JANUARY 28, 2024
ICJ’s Order to Prevent Genocide Applies to the Governments Arming Israel, Too
Image by Mohammed al Bardawil.
War profiteers are on notice. On 26 January, the International Court of Justice (ICJ) found that South Africa’s case against Israel for its genocide of Palestinians has merit. While the Court has not yet ruled on whether Israel’s mass slaughter of Palestinians since 7 October 2023 is genocide—a ruling at which it may take years to arrive—it did orderIsrael to prevent and not commit genocidal acts against Palestinians, prevent and punish public incitement to commit genocide, ensure the provision of humanitarian aid, preserve evidence related to allegations of genocide, and submit a compliance report within one month. These orders have a significant impact on the provision of weapons to Israel: governments arming genocide can be held accountable for genocide themselves.
The ICJ stopped short of ordering a ceasefire or an end to Israel’s military operations in Gaza. Despite this failing of the Court, representatives of the State of Palestine and South Africa, along with many Palestinians and activists, academics, legal scholars, and others around the world, have welcomed the Court’s interim ruling and argue it must be treated as a de facto ceasefire order. As many analysts and officials have pointed out, Israel cannot comply with the interim measures without stopping its murderous rampage in Gaza.
Complicit in genocide
That said, of course, the Israeli and the US governments are trying to spin the lack of an explicit demand for a ceasefire as an affirmation of Israel’s “right to action”. This is incorrect, to say the least—and will have consequences. The United States, and other governments supplying Israel with weapons, such as Canada, Germany, the Netherlands, and the United Kingdom, could be found complicit in the commission of genocide if they continue to provide Israel with bombs, missiles, guns, and other military equipment and support. Now that the ICJ intends to rule on South Africa’s case against Israel, the governments fueling Israeli violence should be very worried.
As noted in an earlier article for CounterPunch, arms transfers to Israel—even before the ICJ interim ruling—violate customary international law, including the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, as well as international humanitarian law, including Common Article 1 to the four Geneva Conventions of 1949. For states that are members, arms transfers to Israel also violate the Arms Trade Treaty, the European Union’s Common Position on Arms Exports, and the Organisation for Security and Cooperation in Europe (OSCE)’s Principles Governing Conventional Arms Transfers.
Each of these agreements work separately and together to bind states to a system of collective responsibility. And the Genocide Convention, under which South Africa has charged Israel at the ICJ, prohibits not only the commission of genocide but also complicity in it. While it is Israel under scrutiny in this particular case, legal experts and academics have noted that the governments supporting the genocide could be charged at the Court later.
The continued provision of weapons to Israel might also render states complicit in internationally wrongful acts through the aiding or abetting of war crimes and crimes against humanity. This could give rise to individual criminal responsibility of senior officials of these states under the Rome Statute of the International Criminal Court.
As for the weapon companies—the CEOs of Lockheed Martin and Raytheon and all the corporations making billions from genocides, wars, and armed violence worldwide—it is less clear how these responsible parties can be held to account. The UN Working Group on Business and Human Rights has acknowledged that accountability for the arms industry is challenging, including because it is government officials that make decisions about whether or not to sell weapons or grant licences to a particular recipient. But as the Working Group points out, in many of the major arms exporting countries, the weapon companies “are almost naturally interwoven into the domestic national security fabric of their home States … which can
cause States to approve arms exports despite genuine human rights risks that should prevent them.” The lack of separation between the entity producing the weapon and the entity approving its sale is a recipe for corruption and for the continued export of violence in the name of profits or “national interest”.
There’s a treaty specifically for this situation
But this doesn’t mean there is no recourse to action. We do have one treaty that regulates the international arms trade and provides a potential tool for accountability.
The Arms Trade Treaty (ATT), adopted at the United Nations in 2013, explicitly prohibits states parties from fueling genocide and other international crimes with weapons. All of the countries supplying weapons to Israel, except for the United States, are party to this treaty. Most of them even “championed” its negotiation. While this fact should give anyone pause about the treaty’s value, the ATT’s letter and spirit are clearly oriented towards preventing human suffering, even if some of its members are egregiously violating it. If nothing else, the ATT provides a clear legal framework for holding these governments to account on the international legal stage, which some of them still arguably care about. This means that activists and lawyers do have important tools to help end the steady flow of weapons to Israel right now.
Under the ATT, a state party is prohibited from transferring weapons “if it has knowledge at the time of authorization that arms or items 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 as defined by international agreements to which they are a Party.”
It is not possible for anyone to reasonably deny that Israel is committing genocide anymore. The people buried under the rubble of houses and hospitals know this is genocide. The medical professionals murdered for saving lives, the journalists targeted for exposing the truth, and the millions of displaced and traumatized Palestinian civilians know that this is genocide. The vast majority of people around the world know this is genocide.
But regardless of whether the ICJ eventually rules that Israel is committing (or, by the time the ruling is finalized, has committed) genocide against Palestinians, arms transfers to Israel are still unlawful under the ATT. Israel has dropped thousands of bombs on the densely populated Gaza Strip, willfully destroying hospitals, houses, schools, refugee camps, sanitation and water infrastructure, and convoys of fleeing civilians. The Israeli forces have targeted medical workers and journalists, they have made life unlivable for millions of people, and they are generating wider regional unrest and violence, with the potential for broader conflict.
All of these acts render arms transfers to Israel unlawful. Beyond its prohibition of fueling genocide, the ATT also requires its states parties to conduct risk assessments to evaluate that the likelihood that the weapons transferred could be used to undermine international peace and security, or be used to commit human rights violations or violations of international humanitarian law. The treaty even specifically mandates a risk assessment to see if the weapons could be used to commit or facilitate serious acts of gender-based violence or serious acts of violence against women and children. If these risks are found, the state party is not allowed to authorize the export of weapons.
With more than 10,000 children among the more than 25,000 civilians killed to date, it is not possible for any government to deny that weapons being sent to Israel are not “at risk” of being used to commit violence against children. Similarly, with thousands of pregnant people being killed by Israeli soldiers, denied access to healthcare, forced to give birth in extremely unsafe conditions, facing escalating rates of premature births and the death of newborns from preventable causes—to the extent that South Africa charged Israel with “imposing measures intended to prevent births within the group”—it is not possible to deny that pregnant people are not facing gender-based violence. Men, often targeted in armed conflict under the assumption that men are militants, not civilians, are also subject to gender-based violence by the Israeli forces.
Beyond a ceasefire
The list of human rights and international humanitarian law violations is extensive; South Africa has done a good job of collating many in its very dark submission to the ICJ. But the unlawful provision of weapons to Israel extends much further back than 7 October 2023. Over decades, unchecked military support to Israel has enabled, facilitated, and maintained Israel’s decades-long settler colonial and apartheid regime imposed over the Palestinian people.
A ceasefire to end the current slaughter is imperative. But a ceasefire is insufficient to prevent the ongoing and relentless genocide of Palestinians that Israel has pursued since its creation. Only the dismantling of Israel’s structures of apartheid and occupation can protect Palestinian life.
In light of the ICJ case, the Palestinian Anti-Apartheid Coordinating Committee (PAACC), which includes the Anti-Apartheid Department of the Palestine Liberation Organization (PLO), the Anti-Apartheid Committee of the Palestinian National Council (PNC), the Boycott, Divest, Sanctions (BDS) movement, the Palestinian Human Rights Organization Council (PHROC), and the Palestinian NGO Network (PNGO), has called on states to impose a two-way military embargo on Israel, work to adopt a mandatory arms embargo on it at the UN, and adopt other punitive measures to prevent and suppress its acts of genocide, and end the provision of economic and diplomatic support to it. This reflects the calls from the open letter prepared by Al-Haq, the International Service for Human Rights (ISHR), and the Women’s International League for Peace and Freedom (WILPF) in November 2023, which was signed by hundreds of organizations.
At the national level, many activists have been and continue to campaign to end arms transfers to and from Israel. Some have organized letter writing campaigns and petitions to government officials, others continue to engage in blockading weapon production factories or ports through which weapons are being shipped to Israel. These actions are practical and meaningful and must continue. So must efforts to hold governments and weapon contractors accountable through national and international courts, and to demand reparations from those who have profited from the death, displacement, and dispossession through the barrels of their guns.
The ICJ interim measures are just that—interim. In and of themselves, they will not save Palestinian lives or end the brutal occupation of Palestine. But the pressure and community that can be built through acting against the arms trade with Israel will be essential to disrupting the merchants of death now and in the future.
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