Ending complicity in international crimes: a two-way arms embargo on Israel

The undersigned organisations demand that States that have provided and continue to provide arms and other forms of military assistance to Israel, adhere to their legal obligations and act resolutely and urgently to prevent Israel from perpetuating further international crimes and other serious violations of international law. This includes their obligations to prevent the commission of genocide.

We remind these States that their binding obligations under international humanitarian law, international human rights law, international criminal law, and other international law, including the United Nations (UN) Charter, require that they put an immediate stop to such transfers, and suspend all licenses for arms destined to Israel from their jurisdictions.

States parties to the Arms Trade Treaty (ATT) have additional binding obligations under the treaty, and so do States under relevant regional and national legal instruments on arms control.

We recall that providing arms or military support to Israel may make exporting States complicit in its actions.

●   States’ Facilitation of International Crimes against Palestinians through the Provision of Arms and Military Support

Since the launching of its large-scale retaliatory military offensive on Gaza on 7 October 2023, the Israeli military has carried out indiscriminate, disproportionate and other unlawful attacks against civilian infrastructure causing widespread civilian casualties, including through the illegal use of explosive weapons and white phosphorus.

As of 2pm on 5 November 2023, Israel’s military offensive has resulted in the killing of 9,770 Palestinians, including 4,008 children and 2,550 women, according to the Palestinian Ministry of Health. In addition, about 2,260 Palestinians, including 1,270 children, have been reported missing and are presumed to be trapped or dead under the rubble.

With “nowhere is safe in Gaza,” Palestinian civilians in besieged Gaza, including a million children, are trapped in dire conditions under almost constant bombing, where they have no access to safe shelter, food, water, electricity, or fuel. “The complete siege of Gaza coupled with unfeasible evacuation orders and forcible population transfers, is a violation of international humanitarian and criminal law,” as decried by UN experts. On 27 October, the UN General Assembly, in a resolution adopted at its emergency special session, stressed “the imperative, under international humanitarian law, of ensuring that civilians are not deprived of objects indispensable to their survival.”

Statements by Israeli officials urged that “the emphasis is on damage and not on accuracy”, and called for “erasing the Gaza Strip from the face of the earth”. In a span of under a week, Israel deployed around 6,000 bombs, almost the same quantity as the US had released in Afghanistan over the course of a year. We are particularly concerned with reports of attacks on civilians and civilian infrastructure, including attacks on health personnel, journalists, hospitals, schools, mosques, churches, bakeries, telecommunications infrastructure and areas marked for safe passage. Many of these acts may amount to war crimes, crimes against humanity and other grave violations of international law, including incitement to commit acts of genocide.

UN human rights experts sounded the alarm on 19 October 2023, “There is an ongoing campaign by Israel resulting in crimes against humanity in Gaza. Considering statements made by Israeli political leaders and their allies, accompanied by military action in Gaza and escalation of arrests and killing in the West Bank, there is also a risk of genocide against the Palestine people”, emphasising that “There are no justifications or exceptions for such crimes. We are appalled by the inaction of the international community in the face of belligerent war-mongering.”

In addition to carpet-bombing Gaza, Israel has escalated its repression and collective punishment against the Palestinian people on both sides of the Green Line. Between 7 October and 2:00 pm on 5 November 2023, in the West Bank, including Jerusalem, the Israeli occupying forces and settlers killed 149 Palestinians, including 44 children. Furthermore, the Knesset’s National Security Committee continued with “the government’s broader plan to arm Jewish Israeli civilians”, by loosening Israel’s gun control and reportedly making an additional 400,000 Jewish-Israelis eligible to have a licence for guns.

●       Continued arms transfers to Israel in spite of evidence of crimes and other violations

In the midst of these attacks, and despite well-documented and reported grave violations and crimes against the Palestinian population over the years, the supply of arms and military support to Israel from the United States (US), — the largest single provider of military aid to Israel for decades,— and from Canada, Germany, Italy, the United Kingdom (UK), the Netherlands — States Parties to the ATT —, has continued. At its 2021 Special Session on the grave human rights situation in the Occupied Palestinian Territory, including East Jerusalem, the UN Human Rights Council urged all States to refrain from transferring arms when they assess that there is a clear risk that such arms might be used to commit or facilitate serious violations or abuses of international human rights law or serious violations of international humanitarian law.

Our organisations are alarmed by the reported news that some States, including the US, the UK, and Germany, have in recent days decided to supply additional military equipment or ‘fast-track’ the supply of military equipment to Israel, in spite of ample evidence of war crimes being committed in Gaza.

●       International legal obligations relating to arms transfers

Among the applicable international legal obligations:

Customary international law

Pursuant to customary international law, as largely codified in the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts of 2001, a State that aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with the knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State (Article 16).

This applies to arms transfers, as well as to other forms of support that make a significant contribution to the unlawful act(s) such as logistical, technical or financial support, intelligence, or provision of other equipment.

International Humanitarian Law

Common Article 1 to the four Geneva Conventions of 1949 places a standing obligation on States to “respect and ensure respect” for the Conventions’ protections in all circumstances. In its authoritative commentary to Common Article 1, the International Committee of the Red Cross (ICRC) explains that the Article 1 obligation requires, inter alia, that States “refrain from transferring weapons if there is an expectation, based on facts or knowledge of past patterns, that the weapons would be used to violate the Conventions.”

Arms Trade Treaty (ATT)

The express purpose of the ATT was to prevent and reduce human suffering by establishing common international standards for the transfer of conventional weapons. Its Preamble refers to the obligations to respect and ensure respect for International Humanitarian Law and to respect and ensure respect for human rights.

Under Article 6(3) of the ATT, States Parties undertake not to authorise any transfer of conventional arms if they have knowledge at the time of authorisation that arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which they are a Party.

Under Articles 7 and 11, State Parties undertake not to authorise any export of conventional arms, munitions, parts and components that would, inter alia, undermine peace and security or be used to commit serious violations of international humanitarian law and international human rights law.

EU Common Position on Arms Exports 2008/944/CFSP

European Union (EU) Member States are also bound by the terms of the Council Common Position 2008/944/CFSP of 8 December 2008 as common rules governing the control of exports of military technology and equipment, and are, inter alia, required to “deny an export licence if there is a clear risk that the military technology or equipment to be exported might be used in the commission of serious violations of international humanitarian law.”

OSCE Principles Governing Conventional Arms Transfers

Organisation for Security and Cooperation in Europe’s (OSCE) members, which include the US , are required to adhere to the OSCE Principles Governing Conventional Arms Transfers (OSCE Principles) in their arms export decisions. Principle 4 requires States to “promote and, by means of an effective national control mechanism, exercise due restraint in the transfer of conventional arms and related technology.” In order to give effect to that principle, States “will take into account” a number of factors in considering any proposed arms exports. They are then required to avoid any transfers which breach any or all of the OSCE criteria contained within the OSCE Principles.

It is clear that the continued supply of arms exports and military aid to Israel is in violation of all these obligations. Over the years, unchecked and in many cases arguably internationally unlawful military support to Israel has also enabled, facilitated and maintained Israel’s decades-long settler-colonial and apartheid regime imposed over the Palestinian people as a whole.

A failure to take action may also render States parties complicit in internationally wrongful acts through the aiding or abetting of international crimes and may give rise to the individual criminal responsibility of senior officials of these States for aiding and abetting the commission of war crimes and crimes against humanity under Article 25(3)(c) of the Rome Statute of the International Criminal Court. Given the overwhelming evidence, States providing weapons and other military assistance to Israel cannot claim that they are unaware of the myriad of serious violations of international law that are being, and have been, committed for decades. The provision of military equipment and military support to Israel with knowledge that they are likely to be used in serious violations of international law, including international crimes, invites charges of complicity.

As Israel continues to import weapons, with over USD 4 billion annually from the US and Germany alone, it has also established itself as a leader in the cybersecurity and surveillance industry and is among the world’s largest exporters of weapons, ranking tenth in 2022. Such technologies are often promoted as having been successfully tested on the Palestinian population in the context of Israel’s long-standing occupation during which they have also often been developed. Our organisations therefore further demand that States put an end to and denounce imports of arms and surveillance technology from Israel.

●       Demands for Immediate Measures by States:

Imposing a two-way arms embargo on Israel is both a legal and a moral obligation. Pending such an embargo, all States must immediately suspend all transfers of military items and associated services and assistance to Israel. ATT States Parties must immediately terminate current, and prohibit future transfers to Israel of conventional arms, munitions, parts and components referred to in Articles 2(1), 3 and 4 of the ATT.

In addition to imposing a two-way arms embargo, States must also refrain from concluding any military cooperation agreements, including military training and intelligence operational cooperation, which could implicate them in international crimes and other serious violations of international law.

Our organisations hence call on:

1. All States to call for an immediate ceasefire, the unconditional and unimpeded access of fuel and humanitarian aid, including water, food, and medical supplies, into the Gaza Strip to alleviate the dire humanitarian crisis, and the immediate lifting of the 16-year-long illegal blockade and closure;
2. The US, the UK, Germany, Canada, Italy, the Netherlands and other States that authorise the continued transfer of arms, and other forms of military support to Israel to

• immediately bring an end to such transfers in accordance with their international law obligations, and
• immediately halt the provision of any materiel, equipment or other commodity that may foreseeably be used in the commission of serious international law violations including international crimes;

3. States importing arms and surveillance technology from Israel to immediately halt all such imports;
4. Transit States to refuse to have their ports and airports used for transferring arms to Israel; and
5. All ATT States Parties to cooperate within relevant international and regional organisations to impose a two-way embargo on transfers of military items to and from Israel, including by supporting the prompt organisation of an extraordinary meeting of the Conference of States Parties, as provided in Article 17.5 of the ATT.

List of endorsing organisations (this will be updated on a rolling basis).