ATT Monitor, Vol. 16, No. 1

Report on the Virtual Informal Consultations on “Upholding Legal Obligations Under the ATT: The Case of the Palestinian People”
20 February 2024

Laura Varella

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On 19 February, the State of Palestine, Lebanon, and Mauritania held a virtual informal consultation ahead of the Arms Trade Treaty (ATT) Working Group meetings, taking place on 20–23 February 2024 in Geneva. The informal consultation focused on the case of Israel’s genocide of Palestinian people and the extent to which ATT states parties and signatories have implemented or abided by the legal provisions of the ATT in this context. The organisers hoped “to spark a discussion on options for enhanced cooperation to prevent and more effectively combat the irresponsible trade of conventional arms with Israel and increase adherence to international legal frameworks.”

Around 100 people participated in the meeting, among state representatives and civil society. The State of Palestine opened the meeting with a video that highlights the systematic and relentless destruction of Gaza and the suffering of the Palestinian people caused by Israel’s bombardments and ground assaults. Following the video, Palestine delivered a briefing providing participants with information about the current war on Gaza. It said that in four and a half months, Israel has carried out the heaviest bombing campaign in a populated area in history. Palestine highlighted that among the more than 28,000 reported deaths, around 13,000 are children, and thousands of people are still trapped under the rubble. It said that the level of destruction of infrastructure is unprecedented in history, and that since the International Court of Justice’s (ICJ) ruling, Israel has intensified its military operations. Palestine warned that the region of Rafah, where 1.4 million people are now sheltering, is being bombed, and that a ground incursion will lead to mass killings on an even greater scale than seen in previous months.

The State of Palestine proceeded to explain that Israel’s crimes have been facilitated with imported weapons, aircrafts, and other equipment. It stressed that the current use of these weapons in a heavily populated area is seen as a de facto war crime, adding that states have not just a legal but a moral obligation not to encourage the commission of crimes and not to stay silent about great breaches of international law. Palestine laid out states obligations under customary international law, particularly the International Law Commission's Articles on State Responsibility; international humanitarian law; the Convention on Genocide, particularly the obligation to take measures to prevent genocide; and the ATT and regional instruments, such as the European Union (EU) Common Position on Arms Exports.

Palestine highlighted the content of Articles 6 and 7 of the ATT, stressing that there is not just “an overriding risk” of violations, but that there is plenty of evidence demonstrating that Israel is committing crimes in plain sight. Despite this, a number of states have continued to supply weapons and equipment, and some have even increased it. Palestine said that this is the case of the United States (US), which funds a large part of Israel’s military budget and has decided to send even more military aid. Palestine welcomed the EU Foreign Policy Chief’s comments last week recommending the US to stop sending weapons due to the high number of casualties, but warned that there are several EU states which are still providing weapons to Israel. Palestine particularly mentioned Germany, France, and the Netherlands, welcoming that a Dutch Court has recently blocked export of F-35 components to Israel and expressing concern that the government announced it will appeal from the decision.

Palestine also noted that the United Kingdom (UK) continues to send F-35 components to Israel, despite evidence that they are being used to bomb civilian infrastructure in Gaza. It welcomed the decision from Belgium to suspend export licences of gunpowder to Israel, and expressed concern about reports of Norwegian exports made to third countries, like the US, are being exported to Israel. It highlighted that Italy has halted new licences to Israel, but that shipments from previous licences continue. Regarding Canada, it stressed that it has authorised 28.5 million USD in equipment to Israel, and that it has refused to modify its exports. Finally, it mentioned the legal action brought by human rights non-governmental organisations in Australia to ask for access to information on all licence exports issued by the country to Israel.

Mauritania delivered a statement also highlighting the humanitarian suffering of the Palestinian people and states’ obligations under the ATT.

The meeting continued with a series of presentations from legal experts. Mr. Leon Castellanos-Jankiewicz, Senior Researcher at the Asser Institute for International and European Law in The Hague, spoke about the recent decision from the Hague Court of Appeal which ordered the Dutch government on 12 February 2024 to stop supplying Israel with F-35 fighter jet parts because there is a “clear risk” that serious violations of international humanitarian law (IHL) would be committed with the aircraft in Gaza. He highlighted that in their unanimous decision, the three judges relied on the EU Common Position on Arms Exports and the ATT. Mr. Leon Castellanos-Jankiewicz stated that the judgement made important findings on the nature of risk assessments, which may have significant implications in future litigation.

Mr. John Chappell, Advocacy and Legal Fellow at the Center for Civilians in Conflict (CIVIC), delivered a presentation about states’ obligations under customary international law. He explained the content of Article 16 of the International Law Commission’s Articles on State Responsibility, which deals with “aid or assistance in the commission of an internationally wrongful act.” He explored the two elements contained in the Article, making the case that it would be possible to apply it to states providing weapons to Israel in light of the extensive evidence produced by NGOs of IHL and international human rights law (IHRL) violations. Mr. Chappell also addressed the US policy on conventional arms transfers, explaining that in some respects it overlaps with the ATT.

This policy was also addressed by Mr. Josh Paul, former Director at the US Department of State, who quit his job due to the US government’s continuous support of military aid to Israel. He said that he was involved in the drafting of the policy and that it was informed by the ATT. Mr. Paul stressed that the US has knowledge that weapons transferred to Israel are being used in gross violations of IHRL in the West Bank and in Gaza, and that transfers persist despite being incompatible with US policies.

Ms. Shahd Hammouri from Al-Haq delivered a presentation highlighting the ICJ decision, which found that Israel may be violating the Genocide Convention. She argued that states supplying weapons that could be used to commit or facilitate genocide could render them complicit in genocide. She also highlighted that arms transfers violate the duty to prevent genocide. Ms. Hammouri further raised the issue of transparency, saying that there is a persistent lack of information regarding arms transfers, particularly by Spain, Australia, Italy, Canada, the US, and France. She said that states must take measures to have an effective and transparent system.

Mr. Shier Hever from the Boycott, Divest, and Sanctions (BDS) Movement delivered a presentation about the need for an arms embargo on Israel in order to save lives. He explained that the embargo would have three levels: a ban on selling weapons to Israel, on buying weapons from Israel, and the transit of weapons. He echoed Ms. Hammouri’s remarks about complicity in genocide due to the delivery of weapons despite the ICJ decision. Mr. Hever also highlighted that dock workers have been refusing to load and unload Israeli produced weapons in compliance with their legal obligations.

Ms. Doaael Nakhla, Senior Researcher at the Small Arms Survey, delivered a presentation demonstrating the trend of increasing civilian casualties due to the supply of weapons to Israel. She stated that in order to decrease the number of casualties, it is necessary to address these arms transfers. She also stressed the need to continue monitoring arms transfers and to see the relationship between these numbers and reported casualties.

After the presentations, a few states took the floor. Türkiye said that the indiscriminate attacks in Gaza are a violation of IHL and IHRL, particularly highlighting the bombing of populated areas. The Maldives made similar remarks, stressing the destruction of places of workshop, schools, hospitals, and houses by the bombing. Both states underlined the ICJ ruling and urged states to comply with their obligations under Articles 6 and 7 of the ATT.

South Africa highlighted the recent reports of bombing in the Rafah region and the urgent request made to the ICJ related to this. Malaysia, which is in the process of ratifying the ATT, said it has banned Israel-flagged ships from docking in its ports, as well as ships on its way to Israel from loading cargo in Malaysian ports. Türkiye and Malaysia called for a ceasefire and for the delivery of humanitarian aid to the Palestinian people.

A number of civil society organisations also delivered statements. Action Sécurité Ethique Républicaines (ASER) reminded of states obligations under the ATT. Law for Palestinians called attention to India’s arms trade with Israel, highlighting both the selling of drones to Israel and the purchase of military equipment from it. The Australian Center for International Justice said that Australia was a keen supporter of the ATT during its negotiation, but that today it has zero transparency regarding the country’s export processes. It called on Australia to improve transparency on what items are exported, to whom, and to what purpose.

The American Service Friends and Committee spoke about advocacy done in the US in order to prevent arms transfers to Israel. The Campaign Against the Arms Trade (CAAT) warned about UK’s problematic open licences and their use in exporting components of the F-35 fighter jet to Israel. CAAT stated that 15 per cent of every F-35 that Israel is using to bombard Gaza is made by UK industry. CAAT stressed that in spite of full acknowledgement of crimes taking place in Gaza, the UK government made a specific and deliberate decision to continue exporting military equipment to Israel.

Control Arms closed the debate, saying that discussions about arms transfers of concern are important for the credibility of the ATT. It encouraged states to speak at the upcoming meeting of the sub-working group on current and emerging implementation issues taking place on Wednesday, 21 February at 15:00 in Geneva.

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