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Does the West risk charges of complicity by supplying weapons to Israel in light of its plausible genocide in Gaza?

As lawmakers across much of the West debate the extent to which Israel may be hampering the passage of lifesaving aid into Gaza, the weapons exports that underpin much of Israel’s war on the besieged enclave continue to flow.

Since the war began, the volume of weapons entering Israel has increased as huge volumes of ordinance are used to flatten areas of Gaza as well as kill, maim and displace its civilian population.

“On the one hand, we have this dire humanitarian need, on the other hand, we have this continual supply of weapons to the country Israel, [which is] creating that need,”  Akshaya Kumar, the director of crisis advocacy at Human Rights Watch (HRW), said.

International law 

When it comes to arming another country, international law has rules and conventions to control who arms whom and what the weapons are used for.

Under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide – which the International Court of Justice (ICJ) ruled in January may plausibly be under way in Gaza – states are legally bound to prevent genocide, war crimes and crimes against humanity.

The United States declined to sign the convention until 1988.

Under the terms of the internationally binding Arms Trade Treaty – to which the US is not a signatory – a country is prohibited from exporting weapons to any state it suspects might use them for “genocide, crimes against humanity… attacks directed against civilian objects or civilians protected as such”.

More than 31,000 Palestinians have died due to Israel’s war on Gaza so far, mostly women and children, according to the Palestinian Ministry of Health in Gaza, and some 73,000 have been injured. Health facilities, also under attack and siege, ceased being able to deal with the wounded and the dying months ago.

The enclave is teetering on the brink of humanitarian catastrophe. The European Union’s chief diplomat, Josep Borrell, told the United Nations Security Council on Wednesday that Israel is using hunger as a weapon of war and manufacturing disaster by stopping aid from entering.

Israel has also shot at people gathering to get what little aid is allowed in.

While “Western states have recently been going to great lengths to have Israel recognise its role in creating the suffering we’re seeing in Gaza,” HRW’s Kumar said, “we’re not seeing any corresponding reduction in the flow of weapons from states such as the US, Germany and beyond”.

Israel’s principal arms suppliers have focused on getting aid into Gaza to reach the Palestinians being attacked with many of the weapons they sold to Israel.

US President Joe Biden used his State of the Union address this year to announce the creation of a maritime corridor by which he claims it would be possible to bypass Israel and deliver aid to Gaza.

Reality on the ground

While some countries have suspended arms exports to Israel in light of its war on Gaza, some significant suppliers remain.

The US’s annual contribution of about $3.8bn to Israel’s military budget has continued, on top of which is a further $14bn for Israel the US approved in February, reportedly with an eye to preparing Israel for a “multi-front war” – which many read as opening another front against the armed group Hezbollah in Lebanon.

According to the Stockholm Institute for Peace, the US provides 69 percent of Israel’s arms imports but recent confidential briefings to the US Congress, reported on by the Washington Post, suggest this may not be the full picture.

A legal loophole in the US Arms Export Control Act – which governs the export and end-use of weapons shipped from the US – means only packages of a certain value need Congressional oversight, meaning “bundled packages” below that value are being slipped through regularly.

So far, it was reported, about 100 arms shipments have taken place without any public record, causing an uproar among civil society groups. “With under-threshold sales and arms transfers, we have little insight into what munitions are being shipped – it’s a black hole,” Ari Tolany, the director of the Security Assistance Monitor at the US-based Center for International Policy said.

“Similarly, while the Israeli government claims they can assure Biden these arms are used in compliance with IHL [international humanitarian law], evidence from Gaza shows that’s not the case.”

The US maintains it is acting within the provisions of the law.

Germany’s arms exports to Israel have increased too, with Berlin shipping some $350m worth of weaponry, a tenfold increase on 2022 exports, most of which was approved after the Hamas attack on Israel.

Other countries, such as Australia, Canada, France and the United Kingdom, were all named in a UN report in February as maintaining their supplies.

In response to a query by Al Jazeera as to the responsibility attached to arming Israel as it devastates Gaza, a US State Department spokesperson wrote that there “has been no determination that Israel has committed genocide, including in the ICJ”.

In recent weeks, the UK and others are understood to have adopted a similar position over the well-reported and mounting humanitarian crisis in Gaza, maintaining business as usual while expressing concern that the weapons they continue to supply may be used in an impending assault on Rafah, where 1.4 million civilians are sheltering.

Pushing back 

However, while many countries in the West continue to provide Israel with weapons, other former exporters appear alive to the legal hazards of licencing weapons to a state the ICJ has found may plausibly be committing genocide.

In addition to the Antwerp police being condemned by Belgium’s Labour Party for its decision to import antiriot weapons from Israel, there are wider, longstanding bans on weapons sales to Israel.

Shortly after the assault on Gaza began in October, Italy and Spain halted arms shipments to Israel, though the latter continues to provide ammunition for “display”. Belgium’s Walloon regional government, as well as the Japanese Itochu Corporation, have also announced that they are halting arms exports.

In February, a judge in the Netherlands upheld a ruling blocking the export of F-35 parts to Israel, saying, “It is undeniable that there is a clear risk the exported F-35 parts are used in serious violations of international humanitarian law.”

The UN has already warned of the legal hazards of exporting weapons to Israel in its experts’ report, unambiguously titled: Arms exports to Israel must stop immediately.

The UK is facing legal pressure to reverse its position on weapons exports to Israel while in the US, the Center for Constitutional Rights (CCR) NGO is appealing its case against the president, the secretary of state and the secretary of defence for the continued export of weapons to a state potentially engaging in genocide.

“The initial Court (in Oakland, California) ruled that the supply of weapons to Israel was ultimately a ‘political question’,” Astha Sharma Pokharel, a staff attorney for CCR told Al Jazeera.

“However, while the judge conceded that the area was beyond his jurisdiction, he did call upon the executive to reconsider its ‘unflagging support’ for Israel’s attacks on Palestinians, which is incredibly unusual.”

Documented abuses

That Israel may have used weapons provided by the West to kill and maim more than 100,000 people, as well as contribute to the hardship of countless more, is a growing conclusion in reports by observers, aid organisations and analysts.

In the early weeks of January, the premises of the International Rescue Committee and the Medical Aid for Palestine NGO in one of the “safe zones” designated by the Israeli military in Gaza were struck by an Israeli jet.

Subsequent investigations revealed the strike to have involved a “smart bomb” fired from an F-16 fighter, both manufactured in the US, with parts for the latter from the UK.

A statement by the two organisations this week said their attempts to understand what happened in January elicited six different versions of events from the Israeli army and no undertaking from the US and UK that they were holding Israel to account for its use of their weapons in breach of the Arms Trade Treaty, ratified by the UK in 2014.

Previous reports have documented Israeli abuse of the language of humanitarian protection to crowd people into smaller and smaller areas purported to be “safe” and then launch attacks on those same people.

The war on Gaza shows no sign of abating.

Currently, Israel is speaking of creating “humanitarian islands” in the centre of Gaza ahead of a land assault on Rafah it has been threatening for weeks.

In the meantime, sheltering within the city and across Gaza, millions wait.