21 February 2024

The Legal Limits of Supporting Israel

An overview of the implications of the ICJ Provisional Measures for third-party states

On January 26, 2024, the International Court of Justice (‘ICJ’ or ‘the Court’) issued its provisional measures order on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) during Israel’s military operations (discussed here and here). The Court decided that it had prima facie jurisdiction due to the fact that Israel’s actions are plausible to fall into the scope of the Genocide Convention (‘GC’), meaning they are possible to constitute a prohibited genocidal act as referred to in Article II and III GC carried out with special intent to “destroy, in whole or in part, a national […] group”.

This article provides an overview of the legal implications of the ICJ’s order for third-party states providing political, financial, or military support to Israel, including the US, Canada, the UK, Germany, and the Netherlands. I argue that the plausibility of genocide establishes the necessary evidentiary threshold to trigger state responsibility for third-party states on the international level as well as to initiate domestic legal proceedings.

Legal implications on the international level

At the international level, those states supporting Israel with political, financial, or military support may face state responsibility for either failure to prevent (Article I GC) or complicity in genocide (Article III (e) GC). Of course, the support of each state varies in nature and extent, but common traits entail the provision of military aid or unrestrained governmental approvals of export licenses of military equipment. In addition, they entail public statements by government officials reiterating that “Israel is a democracy, committed to human rights and international law and that any accusations to the contrary were absurd”, “I do not think the calls for an immediate ceasefire or long pause […] are right”; voting against or abstaining from the adoption of a General Assembly Resolution on 12.12.2023 demanding immediate humanitarian ceasefire; rushing to declare interventions before the ICJ on behalf of Israel, stating that the federal government “firmly opposes a political instrumentalization [of the Convention]”; as well as resorting to the most extreme measure of pausing funding for UNRWA, following allegations that some of its staff were involved in the October 7 Hamas attack on Israel, instead of waiting for the results of investigations by the UN.

According to Article I GC, State parties have the following obligations: a negative obligation not to commit genocide, a positive obligation to prevent genocide, and a positive obligation to criminalize and punish genocide. Due to the ius cogens character of the prohibition to commit genocide, the obligation to prevent genocide is owed by all State parties erga omnes through positive conduct and is violated by omission, as outlined in the 2007 ICJ’s Judgment on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (‘2007 Judgement’), para 432. The scope of the obligation to prevent ratione materiae is limited to the commission of genocide consisting of the acts referred to in Article II and III GC. This obligation commences ratione temporisat the instance that a state learns of, or should have learned of, the existence of a serious risk that genocide will be committed” (2007 Judgement, para. 432).  It is thus necessary to identify, first, if the situation amounts to a serious risk, and second, whether the state knows or should have known about that situation. I argue that both conditions are met.

Whether the ‘serious risk’ criteria of commission of genocide under Article I GC equates to the ‘plausibility’ criteria of commission of genocide required for the indication of provisional measures has never been discussed by the Court. The wording “the Court considers that there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights [of Palestinians in the Gaza Strip to be protected from acts of genocide and related prohibited acts identified in Article III] found by the Court to be plausible, before it gives its final decision” (ICJ, Order 2024, para. 74) could be interpreted in the direction that both may indeed be equated. Similar conclusions can be found here and here.

As for the state’s awareness, it can be argued that supporting states should have learned about a serious risk of genocide when a group of UN experts warned of a “genocide in the making” on November 16, 2023. However, it must be assumed that there was definite knowledge of a serious risk of genocide no later than the issuance of the ICJ’s order on January 26, 2024.

The Court has established that the ratione loci scope is not limited territorially by the Convention (2007 Judgement, para. 183) and reiterated that the obligation’s scope ratione persone applies to all parties (2007 Judgement, para. 430). However, the ICJ noted that the deciding factor was the States’ “capacity to influence effectively the action of the relevant persons likely to commit or already committing genocide” (2007 Judgement, para. 430).

The assessment of this capacity depends on the following: (1) the geographical distance of the state concerned from the scene of the events; (2) the strength of political and other links between the state and the main actors in the events; (3) the state’s legal position vis-à-vis the situation and persons facing the danger or reality of genocide. The ICJ held in its order on provisional measures, Ukraine v Russia that there are several means to fulfill the obligation to prevent genocide. These include invoking the competent UN organ under Article VIII GC, submitting an application to the ICJ under Article IX GC, or resorting to other means “such as bilateral engagement or exchanges within a regional organization” (para 57).

Given the excellent relations that the mentioned states have with Israel, they undoubtedly have the “capacity to influence effectively the action of the relevant persons likely to commit or already committing genocide” and are thus required to take active steps towards prevention. This includes persuading Israel to agree to a ceasefire and to allow for efficient humanitarian assistance. Instead of halting funding to UNRWA, the lifeline of Palestinians, or supplying Israel with military equipment, financial aid, and continued political justifications, these states should focus on prevention efforts.

Complicity in genocide

States are also obligated to avoid complicity in genocide, as stipulated by Article III (e) of the Genocide Convention. The ICJ has clarified that when considering the conduct of states, as opposed to the conduct of individuals, there is “no reason to make any distinction of substance between ‘complicity in genocide’, within the meaning of Article III, paragraph (e), of the Convention and the ‘aid or assistance’ of a State in the commission of a wrongful act by another State within the meaning of the aforementioned Article 16 [ARSIWA]” (2007 Judgement, para. 420). Accordingly, complicity in genocide requires, firstly, that a state must supply aid or assistance to the perpetrators of genocide, meaning there must be a link between the act of assistance and the commission of a wrongful act. Secondly, the ICJ held that the supporting State must have full knowledge of the facts and awareness of the specific intent (dolus specialis) of the principal perpetrator (2007 Judgement, para. 432). Specific intent by the assisting state is thus not required.

Assuming that Israel is indeed committing genocide, a link between the act of assistance and the commission of a wrongful act can be established, since it is safe to assume that the military equipment delivered by the mentioned states is used by the IDF. The more difficult hurdle is to establish that the assisting states have full knowledge of the facts, interpreted as “near-certain knowledge of specific illegality on the part of the recipient state”. The ICJ’s order indicating mere plausibility of the commission of genocide by Israel cannot serve as evidence for establishing the high near-certainty threshold required for assisting states. However, public statements such as asserting that the accusations of genocide against Israel “lack any basis” may indicate ‘willful blindness’, defined as  “deliberate efforts to avoid knowledge of illegality on the part of [Israel] in the face of credible evidence of present or future illegality”. The ICJ’s order in conjunction with UN expert reports could be considered as credible evidence in this regard.

Legal implications on the domestic level

Another implication for third-party states could be that domestic courts, based on the ICJ order, halt the export of weapons to Israel – or even issue arrest warrants for Israeli office holders, if not prosecute office holders of supporting states.

Administrative proceedings

Lawyers could initiate injunction actions to stop the respective government from exporting or authorizing exports of weapons to Israel. This applies to states such as the US, Canada, Germany, Italy, the UK, and the Netherlands (as per the Arms Transfer Database). Such an obligation would stem from Article I GC as well as  Article 6 (3) Arms Trade Treaty (‘ATT’), which mandates the denial of arms transfer authorization if the State knows the arms would be used to commit genocide, crimes against humanity, or certain war crimes. For member states of the European Union, Article 2 EU Council Common Position 2008/944/CFSP (‘EUCP’) requires the denial of export licenses for military technology and equipment if it would be inconsistent with the recipient countries’ respect for human rights and international humanitarian law. To this end, the EUCP states that a “real risk” is sufficient for triggering the approval’s denial. Additionally, the national legislation of many of these states prohibits the export of weapons if there is  “reason to believe that the weapons may be used for violations of international law” (§ 6 (3) War Weapons Control Act in Germany) or “if “there is a clear risk that the items might be used to commit or facilitate […] a serious violation of international humanitarian law” (Criteria 2 of the UK’s strategic export licensing criteria). The ICJ’s order would satisfy the low knowledge threshold of “reason to believe”, possibly the threshold of “a clear risk”, but unlikely the threshold of positive knowledge required under the Article 6 (3) ATT. It should be noted that such legal claims have been submitted in the Netherlands (as discussed here and here) and in the UK.

Criminal proceedings

Conversely, the ICJ’s order can serve as preliminary evidence for the public prosecutor’s office to initiate investigations against Israeli officials for genocide or incitement to genocide or war crimes, and –if it finds sufficient evidence– issue an arrest warrant and / or file an indictment before the criminal court. The commission of genocide as one of the four international crimes is prohibited in most national criminal codes, for which national courts have universal jurisdiction, regardless of where crimes were committed and irrespective of the nationality of the perpetrator. An arrest warrant would prevent relevant Israeli officials from traveling to those states. A move in this direction has been made by the Swiss group Legal Action Against Crimes Against Humanity which submitted criminal complaints before the Attorney General against Israeli President Isaac Herzog.

In the same vein, the ICJ’s order can serve as initial evidence for the public prosecutor’s office to start investigations against national government office holders –including the president, prime minister, and ministers of relevant ministries– for their potential role in assisting genocide or war crimes through the provision of military equipment. Drawing upon this line of reasoning, a criminal complaint was lodged against the federal government in Germany last week.

Conclusion

While it is legally possible under the Genocide Convention’s compromissory clause for states to bring a case against the mentioned states for complicity in or failure to prevent genocide before the ICJ, such action is rather unlikely. Therefore, domestic legal avenues seem more feasible and indeed more effective to avoid the growing perception that Western states employ the rule of law selectively and grant Israel impunity. The minimal effect of the ICJ’s 2024 order –which established the plausible risk of genocide by Israel in Gaza by outlining in great detail the destruction (paras. 46-49) and dehumanizing language (paras. 50-53)– is that it prevents these supporting states from claiming ignorance of the facts.


SUGGESTED CITATION  Salem, Nora: The Legal Limits of Supporting Israel: An overview of the implications of the ICJ Provisional Measures for third-party states, VerfBlog, 2024/2/21, https://verfassungsblog.de/the-legal-limits-of-supporting-israel/, DOI: 10.59704/a9131e4154b0c11e.

2 Comments

  1. Loubna Youssef Fri 23 Feb 2024 at 07:24