Those who have been attacked are permitted to take up arms because they have been wronged – God has the power to help them.

Those who have been driven unjustly from their homes only for saying, ‘Our Lord is God.’ If God did not repel some people by means of others, many monasteries, churches, synagogues, and mosques, where God’s name is much invoked, would have been destroyed. God is sure to help those who help His cause – God is strong and mighty.

Qur’an, Surah al-Hajj (39 – 40)

The best fighting (jihad) in the path of Allah is (to speak) a word of justice to an oppressive ruler.

The Prophet Muhammed (ﷺ)

You stole my forefathers’ vineyards
And the land I used to till,
Me and all my children.
Nothing is left for us
Except these rocks…
Will your government take them too?
Until he says:
So!
Put it on record at the top of page one:
I don’t hate people,
I trespass on no one’s property.
And yet, if I were to become hungry
I shall eat the flesh of my usurper.

Mahmoud Darwish in Identity Card

My fixer in Gaza told me a story. There was once a village whose men were all drafted to fight in some faraway battle. While the men were gone, enemy soldiers invaded the village and raped all the women who had been left behind, and went on their way. The women, shellshocked and bloodied, mourned their fate as they congregated to comfort one another in the village square. One woman was missing. They went looking for her and found her lying under the soldier who had tried to rape her. With her own hands, she had managed to kill him and save herself from the lot of her fellow villagers. Joy at her safety soon soured. The raped women now worried that they would be judged by their husbands for not similarly fighting for their honour and fending off their rapists. In no time, this undefiled survivor became a symbol of their shame. Swiftly, they conspired to kill her.

The storyteller turned to me and said, that woman, the survivor, is Gaza. She has refused to submit to Israel’s occupation and its rape and pillage of Palestinian land while other Palestinian and Arab leaders have succumbed. She has become a source of pride for Gazans who maintain their armed resistance against Israel. She is now a shameful reminder for those who have accepted their fate. Arabs and Palestinians elsewhere have looked away as she is bombarded, incessantly and mercilessly. Israel has focused all its efforts on shaming and breaking it. For she remains the only proud bit of Palestine that refuses to yield.

Tareq Baconi in ‘Hamas Contained’ (2018)

A. 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 to the Nakba of 1948 and up until its complicity in the 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 all violence in historic Palestine, a violence that will continue until Zionism is systematically dismantled.

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 that Zionist colonisation, occupation, apartheid and, genocide. 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. Hamas was added to that list on 26 November 2021.

4. This application presents you, the Home Secretary, with a historic opportunity to depart from the tragically immoral policy of the British State to side with the oppressor against the oppressed. As the depravity of the crimes of the Zionist entity in historic Palestine reaches unknown depths, institutions like the International Court of Justice are, reluctantly, recognising by name some of those crimes. Similarly, organisations such as Amnesty International and Human Rights Watch are now, too, acknowledging the apartheid and genocide imposed upon the Palestinian People. The Home Secretary should join them and concede that its ‘little loyal Jewish Ulster’¹, the ‘mad dog’², is undeniably genocidal and must be stopped.

5. The continued proscription of Hamas means support for, and complicity in, the unrelenting colonisation of Palestine, as well as for violations of the prohibitions against crimes against humanity and acts of genocide by the Zionist entity. 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 and crimes against humanity, (b) bring to an end the occupation of the Occupied Palestinian Territory (OPT), and (c) recognise the Palestinian People as equal members of the human family.
   
2. Proscription is incompatible with arts.10, 11 and 14 of the European Convention on Human Rights, as it seeks to unlawfully restrict the freedom of speech and assembly of those with whom the British State politically disagrees.
   
3. Proscription 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.

B. TERMINOLOGY

7. ‘Israel’:This application will use anti-Zionist, and generally anti-colonial, terminology. Hamas prefers ‘Britain’ to ‘the United Kingdom’. 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 reality, and one that will soon pass into the history books. Instead, Hamas refers to ‘Israel’ as the Zionist entity, as that accurately reflects both its genealogy and reality.

8. ‘Terrorism’: The term ‘terrorism’, originally coined in the French Revolution, has since morphed into a profoundly colonial term, one used to malign, morally judge, and defame people and organisations, many of which are more properly characterised as ‘freedom fighters’. It is the question of whether the British Secretary of State has any business maligning and penalising Palestinians as ‘terrorists’ that sits at the heart of this application.

9. ‘Antisemitism’: Antisemitism is an abhorrent form ‘of racism that must be combated like all other forms of racism. The International Holocaust Remembrance Alliance (IHRA) working definition of the same however, must be rejected: as countless commentators, lawyers and scholars of antisemitism have pointed out, the IHRA working definition is poorly drafted, internally incoherent, hopelessly vague, vulnerable to political abuse, and altogether not fit for purpose. It does not 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, as it, through the examples it provides, seeks to suppress political speech by conflating Judaism with Zionism in assuming that all Jews are Zionists, and that the state of ‘Israel’ in its current reality embodies the self-determination of all Jews. Yet, although it is 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”.³Stern also successfully urged the American Bar Association (ABA) not to adopt the definition because it has been used as “a blunt instrument to label anyone an antisemite”⁴.

10. As Professor Avi Shalim argues, what the non-legally-binding IHRA document does do, with the help of the examples, is shift the focus from real antisemitism to the perfectly respectable and growing phenomenon of anti-Zionism. Anti-Zionism is sometimes described by pro-Israel stakeholders as “the new antisemitism”. It is essential, however, to distinguish clearly between the two. Antisemitism may be simply defined as “hostility towards Jews because they are Jews”. Zionism, meanwhile, is a nationalist, political ideology that called for the creation of a Jewish state, and now supports the continued existence of Israel as such a state.

11. Anti-Zionism is opposition to the exclusive character of the state of Israel and to Israeli policies, particularly its occupation of the West Bank. Antisemitism relates to Jews anywhere in the world; anti-Zionism relates only to Israel [and those complicit in perpetuating its exclusivist settler-colonial apartheid existence]. The IHRA document, taken as a whole, is susceptible to political abuse in that it makes it possible to conflate legitimate anti-Zionism with nefarious antisemitism. Israel’s energetic apologists, who were instrumental in promoting the document, conflate the two deliberately and routinely. To criticise the definition for its vacuity is thus to miss a central point. In this endeavour, the definition’s very vagueness confers a political advantage. It enables Israel’s defenders to weaponise the definition, especially against left-wing opponents, and to portray what in most cases is valid criticism of Israeli behaviour as the vilification and delegitimisation of the State of Israel.⁵

C. BACKGROUND

12. The general factual background to the Palestinian struggle is lengthy. The Secretary of State is invited to consider the supporting documents and expert reports, annexed to this application, which deal with the topics below. While we have no doubt that the Home Secretary will read the reports in full, as she should, we have incorporated parts of those reports into these submissions both for ease of reference and to enable her to comprehend the nature of Hamas, the context in which it was born and continues to operate, and Britain’s role in creating and perpetuating the genocidal actions of the Zionist entity. We intend to begin with an overview of Hamas itself, followed by Britain’s historical and ongoing support for Zionism within which the decision to proscribe was made.

13. To fully understand Zionism and the need for Hamas to exist, it is critical to appreciate the roots of this settler colonial project and how Hamas is only the latest embodiment of Palestinian resistance stretching 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 ‘Israeli’ settlers – who are recognised as such internationally – in the West Bank, East Jerusalem, and the Golan Heights, it is still a regular occurrence to find authors rejecting the applicability of the label in the ‘Israeli’ case– a tendency that has intensified in the context of ‘Israel’’s 2023-2024 genocide in Gaza and the growing international solidarity campaign with the Palestinian people.⁶

14. While this application is not about the Toofan Al Aqsa operation, we are conscious that you may wish to make that event the dominant theme of the discussion. To that end Hamas leader Dr Mousa Abu Marzouk has annexed a detailed account of the operation from the perspective of the movement to his witness statement. The final part of this background section will examine some of the stated motivations behind the operation and the conditions that existed in Palestine on the eve of the operation.

1. Harakat al-Muqawamah al-Islamiyyah (Hamas)

15. The Islamic Resistance Movement ‘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):

    Fight in the cause of Allah only against those who wage war against you, but do not exceed the limits. Allah does not like transgressors
    Kill them wherever you come upon them and drive them out of the places from which they have driven you out. For persecution is far worse than killing. And do not fight them at the Sacred Mosque unless they attack you there. If they do so, then fight them — that is the reward of the disbelievers.
    But if they cease, then surely Allah is All-Forgiving, Most Merciful.
    Fight against them if they persecute you until there is no more persecution, and your devotion will be to Allah alone. If they stop persecuting you, let there be no hostility except against the aggressors.
    

    The Holy Quran, Surah Al-Baqarah (190 – 193)

16. Hamas was founded in 1987, following the start of the First Palestinian Intifada, which itself marked the 20th anniversary of the military occupation of the Occupied Palestinian Territory (‘OPT’) by the Zionist entity. The Hamas Charter clarifies that it views itself as one of the links in the chain of the struggle against the Zionist colonial settlers, going back to the armed resistance against the British Empire by Shaykh Izz ad-Din al-Qassam heralding the Great Arab Revolt in 1936.

17. Its goal is to liberate Palestine and confront the Zionist project. Its frame of reference is Islam, which determines its principles, objectives and means. Hamas is an organised resistance movement which: (a) is commanded by a person responsible for his subordinates, (b) has a fixed distinctive sign recognizable at a distance; (c) is carrying arms openly; and (d) conducts its operations in accordance with the laws and customs of war.

18. Hamas initially operated as a street-level resistance movement, issuing communiqués and organizing demonstrations as a counterpoint to PLO-led initiatives. This led to low level violence such as throwing stones, Molotov cocktails, and knife attacks against occupying ‘Israeli’ soldiers.⁷

19. The first intifada led to the formation of the operationally independent armed wing, the Izz al-Din al-Qassam Brigades (or Qassam Brigades) in 1991. The Qassam Brigades were proscribed by the British government in 2001 during the Al-Aqsa Intifada. Hamas was proscribed in its entirety in 2021. Neither Hamas nor the Qassam Brigades pose a terrorist threat to foreign states. They have never perpetrated attacks outside of Israel and the Occupied Palestinian Territory. Hamas as a whole has a policy of non-interference in the internal matters of foreign states.⁸ The British government’s decision to proscribe the Qassam Brigades in 2001 appeared to have been driven by the government’s response to the 9/11 attacks, rather than any fundamental changes in the Qassam Brigades’ tactics … and its decision to proscribe Hamas’s political wing in 2021, similarly appears to have been driven by political considerations, rather than any substantive changes to the relationship between Hamas’s political and military wings or in Hamas’s actions.⁹

20. Hamas is often criticised for the content of its founding Charter from August 1988. However, the views, policies and practices of the group have evolved significantly since that time. Hamas in 2024 should not be defined by historical documents that served a particular purpose at a particular time in Palestinian history. The original Charter was drafted without consultation with any of the senior leadership who at that point were either in prison or in exile. Hamas has published a series of other documents since then, the most recent of which was its Policy Document in 2017.

21. 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 Occupied Palestinian Territory. The West Bank was divided into Areas A, B and C. This led to the establishment of the Palestinian Authority (PA) in 1994, dominated by the largest party of the Palestinian Liberation Organisation (PLO), Fatah, and the figure of Yasser Arafat in particular, which assumed notional autonomy over Area A, constituting a mere 17% of the West Bank, the ‘sovereignty’ of which has been routinely violated by occupation forces. The PA is responsible for administrative matters in Area B, but occupation forces retain security control, whereas Area C, comprising 60% of the West Bank is exclusively controlled by the Israeli occupation.¹⁰

22. Hamas, alongside other factions, such as the Popular Front for Liberation of Palestine (PFLP), and prominent Palestinians, opposed the Oslo process on the grounds that there are no provisions for a Palestinian state; it would merely facilitate the ongoing expansion of Israeli settlements, and serve to entrench the occupation. Prominent Palestinian academic Edward Said, for example, labelled the Accords a “Palestinian Versailles.”¹¹

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

24. The Oslo Accords and subsequent amendments also led to the Palestinian Legislative Elections in 1996. While this occasioned vigorous internal debate and even the formation of a nascent political party to run its stead, Hamas boycotted the elections on the grounds 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 Palestinian Authority worked in close cooperation with occupation forces to systematically 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.¹²

25. In a memo prepared at the request of Western diplomats in the late 1990s, Hamas articulated a more pragmatic stance. While reaffirming its rejection of Oslo, the memo emphasized the movement’s national liberation goals over its Islamic rhetoric. It acknowledged the possibility of a long-term truce (hudna) contingent on Israel’s withdrawal to the 1967 borders. Palestinian scholar Tareq Baconi notes that this period highlighted Hamas’s growing awareness of the need to balance ideological rigidity with practical political considerations.¹³ This pragmatism extended to internal governance, as Hamas sought to consolidate its influence in Palestinian society through grassroots activism and social services, a strategy documented extensively by Sara Roy¹⁴.

26. Prior to the eruption of the Al-Aqsa 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.

27. The conditions of Palestinians prior to the Second Intifada can be characterised by systematic restrictions, heightened tensions, and persistent human rights violations. These entrenched patterns of Israeli control did not emerge suddenly, but rather were the product of decades of occupation following 1967, 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 Palestinian territories, disrupting daily life, impeding economic activity, and undermining social cohesion.¹⁵

28. These oppressive measures contributed significantly to the growing sense among Palestinians that their aspirations for statehood, freedom, and dignity were being continually 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 antagonising visit to the Al-Aqsa Mosque compound, the simmering frustration and anger erupted into what became known as the Second Intifada. This uprising was not merely a spontaneous reaction to a single event, but rather the culmination of long-term structural violence, dispossession, and a profound sense of injustice perceived by Palestinians living under Israeli rule.¹⁶

29. This period also saw the intensification of Hamas’s armed resistance, particularly through martyrdom operations. Hamas first utilised the strategy in April 1994 in the Israeli towns of Afula and Khedara following the earlier massacre at the Ibrahimi Mosque by an Israeli settler in Hebron, in which he killed 29 Palestinians during morning prayers. After 1995, other groups began to use the same tactics, such as Harakat al-Jihad al-Islami (Islamic Jihad Movement) and also in the 2000s by more secular groups such as Harakat al-Taharur al-Watani al- Filistini (Palestinian Liberation Movement – Fatah) and al-Jabha al-Shaa’biyya li Tahrir Filistin (Popular Front for the Liberation of Palestine). The Al-Aqsa Intifada became known for the employment of martyrdom operations.¹⁷

30. 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 Palestinian Authority. Hamas’s reliance on armed struggle did not preclude its exploration of political opportunities, as evidenced by its increasing engagement with Palestinian civil society.

31. 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 Palestinian Authority. From its seat in Ramallah, the PA ruled both the West Bank and the Gaza Strip. Fatah was widely perceived as corrupt and inefficient and as a sub-contractor for Israeli security in the occupied territories. Hamas, by contrast, had a reputation for probity in public life as well a record of real resistance to the Israeli occupation.¹⁸

32. 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.

33. From the outset, despite the Bush administration’s overt support for the democratic process, US officials stated that in the case of a Hamas victory, the US 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 could later 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…”¹⁹

34. The elections proceeded without serious incident with a 77 per cent voter turnout. They were deemed to compare “favorably to international standards” by a delegation of 84 foreign observers sent by the National Democratic Institute in partnership with the Carter Foundation. The observers included 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.²⁰

35. While Change and Reform only secured a popular plurality with 44.5 per cent of the vote at a proportional level, the list won 70% of district level seats due to its superior organisation and unity of purpose.²¹ By way of comparison, the current Labour Party government won 33.7 per cent of the vote in the 2024 general election; the Conservative Party entered government in 2020, 2015 and 2011 winning 43.6 per cent, 36.9 per cent, and 36.1 per cent of the vote respectively.

36. Following its surprise election, Change and Reform reached out to other factions, including Fatah, to form a unity government. Fatah rebuffed this offer, clearly 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.²²

37. The International Quartet consisting of the US, EU, UN and Russia, after congratulating President Abbas and the Palestinian people ‘on an electoral process that was free, fair and secure’, iterated its desire that ‘all participants in the democratic process…would renounce violence and terror, accept Israel’s right to exist, and disarm’. The Quarter issued a second statement four days later affirming that adherence to these conditions would be a prerequisite for ‘future assistance to any new government’.²³ On 19 February 2006, the Israeli government decided to halt the monthly transfer of approximately $50 million in tax and customs revenues to the Palestinian Authority. The US and the EU followed suit two months later.²⁴ In theory they favoured democracy but when the people voted for the wrong bunch of politicians, Israel and its Western allies resorted to severe diplomatic and economic sanctions to undermine a democratically elected Palestinian ²⁵

38. Though the Quartet would admit by the end of May 2006 that its policies were impacting the entire population of Palestinians, 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. ‘Hamastan’ 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 that vehemently opposed Israel’s right to exist. The license was provided for the Israelis 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 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.”²⁶

39. In March 2007, in a moment of statesmanship which held great promise, Hamas formed a national unity government together with its arch-rival 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 and replace it with a collaborationist Fatah regime.²⁷

40. Details of the plot are contained in “The Palestine Papers”, the cache of 1,600 diplomatic documents leaked to Al Jazeera and the Guardian. The papers include the minutes of the ultra-secret quadripartite “Gaza Security Committee”. The members of this committee were 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 allies planned a coup d’état to overthrow Hamas.²⁸

41. Hamas pre-empted this attempted violent coup in June 2007, driving out the pro-Fatah forces from Gaza. Egypt responded to the incident by closing its Rafah border with Gaza except for sporadic and limited openings which met only one-tenth of Gaza residents’ travel needs. Israel followed suit by closing a number of crossings. The amount of goods entering Gaza decreased by 71% from before the closing of the Karni crossing, from an average of 253 truckloads per day in April, to an average of 74 in October.²⁹

42. Under a court order, in October 2012, the Israeli Defense Ministry disclosed a 2008 document about restrictions it imposed on the entry of food 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, therefore using food as a weapon in its war on the Palestinians. The document reflected the callous advice offered by 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 November 4, 2008, Israel sealed all border crossings and prevented all humanitarian aid and staff from entering Gaza.³⁰

43. 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.”³¹

44. The conflict between the two administrations has 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.³²

45. Since Hamas was elected by the Palestinian people in 2006, has Israel carried out no less than 6 military campaigns on the Gaza Strip in 2008, 2009, 2012, 2014, 2021 and 2023, prior to its latest genocidal campaign that began in October 2023. During these campaigns, Israel killed over 4000 and injuring tens of thousands of Palestinians.³³ ’Israel’ sadistically refers to these military assaults as ’mowing the lawn’, intended and designed to prevent the Palestinians in Gaza from ever growing. During these campaigns, Hamas and other Palestinian resistance groups have been compelled to use armed force to resist the ’Israeli’ aggression.

46. 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 Hamas’s goals. It reaffirmed the indivisibility of Palestine but introduced a conditional acceptance of a Palestinian state along the 1967 borders as a “national consensus formula.“

47. There are a number of key differences between the 1988 Charter and the 2017 document.

48. Framing the Conflict: The 1988 Charter framed the Israeli-Palestinian 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 newer charter places greater emphasis on Palestinian unity and political legitimacy. This shift aligns with broader trends in Hamas’s ideological evolution, as noted by scholars such as Tareq Baconi, who argue that the movement increasingly blends its religious identity with pragmatic nationalist strategies.³⁴

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

50. Stance on Judaism and Zionism: The 1988 Charter conflated Zionism with Judaism and cited antisemitic 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, Britian or other countries. I’m at peace with all people. I love all people and wish them well – even the Jews.”³⁵

51. 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 legitimacy and align with global narratives of human rights and justice.

52. 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 Hamas’s desire to strengthen its role within the Palestinian political landscape and foster unity.

53. In addition to armed resistance, Hamas has also engaged in non-armed resistance during this period. These have consisted of organising human chains, initiating legal actions, and participating in, supporting and facilitating the Great March of Return, a series of weekly peaceful protests that took place between March 2018 and December 2019 at the border with ‘Israel’ advocating for the right of Palestinian refugees to return to their homes in historic Palestine and for an end to the blockade on Gaza. The protests reached their peak on May 14, 2018, coinciding with the controversial relocation of the US embassy from Tel Aviv to Jerusalem and the 70th anniversary of the Nakba, when Palestinians mark the mass displacement and dispossession of 1948-49 following Israel’s creation. On that day alone, Israeli forces killed 59 Palestinians, exemplifying a shocking use of excessive force and live ammunition against protesters who posed no imminent threat to life.³⁶ The pattern of targeting journalists and healthcare workers that has become associated with the Zionist entity’s genocide in Gaza since October 2023 was being implemented in the frequent killings of Palestinians attending these protests.³⁷

54. Although Hamas did not directly organize the protests, it has supported them, which was understood to be a shift in Hamas’ position towards a non-violent approach to resistance. As prominent scholar Tareq Baconi noted, “[t]he 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.”³⁸

55. In an April 9, 2018, speech, the late leader of Hamas’ political bureau, Ismail Haniyeh – who was assassinated by Israel on July 31, 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., Mahatma Gandhi, and Nelson Mandela. Haniyeh articulated his position on peaceful resistance in a June 2018 article summarized in Al-Jazeera Arabic, citing the British website Middle East Eye, 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.”³⁹

56. Contrary to the 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 ‘Israel’ 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.”⁴⁰

57. The response of the Zionist entity to Hamas’ offers of tahdi’ah has been to consistently undermine them by carrying out high-level assassinations of Hamas’ senior leadership. The evidence clearly demonstrates that it is the Zionist entity that cannot be considered a partner for peace, not Hamas. Tahdi’ahs throughout the Al-Aqsa Intifada were shattered by the subsequent 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 entity assassinating Hamas leader 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 as a prelude to a permanent ceasefire.⁴¹

58. 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 hudna 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.”⁴²

59. A truce treaty would be different from the ‘Oslo Peace Accords’ according to which the PLO recognised the State of Israel and its right to exist. The difference is that under the terms of hudnah the very issue of recognition will not come up simply because Hamas cannot, as a matter of principle, accept that the land the ‘Israelis’ seized from the Palestinians has become theirs; the movement 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 at anytime afterwards. It can however say that under the present circumstances the best it can do is regain some of the land lost and secure the release of prisoners in exchange for a cessation of hostilities. This would be somewhat similar to the IRA agreeing to negotiate an end to the conflict in Northern Ireland without recognising British sovereignty over the territory. The 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 Northern Ireland was never conditioned upon the IRA first renouncing its dream of reuniting Ireland; had this been the case no peace would ever have prevailed.⁴³

60. 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 for 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.⁴⁴

61. 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. It is highly unlikely that Hamas would settle for anything less in exchange for a long-term truce that may last for a quarter of a century or longer.⁴⁵

62. Those who are sceptical about the hudnah may argue that it means nothing but a prelude to finishing ‘Israel’ altogether. But without hudnah too the Palestinians will still dream of the day on which Palestine, their country, is free and their right of return to their homes is restored. Without a hudnah there is no guarantee that they will cease to pursue that end using whatever means that are at their disposal. The advantage of the hudnah is that it brings to an end the bloodshed and the suffering because of the commitment to do so for a given period of time. In the meantime, let each side dream of what they wish the future to look like while keeping the door open for all sorts of options. Under normal circumstances, the best option is the least costly option.⁴⁶

63. The ideological trajectory of Hamas from 1987 to 2024 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.

64. Hamas is a localised, grassroots resistance movement focused on Palestinian rights to self-determination and resistance to Israeli occupation. Its legitimacy largely stems from the notion of 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.⁴⁷

(ii) British support for Zionism

60. The British State has from the outset been, and today remains, deeply implicated in the settler-colonial project of racist mass murder known as ‘Zionism’. The primary function of Zionism and ‘Israel’ has very little at all to do with Jewish security following the mass murder of Jews in the Holocaust by Nazis and their collaborators across Europe. Rather, it has everything to do with the cynical manipulation of Jewish trauma to provide a smokescreen for the advancement of US and NATO military-imperial, geostrategic interests in the wider region.

61. From the Balfour Declaration of 1917 and the antisemitism that undergirded it, to Britain’s formal – and, as Hamas contend, 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 is inseparable from, and could not survive in anything like its current form without, the violence of its ongoing colonialism.

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

    Here two territories come under consideration, Palestine and Argentine. 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.⁴⁸

63. The central tenets of Zionism were already clear in these passages of The Jewish State. To succeed in its colonial mission and make state building through settlement possible, the movement would need to address two key issues. It would need to defeat the Indigenous population, who would certainly “feel [themselves] threatened”. Relatedly, the Zionist movement would need to secure the backing of an imperial power, whose interests it would serve in return.⁴⁹

64. 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.”⁵⁰

65. 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. There is in fact 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 – from the beginning, the national home was just a euphemism for a state.⁵¹

66. In 1917, the area that was later called Palestine, was still under Ottoman rule. The Arabs constituted 90% of the population of the country, the Jews constituted 10% and the Jews owned only 2% of the land. These are the key facts, incontrovertible facts. They make the Balfour Declaration a classic colonial document which completely disregarded the rights and aspirations of the majority of the population of the country. It flagrantly violated their natural right to national self-determination.⁵²

67. Arthur Balfour was an aloof and arrogant British aristocrat. He was also 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.⁵³

68. 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 East Europe, from coming to this country. 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 perfectly logical 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, the visionary of the Jewish state, had predicted that “The anti- Semites will become our most loyal friends”.⁵⁴

69. Balfour realised all along that his declaration contradicted the principle of national self- determination for the majority of the inhabitants, but his Christian conscience was not unduly troubled. 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”.⁵⁵

70. Balfour also admitted, in 1919, that “So 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.⁵⁶

71. Another major landmark in Britain’s betrayal of the Palestinians involved the League of Nations which was established in the aftermath of WWI. The objective of its 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’. A document of 24 July 1922 appointed Britain officially 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 highly significant because what had been a mere British promise to a group of Zionists became an international instrument and a binding legal obligation.⁵⁷

72. 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 most fervent champions of the Zionist cause. Here is what he said in evidence to the Royal Commission of Inquiry, headed by Lord Peel, appointed in 1936 to investigate the causes of unrest in Mandatory Palestine:

    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.⁵⁸

73. 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”.⁵⁹

74. 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.⁶⁰

75. 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.⁶¹

76. 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 ‘Israeli’ 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 International Court of Justice (ICJ) and the International Criminal Court (ICC).

77. It is critical to note that even since the rulings from the ICJ and the issuing of arrest warrants by the ICC, Britain has continued to provide logistical support to ‘Israel’. As investigative journalist Matt Kennard notes, 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 (ISTAR) aircraft. It is suspected that the purpose of these missions is to gather intelligence to be shared with ‘Israel’. The British government insists that only information relating to hostage rescue is passed to the ‘Israeli’ authorities.⁶² 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.”⁶³

78. 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.

79. This support for ‘Israeli’ apartheid, occupation and genocide is illegal, even within the terms of Britain’s own legal order. Hamas is the most effective – and democratically legitimate – organisation currently resisting ‘Israeli’ apartheid, occupation and genocide. The decision to proscribe Hamas constitutes an attempt to hamstring justified resistance to colonial crimes, and regardless of intention, it has that effect. Deproscription is therefore a simple step which the British government can take to end its unlawful support for the interrelated crimes of ‘Israeli’ apartheid, occupation and genocide.

(iii) The Roots of Zionism as a Settler Colonial Project

80. 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 therefore structured by a fundamental conflict between themselves and the indigenous people they aim to dispossess, exploit, and/or eliminate.⁶⁴

81. Unlike its deniers today, the settler colonial nature of the Zionist movement was obvious to the Zionist entity’s founders, and certainly not something to be ashamed of or hidden from view. This should not be surprising – early Zionists were, by and large, (petit-)bourgeois Europeans of the late 19th and early 20th century. Colonialism was to them a perfectly 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.⁶⁵

82. The colonial character of Zionism would repeatedly be 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.⁶⁶

83. 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.⁶⁷

84. 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.⁶⁸

85. 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.”⁶⁹

86. In the same essay, he argued that an agreement with the Palestine Arabs (then) was impossible. He admitted that the Jews had come to colonise Palestine and noted that history proved no nation ever accepted being colonised and, therefore, revolted against the colonisers. He concluded, “Zionist colonization must either stop, or else proceed regardless of the native population.”⁷⁰

87. 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 Israel. For example, as Corey Robin has shown, 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’.⁷¹

88. The creation of the State 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 merely incidental but was 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.”⁷²

89. 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. As Patrick Wolfe notes, 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 Israel-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.⁷³

90. 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. Writing a chapter in The Holocaust and the Nakba: A New Grammer of Trauma and History, Alon Confino centres the story of Genya and Henryk Kowalski who arrived, fresh from surviving a Nazi concentration camp, to 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.⁷⁴

(iv) Early history of the Palestinian liberation struggle

91. 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.⁷⁵

92. 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. However, it was Hamas who assertively used al-Qassam’s name to claim his legacy as a man who combined a scrupulous 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 … [A]n 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 rampant injustice — circumstances that remain startlingly relevant to the present day.⁷⁶

93. 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 despairingly as the Jewish population swelled more than five fold, from approximately 57,000 in 1919 to about 320,000 by 1935.⁷⁷

94. 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 an overwhelming 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.⁷⁸

95. The symptoms of Palestinian resistance — unchecked Jewish immigration, 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 once again 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 for al-Qassam and his followers by 1935.⁷⁹

96. 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, emblematically held on 2 November — the anniversary of the infamous Balfour Declaration of 1917. 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.”⁸⁰

97. 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. The Arab Revolt had begun. This was the most sweeping national strike at that time spanning more than six months.⁸¹

98. The Arab Revolt began in 1936 with a general strike, encompassing various sectors such as transportation and commerce. 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.⁸²

99. It was really the repression of the Arab Revolt in 1936-1939 that further diminished the population of Palestine, 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:

    The refinements of callousness and cruelty employed went well beyond summary executions. For possession of a single bullet, Shaykh Farhan al-Sa’di, an eighty-one-year-old rebel leader, was put to death in 1937. Under the martial law in force at the time, that single bullet was sufficient to merit capital punishment, particularly for an accomplished guerrilla fighter like al-Sa‘di. Well over a hundred such sentences of execution were handed down after summary trials by military tribunals, with many more Palestinians executed on the spot by British troops. Infuriated by rebels ambushing their convoys and blowing up their trains, the British resorted to tying Palestinian prisoners to the front of armored cars and locomotives to prevent rebel attack, a tactic they had pioneered in a futile effort to crush resistance of the Irish during their war of independence from 1919 to 1921.⁸³

100. Renowned Palestinian-American historian Rashid Khalidi has argued that Palestine was lost not in the late 1940s, as is commonly believed, but in the late 1930s. Khalidi’s 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.⁸⁴

(v) Context of the Violence

101. 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.

102. First, the Zionist entity 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.

103. 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.

104. 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.

105. 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 SC⁸⁵, the UN Special Rapporteur on the Situation of Human Rights in the OPT, Michael Lynk;⁸⁶Al-Haq;⁸⁷ Amnesty;⁸⁸ B’tselem;⁸⁹ Human Rights Watch;⁹⁰ 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’).

106. Third, in response to the military operation by armed groups on 7 October 2023, the Zionist entity launched a genocidal military campaign in the Gaza Strip, as well as exponentially increasing its persecution of Palestinians in all of historic Palestine. In the 12th 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 at least 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.

107. Since the application to the ICJ by South Africa in December 2023, the evidence of the genocide by the Zionist entity of Palestinians in Gaza has grown overwhelming and a consensus amongst experts to recognise it a such has started to emerge. On 5 December 2024, Amnesty International concluded that the Zionist entity “has committed and is continuing to commit genocide against Palestinians in the occupied Gaza Strip.”⁹¹ 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.’”.⁹² 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.

108. 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.”⁹³ 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”.⁹⁴

109. 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.⁹⁵ 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.”⁹⁶ Raz Regal, 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, he noted, “Israel’s genocidal assault on Gaza is quite explicit, open, and unashamed”.⁹⁷ There are many, many others.

(vi) Toofan Al-Aqsa: Centrality of Jerusalem to the Palestinian struggle

110. 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.”⁹⁸

111. The surprise attacks of 7 October underline the mosque’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.⁹⁹

112. Post-1948, various Palestinian factions — secular, leftist, and Islamic — placed Jerusalem at the heart of their struggle. The Palestine Liberation Organisation (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 Popular Front for the Liberation of Palestine (PFLP) and the Democratic Front for the Liberation of Palestine (DFLP) also integrated Jerusalem’s iconography into their liberation strategy.

113. 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.” Islamic Jihad’s armed wing, another resistance faction, is aptly named the Al-Quds (Jerusalem) Brigades.¹⁰⁰ Similarly, the secular-leaning Fatah’s armed group is named the Al-Aqsa Martyrs Brigade.

114. In May 2021, the “Sword of Jerusalem” resistance (Saif al-Quds) erupted following Israeli actions in Sheikh Jarrah 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.¹⁰¹

115. 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 by the besieged people 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.¹⁰²

116. 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.¹⁰³

(vii) Toofan Al-Aqsa: The Palestinian Prisoners

117. 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. .
     

118. 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 and political symbols – and, indeed, protagonists of Palestinian unity. Beyond their political importance, the Palestinian prisoners’ issue is one that touches Palestinians intimately. According to many estimates, approximately 40% of Palestinian men in the West Bank and Jerusalem have spent some time in Israeli jails; prior to 2005, equal percentages could be found in Gaza. Nearly every Palestinian family has some experience with imprisonment by Israeli forces, whether that is a briefer 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, Jerusalem, Gaza Strip, and to some extent Palestinian citizens of Israel, who have not seen an uncle, aunt or cousin detained behind Israeli bars.¹⁰⁴

119. As a result of the political, social and cultural importance of the prisoners – alongside the general social value of honouring those who have sacrificed for the cause of liberation as veterans – every Palestinian political party and resistance organisation has developed a program 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 Israel and its occupation.¹⁰⁵

120. In addition, through its practices of collective confinement in the Occupied Palestinian Territory, Israel reproduces a pattern of carcerality, an essential feature of settler-colonialism. This can be defined as a large-scale system of deprivation of liberty that forces into a condition of captivity entire populations, who are also dispossessed of their lands. “Over time, Israel has expanded its multifaceted hold over the Palestinians as a people, through physical, bureaucratic and digital mechanisms. Behind-bars imprisonment dovetails with confinement techniques that envelop the entire occupied Palestinian territory, accompanying and enabling arbitrary seizure of land and Palestinians’ forcible displacement. This has turned Palestinian life into a, “carceral continuum”, where different levels of captivity co-exist: from the micro level of individual deprivation of liberty, through mass incarceration, to population entrapment in strictly controlled enclaves in which the occupied population is confined as a collective security threat, and any form of resistance to the occupation’s territorial expansion and dispossession is repressed.¹⁰⁶

121. 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, particularly leaders and those with high sentences, securing the prisoners of war necessary to complete an exchange has been a high priority for Palestinian resistance organisations for decades. In total, over 8,000 Palestinian prisoners have been released through exchanges, and the capture of Israelis and especially Israeli soldiers or settlers has been a high priority for the Palestinian resistance in the past and at present in order to achieve the liberation of additional prisoners.¹⁰⁷ During the November 2023 ceasefire, Hamas released 110 ‘Israeli’ and foreign nationals held captive 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.

122. So long as the Israeli regime 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 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 imprisoned Palestinians, especially of imprisoned Palestinian national leaders.¹⁰⁸

D. LEGAL FRAMEWORK

Part II of the Terrorism Act 2000

123. Under s.3(3) of the 2000 Act, the Home Secretary may add or remove an organisation from the list of proscribed organisations in sch.2 to the 2000 Act. Before the power in s.3(3)(a) is exercised to add an organisation to the list, the Home Secretary must believe 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

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

     1. the action falls within subsection (2),
        
     2. the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and
        
     3. the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.

125. 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.

126. Under s.4(1) of the 2000 Act, an application may be made to the Home Secretary 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).

127. 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’.

128. The Home Secretary has issued, under s.4(3) of the 2000 Act, the Proscribed Organisations (Applications for Deproscription etc.) Regulations 2006 (’the 2006 Regulations’) (which replaced previous regulations from 2001), setting out the procedure.

129. 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.

130. Reg.7 of the 2006 Regulations provides that the Home Secretary 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’).

131. 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’).

132. 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, the Government has so far declined to follow these recommendations and currently deproscription is done by way of application only. As a consequence, groups that no longer meet the statutory requirements for proscription continue to be proscribed; Anderson described this as “an affront to the rule of law”.

§The Crime of Genocide

133. 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 commits 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

134. 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.

135. 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]).

136. 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.

137. 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.

138. 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.

139. 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.

140. 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 (…)

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

142. While the ‘Israel’ Occupation Force (IOF) is responsible for maintaining security in the occupied territories, there are instances where settlers operate with a degree of autonomy and impunity. Reports have indicated that settlers sometimes coordinate their activities with the IOF or receive assistance, whether directly or indirectly. For example, during a pogrom in the village of Burin in 2019, settlers attacked Palestinian residents in the presence of IOF soldiers. Instead of intervening to stop the settlers, the soldiers reportedly dispersed the Palestinians using tear gas and rubber bullets. Raz Segal, writing on the implications of the Holocaust and genocide on the continued violence by settlers, begins his journal piece with the following vignette:

     It was the day after the Jewish holiday of Purim, and Jewish settlers stormed Huwara, a Palestinian town in the Israeli-occupied West Bank, and began dancing in celebration of the holiday. Israeli soldiers first joined them, but soon stood by as the settlers, armed with rocks, axes, and pepper spray, set upon a Palestinian family in a parked car. Footage from a security camera shows the settlers attacking the car and the family from all sides. The father, Omar, eventually managed to start the car, pull back, and speed away, but their ordeal continued: other settlers pursued them with a car and fired on them with guns. The grandfather suffered serious injuries to his head, and his two-year-old granddaughter, with her eyes burning from the pepper spray, could not open them in the hospital; in pain, in shock, in trauma, she could only scream.
     The attack came just a week after settlers descended on Huwara in a carnage of violence reported as a pogrom, a term used historically to describe violence against Jews, including during and immediately after the Holocaust. The attack so resembled horrific images of pogrom violence, especially the burning of parts of the town, that the term appeared even in the mainstream Israeli press.¹⁰⁹

Complicity in Genocide

143. 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

144. Art.1 of the Genocide Convention imposed 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];

     4. 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

145. 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.

146. 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.

147. 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.

148. 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

149. 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.

150. 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

151. 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.

152. Apartheid is also illegal, both explicitly, under the terms of the International Convention on the Suppression and Punishment of the Crime of Apartheid of 18 July 1976 (‘the Apartheid Convention’), art.3 of CERD, and by necessary implication from adjacent prohibitions against racism such as that found in Article 14 of the ECHR and under the Refugee Convention 1951 and its 1967 Protocol.

Armed Resistance Against Colonialisation and Occupation

153. 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.

154. Art.1(4) of the First Additional Protocol to the Geneva Conventions of 1949, and relating to the Protection of Victims of International Armed Conflicts of 8 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.”

155. 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.

156. 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.

157. 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.

158. 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’ including armed struggle, and called upon all States to offer ‘moral, material and any other assistance’ to peoples struggling for the right of self-determination.

159. 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.

160. 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 entity against their population in Gaza and elsewhere in the OPT.

161. 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”. Noteworthy, 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.

162. The right to not only defend a people against colonial domination and the establishment of settlements is not only enshrined in international law, but also to seek restitution of the loss of land, property and rights through armed force. In an interview conducted with the populist television host Piers Morgan, Francesca Albanese clarified the status of settlements themselves as war crimes that warrant armed resistance:

     “In line with international law, Israel had to do what they have not done in 57 years and, what the International Court of Justice has reminded all member states as of July this year, Israel needs to withdraw the occupation in whole or in part. Because the occupation has caused the conditions for violence to fester in the occupied Palestinian territory. And the court has been very specific, has said that Israel needs to withdraw the troops, dismantle the settlements which are war crimes, and including the control over the natural resources. Israel has continued to expand in the occupied territory and it continues to do that even now as it commits a genocide…

     It’s key to understand, because Israel – the whole purpose of advancing the occupation is to continue to take Palestinian land. So my question to you is, what do Palestinians have to do? Because they have tried armed resistance, they have renounced armed resistance, they have gone to the International Court of Justice, to the ICC, they’ve tried… the advocacy with all member states, and member states have continued to kick the can in the air.”¹¹⁰

163. In her Declaration supplementing the July 2024 Advisory Opinion of the ICJ, Judge Charlesworth expressly affirmed - in the specific context of the Zionist’ entity’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”.

164. 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’). 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.

165. Shahd Hammouri’s detailed legal opinion The Palestinian People Have the Right to Resistance by All means Available at their Disposal…summarise[s] her arguments in setting out the position under international law:

     Resistance by the Palestinian people against an illegal occupying power by all means available at their disposal is a legitimate act. To deprive peoples of such a right is to deny their right to equality and human dignity in contravention to the UN Charter. The legitimacy of resistance is prompted by the gravity of the illegality at hand, the absence of political will to seize the international community on the matter, and the asymmetrical position in which the subjugated peoples are placed.¹¹¹

166. Hammouri’s opinion rests on five legal contentions: (1) that the Palestinian people are subjects of international law who have an inherent right to self-determination; (2) efforts to gain independence from an occupying power are legitimate in the exercise of that right; (3) resistance is consistent with international law on the use of force as a people are exercising their collective self-defence; (4) international humanitarian law permits armed resistance as the Palestinian people are not obliged to show allegiance to the occupying colonial power and may oppose it; finally (5) third party states are obliged to recognise the legitimacy of the Palestinian resistance, while Israel is obliged to refrain from persecuting Palestinians for their resistance – they are further not permitted to cite self-defence to justify their own breaches of international law. As Hammouri writes, “The Israeli occupation of Palestine is illegal. The premises of this illegality are multifaceted. First, it is a form of alien domination and subjugation, otherwise referred to as colonisation. While there are no clear criteria for what alien domination and subjugation entails, elements of systemic exploitation, dispossession, fragmentation, inhumane acts, and discrimination are common indicators.”¹¹²

167. With respect to any alleged breaches of IHL carried out by Hamas on 7 October 2023, as has been made clear by the UN Special Rapporteur Francesca Albanese, an illegitimate act of resistance does not delegitimise the resistance itself.¹¹³

Application of International Legal Obligations in Domestic Law

168. 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

169. 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]).

170. “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.”

171. 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.

172. 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.

173. 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]).

174. 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 Home Secretary 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 …”

175. 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

176. 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]).

177. 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]).

178. 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 in 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]).

179. 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]).

180. 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

181. 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).

182. 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.”

183. 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

184. Article 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.”

185. In Labita v Italy, Application no 26772/95, 6 April 2000 the Court awarded damages for non-pecuniary loss for numerous violations of the Convention, including A3P1. Hamas had been arrested on suspicion of being a member of the Mafia (and related offences). Though he was eventually acquitted, he was made subject to ‘preventative’ measures which included his disenfranchisement. He was awarded 75 million lire (£23,180) in compensation for the non-pecuniary loss he had suffered in relation to all the violations of the Convention, but it is not clear what part of that award, if any, is referable to the violation of A3P1, the Court having found violations of Articles 3, 5(1), 5(3), 8, A3P1 and Article 2 of Protocol 4.

186. 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.

187. 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.

188. Cases concerning the banning of political parties on account of the incompatibility of their manifestos with democratic principles are usually examined under Article 11 (freedom of assembly and association) 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 [GC], 2003; Linkov v. the Czech Republic, 2006; Parti nationaliste basque – Organisation régionale d’Iparralde v. France, 2007)

E. GROUNDS FOR DEPROSCRIPTION

Preliminary Submission on Discretion in Proscription/Deproscription Decisions

189. 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.

190. 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.

191. 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 entity 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 Zionist entity nor of Ukraine have been proscribed.

192. Proscription in the South African [Apartheid] context entailed the legal prohibition of an organisation, rendering its existence and activities unlawful. This meant membership, support, or any association with the proscribed organisation was deemed criminal. The legal basis for proscribing organisations like the ANC stemmed from the Suppression of Communism Act and the Unlawful Organisations Act. Despite its name, the former was broadly worded and used to target organisations deemed to be promoting communism or disrupting public order. At the same time, the latter was explicitly enacted to ban the ANC and the PAC. These Acts were further bolstered by security legislation such as the Public Safety Act No.3 of 1953 (“Public Safety Act”) and the Criminal Law Amendment Act No.8 of 1953 (“Criminal Law Amendment Act”), which provided the government with sweeping powers to detain individuals without trial, restrict freedom of movement, and suppress political activity.¹¹⁴

193. By proscribing the ANC, the apartheid state violated the fundamental right to self-determination of the majority Black population (African, Coloured and Indian) in South Africa. This act denied them the ability to participate in the political process and shape their future, effectively entrenching White minority rule. Apartheid itself compounded this violation through systemic discrimination and the denial of fundamental human rights, relegating Black South Africans to second-class citizenship. The ANC’s struggle against apartheid was intrinsically linked to the fight for self-determination, a right enshrined in international law and denied to the majority by a regime that segregated and subjugated them based on race. This denial contravened the United Nations Charter and exhibited a profound disregard for human rights and human dignity.¹¹⁵

194. The proscription profoundly impacted the ANC’s operations and strategy. Forced to operate underground, the organisation’s leadership went into exile, establishing bases and structures in neighbouring countries such as Zambia, Angola, Tanzania, and Mozambique and further afield in London and other East European and Western capitals. Public political activities within South Africa were severely curtailed, with members facing arrest and detention for any association with the banned organisation. Communication and co-ordination became significantly more challenging, hindering the ANC’s ability to mobilise and organise effectively. The organisation relied on clandestine networks and underground structures to maintain contact with its members and supporters within South Africa.¹¹⁶

195. Proscription of the ANC resulted in the movement significantly shifting its strategy, with the organisation embracing armed struggle to challenge the apartheid regime. In December 1961, Umkhonto we Sizwe (“MK”), the armed wing of the ANC, was to carry out acts of sabotage against government installations and infrastructure. This marked a departure from the ANC’s previous commitment to non-violent resistance, reflecting the growing frustration with the government’s intransigence and the belief that peaceful means had been exhausted. Despite the shift to armed resistance, MK intended to avoid the loss of civilian lives during its armed actions.¹¹⁷

196. 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 discretionary and not an automated 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 thus 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

197. 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 entity 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.

198. Moreover, Hamas submits that by continuing to proscribe it, Britain is complicit in the ongoing acts of genocide being committed by the Zionist entity 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 entity (i.e. the perpetrators of the acts of genocide).

199. As set out in the context section above, the Home Secretary 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

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

201. As noted above, the Zionist entity 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 in s.51 of the 2001 Act.

202. Furthermore, as the ICC arrest warrants for Messrs Netanyahy and Gallant set out, there are reasonable grounds to believe that the Zionist entity 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:

     “… 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.” (¶89)

203. Hamas is the only effective military force resisting – and seeking to end and prevent – the ongoing crimes against humanity being committed by the Zionist entity in the OPT, including the Gaza Strip since 7 October 2023. Its continued proscription by the Home Secretary is purposefully inhibiting their efforts to resist, end and prevent those ongoing crimes against humanity. The Home Secretary’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 entity.

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

204. 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.

205. 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 Home Secretary seeks to frustrate that lawful and legitimate armed resistance. Hamas submits that its (continued) proscription by the Home Secretary amounts to ‘rendering aid and assistance’ to the Zionist entity 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

206. 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.

207. As discussed by Dr Tarek Younis in his expert report, the Palestinians are not only denied their dignity, but further the Zionist entity explicitly systemises a structure of humiliation in order to harm the entire Palestinian population. He begins the section of his report with the following story:

     After my mother-in-law, one of the soldiers ordered me to follow him to the same room. He let me in and then left. There were two masked [female] soldiers in the room, and they were holding a huge dog. I was so scared I stayed glued to the door. I tried to leave, and they yelled at me and ordered me to stop. I told them that I was afraid of the dog, but they ordered me to take off all of my clothes. I refused to do it, and then one of the soldiers threatened to release the dog if I didn’t obey. I had no choice and took off all of my clothes, including my undergarments. She ordered me to turn around in front of them, and I did. It was humiliating and degrading. I started to cry, and then they ordered me to get dressed, and some of the [male] soldiers took me back to the room with all of the women. (B’Tselem, 2023)¹¹⁸

208. This vignette captures the strategy of dehumanisation enacted by the Zionist occupation today. It only reflects one instance in a daily experience of humiliation. Indeed, the psychological violence of colonial occupation is well known. The history of this has been documented by scholars like Hussein Abdilahi Bulhan (1985). Wars, ethnic conflicts, and political violence have significant public health implications, extending beyond the visible toll of death and physical injury. It impacts their very selfhood.¹¹⁹

209. 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.¹²⁰

210. The Zionist application of humiliation is fundamental to its colonial nature—not an excess of 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 an undeniable picture: dehumanisation has been the mainstay of the Zionist project since its establishment. Salih Baransi’s village, al-Tayyiba, was taken by Zionist forces on May 7th, 1949. Baransi (1981: 7) relates what occurred soon thereafter, in his own words:

     “After our village had been handed over, I was at home when someone knocked at the door. When I opened it to see who was knocking, I found a policeman standing at the door and asking me if I was Salih Baransi. When I said”Yes”, I was told to accompany him to the police station, and when I asked why, he said, “You can find out when you get there.”
     The police station consisted of three rooms side by side, with a cement bench in front, beneath which was a place for chickens and rabbits, and in front of it a large courtyard, a high wall and a gate. No sooner had I passed through the gate than they started raining blows on me until I fainted.
     When I came to myself I tried to get up, but could not. Looking around me I found that I was in the place for chickens and rabbits, and because the roof was so low I could neither stand nor sit up: all I could do was to lie on my side. Of course, I could not stay lying on one side - I had to turn over.
     But every time I tried to turn on to my other side, I was wounded by the roof which, as I said, was very low and made of rough cement, which cut like a knife, and when I turned back the first wounds got cut again. I stayed there for three weeks; it was summer. They put my food, which was a plate of lentils, through the narrow entrance and I had to eat lying on my face or my back. I had to answer the calls of nature in my clothes, in the same place. I contracted a severe fever; my temperature rose and I asked for a doctor, but they refused my request. When I reached the stage where I could no longer move or speak, they were obliged to let me out. They took me to another place, which consisted of a small wooden shed - a sort of hutch made of mud and roofed with wood and straw, and I stayed there for a time until the fever abated. They used to send a boy to me to tell me to clean the lavatories. The idea being that I would refuse, so that they might beat me. After a month and a half they let me go, and to this day I do not know why they arrested me and did what they did to me.”¹²¹

211. Baransi’s testimony surfaces the incredible psychological violence wrought by Zionists and curbs any legitimacy to Israel’s alleged justifications for violence. Colonial tactics of humiliation are not arbitrary; they are executed with great intent to mark a relationship of domination. Salih’s case is not isolated; it is revealing of a history of practices in colonial domination.¹²²

212. Recent studies have explored the psychological harms associated with the Zionist 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 (Barber et al., 2016). 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 firsthand. 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 authors 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.¹²³

213. 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. As we have heard from Palestinians directly, 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.¹²⁴

214. 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.”

215. 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 entity 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 …”¹²⁵

216. 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.”¹²⁶ 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.”¹²⁷

217. 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 “the attacks we chose were calculated to harm the apartheid regime and emphasize the urgency of achieving dignity and justice for our people.” 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.”

218. 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 entity is and remains - more than anything - a colonial project in historic Palestine.

219. As Dr Englert has set out in detail in his expert report, “the colonial nature of Zionism was clear and declared among its adherents from its founding moments”. As the founder of the Revisionist Zionist Movement and Irgun, Zeev Jabotinsky, wrote in his Iron Wall:

     There can be no voluntary agreement between ourselves and the Palestine Arabs. Not now, nor in the prospective future. I say this with such conviction, not because I want to hurt the moderate Zionists. I do not believe that they will be hurt. Except for those who were born blind, they realised long ago that it is utterly impossible to obtain the voluntary consent of the Palestine Arabs for converting “Palestine” from an Arab country into a country with a Jewish majority. My readers have a general idea of the history of colonisation in other countries. I suggest that they consider all the precedents with which they are acquainted, and see whether there is one solitary instance of any colonisation being carried on with the consent of the native population. There is no such precedent. The native populations, civilised or uncivilised, have always stubbornly resisted the colonists, irrespective of whether they were civilised or savage.

220. The consequences of this colonial nature of Zionism have been abundantly documented. As Professor Al Arian sets out in his expert report, by way of example: “The Irgun … orchestrated the 1948 Deir Yassin massacre, where over 100 Palestinian villagers, including women and children were killed, prompting mass Palestinian expulsion and displacement.” As Professor Al Arian also sets out, the ideas and writings of Zionist thinkers like Jabotinsky continue to influence the contemporary decision makers of the Zionist entity. In July 2023, Prime Minister Netanyahu claimed he was continuing to implement the principles Jabotinsky had set out in the Iron Wall.

221. 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 Home Secretary should recognise that legitimacy and deproscribe Hamas.

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

222. Hamas submits that its (continued) proscription is contrary to the Home Secretary’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

223. Hamas submits that its (continued) proscription by the Home Secretary 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 entity. 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.

224. 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.

225. 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 entity, which enabled its ability 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 the genocide, Apartheid and illegal belligerent occupation.

226. 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.”¹²⁸

227. 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 2021.¹²⁹

228. 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.

229. 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 entity. The Home Secretary is directed to the expert reports by Professor Avi Shlaim and Dr Azzam Tamimi to understand the slanderous nature of the false accusation of antisemitism and extremism. But regardless of their inaccuracy, those accusations are, on any view, political opinions propagated by supporters of the Zionist entity. 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 entity vacuously claim their opponents are bigots. The proscription of Hamas simply sanctioned the criminal law to enforce that political rhetorical tactic.

230. 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.

231. The interference is also not ‘necessary in a democratic society’ because the Home Secretary 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 Home Secretary 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. [REFERENCE TO EXPERT REPORTS]

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

233. Yet, rather than allow freedom of speech in this regard, the British 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 as it is known has resulted in journalists and activists such as Majid Freeman, Richard Barnard, Asa Wistanley, Sarah Wilkinson, Richard Medhurst and Craig Murray suffer arrest, harassment over their critical coverage of the ‘Israeli’ genocide in Gaza.

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

235. There has so far been a lack of specifics or 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. That, in itself, is deeply concerning. But from what we do know – mainly from the targeting of activists and academics under Section 12 – the police are indeed taking the loosest definition possible of “encouraging support” under the Act. The police’s interpretation of the law, if not the law itself, 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.¹³⁰

236. 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.”¹³¹

     “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.”¹³²

     “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.”¹³³

     “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.”¹³⁴

Freedom of Assembly

237. Since the start of the genocidal military campaign of the Zionist entity in the Gaza Strip in October 2023, there have been repeated (mass) public demonstrations on the streets of Britain.

238. Hamas submits that its (continued) proscription by the Home Secretary 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 entity. 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.

239. 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’.

Right to Enjoyment of Convention Rights without Discrimination

240. 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.

241. 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]).

242. 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, the government of Britain has supported – and even praised and celebrated – the exercise of the right of such armed struggle.

243. The decision to proscribe Hamas because it exercises the right of armed struggle of the Palestinian People vis-à-vis the Zionist entity amounts to differential treatment on account of political opinion. In other words, because Ms Patel was an avid supporter of the Zionist entity, 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, those who politically dissent. Indeed, the rights of those supportive of the use of armed force by the Zionist entity - 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 undermines the democratic process

244. [HAVE NOT YET REVIEWED: needs references to expert reports still]

245. Legislative elections were held in the Palestinian territories on 25 January 2006 in order to elect the second Palestinian Legislative Council (PLC), the legislature of the Palestinian National Authority (PNA). The result was a victory for Hamas, contesting under the list name of ‘Change and Reform’, which received 44.45% of the vote and won 74 of the 132 seats, whilst the ruling Fatah received 41.43% of the vote and won 45 seats.

246. Once Hamas started winning elections in this way, it became anti-democratic and contrary to the British State’s positive obligations under A3P1 for the Secretary of State to proscribe the organisation.

• The practical effects of the discrentionary power. How does proscription impact on Palestinian lives and Hamas.

E. Conclusion

247. For the reasons set out above, the Home Secretary is invited to deproscribe Hamas.