Analysts warn ICC arrest warrants could pave way to future arms embargoes on Israel
Reinvigorated Dutch court case demanding end of weapons sales to Israel demonstrates possible fallout from The Hague’s ruling against Netanyahu and Gallant over war against Hamas
Pro-Palestinian, anti-Israel activists told a Dutch court on Friday that the Netherlands is violating international law by selling weapons to Israel, demonstrating the potential for arms embargoes against Israel due to the International Criminal Court’s decision to issue arrest warrants against Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant.
If The Hague District Court supports the activists’ complaint, the Netherlands will be banned from sending arms or weapons parts to Israel. The court will rule on December 13. The Netherlands has already halted the export of F-35 fighter jet parts to Israel following a similar case earlier this year.
The complaint illustrates analysts’ warnings that Israel could face arms embargoes as a result of Thursday’s ICC decision, which said there were grounds to believe Israel had targeted civilians and used starvation as a weapon of war.
Citing legal scholar Eran Shamir-Borer — formerly a member of the IDF’s international legal team — Haaretz military analyst Amos Harel said the ICC decision could lead to arms embargoes by “Western countries that have hitherto satisfied themselves with more lenient steps against Israel.”
Though the decision relates to Netanyahu and Gallant as individuals rather than Israel as a state, it could still bolster challenges demanding an arms embargo against Israel, as numerous states have provisions against selling arms to nations that might use them in ways that violate international humanitarian law.
The Netherlands, which hosts the ICC and is a signatory of its founding charter, the Rome Statute, was one of the European countries to say it would be obligated to arrest Netanyahu and Gallant should they set foot there.
The United States — the source of just under 70% of Israel’s arms imports — “fundamentally” rejected the court’s decision. Like Israel, the US is not a member of the ICC; a day before the court’s ruling, the US Senate voted decisively against a bill calling for an end to the sale of offensive weapons to Israel, though a third of Democratic senators supported the motion.
Germany, which is a member of the ICC, has indicated it would respect the court’s rulings, but did not commit to ending its robust arms trade with Israel. Germany is the source of some 30% of Israel’s arms imports, making it Israel’s second-biggest arms supplier after the US.
Assaf Uni, a Berlin-based correspondent for Israeli market daily Globes, cited German media as saying Jerusalem had committed to Berlin in writing that German arms would not be used in a way that violates international law — presumably giving the German government legal cover in case of challenges to its arms trade with Israel.
“The ICC will weaken the German government’s case, if pro-Palestinian organizations petition the court on this matter, as they have in the past,” wrote Uni, noting that concerns German arms would be used illegally have “now received high-level legal validation.”
Neve Gordon, a professor of international law at Queen Mary University of London, was cited by Al Jazeera as saying the ICC’s decision had “made a certain demand on Western countries” regarding “the kind of trade agreements that they have with Israel – first and foremost with the trade relating to arms.”
“If leaders of Israel are charged with crimes against humanity, then this means that the weapons provided by Western nations are being used to commit crimes against humanity,” said Gordon.
He told Al Jazeera that most countries’ arms contracts include a memorandum that lays out the conditions for the deal, specifically that they “cannot send weapons to an entity that uses the weapons to carry out serious violations of international humanitarian law.”
“I assume NGOs within the countries will file petitions in the domestic courts to question the legality of continuing to send arms to Israel,” said Gordon.
Even before the ICC decision, the specter of an arms embargo has hung over Israel, with more than 50 countries — including Russia and China — joining Turkish Foreign Minister Hakan Fidan’s letter to the United Nations earlier this month demanding Israel be embargoed.
Nor has the sentiment been exclusive to Israel’s adversaries. French President Emmanuel Macron claimed last month that an arms embargo is the only way to end the war in Gaza. In September, British Prime Minister Keir Starmer halted the delivery of some weapons over stated concerns they could be used to commit war crimes, but stopped short of calling for a full embargo. Canada’s Foreign Minister Melanie Joly also announced in September that she was suspending some 30 permits for arms shipments to Israel, saying Ottawa would not have “arms or parts of arms be sent to Gaza.”
After the ICC’s decision Thursday, France and Britain indicated they would respect the court’s rulings, while Canada said explicitly it would comply with the arrest warrants. All three are signatories of the Rome Statute.
Meanwhile, in the Netherlands, the ten activist groups demanding an end to arms sales to Israel pointed to the separate legal proceeding against Jerusalem at the UN’s highest court, the International Court of Justice.
The ICJ case, brought by South Africa, accuses Israel of genocide, and the court found in January that Palestinians had plausible grounds to request protection from the crime. Because the ICJ looks at other court rulings, the ICC decision could further sway it against Israel.
The activist groups claimed the ICJ’s opinion confirmed the Netherlands was obliged to stop selling arms to Israel.
“The government uses my own tax money, that I pay, to kill my own family. I’ve lost 18 members of my own family,” Ahmed Abofoul, legal adviser for the pro-Palestinian organization Al-Haq, told a full courtroom.
“This is the result of the complicity of governments for decades,” he told reporters after the hearing.
The Dutch state denied it was violating the 1948 Genocide Convention, which requires signatories to do everything they can to prevent and punish genocide, and argued that the court should not take the role of the state in setting foreign policy.
Jerusalem has strongly rejected the accusation of genocide, claiming it is engaging in legitimate self-defense after thousands of Hamas-led terrorists stormed southern Israel on October 7, 2023, to kill some 1,200 people and take 251 hostages.
Israel’s counteroffensive in Gaza has killed more than 44,000 people, according to the Hamas-run Gaza health ministry. The figure, which cannot be independently verified, does not distinguish between civilians and combatants. Israel says it has killed at least 17,000 gunmen in Gaza and about 1,000 more in Israel during the October 7 onslaught. Israel has said it seeks to minimize civilian fatalities and stresses that Hamas uses Gaza’s civilians as human shields, fighting from civilian areas including homes, hospitals, schools, and mosques.
Jeremy Sharon contributed to this report.
