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The merits hearings in Application of the Genocide Convention (The Gambia v Myanmar) concluded on 29 January 2026, and the Court has entered deliberations, with the judgment date to be announced later.

Commentary on this case understandably gravitates to proof, genocidal intent, and whether the ICJ will repeat the caution of its earlier genocide judgments. Those issues matter, but they can obscure a harder question: what does the Court think a genocide judgment is for? The answer is not found in abstract debates about enforceability. It is embedded in remedies. If the Court finds breach yet confines relief to declaratory satisfaction and generic exhortations, it will reproduce an old pathology of international adjudication: monumental findings, thin repair.

The parties’ final submissions make this plain. The Gambia litigated remedies as a central part of what “justice” would require. Myanmar litigated remedies as something the Court should refuse to entertain. This is not a technical side dispute. It is a contest over the institutional ambition of the ICJ in the face of mass atrocity.

The remedial ask is unusually ambitious and Myanmar is contesting it head on

The Gambia’s final submissions are not framed as a request for symbolic closure. They combine findings of responsibility with a package of forward-looking orders. The Gambia asks the Court to order Myanmar to suppress and prevent direct and public incitement to commit genocide, enact specific genocide criminal legislation, and submit suspects to trial before an independent tribunal, including “before an international penal tribunal” (CR 2026/20, pp. 57-58).

The remedy claim then moves from cessation and punishment to a victim-centred reparation programme. The Gambia requests reparation “for the victims” framed around restitution-style measures that map directly onto the Rohingya’s continuing situation: safe and dignified return; restoration or replacement in kind of property and communal sites; family reunification; rehabilitation for physical and mental injury; search for the disappeared and reburial of bodies; protection against discrimination and persecution; the right to identify as Rohingya; freedom of movement; and non-discrimination in access to livelihoods (CR 2026/20, p. 58). It also requests compensation for harm not capable of full reparation by restitution (CR 2026/20, p. 58).

The most politically charged element is framed as a guarantee of non-repetition: “full and equal citizenship” for all Rohingya present in Myanmar or displaced by the relevant events (CR 2026/20, p. 59). The Gambia further pleads remedies for an alleged failure to implement the Court’s 23 January 2020 provisional measures order, including restitution and compensation for injury resulting from violations of paragraph 86(1)-(3) of that order, with a subsequent phase to be triggered if the parties fail to agree on quantum (CR 2026/20, p. 59).

Myanmar’s closing position treats that entire programme as legally baseless. Its final submissions request that all of The Gambia’s claims, including those relating to alleged non-implementation of provisional measures and those relating to remedies, be rejected as lacking any basis in law or fact (CR 2026/23, p. 31, para. 6). Remedies are therefore not an afterthought. They are an explicit site of contestation about what an ICJ genocide judgment can and should do.

Full reparation is the rule, but the Court has a long record of under-delivering

The orthodox baseline in the law of international responsibility is exacting. Reparation should, “as far as possible”, wipe out the consequences of the wrongful act. The ICJ reaffirmed the Chorzów Factory formula in Bosnia and Herzegovina v Serbia and Montenegro (2007) (para. 460). The ILC’s Articles on State Responsibility begin remedial consequences with cessation and guarantees of non-repetition (ARSIWA, Art. 30) and state the core rule of “full reparation” for injury caused (ARSIWA, Art. 31(1)). On paper, this architecture is well suited to genocide litigation: if the wrong is exceptional, the imperative of repair should be correspondingly serious.

The Court’s actual remedial posture in genocide litigation has been more guarded. In Bosnia, having found Serbia in breach of the duty to prevent, the Court refused compensation because there was no “sufficiently direct and certain causal nexus” between the failure to prevent and the injury claimed (para. 462). It then treated a declaratory finding as “appropriate satisfaction” (para. 463). It also declined to order additional guarantees of non-repetition beyond its findings, citing Serbia’s assurances and the judgment itself (para. 466).

This is not merely a technical causation move. It reflects an institutional preference for remedies that minimise judicial supervision and maximise diplomatic exit routes. That preference may protect the Court from the accusation that it is attempting to run post-conflict reconstruction. It also risks turning the ICJ into a tribunal of condemnation without repair.

Gattini’s critique of Bosnia reads today as an uncomfortably precise warning. He argues that the Court’s retreat to declaratory satisfaction gave the judgment a “flavour of half-heartedness” and that, given the exceptional gravity of the wrong, the Court could have shown more creativity and sensitivity with respect to non-material damage and restorative forms of reparation (pp. 711-712). That argument is not about generosity. It is about credibility. If international law insists that genocide triggers responsibility, but the Court’s remedial response is structurally modest, the system starts to look like it is designed to validate norms while refusing the practical consequences of those norms.

Genocide remedies are necessarily “structural”, and that is exactly why they provoke resistance

 The Gambia’s remedies claim is sometimes dismissed as overreach. A better reading is that genocide produces forms of harm that cannot be repaired through declarations alone. Genocide is typically accompanied by displacement, dispossession, family separation, trauma, and the institutionalisation of exclusion. Restitution, in the Chorzów sense, cannot be limited to reversing isolated incidents. It must grapple with durable legal and social structures.

The Gambia’s closing remarks make that logic explicit by linking the legitimacy of the Court’s intervention to pairing truth with “appropriate remedies, including measures for reparations”, framing this as necessary to break a cycle of atrocities and impunity (CR 2026/20, p. 57, para. 5). This is an argument about the Court’s function. A genocide judgment that stops at condemnation risks normalising the idea that the Court’s main contribution is symbolic. In a case where the alleged wrong is continuing in its effects, symbolism is not neutral. It can become a substitute for repair.

There is also a more technical reason why remedies are structurally central here. The Gambia is not the territorially affected State. It is litigating under the Genocide Convention on a community-interest theory and seeks remedies “for the victims” (CR 2026/20, p. 58). This makes remedy design inseparable from questions of representation, beneficiary identification, and distribution. It also gives Myanmar an easy rhetorical line: that the ICJ is being invited to convert an inter-State case into a quasi-human-rights remedial programme. That line is convenient. It is also evasive, because the Genocide Convention’s preventive and punitive logic is hard to reconcile with purely symbolic relief.

The Gambia’s package exposes fault-lines the Court will struggle to manage

One fault-line is remedial competence in relation to punishment. The Genocide Convention obliges States to enact legislation and punish genocide, but The Gambia’s requested order goes further in form, asking Myanmar to submit suspects to trial “including before an international penal tribunal” (CR 2026/20, p. 58). The Court can plausibly order compliance with the obligation to punish. It cannot realistically order the creation or use of an international penal tribunal. A cautious Court may use this over-specification as a reason to retreat to the safest remedy: a declaration plus a generic obligation to comply with the Convention.

A second fault-line is the guarantee of non-repetition through citizenship. Read narrowly, citizenship looks like a domestic political question beyond the Court’s remit. Read more honestly, citizenship is a legal mechanism of exclusion and vulnerability. The requested remedy is intelligible as a guarantee of non-repetition because it targets the conditions that make recurrence plausible (CR 2026/20, p. 59). The difficulty is institutional, not conceptual. The Court has historically been reluctant to order domestic legal reform in detailed terms, particularly where it would require ongoing assessment of compliance. Yet the alternative is to pretend that non-repetition can be delivered through abstract admonitions.

A third fault-line is the attempt to anchor remedial consequences in provisional measures. The 23 January 2020 order required Myanmar to take measures to prevent genocidal acts and ensure that military and related actors do not commit them, to preserve evidence, and to report to the Court (Order of 23 Jan 2020, para. 86(1)-(4)). The Gambia now asks the Court to treat alleged non-compliance with those measures as a separate basis for restitution and compensation (CR 2026/20, p. 59). That request forces the Court to confront a question it usually sidesteps: if provisional measures are binding (LaGrand (2001)) but weakly enforced, do they become legally meaningful only when the Court is willing to attach remedial consequences to their breach?

Remedies matter precisely because enforcement is weak

It is easy to say that remedies are controversial because international law lacks coercive enforcement. The more important point is that weak enforcement makes remedy choices more consequential. Remedies are the bridge between a judicial finding and the mobilisation of other compliance levers, including diplomatic pressure, sanctions, domestic litigation, and criminal accountability processes. A declaration alone sets a standard, but it leaves most of the work to politics. A judgment that specifies concrete conduct obligations and ties them to continuing duties under the Convention provides a clearer legal benchmark for sustained pressure, and narrows the respondent’s room to launder non-compliance as partial implementation.

The provisional measures order already shows how the Court can build a modest compliance channel into its remedies. The reporting obligation in paragraph 86(4) does not compel compliance, but it creates an iterative mechanism that supports scrutiny over time (Order of 23 Jan 2020, para. 86(4)). A merits judgment that carries this logic forward could, at minimum, treat non-repetition as a continuing obligation with identifiable benchmarks, rather than as a rhetorical flourish.

What to watch for in the forthcoming judgment

The central risk in The Gambia v Myanmar is not only that the Court might avoid a finding of genocide, as anticipated by Marko Milanović a long time back. The deeper risk is that, even if it finds a breach, it will default to declaratory satisfaction and generic calls for compliance, repeating the pattern that has made genocide litigation feel simultaneously monumental and materially thin. The parties have litigated remedies in a way that forces the issue. Myanmar’s final submissions explicitly ask the Court to reject the remedial programme as baseless (CR 2026/23, p. 31, para. 6). The Gambia explicitly asks the Court to order reparations and to reserve a subsequent phase for compensation if needed (CR 2026/20, p. 59).

A credible remedial judgment would not need to reproduce The Gambia’s submissions in full detail. It would, however, need to justify any retreat from them. It would need to explain why restitution-type measures aimed at return, property, and rehabilitation are, or are not, legally available when an applicant litigates in the community interest; why guarantees of non-repetition can be treated as generic rather than structural; and why provisional measures should, or should not, carry remedial consequences when allegedly violated. Absent that reasoning, the judgment risks repeating the Bosnia pattern: the Court reaffirms “full reparation” in principle, but operationalises it as a declaration, leaving the most urgent questions of repair to the same political dynamics that allowed the alleged wrong to occur.

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After 25 years of negotiations, the European Union (EU) and four Mercosur countries – Argentina, Brazil, Paraguay, and Uruguay – reached a political agreement on 6 December 2024 on a Partnership Agreement (EU-Mercosur Agreement). The geopolitical and geoeconomic importance of this Agreement cannot be understated (see further Larik). At a time where trade is increasingly weaponised for economic blackmail, the EU-Mercosur Agreement establishes one of the largest free trade zones, as well as institutional and political cooperation, through law. Against this background, it came as a surprise when a narrow majority in the European Parliament (EP), backed by far-right and far-left parties alike, voted on 21 January 2026 to request an opinion on the compatibility of the EU-Mercosur Partnership Agreement (EMPA) and the accompanying Interim Trade Agreement (ITA) with EU law. By contesting the legality of the EU-Mercosur Agreement, the EP may have shot itself in the foot for three main reasons: First, by contesting the legality of the ITA, the EP risks losing a formal say over the temporal application of the “trade part” of broader mixed agreements pending ratification in the Member States. Second, it remains unlikely that the Court will derail the EU-Mercosur Agreement as it has already addressed the main points raised in the EP Resolution in prior case law, finding no incompatibility with EU law. Third, the request for an opinion may not even delay the provisional application of the EU-Mercosur Agreement. The legal insights and practical impact of the anticipated opinion might therefore not outweigh the inter-institutional and global political upheaval caused by the EP Resolution.

ITAs as tools to enhance the EP’s powers

From a political perspective, it may be self-sabotaging for the EP to contest the legality of the ITA. In essence, the ITA is a stand-alone version of the “trade part” (Part III, Chapters 9 et seq.) of the EMPA. Because the scope of the ITA is confined to the EU’s exclusive trade powers (Article 3(1)(e) TFEU), it must be concluded by the EU alone. The EMPA, by contrast, comprises also shared competences, enabling the Member States to become contracting parties in their own right alongside the EU (“mixed agreement”). The ratification of the EMPA by all national parliaments can easily take 10+ years, which explains the need for an interim agreement to apply in the meantime. The ITA will be repealed and replaced by the EMPA once the latter enters into force (Article 23.10 ITA).

As the ITA is designed to bridge the time between signature and entry into force of the EMPA, it fulfils the same function as provisional application (Article 25 VCLT, Art. 218(5) TFEU). Using an interim agreement instead of provisional application however increases the EP’s formal powers over the temporal application of the trade part of a broader mixed agreement. Because the ITA is a stand-alone agreement, the EP must consent to its conclusion in accordance with Article 218(6)(a)(v) TFEU. Had the EMPA simply been provisionally applied in full, the EP would not have had a formal legal say over the temporal application of the trade part of EMPA pending its entry into force. Pursuant to Article 218(5) TFEU, the provisional application of EU agreements can be decided by the Council alone. If the Court were to find that the Commission has no power to create self-standing interim agreements (which is unlikely, see below), the Commission could (also for future agreements) go back to proposing the provisional application of mixed trade agreements in full, which would formally leave the EP without veto powers over the temporal application of the trade part of such agreements. Moreover, in such a scenario, it would also be uncertain whether the EP could still rely on the political goodwill (p. 17) of the Commission to await the EP’s consent before proposing the provisional application of EU trade agreements to the Council.

The legality of the ITA

Aside from potentially being political self-sabotaging, the legal chances of success of the EP’s request remain low (or, in Chamon’s words, “almost non-existent”), as the Court has already addressed the two main issues raised in the EP’s Resolution in prior case law and found no incompatibilities with EU law.

The first main issue raised in the EP Resolution is the legality of the ITA. In its 1999 negotiating directives, the Council had authorised the Commission to negotiate a single mixed agreement. According to the EP, the Commission exceeded the scope of these directives by proposing the signature and provisional application of a separate “EU-only” ITA to the Council, thereby breaching Article 218(4) TFEU, as well as the principles of conferral, institutional balance and sincere cooperation. Yet, the EP’s argument appears superfluous in light of prior case law. In Australia ETS, the Court held that “it is contrary to Article 218(4) TFEU for the [negotiating] positions established by the special committee or, as the case may be, the Council itself to be binding” (para 88). As the Council has veto powers over the signature and provisional application of the agreement under Article 218(5) TFEU, the Commission’s “unilateral negotiating” powers under Article 218(4) TFEU are limited by law and in practice. One could even argue – as the Council did in Opinion 3/94 – that the Council’s decision “to sign an agreement negotiated by the Commission implies approval of its contents and makes good any irregularity during the course of the negotiations”. Notably, the Council has already decided to sign the EMPA and the ITA. A qualified majority of Member States in the Council therefore support the ITA while the ratification of the EMPA is pending.

The fact that the ITA turns out to be “EU-only” agreement does also not indicate a breach of Article 218(4) TFEU, or the principles of conferral, institutional balance, and sincere cooperation. The character of an agreement – be that EU-only or mixed – depends on the division of competences between the EU and the Member States and can thus only be determined on the basis of the content of the agreement, i.e. after the negotiations are finalised. The content of the ITA indicates that the agreement squarely falls within EU exclusive competence and therefore must, as a matter of law, be concluded by the EU alone (c.f. Opinion 2/15). The Council’s decision to sign the ITA signals its approval of the ITA’s content and character. Whether or not the Council had, when it originally proposed the negotiations back in 1999, a single mixed agreement in mind is irrelevant. Political realities may change, and the procedure foreseen in Article 218(4-6) TFEU offers sufficient flexibility to the EU legislature to adjust accordingly.

Compliance with the precautionary principle and the rebalancing mechanism

The second main issue raised by the EP is the ITA’s compliance with the precautionary principle. Notably, the precautionary principle is firmly anchored in Article 18.10(2) ITA. Yet, measures adopted under the precautionary principle by one party could be brought before an arbitration panel by another party under the so-called rebalancing mechanism (Article 21.4(b) ITA). Accordingly, a party can challenge a measure applied by another party that “nullifies or substantially impairs any benefit accruing to it” irrespective of whether that measure conflicts the ITA. Simply put, the rebalancing mechanism aims to find solutions in case measures not breaching the agreement have severe impacts on trade, which may include financial compensation. The EP argues that such compensation may pressure the EU not to adopt measures under the precautionary principle, thereby threatening “the EU’s ability to maintain the autonomy of the EU legal order”. Yet, this argument will likely not hold before the Court for two main reasons. First, the rebalancing mechanism leaves the EU with discretion to maintain the legal status quo. The arbitration panel cannot mandate the parties to change their domestic laws (Article 21.14(10)(c) ITA). What is more, the panel will only suggest compensation if both parties agree, and such suggestions are not legally binding (Article 21.14(10)(d) ITA). The rebalancing mechanism is primarily a tool to create consultations between the parties leading to a mutually agreed solutions (Article 21.17(2) ITA). As a result, it is unlikely to preclude a party from adopting measures under the precautionary principle.

Second, even if the EU were to face compensations for a measure adopted under the precautionary principle (e.g. under Article 21(4)(a) ITA), this would likely not affect the autonomy of EU law. The Court has already assessed a similar question in Opinion 1/17 on the compatibility of CETA with the autonomy of EU law. Here, the Court was essentially asked whether compensations levied by the CETA arbitration tribunal could risk the level of public interest protection set by the EU legislature. The Court held that the “CETA tribunal has no jurisdiction to declare incompatible with the CETA the level of protection of a public interest established by EU measures […] and on that basis, to order the Union to pay damages” (para 153). Henceforth, the Court found CETA to be compatible with the autonomy of EU law (paras 160-161). While the Court may fire a similar “warning shot” in the direction of the ITA panel, it would likely reach the same conclusion regarding the compatibility of the agreement with the autonomy of EU law.

The opinion request may not delay the provisional application of the EU-Mercosur Agreement

Finally, the EP’s request for an opinion is unlikely to cause delays in the provisional application of the EMPA and ITA. The EP cannot vote on the conclusion of the EU-Mercosur Agreement while the opinion is pending. Yet, the EU-Mercosur Agreement may be provisionally applied (Article 23.3(2) ITA, Article 30.2 EMPA). The Council has authorised the signature and provisional application of the EMPA and ITA on 9 January 2025 – two weeks prior to the EP’s decision to refer the EU-Mercosur Agreement to the Court. Notably, the Council mandated that the EMPA and ITA “shall be applied on a provisional basis”. The wording of the Council Decisions does not leave the Commission with discretion to await the outcome of the opinion procedure and/or the EP’s decision under Article 218(6) TFEU. It would arguably require an amendment of the Council Decisions to enable the Commission to halt the provisional application. Even the EP appears to have accepted that the “Commission may opt for the provisional application of the agreement once at least one Mercosur country has completed its ratification.” Yet, the EP retains the power to consent or reject the conclusion of the ITA and the EMPA under Article 218(6) TFEU. A definite rejection of either agreement by the EP would lead to the termination of its provisional application (Article 25(2) VCLT).

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Seasoned court watchers were no doubt surprised by the English High Court’s decision to overturn the British Home Secretary’s decision to proscribe Palestine Action. For anybody even casually familiar with British courts’ approach to national security-related matters, the odds of success were not good.

Palestine Action are described by their founders as “a direct action protest group aimed at preventing military targets in the UK from facilitating gross abuses of international law”. Their main targets have tended to be Elbit Systems, an Israeli arms manufacturer with premises in the UK; however, they have also targeted other businesses with supposed links to the Israeli weapons trade. Following a break-in at RAF Brize Norton in which Palestine Action activists spray-painted two aircraft, the government took the step of proscribing the group under Part II of the Terrorism Act 2000. Proscription triggers several specific criminal offences such as declaring support for a proscribed organisation, or wearing a uniform or displaying or publishing an image that could be supportive of such a group. This latter offence has seen thousands of people arrested as protests erupted across the UK in the wake of the ban.

The judgment (R(Ammori) v SSHD)  is certainly not a slam-dunk victory for Palestine Action and it is replete with extensive discussion condemning the actions of the group. And yet despite these admonishments, the judgment intimates at wider concerns as to the role of counter-terrorism legislation in liberal democracies, and indeed, the role of unfettered executive discretion more generally. In this regard, this is a judgment that is perhaps as striking for what it doesn’t say as for what it does and in an age of rising authoritarianism, we should listen carefully to the silence.

Soft Law in Hard Times

The Court found that the decision to ban Palestine Action was unlawful for two reasons: first, that the decision was not in alignment with the Home Secretary’s long-standing policy in respect of the power to proscribe; and secondly, that the decision to proscribe was a disproportionate interference with the right to freedom of expression and freedom of association under Article 10 and 11 ECHR respectively.

In relation to the first ground concerning the Home Secretary’s policy regarding proscribing organisations, the Court found that this policy contained five factors, all of which operated to constrain the Home Secretary’s discretion. A further, “other factors” clause must therefore also be interpreted in light of this constraining purpose of the policy. In this instance, the Home Secretary had used this “other factors” clause to expand her discretion by taking into account the “significant disruptive benefits” that proscription would have on Palestine Action’s activities.

This constraining aspect of the policy is evident from previous Home Secretaries’ refusal to proscribe certain organisations such as animal rights activists, notwithstanding the fact that they met the threshold definition of terrorism. The constraint can also be seen currently in the failure to proscribe any extremist Israeli settler organisations that meet the threshold, with the government preferring to use sanctions under the Sanctions and Anti-Money Laundering Act 2018 instead.

This part of the judgment concerning the constraining effect of the policy has been controversial, with one commentator suggesting that “it is axiomatic that the Home Secretary… would refer to the ability to rely on the 2000 Act offences as an operational measure in favour of proscription.” Such offences are, after all, the “raison d’etre” for the proscription power in the first place. Relatedly, if stating that the purpose of the policy is to “limit the discretionary power to proscribe”, this is improbable as it would “impermissibly fetter the Home Secretary’s discretion” to proscribe organisations. There is certainly legal merit to these perspectives; however, I believe that these views unduly downplay the scope of reliance upon illegitimate discretion in the field of counter-terrorism law.

I do not use the term “illegitimate” here lightly. In R v Gul, the UK Supreme Court was crystal-clear that relying upon prosecutorial discretion to temper the breadth of the section 1 definition could not justify the breadth of this definition. However, the Court also stated that in that case, it was unable to narrow this statutory definition itself and so it was up to Parliament.

Parliament, however, has failed to act to revise the definition. Not only this, successive governments have doubled down on decision-making discretion as a means to temper perverse applications of counter-terrorism powers. For instance, under Schedule 7 of the Terrorism Act 2000, the UK can examine and detain anybody without reasonable suspicion at ports and airports for the purpose of assessing whether they are involved in terrorist-related activity. In Miranda v SSHD—a case concerning the Edward Snowden leaks—the Court of Appeal issued a declaration of incompatibility under section 4 of the Human Rights Act 1998, finding that Schedule 7 did not afford sufficient protection to journalistic material and so contravened Article 10 ECHR. Rather than amend Schedule 7, the government merely amended the Code of Practice which officers exercising Schedule 7 powers ought to follow; i.e. they relied upon discretion to address the declaration of incompatibility, notwithstanding the Supreme Court’s statement in Gul that discretion cannot justify the breadth of section 1. This revised code of practice did not stop officers at St Pancras station, London, from detaining Ernest Moret, a French publisher, during the 2023 protests over President Macron’s pension reforms. The Met Police subsequently paid a “five-figure sum” to Moret to settle a claim for misfeasance in a public office and false imprisonment.

All this points to the increasingly prominent role that “soft law” sources like policies, codes of practice, and guidance now play in counter-terrorism law. This “soft law” exists on a sliding scale of hardness and my reading of the Ammori judgment is that the High Court is attempting to harden these sources into more tangible legal constraints.

But this can cut both ways and can also result in a conclusion favourable to the government.

For example, the High Court in Ammori returns to the theme of soft law and guidance later on in the judgment when they note that the police have received guidance concerning how they arrest individuals at protests for the section 13 offence of wearing clothing or displaying an article that gives rise to a reasonable suspicion that the person is a member or supporter of a proscribed organisation. Notably, this is a strict liability offence—the prosecution is not required to prove intention—meaning that it can have a significant effect on the right to freedom of expression and association as one may be prosecuted of the offence, even if they had no intention of supporting a proscribed organisation. In this circulated guidance regarding section 13, the police are advised that “being in support of de-proscribing Palestine Action would not necessarily be supporting Palestine Action”. However, this statement does not appear in the legislation; in fact as the legislation refers to a “reasonable suspicion,” it could be possible that displaying a placard opposing the proscription of Palestine Action is, in fact, an offence under Section 13.

What matters for our discussion is the Court’s reliance on guidance as a means of constraining police discretion, concluding that “police forces have guidance that provides information necessary for them to act appropriately and to apply the relevant offences under the 2000 Act correctly.” The court has crystallised this guidance into a norm capable of shaping the court’s interpretation which, in this instance, points in favour of the state. So on the one hand, if one is to contend that the Court was incorrect in applying an overly rigid policy to constrain the discretion of the Home Secretary, consistency demands that the Court should not have relied on guidance to justify constraining police discretion and so the court should re-examine the degree to which the risk of individuals being wrongly identified by the police and prosecuted for section 13 offences is compatible with Article 10 and 11 ECHR.

All of this reliance on soft law demonstrates the UK’s “good chaps” approach to counter-terrorism and, indeed, executive and political power more generally. Vast conferrals of discretionary power on decision-makers are viewed as fine because we can trust the individual characters, traditional practices, and general norms guiding the behaviour of officials to act as a sufficient constraint and prevent abuse of power. It follows that legislative constraints on such powers are unnecessary. However, this “good chaps” theory has been put under severe strain in recent years due to Brexit and, indeed ”Partygate” during the Covid-19 pandemic. The hardening of soft law seen in the Ammori judgment therefore hints at an increasing scepticism on the Court’s part that we can, in fact, trust the good chaps.

Deference should be Earned

This suspicion is further compounded by the notable absence from the judgment of any detailed consideration of the notion of deference to the executive’s assessment of Palestine Action. One would have expected some engagement with deference in the context of a proportionality assessment as to the balance to be struck between the government’s stated legitimate aim and the affected rights in question. This is particularly surprising in a judgment concerning matters of national security. The word “deference” is not used once in the judgment; the closest we get to any consideration of something akin to deference is at paragraph 128 where the Court notes that:

“the court must permit some latitude to the Home Secretary given that she has both political and practical responsibility to secure public safety”.

Despite this acknowledgement the Court found that:

“At its core, ‘Palestine Action is an organisation that promotes its political cause through criminality and encouragement of criminality. A very small number of its actions have amounted to terrorist action within the definition at Section 1(1) of the 2000 Act. For these actions, the ordinary criminal law is available to prosecute those concerns.“

For this reason therefore, the Court found the ban disproportionate.

Deference should not be automatic; it must be earned and the manner in which the decision to proscribe Palestine Action was taken is undeserving of deference. The Home Secretary heavily suggested to the press, including briefing certain outlets, that Palestine Action was funded by Iran; however, no evidence of this was presented to the Court to corroborate this claim. Nor was the manner in which Parliament was asked to review the decision to ban Palestine Action above the board either. The proscription order was lumped in with two other groups: Maniac Murders Cult and the neo-Nazi Russian Imperial Movement. Any MP or peer voting against the proscription of Palestine Action therefore was also required to vote against banning these two groups.

The government’s conduct therefore surrounding the proscription of Palestine Action was unscrupulous and showed a disregard for parliament and, indeed, wider democratic norms concerning candour in public office. None of this, however, expressly features in the Ammori judgment. However, failure to engage in detail with the notion of deference heavily suggests that the Home Secretary’s decision was not one meriting deference. My reading of this judgment is that there is a latent concern at the breadth of discretionary powers afforded to decision-makers such as the executive, police, and Crown Prosecution Service by the UK’s counter-terrorism apparatus. I share these concerns which are only further compounded by recent changes made to public order legislation which strictly curtail the right to protest, as well as further plans to allow protests be banned on the basis of their “cumulative impact”.

Ultimately, this is a judgment where the Court carried out the kind of close scrutiny that Parliament ought to have done, and, indeed the UK’s Independent Reviewer of Terrorism Legislation ought to have done. On the contrary, the UK’s Reviewer Jonathan Hall endorsed the Home Secretary’s decision to proscribe Palestine Action. Human rights concerns are almost wholly absent from this piece with the Independent Reviewer instead stating that he  is ‘unconvinced’ of the chilling effect of such bans. His lack of concern stands in stark contrast to his international colleagues such as UN Special Rapporteur on Counter-Terrorism and Human Rights Ben Saul who directly intervened in the case to argue that the ban was disproportionate.

In an age of democratic backsliding and rising authoritarianism, we should all be deeply concerned as to the possibility of abuse of discretionary power. The Ammori judgment can be viewed as a court attempting to rein in some of these excesses but it also reveals the High Court’s isolation—an isolation which could be increased if the judgment is overturned on appeal. The reliance on soft law reveals the Ammori judgment’s weakness. Most soft law instruments such as policies and guidance can be changed without any parliamentary input. They are thus at the whim of the executive. And so a court judgment reliant on the interpretation of policy can also be overturned as easily. The human rights part of the judgment is therefore on much more entrenched legal grounds, based as it is upon the Human Rights Act 1998 and ECHR. However, this entrenchment is accompanied by increased political controversy as it runs the risk of placing UK membership of the ECHR once again high on the political agenda. Ultimately, democracy and human rights require more than just lawyers and faith in the good chaps to protect it. It requires those who are democratically elected to be democrats and actually value democracy.

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