Legal case for imposing embargoes on Israel

It has been almost six months since Israel launched its most recent onslaught on Gaza, which has now reached genocidal proportions. The Israeli army has killed more than 33,000 Palestinians, injured more than 75,000 and obliterated civilian buildings and infrastructure across the strip.

Israel is currently in violation of the International Court of Justice’s (ICJ) provisional measures requesting the protection of Palestinian rights, and the UN Security Council’s resolution calling for a ceasefire.

Its atrocities in Gaza are part and parcel of its settler colonialism which infringes on the most basic international legal principles and is a threat to international peace and security. In such a context, all statements of condemnation are empty of meaning if they are not followed by action.

Under international law, when international peace is under threat and genocide is being committed, states and corporations have the duty to act. Among the measures they can resort to are embargoes as a form of economic pressure to stop violations of international law.

In the case of Israel, such measures are necessary to force the country to stop its violations and to protect the Palestinian people against further atrocities. When considering the legal case for embargoes against Israel, it is important to understand in what contexts they are applicable. Under international law, member states are required to act when there is a threat to international peace and security, that is, violations are taking place that cross the red line at the core of the UN Charter.

Since Israel’s creation in 1948, which involved the dispossession and ethnic cleansing of the indigenous Palestinian people, armed conflict has not stopped. Israel’s settler colonial project has resulted in constant grievances by the Palestinians and other populations of the region, causing geopolitical tensions and hostilities.

Since the start of the latest Israeli assault on Gaza in October, there have been constant fears of regional spillover. Most recently, the risk of the proliferation of war was heightened by the brazen Israeli attack on the Iranian consulate in Damascus, a grave violation of international law.

It is, by now, more than clear that the prolongation of the illegalities committed by Israel is a threat to international peace and security. This position has been validated by the UN General Assembly, which has repeatedly noted that the continuation of the Israeli-Palestinian conflict is a threat to international peace and security, including in Resolutions 67/23 of 2012 and 70/17 of 2015. In its 2004 decision on the Israeli “separation wall” case, the ICJ also declared that Israel’s violations of international law pose a threat to international peace and security.

More generally, the crime of apartheid is a threat to international peace and security under the Convention for the Prevention of Apartheid (PDF). Genocide, aggression used to suppress a people’s claim to self-determination, and colonisation are also considered threats to international peace and security. Israel has been repeatedly accused of all of these.

When faced with a threat to international peace and security, states have a duty to respond to protect the affected population by all means available, including economic embargoes against industries facilitating the dominating state’s war economy.

As clearly laid out by the ICJ in its decision on the case of Bosnia and Herzegovina v Serbia and Montenegro (PDF), states have the duty “to employ all means reasonably available to them, so as to prevent genocide so far as possible”. The provisional measures recently issued by the ICJ in the case of South Africa vs Israel act as a legal notice for states and other actors: the risk of genocide is here and your duties are activated.

The duty to prevent genocide is compounded with the duty not to be complicit in genocide, including by not selling weapons. This obligation is further fortified by the Arms Trade Treaty which obliges arms exporters not to transfer weapons that could be used to violate international humanitarian law.

As recently ascertained (PDF) by the UN rapporteur on the occupied Palestinian territories, Israel’s genocide is an integral part of a larger settler colonial policy of denial of the Palestinian right to self-determination. In the case of such denial, the commentary to the International Law Commission (ILC) Draft Articles on State Responsibility stresses that “Collective non-recognition [of the situation created by the serious breach as law] would seem to be a prerequisite for any concerted community response against such breaches and marks the minimum necessary response by States to the serious breaches.”

Non-recognition, referred to by the ILC, can take the form of any lawful means, including economic embargos provided they safeguard (PDF) the human rights of the local civilian population. Per the 1948 General Agreement on Tariffs and Trade, such sanctions would not constitute a breach of international trade law as they are necessary to protect human life, public morals and security interests.

Further to this point, resolutions by the UN General Assembly issued in the decolonisation era clearly reiterate the member states’ duty to act to bring about the end of colonisation and apartheid. Notably in Resolution 3236 of 1974, the General Assembly appealed: “to all States and international organizations to extend their support to the Palestinian people in its struggle to restore its rights, in accordance with the Charter.” Such support was extended to the South African people in the form of embargoes against the apartheid government.

With regards to corporate responsibility, according to the UN Guiding Principles for Business and Human Rights, corporations have the duty not to benefit from or contribute to violations of international human rights law and humanitarian law. This duty was reiterated in relation to Israeli settlements in the documents leading to the UN database on businesses involved in Israeli settlements.

The UN Public Hearings for Transnational Corporations, and the Nuremberg trials among others demonstrate the possibility of serious repercussions for corporations which benefit from or contribute to threats to international peace and security. History has repeatedly shown that colonial states will only stop their subjugation of colonised populations when their domination is no longer economically and politically viable. As Algerian political scientist Brahim Rouabah has pointed out, the French did not leave Algeria out of goodwill, they did so because their colonisation project became too costly. A more recent case illustrating this point is South Africa, where the apartheid regime fell after international sanctions threatened its economy.

Israel’s ability to continue waging its war on Gaza hinges on imports of foreign weapons and ammunition, the production of which involves complex supply chains.

Raw materials can come from one state, the weapons can be produced in another, they can then be exported by a third one and transported through a fourth. Countries as diverse as India, Canada, Japan, Belgium, Germany, Cyprus and others are involved in this process. Spare parts Israel needs for its US-made F-16 and F-35 fighter jets come from states like the Netherlands, Australia and the UK.

Each of these states has the capacity on its own to influence the Israeli state by imposing an embargo on arms and dual-use materials. Similarly, the continuation of Israel’s overall system of domination through the grave illegalities of apartheid, de facto annexation, colonisation, and genocide rests on its capacity to maintain a healthy positioning in the global market.

Israel has seen growth in the oil, gas, green energy and tech industries, as well as agriculture, which are deeply interrelated with the sustenance of its grave illegalities and are dependent on external trade. Taking out one element of the supply chain of any major industry could lead to a domino effect which can destabilise or debilitate the Israeli war economy.