The West must pause selling arms to Israel
Despite the ICJ’s orders, the ground situation in Gaza hasn’t improved materially.
As Israel ratchets up its military offensive in Gaza, western nations have come under scathing criticism for supplying arms to Israel. United States (US) President Joe Biden recently said the US would halt the shipment of offensive weapons to Israel if it invaded Rafah in the southern Gaza Strip. Simultaneously, there are reports of the US planning to sell more than $1 billion in new weapons to Israel. As death and destruction continue unabated in Gaza, the pressure is mounting on several countries, including the US, to stop the supply of arms to Israel because of the apprehension that these arms are being used in allegedly committing war crimes.
But this is not just a political question. There is a powerful legal dimension to it. Several lawsuits have already been filed in the domestic courts of countries like the United Kingdom (UK), the US, Canada, Denmark, and the Netherlands questioning the export of arms to Israel. A court in Hague has ordered the Dutch government to forbid the supply of F-35 jet fighter spare parts to Israel due to a “clear risk” of serious violations of international humanitarian law (IHL) being committed in Gaza. Internationally, Nicaragua has brought a claim against Germany before the International Court of Justice (ICJ), targeting the material assistance Germany provides to Israel in alleged breach of the Genocide Convention and IHL. Nicaragua requested the ICJ for provisional measures against Germany, directing it to stop providing material support to Israel, including military assistance. The ICJ did not accept Nicaragua’s request. Nonetheless, this case demonstrates the significance of this issue and the need to understand the international legal obligations that bind countries when exporting arms to other countries.
The most noteworthy treaty containing the law on arms exports is the Arms Trade Treaty (ATT), adopted by the United Nations General Assembly in 2013 and entered into force in 2014. The objective of the ATT is to regulate international trade in conventional arms by keeping the principles of the UN Charter in mind. Article 6(2) of the ATT prohibits a country from transferring conventional arms to another country if such transfer would violate its international obligations. Article 6(3) of the ATT is more specific. It bars a country from supplying conventional arms if it has the “knowledge” that these arms “would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes”. The word “knowledge” is not defined in the treaty. Thus, whether the transferring State has the “knowledge” that its arms would be used in the commission of genocide and other war crimes will have to be ascertained by examining the international circumstances. The transferring State must undertake a risk assessment, also indicated in Article 7(1), to determine whether the recipient State will use the arms it supplies to commit war crimes.
President Biden’s statement indicates that the US has the “knowledge” that its arms would be used in attacking civilians in the city of Rafah. Thus, under Article 6(3) of the ATT, the US should not be supplying arms to Israel. Moreover, South Africa’s case against Israel before the ICJ for the alleged commission of genocide in Gaza and the ICJ’s two provisional measures order against Israel earlier this year constitute material international circumstances that the US and other arms-supplying countries need to consider. While it is not legally established yet that Israel has breached the Genocide Convention, it is critical to recall that the ICJ, earlier this year, held that prime facie, South Africa’s claims may fall within the Genocide Convention and that it is plausible that Israel has committed genocide in Gaza. In its second provisional measures order, the ICJ expressed its concern over the deteriorating humanitarian situation in Gaza and ordered Israel to take all necessary steps to provide humanitarian assistance. Despite the ICJ’s orders, the ground situation in Gaza hasn’t improved materially. In light of all of this, the US and other countries are under a legal obligation to pause the supply of arms to Israel.
Prabhash Ranjan is a Humboldt fellow and professor at the Jindal Global Law School. The views expressed are personal
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