Western allies face threat of complicity if support for Israel continues

An attack on a humanitarian convoy, killing several foreign aid workers. The destruction of a hospital with hundreds killed inside. An air raid on a consulate in a foreign country.

These are just some of Israel’s actions in Gaza and the region this week, adding to the accusations of war crimes levelled against it, and even genocide.

But, even as Israel’s Western allies face the possibility of charges for complicity in war crimes, many continue to send weapons to Israel and withhold funds from the main United Nations agency working in Gaza, despite the very real threat of famine among its population of roughly two million people.

The charges of genocide – and the continuing case brought forward by South Africa at the International Court of Justice (ICJ) – have done little to shift any of this.

Late last month, the UN Special Rapporteur on human rights in the Palestinian Territory Francesca Albanese sent a warning to Israel’s Western allies, issuing a report stating that there were clear indications that Israel was violating the UN Genocide Convention, and emphasising that complicity in genocide was also “expressly prohibited, giving rise to obligations for third states”.

On this basis, Nicaragua has already taken Germany to the ICJ for violating international law by continuing to arm Israel. Individual groups around the world are also pursuing cases against their governments.

And yet, Germany continues to provide arms to Israel. Other large-scale providers of weapons, such as the US, the UK and Australia have also stopped short of suspending weapons sales – even as more than 32,000 people have been killed in Gaza and more are killed every day.

Future blame

These countries are finding it harder to plead ignorance. In a leaked recording on Saturday, Alicia Kearns, a Conservative member who is the chair of the UK parliament’s foreign affairs committee, is heard saying that UK government lawyers have advised that Israel has breached international humanitarian law, but the British government has not announced it.

Kearns stood by the comments when later asked.

According to Charles Falconer, former UK lord chancellor, if the British government concedes that Israel has violated international law, it will have no choice but to stop sharing intelligence with Israel.

A spokesperson for the UK foreign ministry stated that advice on Israel’s adherence to international humanitarian law remained under review and that: “Ministers act in accordance with that advice, for example when considering export licenses.”

Specific legal advice to the government was confidential, they said.

A leading British barrister, however, warned that the UK and other countries will be fearful of any future legal culpability.

“All governments have teams of lawyers providing constant advice on who they are exporting weapons to,” Geoffrey Nice, who led the prosecution of Slobodan Milosevic, told Al Jazeera. “It’s inconceivable that the advice the British government has received [on events in Gaza] is materially different from that other countries have received.”

“The atrocity that happened on October 7th and the taking of the hostages was and is horrific,” Nice continued. “However, Israel needs to show that it is acting proportionally, in avoiding civilian casualties.”

“If we ever reach the point of a criminal hearing into the conduct of this war, as I expect we may, you’ll see many of the larger countries who are now backing Israel doing everything they can to prevent Israeli witnesses taking the stand to say, we were acting with their consent as they provided the arms.”