by Dr. Kathryn Allinson, Lecturer in Law, University of Bristol
The UK government is currently in the High Court defending its ongoing supply of fighter jet components to Israel. The legal dispute centres on the government’s choice to exclude F-35 parts while halting 30 arms licenses to Israel in September 2024. The F-35 plays a crucial role in Israel’s operations in Gaza, enabling the deployment of highly destructive missile strikes. An incident on July 30 resulted in the deaths of 90 Palestinians and injuries to over 300. The lawsuit contends that the UK government’s policy violates the Strategic Export Licensing Criteria, which prohibit the sale of arms to nations where they could be used in violation of international law.
The UK is not the only country facing legal repercussions for its continued support of Israel. The F-35 jet programme partners include Australia, Canada, Denmark, Italy, the Netherlands, Norway and the US. In February 2024, the Hague Court of Appeal decided that the Dutch state was obliged to halt any transfer of F-35 plane parts to Israel due to the ‘clear risk’ that Israel would commit serious violations of international humanitarian law, and use the F-35 planes in those acts. In turn, Nicaragua has instituted proceedings against Germany before the ICJ for alleged violations by Germany of its obligations deriving from the Genocide Convention, the Geneva Conventions of 1949 and their Additional Protocols. It argues that Germany has not only failed to fulfil its obligation to prevent the genocide allegedly committed by Israel against the Palestinian people but has also contributed to the commission of that genocide through its ‘assisting, supplying, and failing to pressure Israel…’.
There is increasing agreement that Israel’s actions in the Gaza Strip are in breach of international law, constituting war crimes, crimes against humanity and ‘plausibly’ genocide. The ICJ, in its Order on Provisional Measures in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) case in January 2024, declared that the risk of genocide was ‘plausible’ and that there was a ‘real and imminent risk’ of irreparable harm to the rights protected under the Convention. In addition, the ICJ’s 2024 Advisory Opinion on Legal Consequences arising from Policies and Practices of Israel in the Occupied Palestinian Territory (OPT) affirmed that Israel’s continued occupation of the OPT violates various rules of international law. In November 2024, the International Criminal Court (ICC) issued an arrest warrant for Israeli Prime Minister Netanyahu, along with Israel’s former defence minister Yoav Gallant, over alleged war crimes and crimes against humanity in Gaza.
More recently, UN Human Rights Chief, Volker Turk, condemned Israeli strikes that continue to kill civilians and the ongoing blockade of essential aid, which has now entered its 10th week. “Any use of starvation of the civilian population as a method of war constitutes a war crime, and so do all forms of collective punishment,” the High Commissioner warned. In turn, Tom Fletcher, Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, told the UN Security Council that ‘Israel is deliberately and unashamedly imposing inhumane conditions on civilians in the Occupied Palestinian Territory… every single one of the 2.1 million Palestinians in the Gaza Strip face the risk of famine… One in five face starvation.’
In light of the ICJ’s acknowledgement of the plausibility of genocide, the ICC’s charges of war crimes and UN reports of Israeli policies that intentionally target civilians and create conditions of life calculated to bring about the destruction of parts of the civilian population, what are the international legal implications for the UK and other states continuing to support Israel? The following will briefly outline the obligations that arise for third states from the ICJ and ICC orders, while also highlighting the potential responsibility that can emerge for third states under the laws on state responsibility.
ICJ South Africa v Israel Provisional Measures Order
As a result of the finding that charges of genocide are ‘plausible’ in the ICJ’s provisional measures order, responsibility can arise for third states. States providing Israel with financial or military support may face state responsibility for either failure to prevent (Article 1 Genocide Convention (GC)) or complicity in genocide (Article 3(e) GC). According to Article 1 of the GC, States have a negative obligation not to commit genocide, a positive obligation to prevent genocide and a positive obligation to criminalise and punish genocide.
In line with the ICJ’s 2007 Judgment on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, the obligation to prevent arises “at the instance that a state learns of, or should have learned of, the existence of a serious risk that genocide will be committed (para. 432).” The ICJ’s recent findings indicate that such a risk is present (see ICJ, Order 2024, para. 74). This obligation applies to all states and is not confined by territory. In 2007, the ICJ highlighted that it was each state’s “capacity to influence effectively the action of the relevant persons likely to commit or already committing genocide” that was central to its obligations to prevent (ICJ, 2007 Judgement, para. 430). Considering the ongoing trade relationships involving the UK, US, Germany, Canada, and the Netherlands with Israel, these states have the ‘capacity to influence effectively’ the actions of Israel. They must therefore take proactive measures for the prevention of genocide.
States are also mandated to avoid complicity in genocide (Article 3(e) Genocide Convention and aligned with the prohibition of ‘aid or assistance’ to a State committing a wrongful act under Article 16 of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) (ICJ, 2007 Judgement, para. 420)). Complicity in genocide entails two main elements: first, a state must provide aid or assistance to the genocide perpetrators, with the supportive act having ‘substantially facilitated’ the genocide. This link can be established since the IDF uses the military equipment provided by the supportive states to conduct its campaign in Gaza, wherein the accusations of war crimes, crimes against humanity and genocide arise. Second, the ICJ determined that the assisting State must possess knowledge of the facts and an understanding of the perpetrator’s specific intent (ICJ, 2007 Judgement, para. 432). This has been a more controversial element and is more difficult to argue here. However, the ICJ’s order indicating the plausibility of the commission of genocide by Israel and the recent statements by UN officials mean that, at the very least, assertions that the accusations of genocide against Israel ‘lack any legal basis’ look like wilful blindness. The ICJ’s ruling and UN expert reports may be sufficient evidence of constructive knowledge to fulfil this element. To avoid charges of complicity in the commission of these wrongful acts, states must stop providing military equipment to Israel and all other forms of assistance that can support the campaign in Gaza.
ICJ Advisory Opinion
In its 2024 Advisory Opinion, the ICJ affirmed that the de facto and de jure annexation of the OPT are equally unlawful (ICJ 2024 Advisory Opinion, paras 157-179). Whilst the de facto nature of the current annexation is not considered legally relevant, should Israel officially recognise it, this would formally trigger an obligation of third states not to recognise such annexation (see ICJ 2024 Advisory Opinion, paras 278-279).
The annexation contravenes the erga omnes obligation stemming from the prohibition against using force to acquire territory (Article 2(4) UN Charter). Consequently, other States are legally bound “not to recognise as lawful territorial changes effected by means of annexation” (Hofmann 2020, see also Resolution 3314 (XXIX) and UNGA Resolution 77/126). Further, Articles 40 and 41 of the ARSIWA specify that in cases of a ‘serious breach’ of international law, States must (1) cooperate to bring it to an end through lawful means and (2) not recognise as lawful the situation created by the serious breach… nor render aid or assistance in maintaining that situation.
Acquiring territory by force constitutes a serious breach of international law and a violation of the Charter of the United Nations. The Court’s characterisation of Israel’s abuse of power as “sustained, ” the occupation as “prolonged,” and the continued denial of the right to self-determination highlights that these actions fall under ARSIWA Article 40. States must cooperate to bring to an end the annexation of the OPT, and any States that recognise Israel’s legal position in the OPT or contribute to maintaining this circumstance are violating the obligations under Article 41 ARSIWA. The ongoing supply of military resources that aid in the enforcement of control and the execution of military actions can also constitute a breach of these obligations.
It is worth noting that the obligations arising from Articles 40 and 41 ARSIWA will apply to any serious violation of international law during the campaign in Gaza. There is increasing evidence that the blockade of aid into the Gaza Strip amounts to the war crime of starvation, constituting a breach of a peremptory norm of international law (see ILC report). States are thus under an international obligation to cooperate to bring it to an end and ensure they are not aiding in its maintenance. With food rapidly running out in Gaza, states must act to end the blockade.
ICC Arrest Warrant
Arrest warrants hold both legal and political importance, creating obligations for States. These requirements encompass cooperation in arrests, surrendering suspects and aiding in legal actions. The 124 State parties to the Rome Statute are legally bound to capture suspects and transfer them to the Court if they enter their borders, aligning with their duty to engage fully with the ICC. Article 86 of the Rome Statute mandates that all States Parties must fully cooperate with the ICC during investigations and prosecutions, which includes executing arrest warrants. Furthermore, Article 89(1) clarifies that State Parties must heed ICC requests to arrest and surrender individuals. If someone wanted by the ICC enters a State Party’s territory, that State must detain and transfer them to the Court.
Most EU member states and the UK have confirmed their obligations to cooperate with the Court in executing its warrants against Netanyahu and Gallant. Failure to comply with this obligation can lead to legal proceedings before the ICC. However, Netanyahu recently visited Hungary and the US, without these States surrendering them to the Court. In fact, Hungary withdrew from the ICC while Netanyahu visited, following the court’s issuing of non-compliance proceedings. The US, as it is not a state party, is under no obligation to cooperate with the Court (though Essaway argues here for a universal obligation to arrest Netanyahu). Should Netanyahu visit other state parties to the Rome Statute, they are under an obligation to cooperate with the ICC and must do so.
Conclusion
The growing body of evidence that Israel’s conduct in the Gaza Strip amounts to, at the very least, war crimes and crimes against humanity, but also ‘plausibly’ genocide, creates obligations for third states that carry legal implications if they are not fulfilled. This includes the necessity to cease any support to the Israeli government that could aid and assist in the commission of genocide, war crimes, crimes against humanity and the continued annexation of the OPT. In turn, states must utilise their relationship with Israel to influence and prevent acts of genocide. They must recognise the annexation of the OPT as illegal and comply fully with the ICC arrest warrants. Failure to do so can lead to legal responsibility for these states before international courts and tribunals. As observed in the UK and the Netherlands, domestic courts could also suspend the export of weapons to Israel based on the ICJ order. They could even prosecute officials of supporting states for their complicity in Israel’s acts.
However, legal repercussions will be too late for the civilians facing starvation and upon whom bombs continue to fall ‘indiscriminately’. Tom Fletcher called upon the UN Security Council to act now, to stop arming Israel and to call for accountability. We must all put pressure upon our governments to uphold this call and demand that Israel abide by its international obligations in Gaza. Otherwise, we may all fear the judgment of those to whom we say ‘we did all we could’.