23 February 2024
Any transfer of weapons or ammunition to Israel that would be used in Gaza is likely to violate international humanitarian law and must cease immediately, UN experts* warned today.
“All States must ‘ensure respect’ for international humanitarian law by parties to an armed conflict, as required by 1949 Geneva Conventions and customary international law,” the experts said. “States must accordingly refrain from transferring any weapon or ammunition – or parts for them – if it is expected, given the facts or past patterns of behaviour, that they would be used to violate international law.”
“Such transfers are prohibited even if the exporting State does not intend the arms to be used in violation of the law – or does not know with certainty that they would be used in such a way – as long as there is a clear risk,” they said.
The experts welcomed the decision of a Dutch appeals court on 12 February 2024 ordering the Netherlands to halt the export of F-35 fighter jet parts to Israel. The court found that there was a “clear risk” that the parts would be used to commit or facilitate serious violations of international humanitarian law, as “there are many indications that Israel has violated the humanitarian law of war in a not insignificant number of cases”.
The Dutch court pointed to the extensive civilian casualties, including thousands of children; the destruction of 60% of civilian homes and extensive damage to hospitals, water and food supplies, schools and religious buildings; widespread severe hunger; and the displacement of 85% of Palestinians in Gaza. It also highlighted evidence of the prolific use of imprecise “dumb bombs”; deliberate, disproportionate and indiscriminate attacks; failures to warn civilians of attacks; and incriminating statements by Israeli commanders and soldiers.
Over 29,313 Palestinians have been killed and 69,333 injured in Gaza since 7 October 2023, the majority being women and children. “Israel has repeatedly failed to comply with international law,” the experts said.
The experts noted that States Parties to the Arms Trade Treaty have additional treaty obligations to deny arms exports if they “know” that the arms “would” be used to commit international crimes; or if there is an “overriding risk” that the arms transferred “could” be used to commit serious violations of international humanitarian law. European Union member states are further boundby EU arms export control law.
“The need for an arms embargo on Israel is heightened by the International Court of Justice’s ruling on 26 January 2024 that there is a plausible risk of genocide in Gaza and the continuing serious harm to civilians since then”, the experts said. The Genocide Convention of 1948 requires States parties to employ all means reasonably available to them to prevent genocide in another state as far as possible. “This necessitates halting arms exports in the present circumstances”, the experts said.
The experts welcomed the suspension of arms transfers to Israel by Belgium, Italy, Spain, the Netherlands and the Japanese company Itochu Corporation. The European Union also recently discouraged arms exports to Israel.
The experts urged other States to immediately halt arms transfers to Israel, including export licenses and military aid. The United States and Germany are by far the largest arms exporters and shipments have increased since 7 October 2023. Other military exporters include France, the United Kingdom, Canada and Australia.
The experts noted that arms transfers to Hamas and other armed groups are also prohibited by international law, given their grave violations of international humanitarian law on 7 October 2023, including hostage-taking and subsequent indiscriminate rocket fire.
The duty to “ensure respect” for humanitarian law applies “in all circumstances”, including when Israel claims it is countering terrorism. Military intelligence must also not be shared where there is a clear risk that it would be used to violate international humanitarian law.
“State officials involved in arms exports may be individually criminally liable for aiding and abetting any war crimes, crimes against humanity or acts of genocide,” the experts said. “All States under the principle of universal jurisdiction, and the International Criminal Court, may be able to investigate and prosecute such crimes.”
The experts stressed that the duty to “ensure respect” additionally requires all States to do everything reasonably in their power to prevent and stop violations of international humanitarian law by Israel, particularly where a State has influence through its political, military, economic or other relations. Measures could include:
– Diplomatic dialogue and protests;
– Technical assistance to promote compliance and accountability;
– Sanctions on trade, finance, travel, technology or cooperation;
– Referral to the Security Council and the General Assembly;
– Proceedings at the International Court of Justice;
– Support for investigations by the International Criminal Court or other international legal mechanisms;
– National criminal investigations using universal jurisdiction and civil suits; and
– Requesting a meeting of the parties to the Geneva Conventions.
Most of these measures are also relevant to fulfilling the duty to prevent genocide.
Arms companies contributing to the production and transfer of arms to Israel and businesses investing in those companies bear their own responsibilityto respect human rights, international humanitarian law and international criminal law. “They have not publicly demonstrated the heightened human rights due diligence required of them and accordingly risk complicity in violations”, the experts said.
“International law does not enforce itself,” the experts said. “All States must not be complicit in international crimes through arms transfers. They must do their part to urgently end the unrelenting humanitarian catastrophe in Gaza
