The legal framework
Participation in arms transfer to Israel amounts to complicity in genocide, crimes of humanity and war crimes.
Refraining from playing any direct or indirect role in arming Israel during its genocidal carnage in Gaza is a legal duty for all States. This obligation was triggered by the International Court of Justice’s decision in January 2024, in the case brought by South Africa, that Israel is plausibly perpetrating genocide. In April, the United Nations Human Rights Council called on all States “to cease the sale, transfer and diversion of arms, munitions and other military equipment to Israel, the occupying Power.”
Furthermore, in July, the ICJ ruled that Israel’s occupation and entire presence in the Gaza Strip and the West Bank, including East Jerusalem, is illegal and must be ended. All States are obliged to end all forms of complicity with this illegal Israeli occupation.
Legal experts warn that after the ICJ’s January 2024 orders of provisional measures against Israel to prevent genocide in Gaza, a State can be held legally responsible when it fails to apply due diligence and implement all lawful means under its authority to prevent and stop genocide.
The Genocide Convention, independent of the interim order, creates obligations upon the state parties. As the ICJ clarified in its interim order: “ … all the States parties to the Convention have a common interest to ensure the prevention, suppression and punishment of genocide, by committing themselves to fulfilling the obligations contained in the Convention. Such a common interest implies that the obligations in question are owed by any State party to all the other States parties to the relevant convention; they are obligations erga omnes partes, in the sense that each State party has an interest in compliance with them in any given case “
The authoritative study by Dr Irene Pietropaoli, Senior Fellow in Business and Human Rights, British Institute of International and Comparative Law (BIICL), underlines also the duties of corporations and businesspersons:
“A corporation or individual businessperson that knowingly assists a State in violating the customary international law principles, including the prohibition to commit genocide, may be complicit in such a violation. It is not required that the corporate accomplice desires that the principal offence be committed. [...] Business activities may be considered directly linked to the commission of a crime during an armed conflict if they provide direct support – for example, military, logistical, intelligence or financial assistance – even if they do not participate in the actual fighting and even if the business did not intend to support a party to the conflict. [...] Direct support can translate into international criminal responsibility for the individual economic actors concerned who may be accused of the direct commission of international crimes.”
