It’s been more than three weeks since the International Court of Justice (ICJ) issued its preliminary ruling ordering Israel to prevent genocide in Gaza. Yet legal challenges against Israel's assault on the besieged Palestinian territory haven’t stopped there.
The ongoing ICJ genocide case, along with a new hearing which began on Monday regarding Israel’s occupation of the West Bank, East Jerusalem, and Gaza, has also established a precedent in domestic courts among Israel's Western allies, as evidenced by recent legal challenges.
On 12 February, a Dutch appellate court decreed that the Netherlands must cease its supply of F-35 fighter jet components to Israel. The verdict stated that there exists a “significant risk” that the F-35 jets could be used in actions “that severely breach humanitarian laws in the Gaza Strip".
It comes as Gaza’s death toll climbs to 29,000, with thousands more missing or trapped under the rubble. Attention is also now focused on the looming offensive on Rafah, previously declared as a ‘safe zone,’ where more than 1.1 million people have taken refuge in an area roughly the size of London's Heathrow Airport.
"The ICJ's influence on the tribunal was undeniable, triggering a more sympathetic approach among judges and significantly influencing the Dutch court's proceedings,” said Lex Takkenberg, Senior Advisor on the Question of Palestine with the Arab Renaissance for Democracy and Development (ARDD), in an interview with The New Arab.
“The prima facie case recognised by the ICJ has undoubtedly put other parties, especially Israel's backers, on notice,” he added. “The deterrent effect is unmistakable."
Takkenberg voiced cautious optimism about the ruling, saying that ignoring it would be such a scandal that it could potentially topple Amsterdam’s caretaker government.
Contesting Western policy on Israel
Since the end of World War II, international law has developed a comprehensive framework of mandatory regulations concerning conduct during warfare, as well as rules regarding complicity in violations. Yet support for Israel’s military actions has placed scrutiny on many Western governments who claim to advocate for a rules-based international order.
Following the case lodged by several NGOs, including Oxfam and Amnesty International, the Dutch court mandated the implementation of the order within a week and the suspension of transfers of the US-owned F-35 technology.
Rutte has been under fire domestically for perceived leniency towards Israel, a strategy speculated to boost his prospects for succeeding Jens Stoltenberg as NATO's secretary-general. That, and Amsterdam’s close coordination with the United States in foreign policy matters, has prompted Rutte to appeal the court’s decision.
Yet Dania Abul Haj, a legal officer at the International Centre of Justice for Palestinians (ICJP), optimistically describes the Dutch ruling as “a crucial step” towards forcing adherence to the norms of international law.
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“The decision serves as a critical reminder of the immense and integral role and responsibility of courts and judges,” she told The New Arab, while highlighting that the ruling “trumps the economic and political concerns of the state”.
Unlike most politicians, who are focused on re-election, judges are not influenced by political interests and are instead guided by an objective interpretation of the law.
The case of the global arms trade, however, presents its own challenges, and legal experts argue this necessitates efforts to revisit and address gaps within the law.
“In general, what we are seeing is a rise in ‘cause lawyering,’ with lawyers across the world trying to use different mechanisms in the law to establish some form of accountability over the arms trade,” Shahd Hammouri, a lecturer in International Law at the University of Kent, told The New Arab.
"However, spaces for that are currently limited, largely by design and facilitated by the corporate lobby. Because of the international nature of the arms trade, this requires an international forum."
On the other hand, Dr Hammouri notes that these legal proceedings, including the Dutch case, provide an opportunity to contest European governments’ policies.
“In the case of Palestine, we are witnessing a breaking point between the judicial branch of the state and the political arm. The actions and conduct of the latter are no longer logical, which is jeopardising the integrity of what are supposed to be ‘liberal, legal, democratic frameworks,’” she added.
“The good thing about ‘cause lawyering’ is it helps to unearth this hypocrisy and work within judicial systems to pinpoint these contradictions.”
Compliance or defiance?
Some Western European nations, including France and Germany, have so far resisted legal and popular calls to revise their own arms sales to Israel while issuing languid calls to reduce the violence in Gaza.
Britain, one of Israel’s biggest arms exporters, manufactures 15 per cent of F-35 parts, while also supplying parts for Israeli-used F-16 fighter jets. Campaigners say the British government has exploited a “loophole” in the arms export regulations industry, enabling it to send these parts to Israel.
This week, however, the UK government indicated it might consider suspending arms export licences to Israel if its military offensive on Rafah goes ahead.
Highlighting the UK’s role, Dania Abul Haj added, “there is absolutely no reasonable explanation for why these licenses still haven’t been halted and it’s now up to the High Court to force the government to suspend them”.
The UK has previously sought to sidestep legal challenges concerning its foreign arms sales. Notably, a 2019 Court of Appeal judgment compelled the UK to halt all arms sales to Saudi Arabia over the war in Yemen, deeming them illegal. However, the UK later countered this ruling by alleging that civilian-targeted attacks were "isolated incidents," and continued arms sales.
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In light of the ICJ case, further legal challenges and efforts to address scrutiny over complicity have emerged elsewhere in Europe. In Belgium, a regional government said it suspended two licences for the export of gunpowder to Israel on 6 February.
Italian Foreign Minister Antonio Tajani announced in January that following the start of the conflict on 7 October Italy had halted all exports of weapons systems and military materials to Israel.
Spain’s foreign minister also said last month that the country has not sold any arms to Israel since October and that there is now an embargo on weapon sales. However, the Spanish newspaper El Diario recently revealed Spain had continued exports worth around €987,000 ($1.1 million) of ammunition to Israel in November.
However, pressure is certainly mounting within Europe, including within the highest echelons of Brussels. EU foreign policy chief Josep Borrell recently called Joe Biden’s description of Israel’s response to the October 7 Hamas attacks as “over the top”.
“Well, if you believe that too many people are being killed, maybe you should provide less arms in order to prevent so many people being killed,” Borrell told reporters.
With Israeli Prime Minister Benjamin Netanyahu ignoring Biden’s tepid calls to reduce the violence amid increasing discourse over the proportionality of Israel’s actions, the Biden administration is preparing a new weapons shipment to Israel, reportedly worth tens of millions of dollars.
Emerging cracks
The US’ military support to Israel is significant. The Stockholm International Peace Research Institute's data on arms transfers reveals that from 2013 to 2022 the United States was the source of 68 per cent of Israel's weapon imports.
While the US role remains paramount, many believe that we are now witnessing the beginning of a larger shift in legal proceedings and a wave of court actions.
“I'm convinced we're on the cusp of a broader recognition by governments and courts worldwide, with human rights violations clauses prompting a review of their modus operandi, including within the US," predicts Lex Takkenberg,
"The once unwavering Western support for Israel is beginning to show cracks, with the roles of the ICJ and the International Criminal Court coming to the forefront and the actions they are taking in investigating the situation in Palestine,” he added.
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In past Gaza wars, sanctions and suspensions of arms to Israel have often been short-lived or minimal. Yet given the unprecedented calamity that is unfolding there now, it’s not surprising to see European leaders changing their tone, as well as the marked increase in legal challenges.
Domestic legal cases could continue to call into question the policies of various governments across the West. Societal pressure, such as the ongoing wave of demonstrations and popular action against the arms industry, could also further propel this shift.
“Legal actions need to come alongside political discourse, specifically by the public in these countries,” Dr Hammouri added. “Protests and demonstrations could have played a role in impacting this discourse.”
Jonathan Fenton-Harvey is a journalist and researcher who focuses on conflict, geopolitics, and humanitarian issues in the Middle East and North Africa.
Follow him on Twitter: @jfentonharvey