By Magnus Lovold
GENEVA, Switzerland, Feb 26 2024 – There are moments when international treaties, long forgotten by the general public, suddenly spring back to life. Moments when glimpses of reality shine through the thick-laden bureaucracies of the United Nations and catch the attention of the world outside.

The debate that unfolded in “sub-working group on current and emerging implementation issues” of the Arms Trade Treaty (ATT) on Wednesday 21 February was such a moment.

The State of Palestine and Control Arms — a civil society coalition — had, in January, requested a debate about the impact of weapons transfers to the Israel-Palestine conflict. Never before, since the ATT’s entry into force in 2014, had there been a formal discussion about non-compliance under the treaty.

The debate would, in more ways than one, become a clash of two worlds. On the one hand, the uncompromising and bloody reality on the ground in Gaza, where nearly 30,000 civilians — including more than 10,000 children — have been killed by Israeli bombs over the past four months.

On the other, the hushed and self-possessed world of multilateral diplomacy, where drama rarely elevates beyond the occasional request for points of order.

The stakes surrounding the debate had broken through the roof when the International Court of Justice (ICJ) concluded, on 26 January, that there is a plausible risk that Israel’s actions in Gaza are violating the Genocide Convention, placing the countries that are supplying Israel with weapons — most of which are parties to the ATT, with the exception of the United States — under significant pressure.

The foreign ministers of Italy and Spain had already announced that they will no longer export weapons to Israel. Citing the ATT and the EU common position on the export of military technology and equipment, a Dutch court had ordered, on 12 February, the government of the Netherlands to stop the export of F-35 fighter jet components to Israel.

While the Dutch government announced that they would appeal the order, the ruling had, in the following weeks, taken on a life of its own, leading parliamentarians and civil society groups in the United States, the United Kingdom, Germany, Canada and Denmark to urge their governments to stop arms transfers to Israel.

The big question, when the parties to the ATT met in Geneva last week, was how these countries would respond to allegations that they, by supplying Israel with weapons, risk complicity in genocide and other international crimes.

The ATT seeks to prevent and reduce human suffering by establishing common international standards for the transfer of conventional weapons. Specifically, the treaty prohibits countries from transferring weapons if they know, at the time of transfer, that the weapons could be used to commit international crimes.

According to Hurini Alwishewa, a legal expert at the Graduate Institute, countries involved in supplying Israel with weapons can no longer claim ignorance: “With the ICJ finding that there is a plausible claim of genocide, the knowledge requirement is clearly fulfilled, and therefore exports of arms to Israel must not be authorised”, she said at Wednesday’s meeting.
In the run-up to the meeting, there had been rumours that the arms exporting countries would simply refuse to engage on the matter. There was even speculation that some countries would seek to dodge the debate altogether by filibustering the preceding agenda items.

But ultimately, the exporting countries realised that they had no other choice than to at least try to explain themselves. A few minutes before the debate was about to start, the United Kingdom, Germany and the Netherlands could be observed wheeling their ambassadors in to the brutalist conference room at the CICG in Geneva.

Speaking from the podium, Nada Tarbush, a counsellor of Palestine’s mission to the UN who rose to prominence after a widely published speech delivered in November, was determined not to let the ambassadors’ off the hook.

“We are once again reaching out to exporting states to urge and urge them to explain their respective policies on arms exports to Israel. Particularly the United States, Germany, the United Kingdom, Italy, the Netherlands, France, Canada, Australia, Japan, the Czech Republic, Norway, and other states that may be involved as transit states including Greece, Cyprus and Belgium“, Tarbush said, when laying out her case.

“We would be grateful to receive details of all extant arms export, transit, and brokering licenses of the supply of military and dual use items to Israel”.

The arms exporters were, however, not prepared to engage in specifics. Instead, the United Kingdom and the Netherlands both downplayed its role in supplying Israel with weapons.

“UK defence exports to Israel represent a small portion of UK arms exports”, Aiden Liddle, the ambassador of the United Kingdom, said. While he made it clear that the ICJ’s January ruling “is binding on Israel” and suggested that the United Kingdom’s export licences to Israel may be revoked “if circumstances change and we reach a different view”, Liddle did not explain how his country had initially concluded that weapons exports to Israel was in line with the ATT.

More evasively still, the Netherlands explained that “individual licenses can be granted, as long as there is no overriding risk that military goods may be misused by the end user” and stated that “applications requests for Israel have been granted in certain cases and denied in other cases”.

Like the United Kingdom, however, the Netherlands failed to lay out the details of its export licensing decisions. Nor did they explain how they had concluded that the export of F-35 fighter jet parts comes with “no overriding risk” of misuse by Israel.

Germany, in a significantly more aggressive move, took issue with the debate as such, criticising Palestine and Control Arms for attempting “to politicise the ATT process”. Instead of explaining how Germany’s export licences to Israel could be in line with international law, Ambassador Thomas Göbel offered what seemed like a full-fledged support of the manner in which Israel conducts its military operations in Gaza.

Echoing points made earlier in the debate by a representative of Israel — a signatory but not a party to the ATT — Göbel stated that “Hamas must stop its rocket attacks and refrain from using civilians as human shields and civilian infrastructure for military purposes […] For Germany, Israel’s security is not negotiable”.

The exporting countries’ attempts to justify their involvement in Israel’s military operations in Gaza were, ultimately, found wanting. Tarbush made no secret of her disappointment, accusing the exporting countries for putting “themselves in a situation of criminal liability, of immorality in a situation where double standards risk irreversibly eroding the credibility of international law and the international system built since the Second World War”.

But however incomplete, the mere fact that a debate about arms transfers to Israel could take place in the ATT is a positive step for the treaty. Too often, international treaties get caught up in their own institutional bureaucracies, resulting in a detachment from the realities that the treaties are set up to address. Since its entry into force ten years ago, the ATT has, sadly, been no exception.

Instead of criticising the State of Palestine and Control Arms for attempts to “politicise” the process, Germany and other countries supplying Israel with weapons, should see the debate as an opportunity to set a new, more reality-oriented, standard for ATT implementation.

Despite its imperfections, international law can play a key role in exposing double-standards. By offering specifics now, western states will come in a much stronger position to demand transparency from others in the future.

More importantly, history shows that countries supplying other countries with weapons have significant power to shape the conduct — and even outcomes — of military operations; to ensure that civilians are protected or, to put it bluntly, left for slaughter. Indeed, that realisation was one of the factors driving the development of the ATT in the first place.

As Israel is preparing its ground invasion of Rafah, arms exporting countries are bound to be placed under increasing pressure. On Friday 23 February, a group of 41 UN experts, citing the ATT, called for any transfer of weapons to Israel to “cease immediately”. If arms exporting countries are serious about their commitments to international law and a rules-based order, they should heed this call.

Otherwise, the Munich Security Conference’s recent assessment of world politics as a steady trajectory towards a zero-sum game could well become reality.

Source: Spoiler Alert

Spoiler Alert provides breaking news and analysis about international law and treaty-making, revealing the hidden diplomatic moves that shape the world.

IPS UN Bureau

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