An effort to prosecute a dual British-Israeli citizen for serving in the Israel Defense Forces suffered a resounding defeat in a London court, with the chief magistrate issuing an excoriating ruling against the anti-Israel NGO that brought the case.
The group’s unsuccessful attempt is part of a new lawfare tactic whereby anti-Israel organizations target rank-and-file IDF soldiers for prosecution the moment they set foot outside Israel.
In his judgment delivered on April 8, a redacted version of which was made public this month, Chief Magistrate Paul Goldspring, (who is not Jewish), dismissed the application for a summons to criminally prosecute the proposed defendant, referred to as “A.”
In an unusually censorious ruling, Goldspring directed his ire at the International Centre of Justice for Palestinians (ICJP), the NGO that made the application. ICJP engages in various forms of lawfare against Israel, including efforts to prevent dual citizens from fighting for the IDF.
Concluding that ICJP’s motive was not the pursuit of justice, but the advancement of an ideological agenda, Goldspring said that the group tried to hijack the court to score political points.
“This application is legally flawed, evidentially deficient and procedurally defective. It constitutes an abuse of the process of this court, driven by an improper motive and facilitated by serious breaches of the duty of candor,” he said.
It was “scathing—the most damning judgment I’ve read in 20 years of practice,” Daniel Berke, the lead attorney for the defense and director of UK Lawyers for Israel (UKLFI), told JNS.
The case involved soldier A., who had been visiting England and returned to Israel following the Oct. 7, 2023, Hamas-led atrocities to rejoin his IDF unit.
ICJP argued that the soldier had violated the U.K.’s Foreign Enlistment Act (FEA) of 1870. The group applied to the Westminster Magistrates’ Court to issue a summons requiring A. to appear in the court and face charges.
Section 4 of the Foreign Enlistment Act makes it a criminal offense for any British subject to accept a commission or enlist in the military of a foreign state at war with another foreign state that is at peace with the United Kingdom.
“It’s a defunct act as far as anyone’s concerned,” Berke said. “It’s from the days of Queen Victoria.”
Nevertheless, Section 4 was never repealed, leading A’s lawyers to take seriously the threat of prosecution.
“He’s a subject of the Crown. He was serving in the army of another country and it was claimed that Israel was at war with Lebanon, Syria and the alleged ‘State of Palestine,’ with whom Britain is at peace. On this basis, the private prosecutor seemed to believe they had a compelling case—and it was clear to us we had a fight on our hands,” Berke said.
On closer inspection, Berke and his team found that the act did not apply in this situation. Soldier A. didn’t join the army of a foreign country, but a country of which he is a citizen. He is a dual national serving the army of one of his two countries.
The judge accepted this line of reasoning. “The FEA was enacted in 1870 with a clear purpose: to prevent British nationals from acting as mercenaries in foreign conflicts and to safeguard British neutrality.
“The binary distinction drawn by the Act is between British subjects and foreign subjects. A dual national does not fit neatly into this binary framework. For a dual national, Israel is not a ‘foreign state’—it is the state of his other nationality,” the judge said.
“We also argued that Israel was not at war with Syria or Lebanon or what the prosecutor wrongly suggested is a de facto ‘State of Palestine.’ Israel was in armed conflicts with Hamas and Hezbollah; organizations which have been proscribed as terrorist organizations by the U.K.,” Berke said.
Goldspring concurred on this point as well.
What troubled the judge most was the disingenuousness of the prosecution—“the profound and serious breaches of the duty of candor owed to this Court.”
In a private prosecution, Berke explained, the defendant isn’t notified that an application for a summons has been made, mainly so the suspect isn’t tipped off or doesn’t flee the country. Because the defense is not notified, the highest duty of candor is expected of the prosecution as the only side present. The prosecutor must submit all relevant material, even that which would reduce the likelihood of a summons.
The ICJP did not put its “defense hat” on, as Goldspring put it in his ruling. Fortunately for soldier A., due to the seriousness of the charges, the judge ordered that the defendant be notified of the summons. This enabled Berke and his team to present evidence the prosecution had failed in its duty to submit.
Perhaps most egregious was the prosecution’s failure to include statements by government ministers over many years and many administrations that serving in the IDF did not constitute a breach of the 1870 Foreign Enlistment Act. These statements included the current conflict in Gaza.
It was clear that the prosecution knew the government’s position, having included a reference to one in a footnote. “Despite this knowledge, the Applicant did not see fit to inform this Court of any of these statements in its application, its case summary, or its skeleton argument. This is a serious and inexcusable omission,” the judge wrote.
What Goldspring found “most troubling” was the “expert witness” brought by the prosecution. Quoting from a 1995 case that, “an expert witness should provide independent assistance to the court by way of objective, unbiased opinion,” the judge learned that the independent expert, Mandy Turner, was nothing of the sort, a fact the prosecution hid.
It took the defense, the judge noted, to reveal that Turner belonged to an ICJP WhatsApp group, and that her public statements and online posts showed that she was “a campaigner and activist committed to the political agenda pursued by this prosecution, rather than an independent expert.”
There were numerous falsehoods in Turner’s report, Berke said. She referred to the October 2023, Al-Ahli hospital bombing as an Israeli Air Force attack even though it has since been determined it was a misfired Palestinian Islamic Jihad rocket. “She was still presenting it as something that had been done by Israel,” he said.
Berke expressed the hope that the ruling would discourage further such cases, especially as Goldspring ordered ICJP to pay all of soldier A.’s legal costs. The judge also ordered the group to attach a full copy of his judgment to any and all future court applications it might make in England and Wales.
