interview

Supply of arms to Israel: “Judicial actions and pressure from civil society are already having certain effects”

Nicaragua will be heard this Monday, April 8, at the International Court of Justice. The country has filed a complaint against Germany for its military support for Israel, which Nicaragua believes could constitute complicity in genocide. Johann Soufi, researcher in international law, is interviewed by Murielle Paradon

Israeli battle tank in motion around the Gaza Strip, January 24, 2024 (illustrative image). AP - Tsafrir Abayov

By: Murielle Paradon Follow

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RFI: what is the objective of this complaint and does it have a chance of succeeding?

Johann Soufi:

there are two types of expected results, one political, the other judicial. From a political point of view, we can already see a change in Germany's attitude since Nicaragua's legal action before the International Court of Justice (ICJ). Germany has changed its tone towards Israel, now calling more forcefully on the Israeli government to let in humanitarian aid and to show reserve in its military response. From this point of view, we can consider that Nicaragua's action had a notable political impact.

From a judicial point of view, then, we could expect provisional measures from the Court, in the same way as it ordered Israel [on January 26, Editor's note], with the difference this time that Nicaragua accuses Germany's complicity in genocide. However, it seems difficult to me for the Court to rule on the alleged complicity of Germany without first ruling on the nature of the acts committed by Israel in the Gaza Strip, and on the existence or not of a genocide. However, it is precisely this question which is the subject of the procedure initiated by South Africa before the ICJ, but it will take years. Israel is not participating in the Nicaragua-Germany affair. From a legal and procedural point of view, it therefore seems to me that there is little chance that Nicaragua's approach will succeed.

There are other approaches than that of Nicaragua. The UN Human Rights Council adopted a resolution on Friday, by 28 votes out of 47, asking states to stop their arms sales to Israel. Can this resolution have a concrete effect

?

Let's first approach the question from a strictly legal point of view. This resolution is not legally binding in itself, but it highlights the obligation of States to prevent international crimes, including by ceasing the supply of weapons to Israel. This obligation results in particular from the 1948 Convention on the Prevention and Punishment of Genocide, in particular since the ICJ recognized, in its order of January 26, 2024, the existence of a plausible risk of genocide in Gaza.

From a practical point of view, however, it seems difficult to expect any concrete effect, particularly from Israel's main arms supplier, the United States. This is, in reality, the whole paradox of international law, which essentially depends on the will of the powers to respect it and implement it. As we can see, both the precautionary measures pronounced by the ICJ in its order of January 26, and the Security Council resolution of March 25 ordering an immediate ceasefire, have not led to any concrete change on the ground. This clearly shows that without the political will of States to impose respect for international law, including through diplomatic, economic, political or military sanctions, it does not necessarily have direct effectiveness in the short term.

Several states are subject to national legal proceedings: Canada, the Netherlands... In Great Britain and France, personalities and parliamentarians have called on governments to stop their arms sales to Israel.

Yes and there have already been the first effects. In the Netherlands, for example, the Court of Appeal in The Hague ordered the suspension of the government's delivery of components for the F-35, the American plane that Israel uses today in the Gaza Strip. In Canada, the government announced its decision to suspend arms deliveries to Tel Aviv. These legal actions and pressure from civil society are therefore already having certain effects. States also know that in the medium or long term, they are likely to be held responsible for complicity in the crimes committed by Israel in the Gaza Strip and the West Bank. There is therefore a legal dimension, beyond the purely political aspect, which means that States and their legal services seek to protect themselves from possible prosecution before national or international courts.

We talk about Canada, the Netherlands, but we know that the biggest supplier of arms to Israel is the United States and they don't seem to be moving...

Yes, that's correct, and it is indeed a problem. The reason why Nicaragua has not sued the United States before the ICJ, while it is doing so for Germany, is also legal. The United States government, when ratifying the 1948 Genocide Convention, entered a reservation on Article IX which otherwise allows the Court to adjudicate disputes between States, including those relating to their responsibility for genocide and of complicity in genocide.

But on the international scene, the American government finds itself increasingly isolated due to its almost unconditional support for the government of Benyamin Netanyahu. At the national level, legal actions have also been initiated against the Biden administration. Finally, the political and financial cost for the American government of continuing to support the Israeli government militarily is also well known. From now on, it is almost the question of the re-election of Joe Biden in November that arises.

Apart from the responsibility of States which could be involved in the sale of arms to Israel,

what about

the responsibility of companies?

In the future, companies and their executives could be convicted for supplying weapons to Israel. I would like to remind you, for example, that the French company Lafarge and some of its managers are being prosecuted for complicity in crimes against humanity, for having traded with Daesh in Syria. In its judgment of September 7, 2021, the Court of Cassation clarified that it was not necessary for the accomplice to share the intention of the perpetrators of crimes against humanity. This is also the jurisprudence of international courts. It is therefore sufficient to demonstrate that the accomplice(s) knew that the main perpetrators were going to commit an international crime and that they facilitated the commission through their aid or assistance for their criminal liability to be engaged. We therefore see, for example, how a company which would deliver weapons to Israel and which would allow the army to commit crimes in the Gaza Strip could see its criminal liability and that of its leaders engaged before national courts, without even that there is a need to demonstrate that the company or its directors shared the criminal intent that is attributed to Israeli officials. The legal risk is very real.

Also read: The question of arms deliveries to Israel before the International Court of Justice

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