Continued Arms Exports to Israel in the Face of Constructive Notice

Investigative journalists have reported that at least two recent Israel Defense Forces air strikes in Gaza—one on a UN school in Nuseirat and the other on a refugee tent camp in Rafah—appear to have used U.S. weapons in ways that violate the laws of war. These reports have revived scrutiny around the legality of continued arms exports and spurred more groups’ calls to stop weapons transfers to Israel. 

Since last year, civil society groups in several countries have filed cases before domestic courts to stop arms sales or transfers to Israel. Most states’ domestic arms control regimes require officials to block or halt weapons sales if they knew or should have known about risks that those weapons would be used to violate the laws of war. In the past, such cases, which frequently ask courts to interpret both domestic arms control regimes and the Arms Trade Treaty, have hinged on questions of “notice” or “knowledge.”

For example, the Arms Trade Treaty requires risk assessments and prohibits the provision of weapons if those weapons would be used in the commission of “genocide, crimes against humanity, breaches of the Geneva Conventions, attacks directed against civilians, or other war crimes.” In the United States, which is not party to the Arms Trade Treaty, domestic law requires a risk assessment before providing security assistance, evaluating the likelihood that the weapons in question will be used in compliance with international law, and establishes red lines for when assistance is not allowed. Many parties to the Arms Trade Treaty have incorporated the requirements in a manner that confers considerable discretion on policymakers charged with determining whether to sell weapons to those with a record of committing abuses. The flood of cases challenging these internal licensing practices will now place those standards under heightened scrutiny.

A narrow interpretation of such provisions would find that the officials making a licensing decision needed to have “actual knowledge” of the likelihood that international crimes would be committed. A more expansive interpretation is that “constructive knowledge” would be sufficient. While an actual knowledge requirement would demand direct evidence that an official knew about a particular situation, constructive knowledge also includes the information a person should have known or could have known after a reasonable level of diligence.

Ongoing litigation before the International Court of Justice (ICJ) could form the basis of this constructive notice. U.S. government officials originally dismissed South Africa’s case under the Genocide Convention as “meritless,” but the ICJ’s provisional measures rulings on Jan. 26, March 28, and May 24 found that the “rights” asserted by South Africa were “plausible”—meaning “grounded in a possible interpretation of the norms invoked”—and identified this as a basis for three rounds of injunctive relief. The court’s powerful May 24 order in response to South Africa’s fourth request for provisional measures, will make U.S. and other officials’ attempts to deny or downplay their knowledge less plausible. The court made clear that it “is not convinced that the evacuation efforts and related measures that Israel affirms to have undertaken to enhance the security of civilians in the Gaza Strip, and in particular those recently displaced from the Rafah Governorate, are sufficient to alleviate the immense risk to which the Palestinian population is exposed as a result of the military offensive in Rafah.”

Likewise, although the ICJ declined Nicaragua’s request to impose provisional measures on Germany, it’s noteworthy that the court also denied Germany’s request to remove the case from its docket. This means the case will move forward, at least until it evaluates the need for Israeli participation, and even though it had the opportunity to do so, the court has not thrown out Nicaragua’s claim that “Germany by its conduct with respect to the serious violations of peremptory norms of international law taking place in the Occupied Palestinian Territories (OPT) has violated international law.” Nicaragua asserts that Germany’s continued political, financial, and military support to Israel, and its decision to stop funding the United Nations Relief and Works Agency for Palestine Refugees in the Near East, violated its obligations under the Genocide Convention, the Geneva Conventions, and customary international law.

Following the court’s line of thinking in these decisions, officials in third states, like the U.S., France, and the United Kingdom, cannot feign ignorance about the risks associated with continuing to support Israeli operations in Gaza.

A U.S. federal court has already paraphrased the ICJ’s plausibility finding in its own ruling in a case asserting that senior U.S. government officials are violating their duties under the Genocide Convention, stating that “undisputed evidence before this Court comports with the finding of the ICJ and indicates the current treatment of the Palestinians in the Gaza Strip by the Israeli military may plausibly constitute a genocide in violation of international law.” Although the U.S. court dismissed that case on jurisdictional grounds, it did “implore” the executive branch to “examine the results of their unflagging support of the military siege against the Palestinians in Gaza.”

The urgency with which Nicaragua and South Africa have brought claims against Germany and Israel respectively at the International Court of Justice should trigger greater reflection by other countries around the “knowledge” requirements and due diligence built into legal regimes governing arms transfers to Israel.

The Importance of “Knowledge” in Arms Control

Constructive knowledge also extends to situations in which an individual accepts assurances but, instead of questioning them, ignores facts to the contrary and does not make further inquiries. In 2023, the Biden administration introduced a revised conventional arms export policy that adjusted its approach, reducing “the level of certainty required to deny an arms transfer” from “actual knowledge to a more likely than not determination that the arms will be used to commit, facilitate the commission of, or aggravate the risk of international law violations.” A February 2024 National Security Memorandum further requires “credible and reliable written assurances” that recipients of U.S. arms funded with congressional appropriations or provided pursuant to presidential drawdown authority will use such arms in accordance with applicable international law. Practically, this should mean administration officials are required to assess a security partner’s conduct in regard to international law.

In contrast, in December 2021, the United Kingdom published a new set of licensing criteria for arms exports. Some observers warned that the new rules were looser and might allow more U.K. weapons to be transferred and used to commit war crimes. According to the U.K. House of Commons library, the new criteria replaced previous language that identified “a risk items might be used for” as a threshold with new language that requires “a clear risk that the items might be used to commit or facilitate” internal repression or a serious violation of international humanitarian law.

These issues are not merely theoretical. Many domestic courts are currently considering challenges related to their arms control regimes.

In the Netherlands, a legal challenge has already forced the government to stop its participation in the F-35 fighter jet manufacturing program. The decision is under appeal by the Dutch government, but transfers to Israel have been halted in the interim. In Canada, Denmark, and the U.K., similar lawsuits are underway. Human Rights Watch (where I am employed as the director of crisis advocacy), Amnesty International, and Oxfam were recently granted leave to intervene in the legal proceedings in the U.K., where the government has issued 108 arms export licenses since October 2023.

In Germany, civil society groups filed suit claiming that “Germany’s export of war weapons to Israel is in breach of the Arms Trade Treaty, the Geneva Conventions and the obligation to prevent genocide under the Genocide Convention—all agreements that Germany has ratified.” The Berlin Administrative Court dismissed the motion, asserting that no arms permits or licenses were pending at the moment and that the German government had not authorized transfers since February. In France, the Paris administrative court rejected applications filed by a dozen civil society organizations in three separate proceedings to suspend French arms exports to Israel. The court determined that export licenses are not administrative acts but, rather, political decisions linked to “the conduct of France’s international relations” and that, consequently, this doesn’t fall within the court’s jurisdiction. The Council of State, France’s highest administrative court, upheld this decision on appeal.

In Spain, in response to a petition from the political opposition, the Audiencia Nacional opened preliminary proceedings to decide whether a cargo ship that originated in and docked at the Spanish port of Cartagena, had weapons destined for Israel. In the wake of the controversy, the Spanish foreign minister announced that Spain would, as a matter of policy, not allow any ships carrying weapons bound for Israel to temporarily dock in its ports. 

Pointing to obligations under the Arms Trade Treaty and domestic arms export licensing regimes, Human Rights Watch has, since the end of 2023, called on governments to stop arms sales and supplies to both Israel and Palestinian armed groups because of the real risk that they will be used to commit grave abuses. Continuing to supply weapons to either entity puts governments, and individual officials within those governments, at risk of complicity in violations of international humanitarian law. 

Amplifying the warning alarms still further, the International Criminal Court prosecutor has publicly set out his belief that Israel’s Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant are responsible for war crimes and crimes against humanity, including starvation, willful killing, extermination, and persecution, among other crimes. The ICC prosecutor’s recent application for arrest warrants for two top Israeli officials, along with three Hamas leaders, only further underscores the degree to which attempts to claim ignorance about the Israeli government’s role in the dire situation in the Gaza Strip will be scrutinized in the future.

ICJ Proceedings as Constructive Notice

Following the proceedings initiated by South Africa and Nicaragua at the ICJ, the interventions by Colombia, Libya, Mexico, and the State of Palestine, and the extensive oral proceedings around these cases at the Hague, government officials in other countries will find it difficult to claim, in domestic reviews of their policies and procedures, that they did not know or should not have known of the risk of atrocity crimes and violations of international humanitarian law in Gaza. 

For example, in its January provisional measures order in the South Africa case, the court found that “at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the Convention.” The court also made extensive citations in the interim order to the factual circumstances on the ground and specifically took note of several statements made by senior Israeli officials, including then Energy Minister (now Foreign Affairs Minister) Israel Katz, Defense Minister Yoav Gallant, and President Isaac Herzog. 

When issuing its second round of provisional measures in the South Africa proceedings on March 28, the court was explicit in its concern about starvation and famine, describing the developments as “exceptionally grave” and constituting a “change in situation.”

When reviewing Nicaragua’s call for provisional measures on Germany, the court reiterated on April 30 that “the military operation conducted by Israel” resulted in “a large number of deaths and injuries, as well as the massive destruction of homes, the forcible displacement of the vast majority of the population, and extensive damage to civilian infrastructure.”

The court also noted that it “remains deeply concerned about the catastrophic living conditions” in Gaza pointing to “prolonged and widespread deprivation of food and other basic necessities.” In his separate opinion on the Nicaragua order, ICJ Judge Dire Tladi stated that the very existence of the proceedings before the ICJ—and the explicit reminder by the court to states, in particular Germany, of their international obligations relating to the transfer of arms—meant that “it would hardly be open to Germany in the future to argue that it was not aware of the risks.” 

When it initiated its dispute with Germany, Nicaragua reportedly also used a note verbale, or memorandum, to notify the U.K., Canada, and the Netherlands of a dispute. In a Feb. 1 press release, Nicaragua’s government announced that in a “note verbal sent to these governments” it “has given written notice… that it will adopt all measures it considers appropriate in accordance with international law, including recourse to the International Court of Justice” and urged those governments to “immediately halt the supply of arms, ammunitions, technology, and components to Israel as it is plausible they might have been used to facilitate or commit violations of the Genocide Convention.” These note verbales may also form the basis of constructive notice.

Many observers have interpreted the court’s recent order on provisional measures in Nicaragua’s case against Germany as a complete victory for Germany. Indeed, Germany’s director-general for legal affairs “welcomed” the ruling on social media. It’s important to note, though, that the order—even as the court declined to impose provisional measures—also contains an explicit warning to states that choose to continue to transfer weapons to Israel. In its oral pleadings, Germany had argued that its rigorous export controls regime ensured that it was not actually exporting any “war weapons.” While citing this factual statement as a basis for declining to impose provisional measures, the court stressed, “these obligations are incumbent upon Germany as a State party to the said Conventions in its supply of arms to Israel.”

Writing in EJIL Talk!, Alexander Wentker and Robert Stendel have said the order “might hang like a sword of Damocles over States providing military support to Israel.” Stefan Talmon has said that the order essentially “put Germany on notice that [the ICJ] would accede to [sic] new request by Nicaragua if [Germany] resumed the export of war weapons and other military equipment to Israel that could be used to commit or to facilitate serious violations of the Genocide or Geneva Conventions.”

Stopping Licenses and Blocking Shipments

Some states, governments, and companies are already adjusting their behavior based on perceived risks and liabilities under public international law. For example, the regional Walloon government of Belgium cited the International Court of Justice in its decision to suspend sales of gunpowder to Israel in February. Some governments such as Japan, New Zealand and Norway have long-standing policies against selling weapons to countries engaged in active conflict, like Israel. Government officials in both France and Australia publicly assert that they are not exporting to Israel any “war weapons” that could be used in Gaza, although civil society groups have questioned these claims based on publicly available export data and their own investigations.

Norway’s foreign minister has been openly critical of continued arms sales, warning that “states exporting weapons to Israel should reassess whether they are effective partners in the genocide in Gaza Strip or not.” The European Union’s high representative has also urged states to reconsider their arms control policies, stating in remarks to the press in Brussels that “[i]f the international community believes that this is a slaughter [in Gaza], that too many people are being killed [by Israeli forces], maybe we have to think about the provision of arms?” 

Canada, Italy, and Spain have all publicly announced their decision to stop issuing new licenses for arms exports to Israel, although all three appear to be continuing to allow their domestic companies to honor existing arms exports authorizations. Canada has, however, also continued to send mixed messages, and it has yet to post an official government statement detailing its decision or issue an official notice to arms exporters about military transfers to Israel.    

President Biden announced that the U.S. would hold up at least one shipment of 2,000-pound bombs, 500-pound bombs, and artillery projectiles to Israel. Biden also indicated that if Israel proceeds with a major assault on Rafah, the U.S. wouldn’t continue to provide certain types of weapons. In remarks to the media, Biden linked these weapons to prior attacks by the Israel Defense Forces on civilians in Gaza’s “population centers.”

Biden’s acknowledgment that explosive weapons supplied by the U.S. had previously been used in campaigns against populated areas represents a significant shift for the administration and opens the door for litigants to contend that officials licensing sales knew or should have known of risks. However, the U.S. government also announced that it will continue to accept assurances from Israel’s government, describing them as “credible and reliable.” The State Department concludes that “it is often difficult to make swift, definitive assessments or determinations on whether specific U.S. defense articles or services have been used in a manner not consistent with international law. The nature of the conflict in Gaza and the compressed review period in this initial report amplify those challenges.” This statement comes in the context of volumes of evidence from civil society groups, including Amnesty International’s research detailing civilian deaths and injuries with confirmed use of U.S.-made weapons and Oxfam and Human Rights Watch’s submission to the administration deeming those assurances not credible.

“Knowledge” and the Duty to Prevent

Both the South Africa and Nicaragua cases are premised, in part, on third-party responsibility to prevent genocide, a binding obligation for 153 states parties to the Genocide Convention. In its 2007 Bosnia decision, the ICJ set out guidelines on the due diligence it expects from states as they fulfill their duty to prevent genocide, determining that the duty arises “at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.”

The Gambia’s filing against Myanmar in 2019 was the first time that a country without any direct connection to the alleged crimes used its membership in the Genocide Convention to bring a case before the ICJ. At the time, counsel for Gambia wrote of Myanmar’s obligations to not violate the convention and Gambia’s “erga omnes partes rights”—Latin for “towards all parties” under the convention. Seven other countries (Canada, Denmark, France, Germany, the Netherlands, the Maldives, and the United Kingdom) have filed declarations of intervention in Gambia’s case reiterating the erga omnes partes principle. The ICJ agreed that it had jurisdiction to hear the case in 2022. South Africa’s filing in its case against Israel builds on this practice. South Africa wrote in its December 2023 filing, “South Africa is also acutely aware of its own obligation—as a State party to the Genocide Convention—to prevent genocide.”

It is clear that, at least in the past, the court has viewed the obligation in question as one of conduct and not one of result, in the sense that a state cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide. The obligation of states parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible.

It is for this reason that South Africa also sought to have provisional measures directed toward itself and other states parties to the Genocide Convention, but the court has declined to take that step. The court also held that, “if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harboring specific intent, it is under a duty to make such use of these means as the circumstances permit.”

In his separate opinion on the May 24 ruling, ICJ Judge Georg Nolte reinforced his understanding of this principle, emphasizing that “the knowledge of a State of such a risk is sufficient” to give rise to the duty to prevent.

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The popular discourse around the International Court of Justice often focuses on the court’s role in promoting the rule of law, and predictable challenges with enforceability of its orders, particularly due to the unreliability of political enforcement mechanisms like the UN Security Council.

Far less has been written on the impact of these types of proceedings on domestic courts’ deliberations, particularly in third states. But judicial opinions of international courts can and should influence domestic courts’ decisions, particularly as they weigh the degree to which local officials had “knowledge” of the risks associated with arms transfers to Israel.