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Responsibility of Israel’s arms suppliers to stop war in Gaza

The appeals court in the Netherlands ordered the government to block all exports of F-35 fighter jet parts to Israel (File/AFP)
The appeals court in the Netherlands ordered the government to block all exports of F-35 fighter jet parts to Israel (File/AFP)
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16 Feb 2024 01:02:43 GMT9
16 Feb 2024 01:02:43 GMT9

The appeals court in the Netherlands ordered the government on Monday to block all exports of F-35 fighter jet parts to Israel. It said: “It is undeniable that there is a clear risk the exported F-35 parts are used in serious violations of international humanitarian law.”

The court gave the Dutch government seven days to comply. The government did not argue on the merits, but said it would appeal to the Supreme Court, arguing that it should be up to the executive branch to set foreign policy, not a court.

The appeals court considered the government’s concerns but ruled that they did not trump the clear risk of breaches of international law. And it pointed out that it was likely the F-35s were being used in attacks on Gaza, leading to unacceptable civilian casualties.

The court dismissed the Dutch state’s argument that it did not have to do a new check on the permit for the exports.

The court order came at a critical time when Israel is gearing up for a likely catastrophic attack against the southern city of Rafah, where around half of Gaza’s population is sheltering after Israel forcibly pushed them from other parts of the Strip.

Its ruling also coincided with the circulation of a transatlantic statement, in which more than 800 serving officials in the US and Europe have signed a statement warning that their own governments’ policies on the conflict could amount to “grave violations of international law.”

The court order, if carried out, could spare the Netherlands the charge of being party to the atrocities being committed in Gaza.

Dr. Abdel Aziz Aluwaisheg

The statement has been signed by civil servants from the US, the EU, and 11 European countries including the UK, France, and Germany. They warned that their governments risked being “complicit” in “one of the worst human catastrophes of this century.”

Human rights organizations have welcomed the Dutch court’s ruling and the EU’s foreign policy chief Josep Borrell made a reference to it on Monday while calling for a cut in arms supplies to Israel.

The court order, if carried out, could spare the Netherlands the charge of being party to the atrocities being committed in Gaza.

Arms suppliers to Israel risk being held legally responsible for Israel’s grave breaches of international humanitarian law. This has been more pertinent since the International Court of Justice ruled in January about the likelihood of acts of genocide being perpetrated there.

The Dutch Minister for Foreign Trade Geoffrey van Leeuwen was correct in noting that the Netherlands was not alone in supplying arms to Israel.

He said: “We are part of a big consortium of countries that are also working together with Israel. We will talk to partners how to deal with this.”

But such a defense could hardly absolve his country from responsibility.

It has long been established in the application of the Geneva Conventions and other instruments of international humanitarian law that states are accountable for the actions of their partners in an armed conflict.

That partnership does not have to be active military involvement, but could include a wide range of activities, including training, arming, equipping, funding, providing intelligence, or partnered operations.

Such states are in a unique position to influence the behavior of their partners, but with the capacity to influence comes a greater responsibility and opportunity to ensure respect for international humanitarian law.

By continuing to provide military assistance to Israel in its war on Gaza, countries such as the UK, Germany, Australia, Canada, and the Netherlands, effectively become partners in the conflict and are seen by many as complicit in the actions committed by Israeli forces.

This is especially the case for the US, which has not only continued its military support for Israel but has increased it and accelerated the delivery of arms used in the war.

The obligation to respect and ensure respect for international humanitarian law is set down in Article 1, common and identical in each of the four Geneva Conventions of 1949, plus the first and third Additional Protocols. It is also an article of faith in customary international law.

Accordingly, there is an obvious obligation to refrain from encouraging or assisting violations. There is also a positive obligation to take feasible measures to influence the parties to the conflict and bring them to an attitude of respect for international humanitarian law.

This means that no support may be provided that would encourage, aid, or assist violations by other states, regardless of the providing state’s subjective intention.

In fact, according to the authoritative Commentary on the Geneva Conventions by the International Committee of the Red Cross, states must not provide support to a party to an armed conflict where there is an “expectation, based on facts or knowledge of past patterns,” that such support would be used to violate international humanitarian law.

As responsible members of the international community, states currently providing material support for Israel shoulder a duty to restrain it also — the greater the support the more extensive the measures required on the part of the supporting state will be.

There is an infinite array of possible actions, many of them very pragmatic, for supporters of Israel to exercise their influence to stop its violations, starting with an arms embargo and gradually withdrawing or suspending other forms of support when needed.

In addition to efforts to stop occurring violations, the ICRC’s Commentary points out that the obligations under the Geneva Conventions require that states must take measures to “prevent” breaches before they occur. Here too there are many measures that states supporting Israel could take in Gaza to prevent atrocities and reduce their responsibility for them.

A relatively simple and costless measure would be to enable, protect, and empower the UN and other international organizations to carry out their duties in Gaza without hindrance.

An equally effective measure would be for these states to dispatch their diplomatic, security, or humanitarian staff to Gaza. Their mere presence could deter breaches.

If supporters of Israel continue their military aid, enabling it to carry on violating international humanitarian law, and if they fail to take the measures required to fulfill their Geneva Conventions’ obligations, they could find themselves in a situation similar to Israel’s before the International Court of Justice, the International Criminal Court, or their domestic courts, as the Dutch government did.

Any of these courts could find Israel’s partners liable for its action by virtue of materially supporting its actions and failing to take measures to prevent breaches of international humanitarian law by Israeli forces.

  • Dr. Abdel Aziz Aluwaisheg is the Gulf Cooperation Council assistant secretary-general for political affairs and negotiation. The views expressed here are personal and do not necessarily represent the GCC. X: @abuhamad1
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