Ann Arbor (Informed Comment) – More than thirty independent experts appointed by the Office of the High Commission on Human Rights of the United Nations said Friday that arms exports to Israel must cease immediately, given Israeli violations of the international laws of war and the government’s announced intention to invade Rafah in south Gaza, which would create a further humanitarian catastrophe.
They pointed to the obligations laid on states by the Third Geneva Convention to ensure respect for the law: “States, whether neutral, allied or enemy, must do everything reasonably in their power to ensure respect for the Conventions by others that are Party to a conflict. This duty to ensure respect by others comprises both a negative and a positive obligation. Under the negative obligation, High Contracting Parties may neither encourage, nor aid or assist in violations of the Conventions by Parties to a conflict. Under the positive obligation, they must do everything reasonably in their power to prevent and bring such violations to an end.”
They also called for a halt to all transfers of arms to Hamas.
The joint statement said, “All States must ‘ensure respect’ for international humanitarian law by parties to an armed conflict, as required by 1949 Geneva Conventions and customary international law. States must accordingly refrain from transferring any weapon or ammunition – or parts for them – if it is expected, given the facts or past patterns of behaviour, that they would be used to violate international law.”
The experts added, “Such transfers are prohibited even if the exporting State does not intend the arms to be used in violation of the law – or does not know with certainty that they would be used in such a way – as long as there is a clear risk.”
They slammed private arms manufacturers as well, saying “They have not publicly demonstrated the heightened human rights due diligence required of them and accordingly risk complicity in violations.”
As for states, they observed, “International law does not enforce itself. All States must not be complicit in international crimes through arms transfers. They must do their part to urgently end the unrelenting humanitarian catastrophe in Gaza.”
They cited approvingly the decision of an appeals court in the Netherlands forbidding the export to Israel from that country of spare parts for the F-35 fighter jet. A Dutch news site quoted Judge Bas Boele as saying, “It is undeniable that there is a clear risk that the exported F-35 parts are used in serious violations of international humanitarian law.” I also noted that the NL Times added that the court said, “Israel does not take sufficient account of the consequences of its attacks for the civilian population. Israel’s attacks on Gaza have resulted in a disproportionate number of civilian casualties, including thousands of children.”
They noted that the Dutch court of appeals pointed to indiscriminate bombing, the destruction of 60% of civilian homes, damage to hospitals, schools, mosques and other facilities, the displacement of 85% of the population, and the very high civilian death toll as indications that Israel is violating the laws of war.
The experts also pointed to the January 26 preliminary injunction against Israel by the International Court of Justice, which found the genocide case lodged against Tel Aviv by South Africa to be plausible and ordered that acts that constitute genocide under international law be halted by Israel.
They said, “The need for an arms embargo on Israel is heightened by the International Court of Justice’s ruling on 26 January 2024 that there is a plausible risk of genocide in Gaza and the continuing serious harm to civilians since then. This necessitates halting arms exports in the present circumstances.”
The 1948 Genocide Convention forbids countries from exporting arms into a situation where it is plausible that genocide is taking place.
The experts said, “State officials involved in arms exports may be individually criminally liable for aiding and abetting any war crimes, crimes against humanity or acts of genocide. All States under the principle of universal jurisdiction, and the International Criminal Court, may be able to investigate and prosecute such crimes.”
Israel’s main arms suppliers since October have been The United States, Germany, France, Britain, Canada and Australia. The experts are saying that the politicians and military men making these arms transfers to Israel could end up being prosecuted for complicity in war crimes, including the crime of genocide.
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Some countries have already halted arms shipments to Israel. They include not only the Netherlands but also Spain, Belgium’s Walloon regional government and Italy. The OHCHR says they lauded the Japanese company Itochu Corporation, as well, for ceasing exports to Israel.
The experts noted an obligation on UN member states to uphold international humanitarian law and urged that states take the following steps with Israel:
- Diplomatic dialogue and protests;
– Technical assistance to promote compliance and accountability;
– Sanctions on trade, finance, travel, technology or cooperation;
– Referral to the Security Council and the General Assembly;
– Proceedings at the International Court of Justice;
– Support for investigations by the International Criminal Court or other international legal mechanisms;
– National criminal investigations using universal jurisdiction and civil suits; and
– Requesting a meeting of the parties to the Geneva Conventions.
Note that the ICJ proceedings have already been initiated. The Security Council has three times voted to impose a ceasefire, but the Biden administration vetoed it in each case. The General Assembly has also voted for a ceasefire but has no executive power.
The OHCHR press release listed the experts:
Ben Saul, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; Margaret Satterthwaite, Special Rapporteur on the Independence of Judges and Lawyers; Cecilia M. Bailliet, Independent Expert on human rights and international solidarity; Claudia Mahler, Independent Expert on the enjoyment of all human rights by older persons; Farida Shaheed, Special Rapporteur on the right to education; Livingstone Sewanyana, Independent Expert on the promotion of a democratic and equitable international order; Surya Deva, Special Rapporteur on the right to development; Attiya Waris, Independent Expert on foreign debt, other international financial obligations and human rights; Ashwini K.P., Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance; Olivier De Schutter, Special Rapporteur on extreme poverty and human rights; Paula Gaviria Betancur, Special Rapporteur on the human rights of internally displaced persons; Siobhán Mullally, Special Rapporteur on trafficking in persons, especially women and children; Tomoya Obokata, Special Rapporteur on contemporary forms of slavery, including its causes and consequences; Carlos Salazar Couto (Chair-Rapporteur), Sorcha MacLeod, Jovana Jezdimirovic Ranito, Chris M. A. Kwaja, Ravindran Daniel, Working Group on the use of mercenaries; Robert McCorquodale (Chair-Rapporteur), Fernanda Hopenhaym (Vice-Chair), Pichamon Yeophantong, Damilola Olawuyi, Elzbieta Karska, Working Group on business and human rights; Barbara G. Reynolds (Chair), Dominique Day, Bina D’Costa, Working Group of Experts on People of African Descent; Balakrishnan Rajagopal, Special Rapporteur on the right to adequate housing; Dorothy Estrada Tanck (Chair), Claudia Flores, Ivana Krstić, Haina Lu, and Laura Nyirinkindi, Working group on discrimination against women and girls; and Francesca Albanese, Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967; Reem Alsalem, Special Rapporteur on violence against women and girls, its causes and consequences; Fabián Salvioli, Special Rapporteur on truth, justice, reparation and guarantees of non-recurrence.
The statement is endorsed by: Aua Baldé (Chair-Rapporteur), Gabriella Citroni (Vice-Chair), Angkhana Neelapaijit, Grażyna Baranowska, Ana Lorena Delgadillo Perez, Working Group on enforced or involuntary disappearances; Mary Lawlor, Special Rapporteur on the situation of human rights defenders; Nicolas Levrat, Special Rapporteur on minority issues; and David R. Boyd, Special Rapporteur on human rights and the environment.
The Special Rapporteurs, Independent Experts and Working Groups are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures’ experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organisation and serve in their individual capacity.
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