Three law professors note International Court of Justice ruling means it would be illegal for Canada to export arms to Israel

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Excerpt from Ruling by UN’s top court means Canada and the U.S. could be complicit in Gaza genocide (The Conversation, January 28, 2024).

Photo: Heidi Matthews, Faisal A. Bhabha, Mohammad Fadel.

Heidi Matthews, Assistant Professor of Law, Osgoode Hall Law School, York University, Faisal A. Bhabha, Associate Professor of Law, York University, and Mohammad Fadel, Professor, Faculty of Law, University of Toronto have commented:

The International Court of Justice has issued a ground-breaking decision in South Africa’s genocide case against Israel, ordering Israel to comply with six provisional measures to safeguard the right of Palestinians in Gaza to be protected from genocidal violence.

The court’s order is binding on Israel and formalizes the international legal obligations of other countries that are parties to the UN Genocide Convention.

Properly understood, the order should dramatically alter both the foreign and domestic policy decisions of Israel’s allies, including Canada and the United States.

Israel and its allies cannot dismiss or minimize the importance of this decision. In granting interim relief, the court concluded that South Africa’s allegations of genocide are, at a minimum, legally and factually plausible.

Both Canada and the U.S. have construed the court’s decision narrowly, suggesting it merely reiterates Israel’s right of self-defence and obligation to comply with international humanitarian law.

Read: Statement by Minister Joly on the International Court of Justice’s decision on South Africa’s request for provisional measures in its case against Israel (January 26, 2024).

This is a legally indefensible reading of the court’s ruling.

The court’s provisional measures also impact Canada’s compliance with its own laws on military exports.

In 2022, Canada sent more than $21 million worth of military exports to Israel. The Export and Import Permits Act forbids arms permits to be issued if there’s a “substantial risk” that the goods could be used to commit or facilitate serious violations of international humanitarian or human rights law.

Because the ICJ found a serious risk of genocide in Gaza, continuing to export arms to Israel would be illegal. It would also be flagrantly inconsistent with Canada’s obligation to prevent genocide, and could expose Canada and Canadian officials to liability for participation in genocide.

Their full commentary can be read in Ruling by UN’s top court means Canada and the U.S. could be complicit in Gaza genocide (The Conversation, January 28, 2024).

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