Does the West risk charges of complicity by supplying weapons to Israel in light of its plausible genocide in Gaza?
As lawmakers across much of the West debate the extent to which Israel may be hampering the passage of lifesaving aid into Gaza, the weapons exports that underpin much of Israel’s war on the besieged enclave continue to flow.
Since the war began, the volume of weapons entering Israel has increased as huge volumes of ordinance are used to flatten areas of Gaza as well as kill, maim and displace its civilian population.
“On the one hand, we have this dire humanitarian need, on the other hand, we have this continual supply of weapons to the country Israel, [which is] creating that need,” Akshaya Kumar, the director of crisis advocacy at Human Rights Watch (HRW), said.
When it comes to arming another country, international law has rules and conventions to control who arms whom and what the weapons are used for.
Under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide – which the International Court of Justice (ICJ) ruled in January may plausibly be under way in Gaza – states are legally bound to prevent genocide, war crimes and crimes against humanity.
The United States declined to sign the convention until 1988.
Under the terms of the internationally binding Arms Trade Treaty – to which the US is not a signatory – a country is prohibited from exporting weapons to any state it suspects might use them for “genocide, crimes against humanity… attacks directed against civilian objects or civilians protected as such”.
More than 31,000 Palestinians have died due to Israel’s war on Gaza so far, mostly women and children, according to the Palestinian Ministry of Health in Gaza, and some 73,000 have been injured. Health facilities, also under attack and siege, ceased being able to deal with the wounded and the dying months ago.
While “Western states have recently been going to great lengths to have Israel recognise its role in creating the suffering we’re seeing in Gaza,” HRW’s Kumar said, “we’re not seeing any corresponding reduction in the flow of weapons from states such as the US, Germany and beyond”.
Israel’s principal arms suppliers have focused on getting aid into Gaza to reach the Palestinians being attacked with many of the weapons they sold to Israel.
US President Joe Biden used his State of the Union address this year to announce the creation of a maritime corridor by which he claims it would be possible to bypass Israel and deliver aid to Gaza.
While some countries have suspended arms exports to Israel in light of its war on Gaza, some significant suppliers remain.
The US’s annual contribution of about $3.8bn to Israel’s military budget has continued, on top of which is a further $14bn for Israel the US approved in February, reportedly with an eye to preparing Israel for a “multi-front war” – which many read as opening another front against the armed group Hezbollah in Lebanon.
International law
According to the Stockholm Institute for Peace, the US provides 69 percent of Israel’s arms imports but recent confidential briefings to the US Congress, reported on by the Washington Post, suggest this may not be the full picture.
A legal loophole in the US Arms Export Control Act – which governs the export and end-use of weapons shipped from the US – means only packages of a certain value need Congressional oversight, meaning “bundled packages” below that value are being slipped through regularly.
The US maintains it is acting within the provisions of the law.
Germany’s arms exports to Israel have increased too, with Berlin shipping some $350m worth of weaponry, a tenfold increase on 2022 exports, most of which was approved after the Hamas attack on Israel.
Other countries, such as Australia, Canada, France and the United Kingdom, were all named in a UN report in February as maintaining their supplies.
In response to a query by media as to the responsibility attached to arming Israel as it devastates Gaza, a US State Department spokesperson wrote that there “has been no determination that Israel has committed genocide, including in the ICJ”.
In recent weeks, the UK and others are understood to have adopted a similar position over the well-reported and mounting humanitarian crisis in Gaza, maintaining business as usual while expressing concern that the weapons they continue to supply may be used in an impending assault on Rafah, where 1.4 million civilians are sheltering.
However, while many countries in the West continue to provide Israel with weapons, other former exporters appear alive to the legal hazards of licencing weapons to a state the ICJ has found may plausibly be committing genocide.
In addition to the Antwerp police being condemned by Belgium’s Labour Party for its decision to import antiriot weapons from Israel, there are wider, longstanding bans on weapons sales to Israel.
Shortly after the assault on Gaza began in October, Italy and Spain halted arms shipments to Israel, though the latter continues to provide ammunition for “display”. Belgium’s Walloon regional government, as well as the Japanese Itochu Corporation, have also announced that they are halting arms exports.
In February, a judge in the Netherlands upheld a ruling blocking the export of F-35 parts to Israel, saying, “It is undeniable that there is a clear risk the exported F-35 parts are used in serious violations of international humanitarian law.”
The UN has already warned of the legal hazards of exporting weapons to Israel in its experts’ report, unambiguously titled: Arms exports to Israel must stop immediately.
The UK is facing legal pressure to reverse its position on weapons exports to Israel while in the US, the Center for Constitutional Rights (CCR) NGO is appealing its case against the president, the secretary of state and the secretary of defence for the continued export of weapons to a state potentially engaging in genocide.
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