The ICJ's Ruling and its Influence on Military Embargoes

Article by Alejandro Abadía | July 29, 2024 | Global Rights Defenders

On January 26, the International Court of Justice (ICJ) ordered Israel to adopt provisional measures to prevent the commission of a "plausible" genocide in the Gaza Strip. The decision resulted from a legal claim brought by South Africa, in which it accused the Israeli government of breaching the Genocide Convention during its war against Hamas. The Court did not order a ceasefire as the South African legal team initially requested. However, it demanded Israel, among other things, to refrain from breaching the Convention, prevent and punish any public incitement for committing genocide, and ensure the provision of humanitarian assistance to Gaza.[1]

While the ruling primarily concerns Israel, its impact may extend beyond its borders, as it can affect the conduct of third parties. Therefore, the judgement's significance lies not only in the provisional measures themselves but also in its capacity to influence public and private actors in their dealings with the country.

The Low Countries Embargo

The government of the Southern Belgian region of Wallonia, led by Prime Minister Elio Di Rupo, suspended two ammunition export licenses to Israel granted earlier in 2023 to the Liege-based company PB Clermont. The decision was a direct consequence of the "[...] order of the International Court of Justice, [...] as well as the unacceptable deterioration of the humanitarian situation in the Gaza Strip [...]".[2] Such initiative was also influenced by a demand from human rights organizations, including Amnesty International, urging the local government to halt arms sales to Israel.[3] The NGOs argued that the Belgian authorities had a legal obligation to prevent the commission of a possible genocide in Gaza in light of a "real and imminent" risk acknowledged by the ICJ.[4] This responsibility entailed refraining from providing Israel with the means that could contribute to a potentially illegal act. Thus, social organizations considered the measure not a matter of policy choice but a legal requirement that Belgium (and its regions) had to fulfil as a State party to the Convention.

The Dutch government adopted a similar initiative by suspending the export of fire jet components to Israel. Unlike its neighbour, the action resulted from a judicial order issued by a national appeal court after three NGOs, including Oxfam, accused Amsterdam of being complicit in alleged international law breaches committed by the Israeli army in Gaza.[5] The Court ruled in favour of the claimants and ordered the cessation of military exports, citing a "clear risk that the exported [materials] are used in serious violations of international humanitarian law."[6] Although the government plans to appeal the ruling, Oxfam and other civil organizations have welcomed it as a positive step towards protecting Palestinians and upholding international law resulting from the influence of the ICJ's ruling.[7]

The measures taken by both Belgium and the Netherlands have different origins. While the Wallon government decided independently to restrict the exports of war materials to Israel, the Dutch authorities were obliged to do so by judicial order. In both cases, however, the actions aim to prevent any form of collaboration in the commission of international crimes. In the case of Wallonia, the decision is consistent with Article III of the Genocide Convention, which explicitly prohibits complicity in genocidal acts. In contrast, the Dutch tribunal's ruling aligns with Common Article 1 of the Geneva Conventions, which requires State parties to respect international humanitarian law (IHL).

According to some experts and legal analysts, the measures taken are part of the "deterrent effect" created by the ICJ decision.[8] This view suggests that the World Court warned third parties of a potentially high-risk situation by acknowledging the plausibility of a genocide in Gaza. Consequently, it underscores the need to adopt due diligence mechanisms in certain activities, such as military assistance and arms trade, to avoid contributing to the deterioration of the situation and any form of complicity in alleged international crimes.

Reactions From the Land of the Rising Sun

The ICJ ruling has also influenced the private sector. In early February 2024, the aviation division of the major Japanese corporation, Itochu, expressed its intention to suspend all future cooperation with Elbit Systems, an Israeli arms manufacturer. Both companies had signed a Memorandum of Understanding (MoU) at the beginning of March 2023 to strengthen bilateral collaboration and facilitate military equipment imports from Israel.[9] However, considering the ICJ decision, Itochu cancelled further activities under such MoU by the end of February 2024.Palestinian supporters have praised such determination, arguing that it aligns with the corporate human rights obligations.[10]

Itochu's decision is consistent with its 2019 human rights policy. This instrument incorporates a due diligence mechanism to identify the negative impacts of its corporate activities and business relations and facilitates the adoption of appropriate measures in response.[11] According to the United Nations Guiding Principles on Business and Human Rights (UNGPs), which form the foundation of the policy, if a company is not the perpetrator of serious human rights violations but is indirectly involved, it should consider severing ties with the responsible party.[12] Consequently, in light of the grave risk of genocide identified by the ICJ in the Gaza Strip, Itochu adopted this line of action.

The decision taken by Itochu went beyond the precepts of corporate social responsibility. Instead of being rooted in voluntary social commitments, the determination to cut ties with the Israeli defence company was based on a moral obligation to uphold international law. Although the Japanese company is a private entity, it recognizes human rights as a legitimate and relevant legal framework for its corporate activities. Consequently, the commercial relationship with Elbit Systems was regarded as a matter of accountability that needed to be addressed under its corporate responsibility to respect human rights, as established by the UNGPs. With such decisiveness, Itochu aimed to prevent its products, operations and services from being linked to alleged illegal acts.

Conclusion

Although the ICJ decision primarily involved Israel, it has shown the potential to influence the behaviour of third parties. The actions taken by Wallonia and The Netherlands are examples of how certain national authorities have interpreted their obligation to protect human rights and decided to impose military embargoes to avoid complicity in alleged illegal acts. Such an effect has even extended to the private sector, where global corporations such as Itochu have cut commercial ties with controversial partners to honour their human rights policies and guarantee their non-assistance in grave breaches of international law. 

References

[1] International Court of Justice. (2024). Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel). Retrieved February 3, 2024 from https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf

[2] The Cradle (2024). Local Belgian govt suspends arms export licenses to Israel. Retrieved May 20, 2024 from Local Belgian govt suspends arms export licenses to Israel (thecradle.co)

[3] Le Soir (2024). Guerre Israël – Hamas: sous pression, la Wallonie suspend des licenes d´export d´armes vers Israël. Retrieved May 27th, 2024 from Guerre Israël-Hamas : sous pression, la Wallonie suspend des licences d’export d’armes vers Israël - Le Soir.

[4] Amnesty International, Ligue des Droits Humains, CNAPD, Vredes Actie (2024) Lettre Ouverte à Elio Di Rupo: le respect du droit international commence en Wallonie. Retrieved in June 1, 2024 from https://www.amnesty.be/IMG/pdf/20240131_cour_di_rupo_poudre_exporte_e_vers_israe_l.pdf

[5] Aljazeera (2024). Netherlands accused of war crimes complicity for Israeli military supplies. Retrieved June 11th, 2024 from Netherlands accused of war crimes complicity for Israeli military supplies | Israel-Palestine conflict News | Al Jazeera

[6] Oxfam (2024). Oxfam reaction to the Dutch court´s decisión to stop military exports to Israel. Retrieved May 27th, 2024 from Oxfam reaction to the Dutch court's decision to stop military exports to Israel | Oxfam International

[7] Ibid.

[8] The New Arab (2024). How the ICJ ruling paved the way to banning arms sales to Israel. Retrieved June 11th, 2024 from How the ICJ paved the way to banning arms sales to Israel (newarab.com).

[9] Middle East Monitor (2024). Japanese company to sever tie with Israel´s Elbit over Gaza war. Retrieved June 21st from Japanese company to sever tie with Israel’s Elbit over Gaza war – Middle East Monitor

[10] Truthout (2024). Major Japanese Firm Cuts Ties With Israel Arms Company Elbit After ICJ Ruling. Retrieved June 22nd from Major Japanese Firm Cuts Ties With Israel Arms Company Elbit After ICJ Ruling | Truthout

[11] Itochu Corporation (n.d.) Respect and Consideration for Human Rights: Policy and Basic Concept. Retrieved June 27th from Respect and Consideration for Human Rights | ITOCHU Corporation

[12] United Nations Guiding Principles on Business and human Rights. Principle # 19.