In their decision,[7] Lord Justice Pill and Justice Cranston rejected the claim on the grounds of both standing and justiciability.
With regard to the question of justiciability, it was held that the decision of whether or not a claim is justiciable is based on the subject matter and suitability of the particular claim. According to Lord Justice Pill, at the heart of the subject matter of the case at hand is Israel’s conduct and whether Israel breached its international obligations. However, the UK Courts are not qualified to make this decision. Unlike other cases in which the breach of international law was plain and widely acknowledged,[8] in this case, there is no legal precedent on the legality of “Operation Cast Lead”.
Moreover, like other cases dismissed by the courts,[9] the case deals with policy areas that are unsuitable for judicial decision making – decisions affecting foreign policy. The object of the claim is to compel a change in government foreign policy, and the court is not allowed to dictate or direct the actions the government should take in response to the alleged breaches of international law by Israel.
Lord Justice Pill further stated that under UK constitutional law, the conduct of foreign affairs is exclusively within the sphere of the executive branch. While there may be situations in which the court will intervene in foreign policy issues, this case is not one of them. The nature of the underlying claim (the condemnation of Israel), and the nature of the claim against the UK government (directing or dictating its foreign policy) are issues that the court is not prepared to handle.
Justice Cranston added that this claim trespasses the issue of high policy, which is under the authority of the qualified executive chamber and not the excessively slow judicial system. High policy matters that are reviewed by the courts have some kind of domestic foothold, such as legislative authorization, which ensures fair trial for cases of the most blatant breach of international norms.
In order to proceed with this claim, it would be necessary to define Israel's obligations, and identify and prove its breaches of these obligations, while examining and exploring any justification that Israel might have for its actions, such as proportionality. This would confront the court with what seems to be the most complicated issues of law and fact, which are probably the most controversial disputes in international affairs today.
With regard to the question of standing, Lord Justice Pill said that standing should not be treated as a preliminary issue; in previous cases, the court has linked the granting of standing to the issue of exercise of jurisdiction[10] and, therefore, the claim to standing must be considered in the legal and factual context in which the claim arises. In this particular case, no right can arguably be claimed, and the claimants should not be granted standing to allow it to make the claim.
Justice Cranston also added that in this regard, Al-Haq is an internationally recognized human rights NGO and, therefore, according to the court's liberal standing test, as long as there are wrongs to be righted, standing will be allowed. However, the issue of standing has to be approached on the premises that there is a justiciable issue. Since the matter was found to be non-justiciable, the claimant could not be granted the standing required to take action.