberation goals over its Islamic rhetoric. It acknowledged the possibility of a long-term truce (hudnah) contingent on the withdrawal of ‘Israel’ to the pre-1967 war borders. This period highlighted Hamas’s growing awareness of the need to balance ideological rigidity with practical political considerations.¹⁴ This pragmatism extended to internal governance, as Hamas sought to consolidate its influence in Palestinian society through grassroots activism and social services.¹⁵

29. Prior to the eruption of the Al-Aqsa (or Second) Intifada in 2000, Hamas issued another significant memo elaborating its ideological framework and strategic goals. This document reaffirmed Hamas’s identity as an Islamic-nationalist movement, framing its struggle as both a religious duty and a nationalist imperative. It emphasised the inseparability of Palestine’s liberation from broader Islamic solidarity, linking its mission to the global Muslim community.

30. The conditions of Palestinians prior to the Al Aqsa Intifada was characterised by systematic restrictions, heightened tensions, and persistent human rights violations. These entrenched patterns of Israeli control did not emerge suddenly. Instead, these were the product of decades of occupation following the 1967 war, and the subsequent failure of the Oslo Accords to bring about a viable and equitable resolution. During the late 1990s and early 2000s, Palestinians faced severe limitations on their freedom of movement. Military checkpoints, curfews, and closures fragmented the oPt, disrupting daily life, impeding economic activity, and undermining social cohesion.¹⁶

31. These oppressive measures contributed significantly to the growing sense among Palestinians that their aspirations for statehood, freedom, and dignity were being thwarted. The breakdown of diplomatic negotiations and the absence of meaningful political progress led to widespread disillusionment, laying the groundwork for renewed rebellion. In September 2000, following Ariel Sharon’s inflammatory visit to the Al-Aqsa Masjid compound in East Jerusalem, the frustration and anger erupted into what became known as the Second Intifada. This uprising was not a spontaneous reaction to a single event, but rather the culmination of long-term structural violence, dispossession, and a profound injustice experienced by Palestinians living under Israeli rule.¹⁷

32. This period also saw the intensification of Hamas’s armed resistance, particularly through the use of so-called ‘suicide bombs’, or what the movement calls ‘martyrdom operations’. Hamas first utilised the strategy in April 1994 in the Israeli towns of Afula and Khedara, following the massacre at the Ibrahimi Masjid in Hebron, in which Israeli settler Baruch Goldstein and killed 29 Palestinians and injured 125 during morning prayers. After 1995, other groups began to use the same tactics, such as Palestinian Islamic Jihad (‘PIJ’) , as well as more secular groups such as the Al-Aqsa Martyrs Brigade (part of Fatah) and PFLP. As a result, the Al-Aqsa Intifada became known for its use of martyrdom operations.¹⁸

33. While these tactics garnered international condemnation, they also reinforced Hamas’s image as the vanguard of Palestinian resistance, contrasting sharply with the perceived ineffectiveness of the PA. Hamas’s reliance on armed struggle did not preclude its exploration of political opportunities, as evidenced by its increasing engagement with Palestinian civil society.

34. Following Israel's unilateral withdrawal from Gaza in August 2005, Hamas began to engage in the internal Palestinian political process, running against the mainstream Fatah party, which dominated the PA. From its seat in Ramallah, the PA exercised a degree of governance over both Areas A and B in the West Bank and the Gaza Strip, albeit limited by the ultimate control of the occupation. Fatah was perceived as corrupt and inefficient and as a subcontractor for Israeli security in the oPt. Hamas, by contrast, had a reputation for probity in public life as well a record of real resistance to the Israeli occupation.¹⁹

35. Hamas’s decision to participate in the 2006 Palestinian Legislative Council elections marked a significant ideological evolution. The Change and Reform List manifesto combined its commitment to resistance with a vision for governance. The document outlined a platform emphasising anti-corruption measures, social justice, and national unity, while reaffirming the inalienability of Palestinian rights.

36. From the outset, despite the US government’s overt support for the democratic process, officials stated that in the case of a Hamas victory it would refuse to engage with a government that would turn Gaza into ‘Hamastan.’ President Bush’s comments to President Mahmoud Abbas in May 2005 suggested that Palestinians would pay a cost if they voted the ‘wrong way’. In his words, he was sure Hamas would lose because ‘I think Palestinian moms want their children to grow up in peace’.²⁰

37. The elections proceeded with a 77% voter turnout and were deemed to compare ‘favorably to international standards’ by a delegation of 84 foreign observers, including former US president Jimmy Carter, former Swedish Prime Minister Carl Bildt, former Albanian President Rexhep Meidani and former Spanish Foreign Minister Ana Palaci. The delegation concluded that the elections were conducted in a fair and free manner and should be considered to reflect the will of the people.²¹

38. While Change and Reform only secured a popular plurality with 44.5% of the vote at a proportional level, the list won 70% of district level seats due to its superior organisation and unity of purpose.²² By way of comparison, the current Labour Party government won 33.7% of the vote in the 2024 general election and the Conservative Party entered government in 2020, 2015 and 2011 winning 43.6%, 36.9%, and 36.1% of the vote, respectively.

39. Following its surprise election, Change and Reform reached out to other factions, including Fatah, to form a unity government. Fatah rebuffed this offer, wanting the newly elected government to fail. The Hamas victory intensified Palestinian inter-factional power struggles with the outgoing Fatah-led legislature bequeathing the Fatah-led presidency with additional powers, including control of the interior ministry and the security forces. Meanwhile, Fatah-appointed leaders of the security forces and administration publicly refused to work with the incoming administration leading to security chaos. The new government therefore formed an adjunct police force, the Executive Force, to re-establish order in the Gaza Strip.²³

40. Special envoys from the United States, the Russian Federation, the European Union, and the UN Special Coordinator for the Middle East Peace Process (‘the Quartet’) congratulated PA President Abbas and the Palestinian people ‘on an electoral process that was free, fair and secure’ and iterated its desire that ‘all participants in the democratic process ... would renounce violence and terror, accept Israel’s right to exist, and disarm’. The Quartet issued a second statement four days later affirming that adherence to these conditions would be a prerequisite for ‘future assistance to any new government’.²⁴

41. On 19 February 2006, the Israeli government decided to halt the monthly transfer of millions in tax and customs revenues to the PA. The US and the EU followed suit two months later.²⁵ Despite claiming to support democracy, when the people voted the ‘wrong way’, ‘Israel’ and its Western allies imposed diplomatic and economic sanctions to undermine the democratically elected Palestinian government.²⁶

42. As former UN Special Coordinator for the Middle East Peace Process Alvaro de Soto observed, the global ‘war on terror’ had resulted in an amalgamation of groups like al Qaeda with groups like Hamas that operate within a completely different context, resulting in a stigma attaching to any form of negotiation with them:

Until that time, it had been unquestioned UN practice since Dag Hammarskjold to talk to whomever you need to talk to for peace. That could be people from Hamas just like from the other side. … Excluding such important interlocutors can result in prolonging conflict.²⁷

43. In May 2006, the Quartet admitted that its policy of refusing to engage with the new Hamas government was impacting the Palestinians population, particularly in Gaza, and that this could create a humanitarian disaster. The policy approach adopted by foreign donors meant that the narrative grounding had been laid for the imposition of comprehensive siege conditions on Gaza by Israeli authorities. In that narrative, Gaza was, despite housing over 1.4 million people (838,000 of whom were under the age of 18) in 2006, nothing but a ‘terror enclave’. The Israelis were empowered to implement the policies they deemed necessary to solve their ‘Gaza problem’. Though it would not just ‘sink into the sea’, as former Israeli Prime Minister Yitzhak Rabin had once wished, Israeli authorities settled to turn the strip into what former British Prime Minister David Cameron subsequently referred to as an ‘open air prison’, with a series of wars and siege tactics that ushered in ‘16 years of de-development and suppressed human potential.’²⁸

44. In March 2007, Hamas formed a national unity government together with Fatah. This government proposed direct talks with Israel on a long-term ceasefire of twenty or more years. Israel refused to negotiate, plotting instead to drive Hamas out of power.²⁹

45. Details of the plot are contained in ‘the Palestine Papers’, a cache of 1,600 diplomatic documents leaked to Al Jazeera and the Guardian. The papers include the minutes of the quadripartite ‘Gaza Security Committee’, which consisted of ‘Israel’, the United States, Egypt, and Fatah. Its aim was to undermine the national unity government, isolate and weaken Hamas, and prepare Fatah for military confrontation with Hamas. In short, the committee members planned a violent coup d’état to overthrow Hamas.³⁰ Hamas defended itself from this attempted coup in June 2007 as a result of which the PA collapsed.

46. The Zionist State responded to the incident by closing a number of crossings, including the Karni crossing, specifically built following the signing of the Oslo Accords for the transfer of goods between ‘Israel’ and the Gaza Strip. The amount of goods entering Gaza decreased by 71%, from an average of 253 truckloads per day in April, to an average of 74 in October.³¹

47. In October 2012, the Israeli Defence Ministry disclosed a 2008 document in court proceedings about the restrictions it imposed on the entry of food into Gaza between 2007 and 2010. The document calculated the minimum number of calories needed by Gaza residents and used this to determine the quantity of food allowed into the Strip. Effectively, this amounted to the use of food as a weapon in its war on the Palestinians. The document reflected the advice offered by an Israeli government adviser Dov Weisglass, to then Israeli Prime Minister Ehud Olmert in 2006: ‘It’s like a meeting with a dietician. We have to make them much thinner, but not enough to die.’ On 4 November 2008, Israel sealed all border crossings and prevented all humanitarian aid and staff from entering Gaza.³² As Shlaim writes:

Israel reacted by imposing a blockade of the Gaza Strip, which is still in force today after 17 years. The blockade caused the collapse of the economy, high unemployment, acute shortages of water, food, fuel, electricity, and medicines, and horrendous suffering by the overcrowded strip’s two million inhabitants. A blockade is a form of collective punishment which is proscribed by international law, yet the international community failed to call Israel to account.³³

48. The conflict between the two administrations resulted in the political separation of the West Bank and Gaza Strip, with the former being run by presidential fiat since 2005 and the latter by the Hamas-backed administration since its election in 2006. The conflict deepened Palestinian socio-political fragmentation.³⁴ As a result of Hamas succeeding in these elections, the PA has refrained from calling for parliamentary elections ever since.

49. Since Hamas was elected by the Palestinian people in 2006, ‘Israel’ has carried out no less than six military campaigns on the Gaza Strip – in 2006, 2008, 2009, 2012, 2014, and 2021 – prior to its latest genocidal campaign that began in October 2023. During these campaigns, Israel killed over 4000 and injured tens of thousands of Palestinians.³⁵ Israelis refers to these military assaults as ’mowing the grass’, intended and designed to degrade Gazan capabilities and prevent any form of progress.³⁶ Coupled with the blockade, this has become a deliberate policy of ‘de-development’, designed to render Gaza economically and socially unsustainable.³⁷ During these campaigns, Hamas and other Palestinian resistance groups have been compelled to use armed force in defence against the Israeli aggression.

Difference between the 1988 and 2017 Charters

50. These military campaigns have been possible as a result of the continuing occupation of Gaza by the Zionist State, despite its ostensible withdrawal in 2005. As stated in the July 2024 ICJ ruling, the fact that Gaza's entry and exit points are controlled by ‘Israel’, that they control the airspace above it, and that they have control of everything that enters or exits Gaza, including basic necessities of human life, means that according to international law, Gaza continues to be occupied.³⁸

51. In 2017, Hamas issued a new policy document that represented a further ideological recalibration. Often described as a ‘new charter’, the document reflected a more refined and politically astute articulation of the movement’s goals. It reaffirmed the indivisibility of Palestine but introduced a conditional acceptance of a Palestinian State along the borders which existed before the 1967 war as a ‘national consensus formula.’

52. There are a number of key differences between the 1988 the 2017 documents:

1. Framing the Conflict. The 1988 Charter framed the conflict as a purely religious struggle, emphasising the Islamic nature of Palestine as a waqf and portraying jihad as the only path to liberation. In contrast, the 2017 Charter adopts a more nationalist tone, emphasising Palestinian self-determination and positioning Hamas as part of the broader Palestinian national movement. While retaining Islamic references, the ‘new charter’ places greater emphasis on Palestinian unity and political legitimacy. This shift aligns with broader trends in which Hamas increasingly blends its religious identity with pragmatic nationalist strategies.³⁹

2. Territorial Goals. The 1988 Charter rejected any compromise on territorial claims, insisting on the liberation of all of historic Palestine as sacred Islamic land. The 2017 Charter introduces conditional flexibility by expressing support for a Palestinian State along the pre-1967 war borders as a ‘national consensus formula’, while still rejecting formal recognition of ‘Israel’. This shift reflects a pragmatic acknowledgment of political realities while maintaining the ultimate goal of full liberation from settler colonialism.

3. Stance on Judaism and Zionism. The 1988 Charter conflated Zionism with Judaism and cited texts like The Protocols of the Elders of Zion. In contrast, the 2017 Charter explicitly distinguishes between Judaism as a religion and Zionism as a political project, framing the conflict as resistance to occupation rather than religious hatred. Article 16 of the 2017 document affirms that Hamas ’does not wage a struggle against the Jews because they are Jewish’ and rejects all forms of discrimination based on religion or ethnicity. Indeed, Hamas founder Sheikh Ahmed Yassin is on record as stating that:

We ask for our right… nothing more. We don’t hate the Jews and fight them because they are Jews. They are people of religion, and we are people of religion. We love all people of religion. If my brother, who has the same religion and parents as me takes my home and expels me I will fight him… So, when a Jew takes my home and expels me, I will fight him as well. I don’t fight the USA, Britain or other countries. I’m at peace with all people. I love all people and wish them well – including the Jews.⁴⁰

4. Engagement with International Norms. The 1988 Charter dismissed international norms, presenting the conflict as a religious duty that precluded political solutions. The 2017 Charter, however, acknowledges international law and norms, citing the illegality of occupation and emphasising Palestinian self-determination. This change reflects a strategic effort to build broader legitimacy and alignment with narratives of human rights and justice.

5. Relationship with the Palestinian National Movement. In 1988, Hamas distanced itself from the secular PLO, accusing it of abandoning Islamic principles and compromising Palestinian rights. The 2017 Charter takes a more conciliatory tone, recognising the PLO as a national framework and advocating its reform to include Hamas. This reflects the Movement’s desire to strengthen its role within the Palestinian political landscape and foster unity

Support for the Great March of Return

53. In addition to armed resistance, Hamas has also engaged in non-violent resistance. This has consisted of organising human chains, initiating legal actions, and participating in, supporting and facilitating the Great March of Return, which was a series of weekly peaceful protests that took place between March 2018 and December 2019 at the Gaza perimeter-fence. The protests demanded the right of Palestinian refugees to return to their homes in historic Palestine and for an end to the blockade of Gaza.

54. The protests reached their peak on 14 May 2018, coinciding with the controversial relocation of the US embassy from Tel Aviv to Jerusalem and the 70^th anniversary of the Nakba, when Palestinians mark the mass displacement and dispossession following the creation of the Zionist State. On that day alone, Israeli forces killed 59 Palestinians, exemplifying the use of excessive force and live ammunition against protesters who posed no threat.⁴¹ The pattern of targeting journalists and healthcare workers – so emblematic of the Zionist State’s genocide in Gaza since October 2023 – was already in place during the killings of Palestinians attending these protests.⁴²

55. Although Hamas did not directly organize the protests, it has supported them, which was understood to be a shift in the Movement’s position towards support for non-violent resistance:

The protest emerged as a civil society-led effort that was given permission, supported, and ultimately managed by a committee comprising the various political parties in Gaza, including Hamas. As a governing authority, Hamas provided much of the infrastructure necessary for the mobilization, such as buses to transport activists. This was a stark departure from the means with which Hamas traditionally challenged the blockade.⁴³

56. In a speech from 9 April 2018, the late leader of Hamas' political bureau – Ismail Haniyeh, whom ‘Israel’ was to assassinate on 31 July 2024 – seemed to be symbolically underscoring this strategy while standing in front of a banner featuring images of international historical figures known for their endorsement of non-violent, popular resistance, such as Martin Luther King Jr. and Mahatma Gandhi. Haniyeh articulated his position on peaceful resistance in a June 2018 article, emphasizing that:

If we can secure our rights through peaceful means, this is our preferred path. However, if peaceful efforts fail, our right to resist the occupation by all means, including armed resistance, remains legitimate and recognized.⁴⁴

57. Contrary to a deceptive narrative that has been propagated for years, Hamas has sued for peace, both long-term and short-term, on numerous occasions during and outside of various incidents of military conflicts, offering the Zionist State both unilateral ceasefires (or tahdi'ah) and long-term truces known as hudnah. Hamas has also offered to end martyrdom operations if the Israelis were ready to “stop their attacks on [Palestinian] civilians, end land confiscation and house demolitions, and release the prisoners and detainees.”⁴⁵

58. The response of the Zionist State to those offers has been to consistently undermine them by carrying out high-level assassinations of Hamas’ senior leadership. The evidence demonstrates that it is the Israelis who cannot be considered a partner for peace, not Hamas. Tahdi’ahs throughout the Al-Aqsa Intifada were shattered by the assassinations of Hamas leaders Salah Shihadah, Isma’il Abu Shanab, Sheikh Ahmed Yassin, and Dr Abdel Aziz al-Rantisi. The pattern continues until today with the Zionist State assassinating Ismail Haniyeh on 31 July 2024 in Tehran at a time when he was involved in negotiating a US-brokered deal that would have resulted in an exchange of Israeli and Palestinian prisoners.⁴⁶

59. Hamas has offered a hudnah to ‘Israel’ on numerous occasions since the 1990s. Hudnah is recognised in Islamic jurisprudence as a legitimate and binding contract whose objective is to cease fighting with the enemy for an agreed period of time. The truce may be short or long depending on mutual needs or interests. According to Ahmed Yousef, an aide to then Prime Minister Ismail Haniyeh: ‘A hudnah extends beyond the Western concept of a cease-fire and obliges the parties to use the period to seek a permanent, nonviolent resolution to their differences.’⁴⁷

60. Hudnah would be different from the Oslo Accords, in which the PLO recognised the Zionist State and its so-called ‘right to exist’. Under the terms of hudnah, the issue of recognition would not be resolved because Hamas cannot, as a matter of principle, accept that the land the Israelis seized from the Palestinians has become theirs. Hamas takes the view that it has no authority to renounce the right of the Palestinians to return to the lands and the homes from which they were forced out in 1948 or afterwards.

61. However, Hamas can say that under the present circumstances it can regain some of the land lost and secure the release of prisoners in exchange for a cessation of hostilities. This would be similar to the Irish Republic Army ('IRA’) agreeing to negotiate an end to the conflict in the north of Ireland without recognising British sovereignty over the territory. Irish Catholics continue to hope or dream that one day the whole of Ireland will be united and that British rule will come to an end. Negotiating an end to violence in the north was never conditioned upon the IRA first renouncing its dream of reuniting Ireland. If it had, then peace would never have prevailed.⁴⁸

62. Once hudnah is concluded it is considered sacred and fulfilling its obligations becomes a religious duty. So long as the other side observes it, the Muslim side cannot breach it: doing so is considered a grave sin. As in the case of other international treaties, a hudnah is renewable upon the expiry of its term by mutual agreement.⁴⁹

63. The overall long-term hudnah proposed by Hamas stipulates as a first condition an Israeli withdrawal to the borders of 4 June 1967, which means a return of all the land occupied by the Israelis as a result of the Six-Day War, including East Jerusalem. Such measure would entail the removal of all Jewish settlers from those areas. In addition, ‘Israel’ would have to release all Palestinians held in its prisons and detention camps.⁵⁰

64. The ideological trajectory of Hamas from 1987 to 2025 illustrates a complex interplay between its foundational principles and pragmatic adaptations. While its core commitment to Palestinian liberation and Islamic principles has remained constant, the movement has demonstrated a remarkable ability to adapt to changing political, social, and military contexts. This evolution underscores Hamas’s dual identity as both a resistance movement and a political actor, a dynamic that continues to shape its role in the Palestinian national struggle.

65. In summary, Hamas is a localised, grassroots resistance movement focused on Palestinian rights to self-determination and resistance to Israeli occupation. Its legitimacy stems primarily from its resistance to foreign rule. However, for Hamas, the idea of resistance is multifaceted in its scope expanding well beyond armed resistance to encompass symbolic, political, social, and ideological resistance. Hamas alters its resistance strategies according to changes in the political opportunity structure, exigency, response to popular opinion and, to a lesser extent, international pressures.⁵¹

British support for Zionism

66. The British State has been, and today remains, deeply implicated in the settler-colonial project known as ‘Zionism’. The primary function of Zionism and ‘Israel’ has little to do with Jewish security following the mass murder of Jews in the Holocaust by Nazis and their collaborators across Europe. Instead, Zionism and ’Israel’ have cynically manipulated Jewish trauma from the Holocaust to provide a smokescreen for the advancement of US and NATO geostrategic interests in the wider region.

67. From the Balfour Declaration of 1917 and the antisemitism that undergirded it, to Britain’s formal – and, as Hamas contends, illegitimate – administration of the so-called ‘Palestine Mandate’, through to today’s staunch support for ‘Israel’ as it conducts the first live-streamed genocide in history, the modern British State has always been supportive of the violence of Zionism.

68. Theodore Herzl, the founder of the Zionist Organisation, wrote in his 1896 book The Jewish State:

Here two territories come under consideration, Palestine and Argentina. In both countries important experiments in colonisation have been made, though on the mistaken principle of a gradual infiltration of Jews. An infiltration is bound to end badly. It continues till the inevitable moment when the native population feels itself threatened, and forces the Government to stop a further influx of Jews. Immigration is consequently futile unless we have the sovereign right to continue such immigration. The Society of Jews will treat with the present masters of the land, putting itself under the protectorate of the European Powers, if they prove friendly to the plan. ... We should there [in Palestine] form a portion of a rampart of Europe against Asia, an outpost of civilization as opposed to barbarism. We should as a neutral State remain in contact with all Europe, which would have to guarantee our existence.⁵²

69. The central tenets of Zionism were clear in these passages of The Jewish State. To succeed in its colonial mission and make State building through settlement possible, the Zionist movement had to address two key issues. First, it would need to defeat the indigenous population, who would certainly ‘feel [themselves] threatened’. Second, the Zionists would need to secure the backing of an imperial power, whose interests it would serve in return.⁵³

The Balfour Declaration

70. On 2 November 1917, Britain issued the Balfour Declaration in support of a national home for the Jewish people in Palestine. The Balfour Declaration did not recognise the right of the Jewish people to a State in Palestine. It simply stated that the British Government viewed ‘with favour the establishment in Palestine of a home for the Jewish people’ but that this was to be without prejudice to the ‘civil and religious rights of existing non-Jewish communities in Palestine.’⁵⁴

71. The Jewish writer, Arthur Koestler, famously described the Balfour Declaration as a statement in which one nation promised to a second nation the country of a third. Britain did not have any moral right to hand over Palestine to the Zionists. Nor did it have any legal right. In fact, there is and was no basis in international law for the newly concocted concept of a ‘national home’. For the Zionists and for their chief supporters in Britain – Arthur Balfour, David Lloyd George and Winston Churchill – the national home was always just a euphemism for a State.⁵⁵

72. In 1917, the area that was later called Palestine, was still under Ottoman rule. Arabs constituted 90% of the population of the country, while Jews constituted 10% and owned only 2% of the land. These are the key, incontrovertible facts. They make clear that the Balfour Declaration was a classic colonial document, one which disregarded the rights and aspirations of the majority of the population of the country. It violated their natural right to national self-determination.⁵⁶

73. Arthur Balfour was a white supremacist. He once argued that Europeans should enjoy greater privileges than Blacks in South Africa by claiming that ‘men are not born equal’. His eponymous declaration granted greater rights to incoming European settlers than to indigenous Palestinians. He did not recognise the Palestinians as a people with legitimate national aspirations, but viewed them as a backward, Oriental, inert mass. In line with this Orientalist mindset, Balfour insisted that Palestinians should not be consulted about the Zionist colonisation project in their homeland.⁵⁷

74. Some have argued that Balfour was motivated not just by imperialism but also antisemitism. In 1905, as Conservative Prime Minister, Balfour introduced the Aliens Bill, the first anti-immigration piece of legislation in British history. Its purpose was to prevent Jews, who were facing persecution in eastern Europe, from coming to Britain. It may seem contradictory to be both antisemitic and pro-Zionist at the same time, but the contradiction is more apparent than real. It is not irrational for someone who does not like Jews in his or her own country, to want Jews from all over the world to be gathered in one Jewish state. Theodor Herzl had predicted that ‘[t]he anti- Semites will become our most loyal friends’.⁵⁸

75. Balfour knew that his declaration contradicted the principle of national self- determination for the majority of the inhabitants but this did not trouble him. In 1919, he wrote to Lord Curzon: ‘Zionism, be it right or wrong, good or bad, is rooted in age-long traditions, in present needs, in future hopes, of far profounder import than the desires and prejudices of the 700,000 Arabs who now inhabit that ancient land’.⁵⁹

76. Balfour also admitted, in 1919, that ‘[s]o far as Palestine is concerned, the Powers have made no statement of fact which is not admittedly wrong, and no declaration of policy which, at least in the letter, they have not always intended to violate’. There can hardly be a more conclusive proof of the duplicity and cynicism of the British ruling class of this period.⁶⁰

77. Another major landmark in Britain's betrayal of the Palestinians involved the mandates system created by the League of Nations. The objective of the mandates system over the former territories of the Ottoman Empire was to provide ‘administrative advice and assistance by a Mandatory until such time as they are able to stand alone’. Britain was officially appointed in 1922 as a Mandatory in control of Palestine with the aim of establishing the Jewish national home in accordance with the 1917 Balfour Declaration. This is significant because what had been a mere British promise to a group of Zionists became an international instrument and a binding legal obligation.⁶¹

78. British rule in Palestine was not only anti-democratic; it was also informed by a distinct undercurrent of racism. Winston Churchill, who served as Colonial Secretary after the war, was one of the most fervent champions of the Zionist cause. In evidence to the Royal Commission of Inquiry, headed by Lord Peel, appointed in 1936 to investigate the causes of unrest in Mandatory Palestine, Churchill said:

I do not agree that the dog in a manger has the final right to the manger even though he may have lain there for a very long time. I do not admit that right. I do not admit for instance, that a great wrong has been done to the Red Indians of America or the black people of Australia. I do not admit that a wrong has been done to these people by the fact that a stronger race, a higher- grade race, a more worldly-wise race... has come in and taken their place.⁶²

79. Sir Ronald Storrs, the first British Military Governor of Palestine, for example, explained British support for Zionism in Palestine as the development of a ”little loyal Jewish Ulster in a sea of potentially hostile Arabism.” The question of the relationship between imperialism, settlement, and repressing indigenous resistance appears once again at the forefront of the contemporary considerations surrounding Zionism. Decades later, the US Secretary of State Alexander M. Haig put it in these terms: “Israel is the largest American aircraft carrier in the world that cannot be sunk, does not carry even one American soldier, and is located in a critical region for American national security”.⁶³

80. On 29 November 1947, the General Assembly of the United Nations voted for the partition of Mandatory Palestine into two states, one Arab and one Jewish. The partition resolution was profoundly unfair to the Arabs: the Jews were less than half of the Arab populations and they owned only seven percent of the land, yet the plan accorded them 55 percent of the territory. The local Arabs, the Arab states, and the Arab League rejected partition as immoral, illegal, and impractical.⁶⁴

81. Instead of helping the UN to resolve the problem, Britain decided to cut its losses, regardless of the consequences, including the inevitability of a civil war. The manner in which the Mandate ended, without an orderly transfer of power to the inhabitants of the country, was the worst blot on Britain's record as the custodian of the ‘sacred trust of civilisation’. Hostility towards the Palestinians was a constant factor in British policy in 1947-1949. In British eyes, a Palestinian state was synonymous with a Mufti state. The Mufti was seen as a renegade who had thrown his lot with Nazi Germany. This was the reason for Britain's refusal to enforce partition and for its decision to leave it to the two sides to fight it out with the aim of aborting the birth of a Palestinian state.⁶⁵

Contemporary British Support for the Zionist State

82. In a plethora of different ways, the British State is currently supporting Israeli apartheid, occupation, and genocide. These include providing arms sales directly to ‘Israel’; tolerating the operation of companies, including Israeli companies, which are directly tied to the Zionist State, including Elbit Systems UK Limited; harassing and prosecuting anti-genocide activists such as Palestine Action who are taking direct action against companies like Elbit Systems; abstaining on crucial votes in international bodies; and undermining the rulings of international courts including the ICJ and the ICC.

83. Even after the decisions from the ICJ and the issuing of arrest warrants by the ICC, Britain has continued to provide logistical support to ‘Israel’. Britain’s Labour government has ordered over 100 spy flights from its Akrotiri airbase to fly over Gaza since 5 July 2024. The plane used for the missions is the Shadow R1, which is known as an intelligence, surveillance, target acquisition and reconnaissance aircraft. It is suspected that the purpose of these missions is to gather intelligence to be shared with the Zionist State. The British government insists that only information relating to hostage rescue is passed to the Israeli authorities.⁶⁶ In December 2024, Prime Minister Keir Starmer visited the airbase and was captured telling troops:

The whole world and everyone back at home is relying on you. ... Quite a bit of what goes on here can't necessarily be talked about all of the time. We can't necessarily tell the world what you're doing.⁶⁷

84. The ongoing proscription of Palestinian resistance groups, including Hamas, is yet another means by which Britain continues to enforce its century-long suppression of Palestinian self-determination.

The Roots of Zionism as a Settler Colonial Project

85. Settler colonialism is a colonial process that aims to build lasting societies made up of metropolitan populations – which is to say settlers – that can control territory, stabilise conquest, and rule over the indigenous peoples it invades, displaces, and dispossesses in the process. All settler colonial societies are structured by a fundamental conflict between themselves and the indigenous people they aim to dispossess, exploit, and/or eliminate.⁶⁸

86. Unlike its deniers today, the settler colonial nature of the Zionist movement was obvious to the Zionist State’s founders, not something to be ashamed of or hidden from view. Early Zionists were, by and large, (petit-)bourgeois Europeans of the late 19^th and early 20^th century to whom colonialism was an acceptable activity, as was the resolving of internal European political, social, or economic problems through the conquest and settlement of land and the dispossession of peoples, across the world.⁶⁹

87. The colonial character of Zionism was repeatedly made obvious, unsurprisingly, as the movement started making settlement a reality on the ground in Palestine. The Zionist organisation set up the Jewish Colonial Trust (1899), for example, to finance settlement. The latter had been a central concern of Herzl’s in The Jewish State, where he modelled his idea for a ‘Jewish Company’ – as he named it then – on the activities of Rhodes’ British South Africa Company in the Transvaal. The Zionist movement’s first collective farms were called Moshavim – a word derived from the Hebrew for colony/settlement: Moshava. The Jewish community in Palestine before 1948 was referred to as the Yishuv – the settlement.⁷⁰

88. Of its founding principles, Revisionist Zionism advocates for ‘Territorial Maximalism,’ a militant vision for Jewish domination over Eretz Yisrael. This concept encompasses the biblical notion of Greater Israel, including all remaining Palestinian territories, as well as regions of Transjordan (modern-day Jordan), Sinai, and parts of modern-day Lebanon, Syria, and Iraq.⁷¹

89. The ideological roots of this perspective are traced to Ze'ev Jabotinsky, a pivotal figure in Zionist thought, who founded several militant organizations. Emerging from the World War I-era British-aligned Jewish Legion, these groups evolved into increasingly militant factions such as the Hagana and later the Irgun Zvai Leumi (Irgun) as well as the Stern Gang (Lehi). The Irgun and Lehi played a leading role in the ethnic cleansing campaigns of the 1948 Nakba. The Likud party had its origin in these two militant groups.⁷²

90. More than a century ago, on 4 November 1923, Jabotinsky, published his article The Iron Wall, in which he addressed the question of ‘colonizing Palestine’. In his essay, he explicitly advocated for unyielding violence to achieve Zionist goals, famously stating that Arab resistance could only be overcome by an ‘Iron Wall’ of unassailable Jewish military strength as the Arabs would not willingly concede their land. He wrote:

Every native population in the world resists colonists as long as it has the slightest hope of being able to rid itself of the danger of being colonized. That is what the Arabs in Palestine are doing and what they will persist in doing as long as there remains a solitary spark of hope that they will be able to prevent the transformation of “Palestine” into the “Land of Israel.”⁷³

In July 2023, Prime Minister Netanyahu claimed he was continuing to implement the principles Jabotinsky had set out in the Iron Wall.⁷⁴

91. In the same essay, he argued that an agreement with the Palestinian Arabs (then) was impossible. He admitted that the Jews had come to colonise Palestine and noted that history proved that no nation ever accepted being colonised and, therefore, always revolted against the colonisers. He concluded: ‘Zionist colonization must either stop, or else proceed regardless of the native population.’⁷⁵

92. It is also striking, in light of contemporary polemics, to note how long the language of colonisation remained central to the self-presentation of Zionism – and the Zionist State. For example, in 1947 the Jewish National Fund could publish a ‘Palestine Picture Book’ aimed at English speaking audiences, which made reference to the ‘Jewish colonisation of Palestine’, ‘Jewish settlers’, ‘Jewish settlement’, and ‘colonists’.⁷⁶

93. The creation of of ‘Israel’ was accompanied by the expulsion of approximately 750,000 Palestinians from their homes and the destruction of over 500 villages. This mass displacement was not incidental but part of a deliberate strategy to secure a Jewish demographic majority on the land. Zionist leaders, such as David Ben-Gurion, explicitly recognised that the establishment of a Jewish State would necessitate the removal of the indigenous Palestinian population to create a ‘land without a people for a people without a land.’⁷⁷

94. The Nakba represents the foundational act of settler colonial violence in Palestine, setting the stage for subsequent policies of land appropriation, demographic engineering, and settlement expansion. Settler colonialism is a structure, not an event, meaning that the displacement of Palestinians in 1948 was not a one-time occurrence but an ongoing process that continues to this day. Settler colonialism in Palestine operates through both legal frameworks and ideological justifications. The Zionist project has relied heavily on the doctrine of terra nullius, the notion that the land was ‘empty’ or underutilised, which justified its expropriation by Jewish settlers. This colonial logic is akin to that employed by European settlers in North America and Australia, where indigenous peoples were dispossessed based on the assumption that they did not ‘properly’ use the land.⁷⁸

95. Not all European Jews that arrived in a Palestine that was being emptied of its native inhabitants, were willing to engage in the process of dispossession. Consider, for example, the story of Genya and Henryk Kowalski who, having just survived a Nazi concentration camp, arrived in Haifa on a ship:

We were shaved, we were naked, we did not cry. We did not know what a crematorium is, they lead you inside, you don’t know where you are going. They told us, you see, look at the chimney there with smoke coming out, you are waiting to go inside. I never wanted to tell...In Haifa we got out [of the ship] and they took us to Pardes Katz...There were tents, and it was a hard winter in 1949, there were heavy rains and it was cold, our clothes were soaked, and we cried. So I decided I’m not staying here. The Jewish Agency promised to give us an apartment, we went to them and they gave us a key and we arrived at Jaffa. It was not far from the harbor, it was a house enclosed by a fence. We opened the gate, opened the door and went in and we couldn’t believe our eyes...We were in shock. The house was beautiful but we didn’t even enter the house because in the yard there was a round table set with plates, and as soon as we saw this...we were frightened. And besides the fear, we could not look, it hurt us, how could people, it reminded us how we had to leave the house and everything behind when the Germans arrived and threw us into the ghetto. And here it was just the same situation, and it was not in us to stay. I did not want to do the same thing that the Germans did. We left, returned the key, and stayed in Nachlat [Yehuda, south of Tel Aviv] where the family lived in a section of an orange depository located in the yard of a local family.⁷⁹

96. It is little wonder then that Israel has suppressed memories of the Nakba because, in the words of a former Foreign Minister of ‘Israel’, Shlomo Ben-Ami, this would be to admit ‘that the Jewish state was born in sin”.⁸⁰

Early history of the Palestinian liberation struggle

97. Resistance to dispossession of Palestinian land and properties began as a process well before the Nakba. The Palestinian Arab Revolt of 1936–1939 was the first significant staging-post in the uprising against British colonial rule and the increasing influx of Zionist settlers into Mandatory Palestine. This revolt was largely driven by the displacement and dispossession experienced by the indigenous Arab population, exacerbated by British policies that facilitated Jewish immigration and land acquisition. Such policies significantly altered the demographic and economic landscape, resulting in widespread resentment among Palestinian Arabs.⁸¹

98. Since his martyrdom in 1935, Izz al-Din al-Qassam — the namesake of Hamas’ military wing – has remained an enduring symbol of resistance for Palestinian groups of all political and ideological persuasions. Hamas assertively used al-Qassam’s name to claim his legacy as a man who combined religiosity with an unflinching willingness to sacrifice everything for the cause of liberation. Article 7 of Hamas’s 1988 Charter affirms this, identifying al-Qassam as the first iteration of ‘jihad in confronting the Zionist invasion’, which begins a teleological line leading directly to Hamas. An exploration of the life of Izz al-Din al-Qassam reveals how his activism and eventual armed struggle were driven in direct response to a climate of brutality, colonialism and injustice, circumstances that remain relevant to the present day.⁸²

99. Al-Qassam arrived in Palestine at a time when the British colonial project to establish a Jewish national home was gaining momentum. The influx of European Jewish settlers and the colonies established by the Zionist movement across the coast and other fertile and strategic regions of Palestine, ‘served to ensure control of a territorial springboard for the domination (and ultimately the conquest) of the country.’ The Palestinian people were fully attuned to Britain’s machinations, and during al-Qassam’s fifteen years in Palestine they watched on as the Jewish population grew more than fivefold, from approximately 57,000 in 1919 to about 320,000 by 1935.⁸³

100. Following an eruption of violence between the indigenous Palestinian population and Zionist immigrants in 1929, which became known as the Buraq Uprising, the British inflicted severe punitive measures on the Palestinians, including the execution of three Palestinian activists. This moment fed a sense among al-Qassam and others over the futility of cooperation with the British and the growing necessity of armed resistance to stem the accelerating expansion of the Zionist colonial project, particularly threatening the status of the holy sanctuaries in Jerusalem.⁸⁴

101. The influx of European Jewish settlers, British inertia on the question of self-governance, and escalating tension over Jerusalem’s holy sites generated a state of continual unease in the streets of Haifa and beyond. Moreover, the daily indignities of colonial rule, Zionist provocation, economic migration, insufficient housing, and persistent underdevelopment pushed Palestine to the brink. By 1933, Palestinian demonstrations were met by the lethal force of British police while the Yishuv continued to develop the institutions of a nation-state, both overtly in the form of the Jewish Agency and covertly with the paramilitary Haganah and its militant off-shoot Irgun. The British and their Zionist allies had created an intolerable situation for the Palestinians, reaching a tipping point by 1935.⁸⁵

102. In October 1935, a Zionist attempt to smuggle a large cache of weapons into Palestine was discovered at the port of Jaffa. This incident triggered mass protests. For al-Qassam and his devoted band of disciples, the situation had reached its logical conclusion, and the decision was made to retreat to the mountains. The objective had crystallised: to end the mandate and force the withdrawal of British colonial authority from Palestine. The means were unequivocal: military struggle until ‘victory or martyrdom.’⁸⁶

103. Following a series of killings in 1936 that caused the government to declare a state of emergency, a general strike swept through the cities of Palestine as a rural insurgency took root. This strike was the most sweeping national strike at that time, spanning more than six months and encompassing various sectors such as transportation and commerce..⁸⁷ The Arab Revolt had begun.

104. The Arab Higher Committee, led by notable figures such as Hajj Amin al-Husseini, demanded the cessation of Jewish immigration, prohibition of land sales to Zionists, and the establishment of a representative national government. As the revolt progressed, it escalated into armed resistance, targeting both British administrative structures and Jewish settlements. The British responded with harsh measures, including mass arrests, demolitions, and the execution of suspected rebels. The revolt was suppressed at great cost to the Palestinian Arab community. Approximately 5,000 Palestinians were killed, and thousands more were wounded or imprisoned. The revolt underscored the depth of Palestinian resentment towards their displacement and the collaboration between the British and Zionists.⁸⁸

105. The repression of the Arab Revolt in 1936-1939 further diminished the population of Palestinian Arabs, reducing the total population of Arab men by 10% who were either killed, wounded, imprisoned or exiled. The British sent a hundred thousand troops and air power to decimate the resistance – all the while Jewish immigration to escape the Nazis doubled – such that the proportion of Jews in Palestine settled from 18% in 1932, to 31% of the country’s total population in 1939. The change in demographic gave the Zionists the necessary manpower to carry out the ethnic cleansing of Palestine in 1948: the Nakba. The British army played the central role in ensuring that Palestinian resistance to Zionism was completely demobilised by a brutal system of killing and execution.⁸⁹

106. It has been argued that Palestine was lost not in the late 1940s, as is commonly believed, but in the late 1930s. The argument is that because of the decisive manner in which Britain crushed the Palestinian resistance in the late 1930s, by the time the struggle for Palestine entered the critical phase in 1947, the Jews were prepared for the fight while the Palestinians lacked the means to defend themselves.⁹⁰

Contemporary Context of the Violence

107. The current violence in Palestine is best understood as the logical result of the ethno-supremacist ideology of Zionism. That ideology asserts a ‘right’ of Jews to a state in historic Palestine – from the river Jordan to the Mediterranean Sea – and to exclude gentiles/non-Jews from that State, either completely or as equal citizens. This has produced the following three realities.

108. First, the Zionist State has consistently abused its position as an occupying power in the oPt, in breach of the Fourth Geneva Convention. This was confirmed by the ICJ in its recent Advisory Opinion on Legal Consequences arising from the Policies and Practices of Israel in the OPT, including East Jerusalem. The ICJ held at [113] that ‘Israel’ had been carrying out a settlement policy throughout its occupation of the oPt and at [119] that the transfer of Israeli settlers to the West Bank and East Jerusalem, as well as its maintenance of their presence, is contrary to art.49(6) of the Fourth Geneva Convention.

109. The ICJ made similar findings against ‘Israel’ on: the confiscation of and requisition of Palestinian land [123]; the exploitation of natural resources in the oPt [133]; the exercise of Israeli jurisdiction in the oPt [141]; the forced displacement of the Palestinian population [147]; the violence against Palestinians by settlers and security forces [154]; the annexation of large parts of the oPt [173]; discriminatory legislation and measures [197, 205, 213, 222, 229]; and the breach of the right of the Palestinian people to self-determination [243]. It explicitly and unambiguously found at [261] that the sustained abuse by ‘Israel’ of its position as an occupying power rendered its presence in the entirety of the oPt unlawful.

110. In view of the character and importance of the rights and obligations involved, the ICJ held at [279] that all States are under an obligation not to recognise as legal the situation arising from the unlawful presence of ‘Israel’ in the oPt; not to render aid or assistance in maintaining the situation; to ensure that any impediments resulting from the illegal presence of ‘Israel’ in the oPt to the exercise of the Palestinian right to self-determination is brought to an end; and to ensure compliance by ‘Israel’ with the Fourth Geneva Convention. ‘Israel’ was required to bring to an end its unlawful presence in the oPt as rapidly as possible and to make reparations for the damage caused.

111. Second, ‘Israel’ is an apartheid State. It has established an institutionalised regime in historic Palestine of systemic oppression and domination by one racial group (Jews) over another (Palestinians). As recognised by, amongst others, John Dugard SC;⁹¹ the UN Special Rapporteur on the Situation of Human Rights in the OPT, Michael Lynk;⁹²Al-Haq;⁹³ Amnesty International;⁹⁴ B’tselem;⁹⁵ Human Rights Watch;⁹⁶ that regime meets the definition of the international crime of apartheid (see art.7(2)(h) of the Rome Statute of the ICC). Moreover, in its aforementioned July 2024 Advisory Opinion, the ICJ held at [229] that Israeli legislation and measures in the oPt constituted a breach of the prohibition on ‘segregation or apartheid’ in art.3 of the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 (‘CERD’).

112. Third, in response to the military operation by armed groups on 7 October 2023, the Zionist State launched a genocidal military campaign in the Gaza Strip, as well as drastically increasing its persecution of Palestinians in all of historic Palestine. In the 12^th week of that campaign, South Africa instituted proceedings at the ICJ to end the genocide which it recognised ‘Israel’ was committing against Palestinians in Gaza. On 26 January 2024, the ICJ recognised that there was a plausible case ‘Israel’ was committing genocide and it granted South Africa’s request to indicate provisional measures. It subsequently modified its order on 28 March and 24 May 2024 by indicating further provisional measures.

113. Since the application to the ICJ by South Africa in December 2023, the evidence of the genocide by the Zionist State of Palestinians in Gaza has grown overwhelming and a consensus amongst experts recognising it as such has started to emerge. On 5 December 2024, Amnesty International concluded that the Zionist State ‘has committed and is continuing to commit genocide against Palestinians in the occupied Gaza Strip.’⁹⁷ Similarly, on 19 December 2024, Human Rights Watch concluded that ‘Israeli authorities have over the past year intentionally inflicted on the Palestinian population in Gaza “conditions of life calculated to bring about its physical destruction in whole or in part.”’.⁹⁸ It concluded that this policy meant that ‘Israel’ was committing the crime against humanity of extermination, and that it breached the Genocide Convention of 1948.

114. On the same day, Médecins Sans Frontières concluded that its ‘first-hand observations of the medical and humanitarian catastrophe inflicted on Gaza are consistent with the descriptions provided by an increasing number of legal experts and organizations concluding that genocide is taking place in Gaza.’⁹⁹ Amongst those experts, the UN Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories concluded on 20 September 2024 that the “policies and practices of Israel during the reporting period are consistent with the characteristics of genocide”.¹⁰⁰

115. In an interview with Le Monde on 29 October 2024, Amos Goldberg – Professor of Holocaust History at the Department of Jewish History and Contemporary Jewry at the Hebrew University of Jerusalem – reiterated his view, first expressed in April 2024, that ‘Israel’ was committing genocide in Gaza.¹⁰¹ Omar Bartov, Samuel Pisar Professor of Holocaust and Genocide Studies at Brown University, concluded, following a visit in June 2024 to Ben-Gurion University of the Negev, that ‘it was no longer possible to deny that Israel was engaged in systematic war crimes, crimes against humanity and genocidal actions.’¹⁰² Raz Segal, Associate Professor of Holocaust and Genocide Studies and Endowed Professor in the Study of Modern Genocide at Stockton University, was already unequivocal on 13 October 2023 because ‘Israel’s genocidal assault on Gaza is quite explicit, open, and unashamed.¹⁰³ There are many, many others.

Operation Toofan Al-Aqsa: Centrality of Masjid Al-Aqsa to Palestinians

116. On 7 October 2023, the Qassam Brigades launched an unprecedented attack from the Gaza Strip into ‘Israel’. This marked a moment, albeit brief, where Palestinians reclaimed territories that had been seized from them during the Nakba of 1948. The operation was named Toofan Al-Aqsa, with Hamas later attributing its launch in part to the increase in Israeli settlers’ incursions into the Al-Aqsa Sanctuary, describing it as an act of ‘aggression’ that ‘had reached a peak’.¹⁰⁴

117. The surprise attacks of 7 October underline the masjid’s symbolic importance to the cause of Palestinian liberation. Any threat to its sanctity carries deep political and religious implications, underlying its centrality as a unifying emblem in the Palestinians and a matter of faith. This reality has been consistently evident over the past century, beginning with the British-sponsored colonial project to establish a Jewish national home in Palestine. From the Buraq Uprising of 1929 to Israeli Prime Minister Ariel Sharon’s incursion into the Holy Sanctuary, which ignited the second Al-Aqsa intifada in 2000. Al-Aqsa has remained at the heart of the Palestinian right for self- determination.¹⁰⁵

118. Post-1948, various Palestinian factions — secular, leftist, and Islamic — placed Jerusalem at the heart of their struggle. The PLO and Fatah, despite their secular-nationalist leaning, still heavily invoked Jerusalem as the political and cultural capital from their earliest charters. Leftist groups like the PFLP and the Democratic Front for the Liberation of Palestine (‘DFLP’) also integrated Jerusalem’s iconography into their liberation strategy.

119. Hamas, recalling the Muslim legacy, had in its founding charter calls for liberating Jerusalem as a religious duty incumbent upon the entire Muslim community. Hamas’ new charter (2017) lays similar emphasis on the significance of Jerusalem, stating: ‘Not one stone of Jerusalem can be surrendered or relinquished.’ PIJ’s armed wing, another resistance faction, is aptly named the Al-Quds (Jerusalem) Brigades.¹⁰⁶ Similarly, the secular-leaning Fatah’s armed group is named the Al-Aqsa Martyrs Brigade.

120. In May 2021, the ‘Sword of Jerusalem’ (Saif al-Quds) operation commenced following Israeli actions in Sheikh Jarrah in East Jerusalem and illegal incursions into Al-Aqsa during Ramadan. Occupation forces periodically entered the Al-Aqsa Sanctuary using tear gas, stun grenades, and rubber bullets against worshippers.¹⁰⁷

121. Hamas issued ultimatums demanding Israeli authorities withdraw security forces from Al-Aqsa and halt the evictions in Sheikh Jarrah. When these ultimatums went unmet, Hamas fired a volley of rockets toward Jerusalem — an unusual and high-profile choice of target — on 10 May 2021. The actions delineated that despite nearly two decades of besiegement and bombardment, Jerusalem remained the focal point of the conflict, and the resistance in Gaza was willing to act at the behest of Muslims worldwide to protect it.¹⁰⁸

122. By October 2023, Jerusalem’s climate had become increasingly fraught, shaped by encroaching illegal settlements and the policies of a maximalist Israeli government. Figures such as Itamar Ben-Gvir (National Security Minister) and Bezalel Smotrich were vocal proponents of illegal Jewish settlement expansion over Jerusalem. Their ascendancy erased the prospect for compromise and intensified the environment of control, especially in and around the Al-Aqsa Sanctuary.¹⁰⁹

Operation Toofan Al-Aqsa: The Palestinian Prisoners

123. On 21 January 2024, Hamas released its official narrative about the events of 7 October. The document stated that the operation, ‘targeted the Israeli military sites and sought to arrest the enemy’s soldiers to pressure the Israeli authorities to release the thousands of Palestinians held in Israeli jails through a prisoner exchange deal.’ This was consistent with what Hamas leader Saleh Al-Arouri stated in the very early stages of the operation.

124. The centrality of the Palestinian prisoners’ movement to the cause of the Palestinian liberation struggle can scarcely be overestimated. Frequently referred to as ‘the compass’ or the ‘moral authority’ of the Palestinian cause, the prisoners held in Israeli jails – many for lengthy sentences imposed by military courts or under arbitrary administrative detention without charge or trial – are widely regarded as symbols of principled commitment to Palestinian freedom. Indeed, they are political symbols and protagonists of Palestinian unity. The issue of Palestinian prisoners’ is also one that touches Palestinians intimately. Approximately 40% of Palestinian men in the West Bank and Jerusalem have spent some time in Israeli jails and, prior to 2005, equal percentages could be found in Gaza. Nearly every Palestinian family has some experience with imprisonment by Israeli forces, whether a brief detention and interrogation or long-term incarceration. If an immediate family member has not been imprisoned, it is rare to find Palestinians in the West Bank, East Jerusalem, Gaza Strip, and (to some extent) Palestinian citizens of ‘Israel’, who have not seen an uncle, aunt or cousin detained by the Zionist State.¹¹⁰

125. As a result of the political, social and cultural importance of the prisoners, every Palestinian political party and resistance organisation has developed a programme for their liberation. Having served time in Israeli prisons is a distinguished feature of leadership in Palestinian resistance and politics. The most successful and dramatic releases of Palestinian prisoners – particularly those with a long history in armed struggle or key leadership roles in Palestinian resistance organisations – have come through prisoner exchanges with the Palestinian resistance. Indeed, many of the most well-known and spectacular Palestinian resistance operations historically – including many of the airplane hijackings of the late 1960s and early 1970s – were at least in part explicitly motivated by a demand to release Palestinian political prisoners in Israeli jails, or in Western countries’ jails allied with the Zionist State and its occupation.¹¹¹

126. Prisoner exchanges have been the most significant mechanism of the Palestinian national movement to free large numbers of Palestinian prisoners, particularly prominent national leaders that the Israeli regime is typically unwilling to free or have been given high sentences, including life and multiple-life sentences. Because of the achievements of prisoner exchanges in releasing thousands of prisoners, securing the prisoners of war necessary to complete an exchange has long been a high priority for Palestinian resistance organisations. In total, over 8,000 Palestinian prisoners have been released through exchanges, and the capture of Israeli soldiers has been a high priority for the Palestinian resistance in the past and at present in order to achieve the liberation of additional prisoners.¹¹² During the November 2023 ceasefire, Hamas released 110 ‘Israeli’ and foreign nationals held in Gaza. This was in exchange for the release of 240 Palestinians held in Israeli jails, of which 107 were children and three-quarters of whom had not been convicted of any crime.

127. So long as the Zionist State and its illegal occupation continue to imprison thousands of Palestinians, many of them jailed without charge or trial, in extreme and inhumane conditions, Palestinian prisoners and their political parties and resistance movements will seek their freedom by all necessary means. The release of the Palestinian prisoners is a consensus position among Palestinians with strong support from all sectors of society, and the Israeli occupation has made clear that a prisoner exchange has been, for many years, the only effective way to ensure the release of significant numbers of them.¹¹³

Operation Toofan Al-Aqsa: Normalisation

128. Another major driver for the operation was the policy of normalisation between several Arab states and ‘Israel’, known as the Abraham Accords. While presented as a step toward regional peace, the Accords have contributed to the escalation of violence and the deepening of existing political divides. Prioritising normalisation of relations with the Zionist State only served to further marginalise Palestinians and diminish their leverage in any future negotiations at no cost to the illegal Israeli occupiers.¹¹⁴

129. The Abraham Accords also emboldened the Israeli government, signalling that notwithstanding countless infractions against international law, the Zionist State could secure normalisation without making any concessions to the Palestinians. In effect, the Accords legitimised the status quo of occupation and weakened the international pressure on ‘Israel’ to engage in meaningful peace talks. In turn, this fuelled a sense of despair and hopelessness among Palestinians, particularly in the besieged Gaza Strip, where they already faced dire humanitarian conditions, and were now removed from consideration due to the complicity of the Arab rulers.¹¹⁵

130. It was in the context of attempting to revive the Palestinian cause that Toofan Al-Aqsa was launched. The late Ismail Haniyeh articulated this in January 2024 in a lengthy speech in Doha. Haniyeh argued that three key developments led to the 7 October offensive:

1. The global marginalization of the Palestinian cause: The international community had largely stopped prioritizing the Palestinian issue. This is evidenced by the lack of international conferences and resolutions, and a decline in discussion about the two-State solution. Haniyeh suggested that the world was beginning to view the Palestinian issue as an internal Israeli matter.

2. The rise of an extremist Israeli government: Haniyeh characterized the incumbent Israeli government as religiously and nationally extremist, prioritizing control over Jerusalem and Al-Aqsa Masjid, the expansion of settlements in the West Bank, and maintaining the blockade of Gaza. He asserted that this government reflected a broader trend of religious and national extremism within Israeli society.

3. Regional betrayal via normalization: Haniyeh criticized the normalization of relations between the Zionist State and several Arab states, viewing it as a betrayal of the Palestinian cause. He argued that this normalization accepts ‘Israel’ as a legitimate State at the expense of Palestinian rights and aspirations. He called this a move towards ‘regional peace’ built upon the denial of Palestinian rights.¹¹⁶

LEGAL FRAMEWORK

Part II of the Terrorism Act 2000

131. The Secretary of State may add or remove an organisation from the list of proscribed organisations in sch.2 to the 2000 Act, pursuant to s.3(3). It may be added if the Secretary of State believes it is ‘concerned in terrorism’, which is defined in s.3(5) as meaning it:

1. commits or participates in acts of terrorism;

2. prepares for terrorism;

3. promotes or encourages terrorism; or

4. is otherwise concerned in terrorism.

132. The term ‘terrorism’ is defined in s.1 of the 2000 Act as the use or threat of action which:

1. falls within subsection (2);

2. is designed to influence a government or an international governmental organisation or to intimidate the public or a section of the public; and

3. is made for the purpose of advancing a political, religious, racial or ideological cause.

133. Action falls within subsection (2) if it:

1. involves serious violence against a person;

2. involves serious damage to property;

3. endangers a person's life, other than that of the person committing the action;

4. creates a serious risk to the health or safety of the public or a section of the public; or

5. is designed seriously to interfere with or seriously to disrupt an electronic system.

134. The Secretary of State’s has adopted a policy which sets out factors she will take into account when considering whether to exercise her discretion to proscribe an organisation:

1. the nature and scale of an organisation’s activities;

2. the specific threat that it poses to the UK and to British nationals overseas;

3. the extent of the organisation’s presence in the UK; and

4. the need to support other countries in the ‘global fight against terrorism’.¹¹⁷

135. Under s.4(1) of the 2000 Act, an application may be made to the Secretary of State to ‘deproscribe’ an organisation which has been proscribed under s.3(3) of the 2000 Act (i.e. added to the list of proscribed organisations in sch.2 to the 2000 Act).

136. Under s.4(2) of the 2000 Act, such an application may be made by the organisation itself or by any person affected by the organisation’s proscription. In the Standing Committee on the Bill for the 2000 Act in the House of Commons, the Government Minister said that the phrase ‘any person affected by the organisation’s proscription’ was used – rather than ‘directly affected’ – because proscription is a ‘heavy issue’ and the process for deproscription should not be ‘constraint’.

137. The Secretary of State has issued, the Proscribed Organisations (Applications for Deproscription etc.) Regulations 2006 (‘the 2006 Regulations’) pursuant to s.4(3) of the 2000 Act, setting out the relevant procedure.

138. Reg.3 of the 2006 Regulations provides that an application made by an organisation, pursuant to s.4(1)(a) of the 2000 Act, must set out: (a) the name of the organisation to which the application relates; (b) whether the application is being made by the organisation or by a person affected by the organisation’s proscription; and (c) the grounds on which the application is made. In the case of an application made by an organisation, the application must also state: (a) the name and address of the person submitting it; and (b) the position which he holds in the organisation or his authority to act on its behalf.

139. Reg.7 of the 2006 Regulations provides that the Secretary of State must determine an application within a period of 90 days from which it is received. If the application is refused, she must as soon as is practicable inform an applicant and notify them of the procedures for appealing against the refusal to the Proscribed Organisations Appeal Commission (‘POAC’).

140. Under s.5(2) of the 2000 Act, an applicant whose application is refused may appeal to POAC. Under s.5(3), POAC must allow an appeal against a refusal to deproscribe if it considers that the decision ‘was flawed when considered in the light of the principles applicable on an application for judicial review.’ This is understood to include points concerning rights under the European Convention on Human Rights (‘ECHR’).

141. The former Independent Reviewer of Terrorism Legislation, David Anderson KC, repeatedly recommended the introduction of time limits for proscription orders, as have his successors, Max Hill KC and the current reviewer, Jonathan Hall KC. However, these recommendations have not been followed and deproscription remains by way of application only. Groups that no longer meet the statutory requirements for proscription continue to be proscribed, which Anderson described as ‘an affront to the rule of law’.

The Crime of Genocide

142. The ICJ has held that the Contracting Parties to the Genocide Convention are bound not to commit genocide, through the actions of their organs or persons or groups whose acts are attributable to them. This conclusion was also said to apply to the other acts enumerated in art.3 of the Genocide Convention. Thus, if those whose acts are legally attributable to a State commit any of the acts proscribed by art.3, the international responsibility of that State is incurred (see Bosnia and Herzegovina v. Serbia and Montenegro at [167]).

Intention and Genocidal Acts

143. Art.2 of the Genocide Convention lists five acts that, when committed with the requisite specific intent to destroy a protected group, in whole or in part, will constitute acts of genocide. Art.2 provides:

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the protected group;

(b) Causing serious bodily or mental harm to members of the protected group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the protected group;

(e) Forcibly transferring children of the group to another protected group.

144. These acts themselves include mental elements. ‘Killing’ in paragraph (a) must be intentional, as must ‘causing serious bodily or mental harm’ in paragraph (b). The mental elements in paragraphs (c) and (d) are made explicit by the words ‘deliberately’ and ‘intended’, quite apart from the implications of the words ‘inflicting’ and ‘imposing’. Forcible transfer too requires deliberate intentional acts. These acts are thus by their very nature conscious, intentional or volitional (see Bosnia and Herzegovina v. Serbia and Montenegro at [186]).

145. In addition to those mental elements, art.2 requires a further mental element. It requires the ‘intent to destroy, in whole or in part, … [the protected] group, as such’. It is not enough to establish, for instance in terms of paragraph (a), that deliberate unlawful killings of members of the group have occurred. The additional intent must also be established and is defined very precisely. It is often referred to as a special or specific intent or dolus specialis. The specific intent is also to be distinguished from other reasons or motives the perpetrator may have and care must be taken in finding in the facts a sufficiently clear manifestation of that intent.

146. In Bosnia and Herzegovina v. Serbia and Montenegro, the ICJ cited at [188] the approach of the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (‘ICTY’) in the Kupreškic et al. case at [636]:

… the mens rea requirement for persecution is higher than for ordinary crimes against humanity, although lower than for genocide. In this context the Trial Chamber wishes to stress that persecution as a crime against humanity is an offence belonging to the same genus as genocide. Both persecution and genocide are crimes perpetrated against persons that belong to a particular group and who are targeted because of such belonging. (…). While in the case of persecution the discriminatory intent can take multifarious inhumane forms and manifest itself in a plurality of actions including murder, in the case of genocide that intent must be accompanied by the intention to destroy, in whole or in part, the group to which the victims of the genocide belong. Thus, it can be said that, from the viewpoint of mens rea, genocide is an extreme and most inhuman form of persecution. To put it differently, when persecution escalates to the extreme form of wilful and deliberate acts designed to destroy a group or part of a group, it can be held that such persecution amounts to genocide.

147. In Bosnia and Herzegovina v. Serbia and Montenegro, the applicant sought to argue that, in absence of an official statement of aims reflecting the specific intent, this was nevertheless clear from the consistency of practices, showing that the pattern was of acts committed ‘within an organized institutional framework’. However, the ICJ rejected that broad proposition at [373]. It held that the specific intent to destroy the group, in whole or in part, had to be convincingly shown by reference to particular circumstances. Unless a general plan to that end could be convincingly demonstrated to exist, and for a pattern of conduct to be accepted as evidence of its existence, it would have to be such that it could only point to the existence of such intent.

148. In order to amount to acts of genocide, prohibited acts must be committed on the basis of the victims’ membership of a religious, national, racial or ethnic group and because the person belonged, or was perceived to belong by perpetrators, to that group. The definition of a ‘protected group’ must require a positive identification of the group. Moreover, in order to constitute genocide, the intent must be to destroy at least a substantial part of the particular group. That is demanded by the very nature of the crime of genocide: since the object and purpose of the Genocide Convention as a whole is to prevent the intentional destruction of groups, the part targeted must be significant enough to have an impact on the group as a whole.

149. It is accepted that genocide may be found to have been committed where the intent is to destroy the group within a geographically limited area. In other words, it is not necessary to intend to achieve the complete annihilation of a group from every corner of the globe. The area of the perpetrator’s activity and control are to be considered, as should the opportunity available to the perpetrators. In the Krstic case, the ICTY Appeals Chamber noted at [12]:

The number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group. In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration. If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial (…)

150. Intentional acts of genocide need not necessarily be carried out by formal agents of the state. In the oPt, settlers function as paramilitaries that support the genocidal intent of the Zionist State in its expansionist and displacement policies.

Complicity in Genocide

151. Art.3(c) of the Genocide Convention prohibits complicity in genocide, which the ICJ has held includes the provision of means to enable or facilitate the commission of the crime and is analogous to the ‘aid or assistance’ of a State in the commission of a wrongful act by another State within the meaning of the art.16 of the Articles on State Responsibility (see Bosnia and Herzegovina v. Serbia and Montenegro at [419]). The ICJ further held at [421] that the conduct of an organ or a person furnishing aid or assistance to a perpetrator of the crime of genocide cannot be treated as complicity in genocide unless at the least that organ or person acted knowingly, that is to say, in particular, was aware of the specific intent (dolus specialis) of the principal perpetrator.

Duty to Prevent Genocide

152. Art.1 of the Genocide Convention imposes on all State Parties the duties to prevent and punish the crime of genocide. These obligations are legally distinct, but closely connected. In Bosnia and Herzegovina v. Serbia and Montenegro, the ICJ held:

1. The Genocide Convention is not the only international instrument providing for an obligation on the States parties to it to take certain steps to prevent the acts it seeks to prohibit [429];

2. The obligation to prevent genocide is one of conduct and not one of result. The obligation of States parties is to employ all means reasonably available to them, so as to prevent genocide so far as possible [430];

3. States can be held responsible for breaching their obligation to prevent a genocide only if genocide is in fact committed [431]. The Court emphasized two differences between the requirements to be met before a State can be held to have violated the obligation to prevent genocide and those to be satisfied in order for a State to be held responsible for ‘complicity in genocide’:

1. Complicity always requires that some positive action has been taken to furnish aid or assistance to the perpetrators of the genocide, while a violation of the obligation to prevent results from mere failure to adopt and implement suitable measures to prevent genocide from being committed; and

2. There cannot be a finding of complicity against a State unless at the least its organs were aware that genocide was about to be committed or was under way, and if the aid and assistance supplied, from the moment they became so aware onwards, to the perpetrators of the criminal acts or to those who were on the point of committing them, enabled or facilitated the commission of the acts. In contrast, a State may be found to have violated its obligation to prevent even though it had no certainty, at the time when it should have acted, but failed to do so, that genocide was about to be committed or was under way. For it to incur responsibility on this basis it is enough that the State was aware, or should normally have been aware, of the serious danger that acts of genocide would be committed [432].

The Crime of Genocide in the Rome Statute and the Law of England and Wales

153. Art.6 of the Rome Statute of the ICC lists five acts which, when committed with the requisite specific intent to destroy a national, ethnical, racial or religious group, in whole or in part, will constitute acts of genocide. These mirror the acts of genocide in art.2 of the Genocide Convention.

154. S.51 of the International Criminal Court Act 2001 (‘the 2001 Act’) has made genocide, crimes against humanity and war crimes offences under the law of England and Wales. S.52 of the 2001 Act also criminalises conduct ancillary to such crimes, which is defined in s.55(1) as ‘aiding, abetting, counselling or procuring the commission of an offence’, as well as inciting, attempting or conspiring, or assisting an offender.

155. As clarified by s.55(2) of the 2001 Act, the reference to ‘aiding, abetting, counselling or procuring’ is to conduct that in relation to an indictable offence would be punishable under s.8 of the Accessories and Abettors Act 1861 (‘the 1861 Act’). In R v Calhaem [1985] QB 808, the Court of Appeal held that ‘counsel’ in s.8 of the 1861 Act had no implication of any causal connection between the counselling and the principal offence. The natural meaning of the word did not imply the commission of the offence. Instead, the offence was established if there was counselling and the principal offence was committed by the person counselled acting and not by accident.

156. In R v Jogee [2016] UKSC 8, the Supreme Court clarified the law on parasitic accessory liability, which included an analysis of s.8 of the 1861 Act. The provision was said to have had the purpose of simplifying – without changing – the law governing secondary or accessory liability. Leaving aside ‘procurement’, the specified modes of involvement cover two types of conduct on the part of a defendant: the provision of assistance and the provision of encouragement. Lord Hughes and Lord Toulson held at [7 – 10] that:

7. (…) accessory liability requires proof of a conduct element accompanied by the necessary mental element. Each element can be stated in terms which sound beguilingly simple, but may not always be easy to apply.

8. The requisite conduct element is that D2 has encouraged or assisted the commission of the offence by D1.

9. (…) the mental element in assisting or encouraging is an intention to assist or encourage the commission of the crime and this requires knowledge of any existing facts necessary for it to be criminal (…)

10. If the crime requires a particular intent, D2 must intend to assist or encourage D1 to act with such intent. D2's intention to assist D1 to commit the offence, and to act with whatever mental element is required of D1, will often be co-extensive on the facts with an intention by D2 that that offence be committed.

Accessory Liability under the Rome Statute

157. Art.25 of the Rome Statute grants the ICC jurisdiction over natural persons. Such persons are criminally responsible and liable for punishment for a crime within the jurisdiction of the ICC if that person, inter alia, for the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission.

158. In Prosecutor v. Bemba et al (01/05-01/13-1989-Red), ICC Trial Chamber VII analysed the wording on accessorial liability in art.25(3)(c). It concluded at [84 – 98] that:

1. Establishing accessorial liability is independent of whether the principal is identified, charged or convicted.

2. Accessorial liability implies a lower degree of blameworthiness.

3. The accessorial perpetrator does not exercise control such that they could frustrate the commission of the offence – as a co-perpetrator would – but merely contributes to or otherwise assists in an offence committed by the principal perpetrator.

4. The terms ‘aids’, ‘abets’ and ‘otherwise assists’ each have separate meanings but all belong to the broader category of assisting in the (attempted) commission of an offence.

5. The term ‘aiding’ overlaps with ‘otherwise assists’ and implies the provision of practical or material assistance.

6. The notion of ‘abet’ describes the moral or psychological assistance of the accessory to the principal perpetrator, taking the form of encouragement of or even sympathy for the commission of the particular offence. The encouragement or support shown need not be explicit. Under certain circumstances, even the act of being present at the crime scene (or in its vicinity) as a ‘silent spectator’ can be construed as tacit approval or encouragement of the crime.

7. The form of contribution does not require the meeting of any specific, including minimum, threshold.

8. The contribution of the accessory need not be conditio sine qua non to the commission of the principal offence, but the assistance must have furthered, advanced or facilitated the commission of such offence. If the assistance was not causal, the conduct of the perpetrator does not fall within the ambit of art.25(3)(c).

Crimes Against Humanity, including Apartheid

159. Art.7 of the Rome Statute defines – and codified the existing customary norms relating to – crimes against humanity as any of the following acts, when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) murder; (b) extermination; (c) enslavement; (d) deportation or forcible transfer of population; (e) imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) torture; (g) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) enforced disappearance of persons; (j) the crime of apartheid; and (h) other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

160. Apartheid is also illegal under the terms of the International Convention on the Suppression and Punishment of the Crime of Apartheid of 18 July 1976; art.3 of CERD; and by necessary implication from adjacent prohibitions against racism such as that found in art.14 of the ECHR and under the Refugee Convention 1951 and its 1967 Protocol.

Armed Resistance Against Colonialisation and Occupation

161. The right of a people to resist occupation is a basic principle of customary international law and a recognised corollary of the right of self-determination.

162. Art.1(4) of the First Additional Protocol to the Geneva Conventions of 1977 (‘API’) expressly recognises as international armed conflicts ‘armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.’

163. The UN Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960 declared, inter alia, that:

1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.

2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

164. In its Advisory Opinion in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, the ICJ observed at [153] that the wording of the UN Declaration on the Granting of Independence to Colonial Countries and Peoples, deeming colonialism illegal, had a normative character. The ICJ held at [150] that the declaration represented ‘a defining moment in the consolidation of State practice on decolonization.’ The ICJ further held at [158] that the right to self-determination under customary international law did not impose a specific implementation mechanism.

165. The nature and scope of the right to self-determination of peoples, including respect for ‘the national unity and territorial integrity of a State or country’, were reiterated in the UN Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the UN of 1970. That declaration affirmed that the right of peoples of resistance against the forcible actions of States which deprive them of their exercise of their right to self-determination, as well as their right to seek and receive support in accordance with the principles of the Charter.

166. Moreover, in resolution 2649 (XXV) of 1970, the UN General Assembly affirmed, in the specific context of the peoples of Palestine and southern Africa, the legitimacy of the struggle of peoples under colonial and alien domination recognised as being entitled to the right of self-determination to restore to themselves that right by any means at their disposal. Similarly, in resolution 3070 (XXVIII) of 1973, the UN General Assembly clarified that ‘by all available means’ included armed struggle, and called upon all States to offer ‘moral, material and any other assistance’ to peoples struggling for the right of self-determination.

167. As confirmed by the ICJ in its Advisory Opinion on Legal Consequences of the Construction of a Wall in the OPT at [139], art.51 of the UN Charter recognises the inherent right to self-defence in the case of armed attack by one State against another State. This includes the situation in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as confirmed by art.1(4) of the First Additional Protocol.

168. In its Advisory Opinion in Legal Consequences of the Construction of a Wall in the OPT, the ICJ dismissed at [118] the suggestion that the principle of peoples to self-determination did not apply to the Palestinian People. In turn, the Palestinian people have the right, and indeed the duty, to respond to the acts of genocide, war crimes and crimes against humanity committed by the Zionist State against their population in Gaza and elsewhere in the oPt.

169. Art.51(1) of API provides that the civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. Art.51(2) supplements this provision by prohibiting the civilian population, as well as individual civilians, from being the ‘object of attack’. Worthy of note, art.51(2) adds that ‘[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.’ The ICRC Commentary of 1987 notes in relation to this provision that:

… the prohibition covers acts intended to spread terror; there is no doubt that acts of violence related to a state of war almost always give rise to some degree of terror among the population and sometimes also among the armed forces. It also happens that attacks on armed forces are purposely conducted brutally in order to intimidate the enemy soldiers and persuade them to surrender. This is not the sort of terror envisaged here. This provision is intended to prohibit acts of violence the primary purpose of which is to spread terror among the civilian population without offering substantial military advantage. It is interesting to note that threats of such acts are also prohibited.

170. In her Declaration supplementing the July 2024 Advisory Opinion of the ICJ, Judge Charlesworth expressly affirmed - in the specific context of the Zionist’ State’s occupation of the oPt – at [23] that ‘under customary international law, the population in the occupied territory does not owe allegiance to the occupying power [and] is not precluded from using force in accordance with international law to resist the occupation’.

171. It follows that Palestinians living under occupation are entitled - i.e. as a matter of jus ad bellum - to use armed force to resist that occupation. Whether any particular incident in the exercise of such armed force is lawful – i.e. as a matter of jus in bello – will depend upon its compliance with the relevant rules and requirements of international humanitarian law (‘IHL’).

172. Insofar as such armed force is targeted at military objectives, as that term is defined by art.52(2) of AP1, it is lawful as a matter of international law (i.e. both jus ad bellum and jus in bello or IHL). Insofar as such force is targeted at civilians or civilian objects – or makes no attempt to distinguish between civilian and military objectives – it is unlawful because it is contrary to the principle of distinction.

Application of International Legal Obligations in Domestic Law

173. In R v Lyons [2003] 1 AC 976, Lord Hoffman held at [27] that “there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation.” See also Lord Goff in Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at [283].

Freedom of Expression

174. The ECtHR has described the freedom of expression protected by art.10 of the ECHR as constituting ‘one of the essential foundations of [democratic society], one of the basic conditions for its progress and for the development of every man’ (see Handyside v the United Kingdom (1979 – 80) 1 EHRR 737 at [49]). Moreover, it has emphasised on several occasions that art.10 is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’ (see Observer and Guardian v the United Kingdom (1992) 14 EHRR 153 at [59]).

175. ‘Political’ speech attracts particularly strong protection. In R (Carlile) v SSHD [2014] UKSC 60, Lady Hale held at [91] that the rights protected by art.10 were ‘hugely important’ and that ‘[f]reedom of speech, and particularly political speech, is the foundation of any democracy’. Lord Sumption further held at [13] that it was well-established that ‘the more important the right, the more difficult it will be to justify any interference with it’ and that, for this purpose, ‘freedom of expression has always been treated as one of the core rights protected by the Convention.’

176. In approaching art.10 of the ECHR, Strasbourg prescribes a three-step approach. First, it considers whether there has been an interference with the exercise of the right to freedom of expression, and the forms of interference. The fact that the evidence underlying an applicant’s conviction consisted solely of forms of expression has led the Court to find an interference. Indeed, as a result of offences such as s.12 of the 2000 Act, as held in R v Choudry [2018] EWCA Crim 21 at [66], it is uncontroversial that proscription – and thus deproscription – decisions amount to an interference with the rights under art.10 because it limits the rights of an individual to express themselves in a way that amounts to an invitation of support for a proscribed organisation.

177. Second, the ECtHR will analyse whether the interference, if established, was ‘prescribed by law’; whether it ‘pursued one of the legitimate aims’ within the meaning of art.10(2); and whether it was ‘necessary in a democratic society’. In Choudry at [68], the Court of Appeal noted that offences under ss.11 – 13 of the 2000 Act followed proscription of an organisation in accordance with the process laid down in legislation (i.e. Part II of the 2000 Act). The Crown argued, and the Court accepted at [69], that the offences in Part II were essential to the proscription process because they were the means by which proscription was put into effect.

178. The legitimate aims of interference with the right of freedom of expression are exhaustively set out in art.10(2) of the ECHR: i.e. in the interests of national security, territorial integrity or public safety; for the prevention of disorder or crime; for the protection of health or morals; for the protection of the reputation or rights of others; for preventing the disclosure of information received in confidence; or for maintaining the authority and impartiality of the judiciary. At this stage of the examination, the ECtHR may find that an interference does not serve to advance the legitimate aim relied upon (see Bayev v Russia (2018) EHRR 10 at [83]).

179. The principles for assessing the necessity of an interference with freedom of expression are well established. In Stoll v Switzerland (2008) 47 EHRR 59 at [101], Strasbourg held:

The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. (…)

The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the Respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...

180. Third, and finally, the ECtHR will examine whether the exercise of the right of freedom of expression interferes with other rights safeguarded by the ECHR and the Protocols thereto. If appropriate, Strasbourg will consider whether the national authorities struck a proper balance between protection of the right to freedom of expression and other rights and rights or values guaranteed by the ECHR.

Freedom of Assembly

181. Art.11 of the ECHR guarantees the right to freedom of peaceful assembly and to freedom of association with others. This right has also been referred to by Strasbourg as a fundamental right in a democratic society and, like the right to freedom of expression, as one of the foundations of such a society. In light of that importance, the ECtHR has consistently held that the right should not be interpreted restrictively (see Navalnyy v Russia (2020) 70 EHRR 16 at [98]).

182. The right to freedom of peaceful assembly comprises negative and positive obligations on the part of governments. They must not only refrain from applying unreasonable indirect restrictions on the right to assemble peacefully but also safeguard that right. The ECtHR has recognised that authorities have a duty to take appropriate measures with regard to lawful demonstrations in order to ensure their peaceful conduct and the safety of citizens. However, the duty implies a wide discretion in the choice of the means to be used (see Giuliani and Gaggio v Italy (2012) 54 EHRR 10 at [251]).

183. The right to freedom of assembly can be subject to restrictions in accordance with art.11(2) of the ECHR. An interference does not need to amount to an outright ban but can consist of various other measures taken by the authorities. Interference must be taken to encompass any restrictive measures taken against an applicant in connection with their expressive conduct (see Kudrevicius v Lithuania (2016) 62 EHRR 34 at [100]).

184. The term ‘restrictions’ in art.11(2) must be interpreted as including both measures taken before or during a gathering and those taken afterwards. For instance, a prior ban can have a chilling effect on the persons who intend to participate in a rally and thus amount to an interference, even if the rally subsequently proceeds without hindrance by the authorities (see Baczkowski v Poland (2009) 48 EHRR 19 at [66] – [68]).

185. As with art.10 of the ECHR, interference with the right to freedom of peaceful assembly will constitute a breach of art.11 unless it is ‘prescribed by law’, pursues one or more legitimate aims under art.11(2), and is ‘necessary in a democratic society’ for the achievement of the aim(s) in question. Irrespective of whether the ECtHR accepts that the authorities have pursued a legitimate aim or rejects the aims put forward by the government, it may examine a complaint under art.18 that the measures in question had pursued an ulterior purpose, such as political persecution (as a sole purpose or in addition to a legitimate one). In the majority of cases Strasbourg found that the allegations under art.18 raised no separate issue in relation to the complaints examined under art.11. However, if such allegations represent a fundamental aspect of the case, it may examine them separately (see at Navalnyy at [164]).

Right to Enjoyment of Rights of the Convention without Discrimination

186. Art.14 of the ECHR enshrines the right not to be discriminated against in ‘the enjoyment of the rights and freedoms set out in the Convention’. In other words, art.14 does not prohibit discrimination as such, but only discrimination in the enjoyment of the rights and freedoms set out in the ECHR. The ECtHR has repeatedly clarified that the ancillary nature of art.14 does not mean that the applicability of the right is dependent on the existence of a violation of a substantive provision. Instead, art.14 extends to those additional rights, falling within the general scope of any article of the Convention. It is necessary and sufficient for the facts of any case to fall ‘within the ambit’ of one or more of the provisions (see Carson v United Kingdom (2010) 51 EHRR 13).

187. In Virabyan v Armenia (2012), the Strasbourg Court held that:

Political pluralism, which implies a peaceful co-existence of a diversity of political opinions and movements, is of particular importance for the survival of a democratic society based on the rule of law, and acts of violence committed by agents of the State which are intended to suppress, eliminate or discourage political dissent or to punish those who hold or voice a dissenting political opinion pose a special threat to the ideals and values of such society.

188. In determining whether the applicant’s rights under art.14 had been violated in conjunction with art.3, the Court’s task was to establish whether or not political motives were a causal factor in the applicant’s ill-treatment.

Right to Free Elections

189. Art.3 of Protocol No 1 to the ECHR (‘A3P1’) states:

The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

190. According to the Preamble to the ECHR, fundamental human rights and freedoms are best maintained by ‘an effective political democracy’. Since it enshrines a characteristic principle of democracy, Article 3 of Protocol No. 1 is accordingly of prime importance in the Convention system. (Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2 March 1987, § 47).

191. The ECtHR has found a number of violations of A3P1 on account of the disproportionate nature of sanctions imposed on MPs after their parties had been dissolved for undermining territorial integrity and the unity of the State, or to preserve the secular nature of the political system.

192. The Court has also stressed the need to afford sufficient safeguards against arbitrariness in the framework of the procedures of the domestic authorities, including the need to provide sufficient reasons. In Political Party “Patria” and Others v. the Republic of Moldova, 2020, the disqualification of a party three days before parliamentary elections on account of the alleged use of undeclared foreign funds was found to be arbitrary on account of the lack of sufficient procedural safeguards.

193. Cases concerning the banning of political parties on account of the incompatibility of their manifestos with democratic principles are usually examined under art.11 of the Convention. A3P1 is then regarded only as secondary and as not raising a separate issue (Refah Partisi (the Welfare Party) and Others v Turkey (2003); Linkov v the Czech Republic (2006); Parti nationaliste basque – Organisation régionale d’Iparralde v France (2007)).

GROUNDS FOR DEPROSCRIPTION

Preliminary Submission on Discretion in Proscription/Deproscription Decisions

194. Hamas submits that the decision to proscribe – and deproscribe – any organisation under the 2000 Act is discretionary. The only strict requirement is for the Secretary of State to ‘believe’ that the organisation is ‘concerned in terrorism’ (see s.3(4) of the 2000 Act). But since the definition of ‘terrorism’ in the 2000 Act is so wide, it could apply to effectively any group publicly supportive of the use of violence to achieve political objectives.

195. Indeed, in 2012 the Independent Reviewer of Terrorism Legislation expressed his concerns with the breadth of the UK definition of ‘terrorism’. After referring to the Court of Appeal judgment in R v Gul [2012] EWCA Crim 280, he noted:

The Government might be reluctant to surrender the right to treat its opponents in foreign theatres of war (or even students who post videos of their exploits) as terrorists. The issue is however of broader relevance, since the current law allows members of any nationalist or separatist group to be turned into terrorists by virtue of their participation in a lawful armed conflict, however great the provocation and however odious the regime which they have attacked.

196. For example, any individual expressing support for the use of military force by Ukraine to resist the invasion by Russian forces would be ‘concerned in terrorism’ under the 2000 Act. This is because that resistance is an action which ‘involves the use of firearms or explosives’ and is made to advance the ‘political … or ideological cause’ of ending that invasion (see ss.1(1) and 1(3) of the 2000 Act). And those supporting such resistance are thus ‘promoting or encouraging terrorism’ and thus ‘concerned in terrorism’ (see ss.3(5)(c) and 3(4) of the 2000 Act). Similarly, the definition would apply to support for the use of military force by the Zionist State in the oPt. Even on its own publicly pronounced objectives, its military operations in the Gaza Strip since 7 October 2023 seek to advance the political or ideological cause of ‘eliminating Hamas’. However, neither the military wing nor the governments of the Ukraine nor of the Zionist State have been proscribed.

197. It must follow that any such proscription decision is discretionary because the decision to apply the definition ‘terrorism’ in the 2000 Act to the use of violence by certain groups to achieve certain political objectives is not an automatic consequence of the use or threat of actions which meets that definition. In effect, the Secretary of State could ‘believe’ any armed group – whether that be a State or non-State group – is ‘concerned in terrorism’ because armed force will always involve the use of firearms or explosives and be employed to achieve a political (or religious, racial or ideological) cause. Accordingly, the decision to proscribe (and thus deproscribe) any group – and not others – is discretionary and not determined by whether the Secretary of State believes any such group is ‘concerned in terrorism’.

Ground 1: Hamas’s Continued Proscription is Contrary to Britain’s Obligations under International Law.

Obligation to Prevent and To Not Be Complicit in Genocide

198. Hamas submits that by continuing to proscribe it, Britain is in breach of its duty to employ all means reasonably available to them to prevent – and end – the genocide of the Palestinians in Gaza. Hamas is the only effective military force resisting – and seeking to end and prevent – the ongoing acts of genocide being committed by the Zionist State against the Palestinians in Gaza. Their (continued) proscription is purposefully – and in any event practically – inhibiting their efforts to use military force to prevent those ongoing acts of genocide. Accordingly, that continued proscription breaches Britain’s obligation to employ all means reasonably available to them to prevent – and end – the genocide.

199. Moreover, Hamas submits that by continuing to proscribe it, Britain is complicit in the ongoing acts of genocide being committed by the Zionist State against the Palestinians in Gaza. The attempt to inhibit the efforts and effectiveness of the only substantial military force resisting – and seeking to end and prevent – the ongoing acts of genocide amounts to ‘some positive action (…) taken to furnish aid or assistance’ to the Zionist State (i.e. the perpetrators of the acts of genocide).

200. As set out in the background section above, the Secretary of State has been and is aware that acts of genocide are and have been underway in Gaza, and she will be aware that the continued proscription of Hamas enables the commission of those acts of genocide.

Obligation To Not Be Complicit in Crimes Against Humanity

201. Hamas submits that by continuing to proscribe it, Britain is complicit in the ongoing crimes against humanity being committed by the Zionist State against the Palestinian People in the oPt, including the Gaza Strip.

202. As noted above, the Zionist State is committing the Crime of Apartheid, which is defined as a crime against humanity in art.7(2)(h) of the Rome Statute of the ICC, and thus – by way of s.51 of the 2001 Act – in domestic law.

203. Furthermore, as the ICC arrest warrants for Netanyahu and Gallant set out, there are reasonable grounds to believe that the Zionist State is (also) committing the crimes against humanity of extermination and persecution. The more recent Report of the Independent International Commission of Inquiry on the oPt, including East Jerusalem, and Israel of 11 September 2024 made concrete findings, including that(¶89):

… Israel has implemented a concerted policy to destroy the health-care system of Gaza. Israeli security forces have deliberately killed, wounded, arrested, detained, mistreated and tortured medical personnel and targeted medical vehicles, constituting the war crimes of wilful killing and mistreatment and the crime against humanity of extermination.

204. Hamas is the only effective military force resisting – and seeking to end and prevent – the ongoing crimes against humanity being committed by the Zionist State in the oPt, including the Gaza Strip since 7 October 2023. Its continued proscription by the Secretary of State is purposefully inhibiting their efforts to resist, end and prevent those ongoing crimes against humanity. The Secretary of State’s effort to inhibit those efforts and their effectiveness amounts to ‘aiding, abetting or otherwise assisting’ the commission of those crimes against humanity by the Zionist State.

Obligation to Bring an End to the Unlawful Occupation of the oPt

205. In its July 2024 Advisory Opinion, the ICJ held at [279] that, in view of the character and importance of the rights and obligations involved, all States are under an obligation not to recognise as legal the situation arising from the unlawful presence of ‘Israel’ in the oPt; not to render aid or assistance in maintaining the situation; to ensure that any impediments resulting from the illegal presence of ‘Israel’ in the oPt to the exercise of the Palestinian right to self-determination is brought to an end; and to ensure compliance by ‘Israel’ with the Fourth Geneva Convention. ‘Israel’ was required to bring to an end its unlawful presence in the oPt as rapidly as possible and to make reparations for the damage caused. Britain is thus under an obligation: (a) not to render aid or assistance in maintaining the unlawful presence of ‘Israel’ in the oPt; and (b) to bring to an end any impediments resulting from that presence on the exercise of the right of the Palestinian people to self-determination.

206. Hamas submits that the right to self-determination includes the right to use armed resistance to repel belligerent occupation, including by organized resistance movements such as Hamas. The (continued) proscription of Hamas by the Secretary of State seeks to frustrate that lawful and legitimate armed resistance. Hamas submits that its (continued) proscription by the Secretary of State amounts to ‘rendering aid and assistance’ to the Zionist State in maintaining the unlawful situation in the oPt, in breach of the obligations of Britain as enumerated in the recent ICJ Advisory Opinion.

Obligation to Respect the Dignity of the Palestinian People

207. Both the preambles to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights emphasize that ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’. Hamas submits that their proscription reflects a failure – in breach of these conventions – to accept the Palestinian people as equal members of the human family.

208. For Palestinians impacted by prolonged conflict, the effects are not limited to immediate survival but include severe psychological distress. Forced displacement, continuous exposure to violence, and the loss of social, cultural, and economic stability contribute to widespread trauma and chronic insecurity, which public health efforts often overlook. The advancement of settlers in the colonial project involves a process of ethnic cleansing which violently disassociates a people from their land; a dehumanising strategy hindering basic needs of community and belonging.¹¹⁸

209. The Zionist application of humiliation is fundamental to its colonial nature, not an excess of its military activities. This is important because Israelis have argued their actions are dynamically related to those of Palestinians. Their logic offers that incessant military detention, degrading checkpoint searches, bombardments and house demolitions are all unfortunate but legitimate actions needed to secure Israel’s post-1967 security. But drawing on early Palestinian testimony paints a different picture: that dehumanisation has been the mainstay of the Zionist project since its establishment.

210. Recent studies have explored the psychological harms associated with the Israeli use of humiliation as a systemic strategy of domination. In 2011, a study on mental suffering surveyed a sample of 1,778 Palestinians across the West Bank, Gaza and Jerusalem. They found significant exposure to political violence between 1987 and 2011. During this time, 78% of Palestinians had their homes raided by Israeli military forces, while 74% witnessed acts of humiliation carried out by either Israeli or Palestinian military or police. Sixty-two percent experienced verbal abuse firs thand. More than half (56%) reported being fired upon, 43% had been physically attacked (hit or kicked) by soldiers or police, and 26% of men had been detained as political prisoners. Additionally, 44% suffered material losses, such as the destruction or confiscation of their homes or land by the Israeli government. Movement restrictions were also a significant issue, with 68% of respondents in the West Bank stating they were unable to access medical care at some point due to obstacles such as checkpoints, barrier walls, or curfews. The study affirms that feeling ‘broken or destroyed’ was distinct from traditional mental health measures, consistently reliable, and experienced more commonly than depression or trauma- related stress across genders and regions.¹¹⁹

211. The experience of Palestinian dispossession, under a system of humiliation and control, has continued for at least three generations, from before the Nakba until today. Life under a system of humiliation and colonial domination paints a grim picture for everyday life. The process of dehumanisation is deeply impactful on mental health; this has been the central message from luminaries like Victor Frankl, a psychiatrist who survived the Holocaust and shared his experiences in vivid detail. The experiences of Frankl are known. However, this same recognition has not been afforded to Palestinians. If circumstances for Palestinians are to change, a recognition of their psychological experience of colonial domination is needed, followed swiftly by full justice and accountability.¹²⁰

212. The demand for dignity and equality has and remains central to the struggle of the Palestinian People, including the contribution to that struggle by Hamas. In 2018, Ismail Haniyeh said in a public speech in Gaza that ‘the steadfastness of our people in Gaza is a testament to their commitment to dignity and resistance despite unbearable conditions.’

213. Similarly, in 2024, Khaled Meshal emphasized in a speech in Doha that ‘our fight is not just for land; it is for the dignity and freedom of our people.’ Following the martyrdom of Yahya Sinwar in October 2024, another senior official, Basem Naim, explained how ‘Hamas is a liberation movement led by people looking for freedom and dignity. This cannot be eliminated.’ When asked whether the actions of the Zionist State following the Al Aqsa Flood Operation meant that it had been a complete disaster, Mr Naim’s was illustrative:

You can say this only in one case; if the Palestinians were living in their own state, independent state, free in a dignified life – but you have to remember that the Palestinians are suffering an occupation for 76 years, that between 2000 and 2023, 20,000 Palestinians killed, the Gazans were suffering a suffocating siege for more than 17 years, and the Israelis were declaring publicly their plans to annex the West Bank, to Judaise Jerusalem, to expel the Palestinians ...¹²¹

214. Palestinian leaders from across the political spectrum have shared this view. Former member of the Executive Committee of the PLO, Hanan Ashrawi, concluded her speech at the World Conference against Racism in Durban in 2001 by stating, ‘I ask you also not to succumb, but to maintain and enhance the struggle for dignity, equality, freedom, and justice as an act of collective affirmation on behalf of humanity as a whole.’¹²² When France’s parliament passed a non-binding resolution in favour of recognising Palestinian statehood in 2014, Ashrawi expressed her ‘gratitude to the members of the French parliament for adopting a resolution on the side of justice and human dignity.’¹²³

215. Indeed, other anti-colonial resistance movements have similarly justified their reliance on armed struggle as a means of restoring their dignity. Nelson Mandela famously proclaimed, from the dock, during the Rivonia trial in 1964 that ‘we fight against two features which are the hallmarks of African life in South Africa and which are entrenched by legislation which we seek to have repealed. These features are poverty and lack of human dignity.’ In doing so, he used ‘dignity’ to rationalise the shift to armed struggle as a method to oppose the indignity of apartheid. Patrice Lumumba similarly wrote in a letter from Thysville Prison in 1960 that ‘without dignity there is no liberty, without justice there is no dignity, and without independence there are no free men.’

216. The list of examples of such declarations is as long as the list of colonial crimes which peoples all over the world resisted. And the Zionist State is and remains - more than anything - a colonial project in historic Palestine.

217. Hamas’s struggle for the liberation of the oPt from the illegal Zionist occupation by all available means, is legitimate, enshrined in international law, and seeks only to restore the Palestinian people as equal members of the human family. The Secretary of State should recognise that legitimacy and deproscribe Hamas.

Ground 2: Hamas’s Continued Proscription is Contrary to the ECHR.

218. Hamas submits that its (continued) proscription is contrary to the Secretary of State’s obligation to ensure its decisions are consistent with her obligations under s.6 of the Human Rights Act 1998 (‘the 1998 Act’).

Freedom of Expression

219. Hamas submits that its (continued) proscription by the Secretary of State amounts to an interference with the freedom of expression of those who support (a) the right to self-determination of the Palestinian People; (b) the use of armed struggle pursuant to that right by Hamas; and (c) the use of armed struggle by Hamas to resist the acts of genocide, crimes against humanity, and illegal occupation by the Zionist State. Indeed, as a result of the offences set out in ss.11 to 13 of the 2000 Act, and as held in Choudry at [66], it is uncontroversial that proscription – and thus deproscription – decisions amount to an interference with the rights under art.10 of the ECHR because, inter alia, they limit the rights of an individual to express themselves in a way that amounts to an invitation of support for a proscribed organisation, such as Hamas.

220. Hamas submits that this interference is neither pursuant to one of the ‘legitimate aims’ within the meaning of art.10(2) nor ‘necessary in a democratic society’. It is denied that any activities of Hamas – whether that be their armed struggle or its non-violent activities – affect the (legitimate) interests of national security nor territorial integrity nor public safety of Britain. Similarly, absent its proscription, none of the activities of Hamas could possibly affect disorder or crime in Britain.

221. Hamas has never extended its military operations outside the territory of historic Palestine. This is notwithstanding the significant levels of political, military and financial support provided by the Governments of Britain and the United States to the Zionist State, which enabled it to conduct its genocidal campaign in Gaza. Hamas does not have a presence in Britain and does not pose any threat to its national security nor to its nationals overseas save for the threat that extends to all individuals taking part in genocide, Apartheid and illegal belligerent occupation.

222. Instead, Hamas submits that the proscription decision in 2021 pursued explicitly political objectives by a politically compromised Secretary of State. As detailed by Professor Avi Shlaim in his expert report, Priti Patel:

… needed no prompting to do Israel's bidding. In August 2017, as Secretary of State for International Development, she went on a freelance trip to Israel accompanied by Lord Polak, president of Conservative Friends of Israel (CFI). She had previously served as an officer for the CFI’s Parliamentary group between 2011 and 2014. While pretending to be on a private holiday, Ms Patel held a series of secret meetings with high-ranking Israeli officials, including the then Prime Minister Benjamin Netanyahu, the then Director-General of the Israeli Ministry of Foreign Affairs Yuval Rotem, and the former Israeli permanent representative to the United Nations Gilad Erdan. The meeting with Erdan was particularly significant given he went on to head anti-BDS efforts in Israel. Upon her return she asked her officials to explore the possibility of diverting some of the foreign aid budget to enable the Israeli army to carry out humanitarian work. This was intended for the military field hospital she had visited on her trip in the occupied Golan Heights. She was fired by Theresa May for lying about the nature and purpose of her visit.¹²⁴

223. The announcement of the proscription of the entirety of Hamas was a sudden departure from the position of the government that there was a ‘clear distinction between Hamas’s political and military wings’ (James Brokenshire, Minister for Security in June 2020) and that they were ‘supportive of Hamas-Fatah reconciliation attempts’ (Lord Ahmad, Minister of State for the Middle East in February 2021). The contrary view that the distinction was ‘artificial’ was announced in a speech by Ms Patel to the Heritage Foundation in Washington DC on 19 November 2021.¹²⁵

224. The speech conflated Hamas with extremism and antisemitism and explained the proscription decision would criminalise waving a Hamas flag, which Ms Patel asserted was ‘an act that is bound to make Jewish people and the community feel unsafe.’ Her speech implied that allowing support for the ‘extremism’ of Hamas would ‘erode the rock of security’ ‘upon which freedom sits’. The press release which publicised the speech and the decision suggested proscription made it ‘difficult for extremists to operate’ and followed advice from the ‘Proscription Review Group’. However, as transpired in the Parliamentary debate that followed, a full impact assessment was never produced.

225. Hamas disagrees with Ms Patel’s characterisation of the movement as antisemitic and extremist. As noted above, Hamas is an organised resistance movement which exercises the right of the Palestinian people to resist the Zionist State. The Secretary of State is directed to the expert reports by Professor Avi Shlaim and Dr Azzam Tamimi to understand the false nature of the accusation of antisemitism. But regardless of their inaccuracy, those accusations are, on any view, political opinions propagated by supporters of the Zionist State. These opinions are premised on equating anti-Zionism with antisemitism. In other words, rather than engage with the political arguments which anti-Zionist political actors – such as Hamas – and their supporters make, the supporters of the Zionist State vacuously claim their opponents are bigots. The proscription of Hamas simply uses the criminal law to enforce that political rhetorical tactic.

226. Since political objectives are not – and for obvious reasons – amongst the exhaustive list of ‘legitimate aims’ in art.10(2), it could not then – and cannot now – be relied upon by the Secretary of State to justify the aforementioned interference with art.10(1). Accordingly, Hamas submits that this interference is – and if its application were refused would be – in breach of art.10 of the ECHR.

227. The interference is also not ‘necessary in a democratic society’ because the Secretary of State herself supports armed struggle in other (similar) contexts. It cannot rationally be claimed that interference in freedom of speech in support of armed struggle is ‘necessary’ only when the Secretary of State does not support it. In any event, it cannot be ‘necessary in a democratic society’ to interfere in speech in support of the struggle of peoples under colonial and alien domination to restore to themselves their right of self-determination by any means at their disposal, including armed struggle, when that position is recognised in international law.

228. People in Britain must be free to speak about Hamas and its struggle to restore to the Palestinian People the right of self-determination.

229. Yet, rather than allow freedom of speech in this regard, police have in recent months embarked on a campaign of political intimidation and persecution of journalists, academics, peace activists and students over their perceived support for Hamas. ‘Operation Incessantness’ has resulted in journalists and activists such as Majid Freeman, Richard Barnard, Asa Wistanley, Sarah Wilkinson, Richard Medhurst and Craig Murray having been arrested and harassed over their coverage of the Israeli genocide in Gaza.

230. The fact that the police are targeting prominent anti-Zionist Jews such as Tony Greenstein and Professor Haim Bresheth for their critical views of the actions of the Zionist State in Gaza sends a chilling message to journalists, among others: police are ready to arrest and charge even experts on the conflict, should they dissent too strongly from British foreign policy.

231. Thus far there has been a lack of clarity from the police about why they are arresting journalists or raiding their homes, and confiscating the tools needed for them to do their journalism. In itself, that is deeply concerning. But from what we do know – from the targeting of activists and academics under s.12 of the 2000 Act – police are using the loosest definition possible of ‘encouraging support’ under the 2000 Act. That interpretation of the law, fails to take account of the duty of journalists, in a healthy democracy, to keep the public informed, and present them with countervailing, contentious and heterodox views.¹²⁶

232. As investigative journalist Jonathan Cook notes:

I now find myself in a situation where, for the first time in my 36-year professional career, I am no longer sure what by law I can write or say in my capacity as a journalist on an issue of major international importance. I now live with the fear that, by writing critically about events in Gaza, I risk a dawn raid by counter-terrorism police on my home in front of my children, the confiscation of the electronic devices I rely on for my work, and my possible arrest, leading potentially to terrorism charges being laid against me.¹²⁷ (…)

Because I and other journalists have little information to understand how the police have arrived at their decisions, or on what basis they will seek to justify them before the courts, we have no way of assessing how we can avoid a similar fate ourselves. Whether by design or not, the police’s approach leaves journalists uncertain of what is considered lawful commentary. That is intimidatory and bound to maximise the chilling effect on free speech and press freedoms.¹²⁸ (…)

Given the expansive interpretation of these laws by the police, journalists find themselves in a particularly invidious, and dangerous, position should they try to draw attention to lawful actions by Hamas or discuss the legality of the group’s actions. This poses a major limitation on the ability of journalists to freely report on and discuss some of the most urgent and consequential developments in international affairs, or to reflect on Britain’s involvement in those developments.¹²⁹ (…)

Israel’s prime minister is currently facing an arrest warrant from the International Criminal Court for perpetrating crimes against humanity in Gaza, while its sister court, the International Court of Justice, is investigating Israel for the crime of genocide. Britain is aiding Israel’s actions in Gaza. At a time like this, the British media needs to be hosting a full and vigorous discussion about these developments, which are of the most pressing significance imaginable, both internationally and domestically. The current chilling effect of Section 12, and the police’s expansive interpretation of it, therefore become a form of complicity in any crimes Israel may be found guilty of.¹³⁰

2. Freedom of Assembly

233. Since the start of the genocide by the Zionist State in the Gaza Strip in October 2023, there have been repeated (mass) public demonstrations on the streets of Britain.

234. Hamas submits that its (continued) proscription by the Secretary of State also amounts to an interference with the freedom of peaceful assembly and to freedom of association with others of those who attend public demonstrations and who support (a) the right to self-determination of the Palestinian People; (b) the use of armed struggle pursuant to that right by Hamas; and (c) the use of armed struggle by Hamas to resist the genocide, Apartheid and illegal occupation by the Zionist State. As with art.10 of the ECHR, it should be uncontroversial that proscription – and thus deproscription – decisions amount to an interference with the rights under art.11 because, inter alia, it limits the rights of an individual to express themselves during a public demonstration in a way that amounts to an invitation of support for a proscribed organisation.

235. Hamas repeats mutatis mutandis its submissions on art.10 that interference as a result of (continued) deproscription is neither pursuant to one of the ‘legitimate aims’ nor ‘necessary in a democratic society’.

(iii) Right to Enjoyment of Convention Rights without Discrimination

236. For the reasons set out above, the facts surrounding the proscription of Hamas means it falls ‘within the ambit’ of art.10 and art.11 of the ECHR. In other words, regardless of the breach of those rights which Hamas has set out above, the proscription of Hamas falls within the general scope of those rights, particularly when considering the view in Choudry at [66] about the manner in which proscription is given effect.

237. In addition, the proscription of Hamas also falls within the ambit of art.9 of the ECHR because many of those who support the right to self-determination of the Palestinian People and the use of armed struggle pursuant to that right by Hamas due so as part of a coherent and sincerely held philosophical conviction (see Arrowsmith v United Kingdom (1981) 3 EHRR 218 at [69]).

238. As noted above, the right to use armed struggle by people under colonial and alien domination – including belligerent occupation – to restore their right to self-determination is recognised in international law. In circumstances which align with its politics and policies, the government of Britain has supported – and even praised and celebrated – the exercise of the right of such armed struggle.

239. The decision to proscribe Hamas because it exercises the right of armed struggle of the Palestinian People vis-à-vis the Zionist State amounts to differential treatment on account of political opinion. In other words, because Ms Patel was an avid supporter of the Zionist State, she sought to use the power of the government of the UK – including the monopoly on violence – to restrict the rights of those with whom she politically disagrees; i.e. those who politically dissent. Indeed, the rights of those supportive of the use of armed force by the Zionist State – even where such force is genocidal – remain unaffected. That differential treatment is politically motivated and thus in breach of art.14 of the ECHR. Further, as held in Virabyan, such suppression of political dissent is a threat to the peaceful co-existence of a diversity of political opinions. Hamas submits that deproscription would remedy that breach and remove that threat.

Ground 3: Proscription is Disproportionate

240. The proscription of Hamas is disproportionate in light of the following considerations.

1. Lack of Threat to Britain

241. Hamas has never extended its military operations outside the territory of historic Palestine. This is notwithstanding the significant levels of political, military and financial support provided by the Governments of Britain and the United States to the Zionist State, which have enabled its ability to implement an apartheid structure, entrench the illegal occupation, carry out war crimes, and conduct its genocidal campaign in Gaza. Hamas does not have a presence in Britain and does not pose any threat to its national security nor to its nationals overseas, save for the threat that extends to all individuals, irrespective of nationality, who participate in genocide, apartheid and illegal belligerent occupation.

242. A Commons Library Research Briefing prepared at the time of the proscription debate noted that ‘Hamas [Izz ed-Din al-Qassam Brigade] has not directly attacked UK or Western interests’ and ‘Hamas IDQ has not operated outside Israel and the Occupied Territories and has no overt representation in the UK’. Although it added that ‘Hamas’s political wing is represented by charitable organisations which raise and remit funds for welfare purposes’, the charitable organisations in question appear to be independent from Hamas and have been allowed to continue operating by the Charity Commission, which scrutinises such links.¹³¹

2. Quartet’s Pre-conditions to Engagement

243. Hamas notes that the Secretary of State may consider the parameters set by the special envoys from the Quartet as part of their previous diplomatic efforts. Those efforts were welcomed by the UN Security Council on 12 March 2002. Following the 2006 elections of the PLC, the Quartet issued a statement which noted that it:

was inevitable that future assistance to any new Government would be reviewed by donors against that Government’s commitment to the principles of non-violence, recognition of Israel, and acceptance of previous agreements and obligations, including the Road Map.

244. Hamas submits that those parameters cannot diminish the right of the Palestinian people to self-determination and to restore to themselves that right by any means at their disposal, including armed resistance against belligerent occupation of the oPt by the Zionist State.

3. Armed Resistance

245. As has been set out in detail, the right to armed struggle is enshrined in international law. With respect to any alleged breaches of IHL carried out by Hamas on 7 October 2023 or otherwise, as has been made clear by the UN Special Rapporteur Francesca Albanese, an illegitimate act of resistance does not delegitimise the resistance itself¹³²

246. Moreover, the Zionist State has never subscribed to non-violence nor accepted it as a principle for settlement of the ‘question of Palestine’. Instead, as has been set out in the background section and the respective expert reports filed alongside this application, their approach has been one of violence, expulsion, expropriation, occupation, apartheid and, genocide. Unless non-violence is agreed upon by both sides, it cannot reasonably be considered a principle for settlement nor one which either the Quartet or the British State can impose through imposition of the criminal law upon only one side.

4. Non-recognition of ‘Israel’

247. An insistence that Hamas recognises Israel’s ‘right to exist’ is an unreasonable demand. The right of a State to exist is not a concept recognised by international law. It is not recognised in any treaty, in customary international law or in legal literature.¹³³ The assertion by ’Israel’ that it has such a right ‘is simply a political appeal designed to justify the morality and legality of Israel’s creation and existence as a State.’¹³⁴ This is clear from its Declaration of Independence of 14 May 1948 in which its Provisional Council of State justified its assertion of the Zionists State’s independence and existence as a State on inter alia the Balfour Declaration of 1917, the Mandate of the League of Nations, and General Assembly Resolution 181(II)), all of which have been challenged on legal grounds since 1948.¹³⁵

248. As Professor Dugard explains:

That there is no right to exist as a State is demonstrated by the fact that a State may be recognized as a State by some States but not by others. Consequently, it is a State for those States that recognize it but not for States that do not recognize it. Palestine, for instance is recognized as a State by 146 States but its statehood is disputed by those States that do not recognize it. So too with Kosovo that is recognized by some 100 States. Neither of these States is a member of the United Nations which has refused to admit them to membership.... Entities that wish to become recognized as States often make declarations of their claim to statehood. Rhodesia made such a claim when it unilaterally declared independence in 1965. But this claim of the right to exist was denied by the United Kingdom and the United Nations. So too Tibet. It claims the right to exist as a State but this is denied by China and the international community accepts this. Other entities that claim to be States are Kurdistan and Catalonia but they make no claim to a right to exist as States.¹³⁶

249. Recognition of Israeli statehood is a matter of legitimate debate and contention and a refusal to recognise it should not attract any adverse consequences including disengagement and proscription.¹³⁷

250. The legitimacy of the Zionist State and its “right to exist” is debated in the light of both the debate over the lawfulness of its creation and subsequent developments relating to the lawfulness of the occupation of Palestine, the denial of the Palestinians’ right of self-determination, Israeli apartheid, and most recently of accusations of genocide levelled at ‘Israel’ before the ICJ. It is argued that today Israel would not be recognized as a State because of its denial of self-determination to the indigenous population in the same way that Rhodesia was denied recognition as a State. Questions are asked as to why the United Nations, whose Charter proclaims the right of self-determination, did not apply the same standards to the admission of the Zionist State to the United Nations that it was later to apply to Rhodesia when it called on States not to recognise Rhodesia.¹³⁸

251. During the Apartheid era in South Africa, arguments were raised that South Africa should no longer be recognised as a State and should be expelled from the United Nations. Although South Africa was not expelled from membership of the United Nations, the credentials of the South African government were not accepted and it was denied the right to participate in the work of the General Assembly. In effect, this meant that many States believed that South African no longer had the right to exist as a State because of its policy of Apartheid. The same argument is made in respect of the Zionist State. This argument is based on the principle that States should not recognize as lawful a situation created by the serious breach of peremptory norms of international law, such as genocide and crimes against humanity such as Apartheid and extermination.¹³⁹

252. Moreover, the issue of recognition of the ‘right to exist’ of the Zionist State has been ‘politicised and manipulated since 1967 to smear and marginalise those who refuse to do so an antisemitic, not just Hamas but even ordinary British citizens resident in the UK.’As Professor Shlaim explains, it was first enunciated by Menachem Begum on becoming Prime Minister in 1970 to deflect against mounting criticism of the illegal occupation.¹⁴⁰

253. In fact, it is the Zionist State that has not only never recognised Palestine but unambiguously asserts that it will never recognise any Palestinian State. In early 2024, Prime Minister Netanyahu reiterated his opposition to such a State, as it would undermine Israeli security and reward Palestinians for the 7 October operation.¹⁴¹ On 18 July 2024, the Knesset overwhelmingly voted to reject the establishment of a Palestinian state, even as part of a negotiated settlement. The resolution passed 68:9 with the only opposition coming from the Arab-majority Ra’am and Hadash-Ta’al parties. The resolution stated: ‘[t]he Knesset of Israel firmly opposes the establishment of a Palestinian state west of Jordan. The establishment of a Palestinian state in the heart of the Land of Israel will pose an existential danger to the State of Israel and its citizens, perpetuate the Israeli-Palestinian conflict and destabilize the region.’¹⁴² As with non-violence, recognition of the ‘right to exist’ of the Zionist State cannot reasonably be considered a pre-condition for settlement, nor one which the British State can impose through means of the criminal law upon one side.

5. Rejection of Previous Agreements

254. Finally, in as much as the acceptance of previous agreements and obligations refers to the Oslo Accords, both the Zionist State and the PLO have rejected that framework. The Zionist State has rejected permanent settlement on the basis of UN Security Council resolutions 242 and 383, which prohibits the admissibility of the acquisition of territory by war. It has already annexed East Jerusalem, and the plans unveiled by Prime Minister Netanyahu and US President Trump in January 2020 envisage annexation of additional parts of the oPt, including the existing settlements in the West Bank and the whole of the Jordan Valley. In response, in May 2020, the PA began implementing its announcement to end all agreements and understandings with the Zionist State.

255. Indeed, even the self-styled ‘mandate of the Office of the Quartet’ now appears to be limited merely to ‘increase[ing] Palestinian economic and institutional development and empowerment, as a support towards achieving a two-state solution.’ It has become completely irrelevant.

256. If anything, history has vindicated the critics of the Oslo Accords. Their opposition was primarily based on the lack of provisions for a Palestinian State and concerns that it would merely facilitate the ongoing expansion of Israeli settlements, and serve to entrench the occupation.¹⁴³ In November 2024, Israeli Finance Minister Bezalel Smotrich ordered preparations to begin for the annexation of the West Bank, a move that the new US administration seems ready to support.¹⁴⁴

257. Nevertheless, Hamas remains open to pragmatic solutions that would in essence result in the reality of two States living in peace. Dr Mousa Abu Marzook reiterates in his witness statement a proposal set out in the movement’s 2017 Policy:

... without compromising its rejection of the Zionist State and without relinquishing any Palestinian rights, Hamas considers the establishment of a fully sovereign and independent Palestinian state, with Jerusalem as its capital along the ceasefire line of the 4th of June 1967, with the return of the refugees and the displaced to their homes from which they were expelled, to be a formula of national consensus. Hamas has on numerous occasions for over two decades proposed a hudnah or long-term truce on this basis.¹⁴⁵

For context, the Republic of Ireland maintained a claim on Northern Ireland until 1998.¹⁴⁶

6. Undermining Democracy

258. One effect of the prolonged Israeli occupation of the oPt in general, and Gaza in particular, has been to deliberately stifle and prevent the emergence of viable Palestinian democratic processes and institutions. Though barriers – primarily those imposed by the Zionist State and its allies – remain to the full realisation of Palestinian statehood, Palestine is a legally recognised state. In particular, Palestine has observer status at the UN, and is a signatory to the Rome Statute of the ICC.

259. Hamas submits that its proscription is inconsistent with recognition of the democratic wishes of the Palestinian people. As noted above, Hamas won the 2006 legislative elections in the oPt, receiving 44.5% of the vote and 74 of the 132 seats, from a 77% turnout; elections that were deemed to compare favourably to international standards by a delegation of foreign observers. Once Hamas started winning elections in this way, it became anti-democratic and contrary to the British State’s positive obligations under art.10 and art.3 of Protocol 1 to the ECHR to proscribe it, regardless of its views on the organisation. To the extent that any Palestinian organisation has a claim to do so, Hamas exercises sovereignty over the occupied Palestinian territory of Gaza, albeit that sovereignty is substantially frustrated by the illegal occupation, and since October 2023, the genocide.

260. Voting for Hamas constitutes support for it and if a Palestinian were to vote and politically campaign for Hamas in any future election they would thereby commit a criminal offence as a result of the current proscription. It follows that the proscription is contributing to a process by which potentially the entire population of Gaza is criminalised by virtue of any democratic support for Hamas. Amongst the potential consequences might be that asylum seekers from Gaza could be unfairly excluded from refugee status under Article 1F of the 1951 Refugee Convention.

261. That Hamas’ proscription in 2021 was even condemned by its rivals in the PA as ‘a retrograde and one-sided step’ that ‘complicated Palestinian unity efforts and undermined Palestinian democracy’ underscores how Patel’s unilateral move was completely out of step with the political mood. ¹⁴⁷

(vii) Preventing a Political Solution

262. The ongoing proscription of Hamas also creates obstacles for pursuing a political solution, favouring military ‘solutions’ or indefinite suppression and surveillance, as opposed to a policy of engagement. This is based on a false perception that ‘terrorists’ – and in particular ‘religious terrorists’ – are inherently intransigent and incapable of change. Transition to a political process is hindered by the terrorism label, as talking with terrorists is a taboo.¹⁴⁸

263. As noted by Dr Ismail Vadi, who served as a Member of Parliament for the African National Congress (‘ANC’) between 1994 and 2010, the proscription of the ANC was a critical juncture in South Africa’s history of resistance against apartheid. Whilst intended to marginalise and dismantle the organisation, this repressive measure inadvertently bolstered the ANC's determination, catalysing a shift towards armed resistance and cultivating domestic and international solidarity.¹⁴⁹

264. As the apartheid regime faltered under escalating domestic resistance, economic decline, armed resistance, and diplomatic pressure, the unbanning of the ANC in 1990 represented a momentous shift from resistance to a process of reconciliation. This underscored the failure of repression to maintain an unjust system and emphasised the necessity of inclusive dialogue in achieving peace and justice. This transition marked the beginning of a negotiated settlement that culminated in the 1994 democratic elections and the establishment of a constitutional democracy committed to equality, human dignity and fundamental human rights.¹⁵⁰

265. Nelson Mandela, the leader of the armed wing of the ANC, later became the first post-apartheid President of South Africa and the ANC continues to be the ruling party today. In a similar vein, Sinn Fein received the highest number of first preference votes in the most recent elections in Ireland, both north and south of the border. Sinn Fein leader Martin McGuinness, who was known for his previous activities in the Provisional IRA, was elected both to Westminster and then later served in a number of ministerial positions in the Northern Ireland Assembly election.¹⁵¹ Despite its profound opposition to Sinn Féin and the IRA, the British State eventually engaged in dialogue, considering among other things, the grievances that had led them to engage in acts of political violence.¹⁵² The start of talks with and the legitimation of Sinn Fein may have contributed to the end of violence by opening an alternative way to change for the republicans and by strengthening the factions favouring talks.¹⁵³

266. Former UK Prime Minister and Special Envoy to the Middle East, Tony Blair, who was instrumental in instigating the international boycott of Hamas following its electoral success, belatedly admitted that this was a mistake and a missed opportunity, a point echoed more recently by former Head of Middle East Policy for the UK Mission to the United Nations, Carne Ross.¹⁵⁴

(viii) Impeding Humanitarian Relief Efforts

267. Proscription further impedes humanitarian aid by labelling as ‘terrorism’ anything that can be seen as supporting a group that has been labelled ‘terrorist’. Under domestic law, the proscription of Hamas in its entirety creates a series of criminal offences, including arranging a private meeting with members of the groups and providing any material benefit, even indirectly (which could include paying local taxes and utilities or carrying out humanitarian work, if this is seen as indirectly benefiting Hamas). According to Dr Ben Saul, an advisor to the United Nations and the Challis Professor of International Law at the University of Sydney, commenting on the Australian proscription of Hamas in its entirety , which is similar to Britain’s, “The Australian law is saying that anyone who provides support, funding, training or assistance to the Hamas public administration, even… to help civilians in Gaza, is breaking Australian counterterrorism laws.” Similarly, Alyn Smyth (SNP MP) noted in the UK parliamentary debate [on Hamas’s proscription] that

“You cannot get anything done—you cannot get aid delivered, you cannot have a medical project, you cannot have a civil society dialogue—without Hamas’s active involvement one way or another”.

268. Even prior to 7 October 2023 approximately 80% of Gazans were dependant on humanitarian aid, much of which stems from UN bodies, such as the United Nations Relief Works Association for Palestinians in the Near East (‘UNRWA’). Proscription unnecessarily complicates the UK’s relations with international organisations operating in Gaza such as UNRWA, but also the World Bank, UNOPS, and OCHA. Hamas’s affiliation with highly regarded NGOs, employment of Hamas members in UNRWA and other humanitarian organisations, and contributions of aid organisations such as the UNDP, the World Food Programme, USAID, Save the Children, Médecins sans Frontières, Medical Aid for Palestine, to Hamas-affiliated charities or zakat committees renders the blanket terrorist designation of Hamas deeply destructive for Gazan civil society and their dependents.¹⁵⁵

269. Illustrating the legal implication of proscription for charities, in April 2023 the UK Treasury’s Office of Financial Sanctions Implementation sent a letter to Muslim charities, asking ‘to supply details of all payments made in Gaza since 31 December 2020’, including ‘any payments such as local authority charges, taxes, utilities, and services including water supply, waste services, telephone or broadband payments’. The letter explained that the law prohibits anyone:

… from making available funds to or for the benefit of an organisation designated under the 2019 Regulations… This can include any payments to a designated organisation or entities owned or controlled by it, or to entities independent of that organisation but where payments will be for its benefit… As a charity with operations in the OPT, potentially in Gaza, it is your responsibility to ensure you are compliant with financial sanctions obligations.

270. Charities were thus already facing the prospect of increased costs for carrying out humanitarian work in Gaza as they had to seek ‘legal advice to ensure they properly fulfil their responsibilities’ or risk ‘face sanctions under counter-terrorism regulations’. Proscription has rendered humanitarian aid to Gaza potentially open to criminal charges because all humanitarian organisations had to work with Hamas as the de facto government of Gaza. If Hamas continues to play a role in Gaza post-ceasefire, it will potentially criminalise humanitarian aid and reconstruction in the future.¹⁵⁶

271. Since 7 October 2023, Israel has used the spurious accusation of supporting terrorism to criminalise and shutdown UNRWA, the main UN agency supporting Palestinian refugees, with devastating humanitarian consequences for ordinary Palestinians. Aid groups have accused Israel of ’systematic’ attacks on civilians and NGOs working in Gaza. Jan Egeland, head of the Norwegian Refugee Council, has noted that ‘Israel has now killed more aid workers in Gaza than all other armies, militias, and terrorists in all other wars combined’. Combined with Israel’s policy of effectively starving Gaza’s population by only allowing in a fraction of the truckloads of humanitarian aid required to keep the population alive as well as deliberately depriving Gazans of water, the continued proscription of Hamas is likely to hinder not only the humanitarian effort to keep Gaza’s population alive but the enormous task of reconstruction that will be needed for Gaza to become inhabitable again.¹⁵⁷

(ix) Mass Criminalisation

272. The proscription of the entirety of Hamas ignores the ubiquity of the government’s role in the everyday lives of their constituents. Hamas runs the public services in Gaza: the bureaucracy, the schools, the hospitals, the firefighters, the civilian police, even the street sweepers and garbage collectors. The de facto Hamas administration pays their salaries. The public sector – i.e., the Hamas-led government and the PA – account for approximately 37% of Gaza’s workforce. Given Gaza’s high unemployment rate, an exponentially larger percentage of the population is also dependent on these salaries. The proscription of Hamas raises key questions about whether these individuals, or anyone who supports members of the public service (for example, a family member in the UK providing financial support through remittances), or is dependent on them, is potentially guilty of terrorism-related offences. Hamas collects taxes. Does a business paying import tariffs to the Hamas government potentially constitute acquiring funds for a terrorist organisation (as the letter from the UK Treasury to UK charities potentially suggests)? Hamas provides social services. Are beneficiaries of these guilty of association? To date the British government has not indicated how it would reconcile such inconsistencies.¹⁵⁸

273. Remittances from the Palestinian diaspora constitute a key element of the Palestinian economy. According to the World Bank, personal remittances accounted for 17% of GDP in Gaza and the West Bank in 2020. Those who send remittances to their families to help ameliorate the debilitating economic situation in Gaza risk being found guilty of terrorism-related offences because the remittances will have to be sent to a territory controlled by Hamas. If anyone in the family is affiliated with Hamas or the civil service, however indirectly, a remittance could be interpreted as financing terrorism. With around 30-40% of Palestinians supporting Hamas in popular surveys and the boundaries of membership being deeply blurred, such a scenario is likely.¹⁵⁹

274. It is this type of mass criminalisation that leads to genocide. In its judgment justifying the imposition of provisional measures against the Zionist State of 26 January 2024, the ICJ quoted Israeli President Isaac Herzog, whose words seem to evidence the genocidal intent underlying the justification for the targeting of civilians and the civilian infrastructure: Palestinians support for Hamas:

... It is an entire nation out there that is responsible. It is not true this rhetoric about civilians not aware, not involved. It is absolutely not true. They could have risen up. They could have fought against that evil regime which took over Gaza in a coup d’état.

7. CONCLUSION

275. Zionism is and always has been a staggering affront to Palestinian dignity, and Hamas is a natural and logical part of the response to it. If Hamas did not exist, Palestinians would invent it.

276. Britain has obligations under international law, outlined above, to prevent and end genocide, occupation and Apartheid. In breach of those obligations, Britain has continued its longstanding support for Zionism and the Zionist State. This application presents a historic opportunity to depart from that tradition and choose the right side of history. The deproscription of Hamas is a concrete step which the Secretary of State can take to start to apply pressure on the Zionist State to cease its genocidal violence, end its occupation, and dismantle its Apartheid regime.

277. The designation of the entirety of Hamas has helped to curtail progress towards peace as it marginalised a key actor to the conflict, prevented any chance of meaningful dialogue with the de facto authorities on the ground, highlighted the hypocrisy of the West regarding democracy and human rights, and overall contributed to the pressure-cooker conditions that led to the explosion of violence on 7 October 2023.

278. The blanket design effectively disenfranchises large sections of the Palestinian population, immiserates the lives of those who rely on the civil administration to survive and impedes the ability of aid organisations to coordinate with local authorities to deliver much needed humanitarian relief.

279. Proscribing Hamas elides the multi-faceted nature of the movement and the important social and political roles it plays. As the de facto rulers of the Gaza Strip, the proscription of the movement has provided Israel with near carte blanche support to target almost the entirety of the Gaza Strip, facilitated the criminalisation of the civil administration and other organisations in the enclave that need to deal with it, such as UNRWA, and jeopardised the work these collectively do in trying to stem the humanitarian crisis.¹⁶⁰

280. But even if the Secretary of State continues British support for the Zionist State, it should stop criminalising the open discussion of and support for the right to self-determination of the Palestinian People and the use of armed struggle pursuant to that right by Hamas. The censoring of views and information with which the Secretary of State disagrees runs against all notions of the rights to free speech and freedom of assembly. Indeed, using the criminal law to silence those on the other side of a political debate is an affront to self-professed British values of individual liberty and the rule of law.

281. For all the reasons set out above, the Secretary of State is invited to reverse course and deproscribe Hamas.

8 April 2025