India’s arms sales to Israel: Bad legally, worse ethically—Part 3

“The Arms Export Control Act (1976) establishes the framework for the US government to approve or deny export licences for military equipment and arms.

The financial institutions investing in these arms companies are "Alfried Krupp von Bohlen und Halbach-Stiftung, Amundi Asset Management, Bank of America, BlackRock, Capital Group, Causeway Capital Management, Citigroup, Fidelity Management & Research, INVESCO Ltd, JP Morgan Chase, Harris Associates, Morgan Stanley, Norges Bank Investment Management, Newport Group, Raven's Wing Asset Management, State Farm Mutual Automobile Insurance, State Street Corporation, Union Investment Privatfonds, The Vanguard Group, Wellington and Wells Fargo & Company."

Efforts at disinvestment must be supplemented by judicial efforts both at the national and international law. What have been the efforts so far?

United States of America— applicable law

The Leahy Law refers to two provisions— one applicable to the secretary of State and the other to the department of defence— that prohibit the United States government from assisting foreign security forces when there is "credible information" that the recipient forces are committing gross violations of human rights.

Also read: The UNHRC concluding observations do not allow for semantics

The provision related to the secretary of state is codified as Section 620M of the Foreign Assistance Act (1961), while the provision related to the department of defence is codified as Section 362 of Title 10 of the US Code.

In this regard, upon the designation of such assistance being provided, the relevant department conducts a review of the recipient forces or units and submits a review— confirming or rejecting the proposal to export arms and equipment to the recipient country.

Additionally, the Arms Export Control Act (1976) establishes the framework for the US government to approve or deny export licences for military equipment and arms.

These decisions consider factors such as "whether the export would contribute to an arms race, aid in the development of weapons of mass destruction, support international terrorism, increase the possibility of outbreak or escalation of conflict, or prejudice the development of bilateral or multilateral arms control or non-proliferation agreements or other arrangements".

In this regard, military equipment and arms are only to be sold to friendly countries for purposes such as "internal security" and "legitimate self-defence".

Notably, there have already been previous complaints that this criterion has not been met by Israeli military actions in the occupied Palestinian territories; however, no further action or review took place.

A senior State department official Josh Paul resigned from the bureau that oversees arms transfers to foreign nations, citing his objection to continued US military assistance to Israel as its retaliatory bombardment and blockade of Gaza exacerbate a humanitarian crisis there. Paul was the director of congressional and public affairs at the Bureau of Political–Military Affairs.

Regarding Israel

On January 31, 2024, the US district court in Northern California dismissed a case filed against the US President and the secretary of defence alleging violations of international law.

Also read: 'Flag of freedom' should fly 'not only for ourselves': Gaza and India's constitutional responsibility

The plaintiffs contended that the US government had failed to uphold its obligations under the Genocide Convention by supplying military equipment and arms to Israel. They also sought an injunction to halt any further military or financial support, aid, or assistance to Israel.

The court, while referencing the International Court of Justice (ICJ) case of South Africa versus Israel, determined that the issues raised were fundamentally non-justiciable political questions.

These foreign policy matters were deemed beyond the scope of judicial review and were left exclusively to the executive and legislative branches, which had already decided to grant military assistance to Israel. As a result, the court dismissed the petition but still implored the US government to "examine the results of their unflagging support of the military siege against the Palestinians in Gaza".

Given the wide scope of the 'political questions doctrine', it seems unlikely that future legal challenges will be successful. No such iron-clad prohibition exists in India.

European Union— applicable law

As members of the European Union, States must adhere to the EU Common Position on Arms Exports, alongside their other international and domestic obligations.

Article 2 of this text outlines eight criteria for evaluating arms transfer authorisations: (i) compliance with international obligations, especially sanctions and embargoes, (ii) the recipient country's international human rights law and humanitarian law record, (iii) internal situation of the recipient country, including aggravating factors, (iv) impact on regional peace, security and stability, (v) national security considerations of member states, (vi) recipient country's behaviour, particularly regarding support for terrorist groups, (vii) risk of arms diversion to unauthorised parties, and (viii) compatibility of the equipment with the recipient country's technical and economic capacity.

Regarding Israel— The Netherlands

On February 12, 2024, the Hague Court of Appeal directed the Dutch government to cease supplying Israel with F-35 fighter jet parts, citing a "clear risk" of serious international humanitarian law violations.

Also read: India arms exports: A protection of civilians lens is required

The court based its decision on the EU Common Position and the Arms Trade Treaty, applying these to Dutch law. Notably, this ruling overturned a lower court's dismissal of the same petition.

The lower court had found no additional obligation to review or conduct new risk assessments for authorised exports, even if circumstances had changed.

The Dutch government had argued that it should be granted a wide margin of appreciation in matters of national security and foreign policy. This argument aimed to preserve the decision-making authority of the ministry of foreign affairs and the Central Import and Export Office; the statutory bodies responsible for granting export authorisations.

However, the court rejected these arguments, emphasising the paramount importance of compliance with the Geneva Conventions and the Arms Trade Treaty. This did not seem to be the reasoning in India!

With procedural defences exhausted, the court examined Israel's track record of military operations and attacks. Based on numerous reports from UN agencies and non-governmental organisations (NGOs), it concluded there was a 'clear risk' of international humanitarian law violations.

The court clarified that the applicable threshold for such authorisations is one of possibility and risk, as definitive judgments would require a "careful factual investigation" not currently feasible.

Nevertheless, it held that the State's obligation to prevent even the possibility of such violations persists. Therefore, it ordered a halt to all exports of F-35 parts to Israel.

While some argue this imposes an additional obligation for fresh risk assessments for previously granted licences, potentially expanding the interpretation of the EU Common Position, the court noted that the export authorisation was granted indefinitely.

It reasoned that if indefinite licences were not subject to review, it would undermine the very purpose of the EU Common Position. Ultimately, this decision merely aligns the Netherlands with other EU States— Spain, Italy and Belgium – that had previously halted arms exports on similar grounds.

Also read: Will the tiny sparks of student protests in India rekindle the flame of India's historical support for Palestine?

Two export licences for ammunition for Israel were put on hold for the export of gunpowder to Israel. An Italian foreign ministry source confirmed on May 9, 2024 that Italy had halted new export approvals since the start of the Gaza war.

Under Italian law, arms exports are banned to countries that are waging war and those deemed to be violating international human rights law.

Italy provided 0.9 percent of Israel's imported arms in 2019–23, according to a Stockholm International Peace Research Institute (SIPRI) report, including helicopters and naval artillery.

In North America, Canada has suspended arms sales to Israel while Japan from Asia has also done so. "Many other nations have said they will no longer purchase Israeli weapons," as per a report in Al Jazeera.

Regarding Israel— Germany

On June 10, 2024, the Berlin Administrative Court resolved not to impose a provisional prohibition on the German government's supply of military equipment and arms to Israel.

This decision aligns with the recent case brought by Nicaragua against Germany at the ICJ, where the ICJ similarly refrained from indicating any provisional measures.

The ICJ's stance was influenced by Germany's robust domestic legal framework governing the export of war weapons and other military equipment, which was deemed sufficient to mitigate any potential risks. Additionally, 98 percent of the export licences granted to Israel since October 7, 2023 pertained to military equipment other than war weapons, eliminating the immediate need for the court to intervene with provisional measures.

Regarding its domestic legal framework, the War Weapons Control Act and the Foreign Trade and Payments Act regulate the arms export regime. For war weapons, the ministry of economy, in consultation with other relevant ministries (such as the federal ministry of defence), makes decisions to authorise or reject export licences.

Also read: UNHRC's examination of India's periodic report after 28 years: Part 8

Additionally, more substantial and controversial decisions are referred to the Federal Security Council, which is composed of the relevant ministers for further discussion and analysis. Notably, Section 6 of the War Weapons Control Act outlines the specific grounds for the refusal of permits.

Regardless, the Berlin Administrative Court declared the petition procedurally inadmissible. The court observed that its purview extended only to reviewing executive actions that have already occurred or are imminent.

As the German government had not authorised any arms transfers in 2024, and with no such authorisations on the horizon, the request for a provisional 'preventive' measure was deemed outside the court's jurisdiction, reserved solely for exceptional cases.

Moreover, the court observed that the government would make "well-informed decisions on a case-by-case basis", carefully balancing Germany's foreign and security policy interests with its national and international legal obligations, thereby negating any immediate risk warranting judicial relief.

While the court refrained from delving into the substantive merits of potential violations of international humanitarian law and international human rights law involving German arms and equipment, it nonetheless left open the possibility of challenging future arms exports.

Should the German government authorise such exports, these challenges could be addressed both in subsequent legal proceedings and during the merits phase of the ongoing case.

Lessons for challenging arms exports from India

The applicable legal frameworks as well as the specific judicial proceedings in the United States of America, the Netherlands and Germany offer significant lessons for potential complaints against Indian arms exports to Israel. They are as follows:

Firstly, India is a party to the Geneva Conventions and has incorporated its obligations under the Geneva Conventions Act, 1960, binding it to follow the interpretation of Common Article 1 (CA1) which creates a preventive obligation from assisting and facilitating grave breaches.

Additionally, India is obligated to follow customary international law, particularly regarding the framework of responsibility outlined in Article 16 of the Articles on State Responsibility.

Also read: The brutality in Gaza rekindles the horrible memories of women in war

Therefore, India must ensure that its military equipment and arms are not used to commit violations of international humanitarian law and international human rights law. Failing to properly assess and complete risk assessments may lead to breaches of these international obligations.

Secondly, the US case can be distinguished from India's scenario, as Indian administrative laws are considerably more far-reaching than their US counterparts. In India, judicial review of executive action is permitted in a greater number of cases; however, the government retains a wide margin of appreciation regarding its foreign policy matters.

Additionally, the German case can also be distinguished as the Indian government has continued to supply military equipment and arms to Israel throughout the conflict.

Moreover, India has signaled an increase in cooperation, in stark contrast to the European position of reducing and preventing even the mere possibility of violations. This creates an immediate need for judicial review to prevent further human rights violations.

Thirdly, information surrounding military equipment and arms export licences is shrouded in mystery, with very little publicly available data. The department of defence production usually authorises such export licenses as they fall under Category 6 of the Special Chemicals, Organisms, Materials, Equipment and Technologies (SCOMET) list.

However, if the goods are dual-use, they fall under the jurisdiction of the directorate general of foreign trade (DGFT) for proper authorisation. SCOMET licence applications that are publicly available do not list specific details of the goods being sought for approval, for security concerns.

Nonetheless, the Inter-Ministerial Working Group under the DGFT is responsible for adjudicating such applications for SCOMET licences, relying on six grounds outlined in Rule 10.06(I) of the procedure handbook.

These grounds include obligations under general international law as well as specific agreements, such as the Wassenaar Arrangement. Given the possibility of serious international crimes and international human rights and humanitarian law violations taking place in the above-mentioned conflicts, it is likely that these criteria are not being met for proper export authorisations.

Domestic jurisdiction

There is an urgent need on the part of civil society in India to seek legal review and challenge the Indian State and business and banking enterprises that help arm Israel, facilitate atrocities and prolong the armed conflict.

Also read: Interview with Adila Hassim, counsel for South Africa versus Israel before the ICJ

Civil society could do right to information applications, file administrative cases, encourage parliamentary and public discussion that seek the review of licencing decisions by arms-transfer regulators such as the DGFT, that permit the sale of arms to congenital violators such as Israel.

As 2024 ends, there is scarce understanding in India within the judiciary, political parties, Parliament or civil society on corporate responsibility in the arms trade, underlining citizens at the center of arms control debate and ensuring that the Indian State and businesses uphold humane values and constitutional responsibilities.

India has no public record of interagency cooperation with the arms industry with regard to meaningful human rights due diligence processes by both State and businesses, aimed at preventing human rights violations.

The arms sector's regulatory framework across the world is built around the responsibility of home states as licensors of arms transfers; respect for human rights, therefore, currently depends on the robustness of States' human rights commitments, which in India is not something that you can mention in dispatches.

What is to be done?

There is a need for the development of national export control legislation governing the arms sector to include reference to the standalone responsibility of all businesses in the sector to conduct human rights due diligence in line with the UN Guiding Principles.

Independent oversight of arms transfers through parliamentary committees and judicial commissions must be established. This could also be done by independent mechanisms such as national human rights institutions. Except these institutions in India are caricatures of what they ought to be.

Victims of human rights violations originating in the arms sector must be granted legal standing to join legal actions against arms companies, in criminal and civil proceedings and public interest litigation.

There must be meaningful public communication and outreach mechanisms to share information about risk assessments in export licence approval decisions. It is a long road to justice anywhere, but in India it is akin to climbing a glass mountain. New Delhi is in strange company with other merchants of death.

Read Part 1 here.

Read Part 2 here.

Next week: India–Israel arms relations: Deep and dangerous for Indian democracy