Business as Usual? Arms Exports and the Legal Weight of ICJ Provisional Measures (Copy)

Since the International Court of Justice (ICJ) determined “plausible rights” under the Genocide Convention 22 months ago, arms shipments to Israel have continued largely uninterrupted. [1] Germany, the United Kingdom, and Italy have maintained arms export relationships with Israel following the ICJ's provisional measures orders, though the nature and scale of these exports remain contested. [2] The ICJ — the principal judicial organ of the United Nations (UN) — issued three provisional measures orders to warn of a risk of genocide. Yet, States Parties to the Arms Trade Treaty (ATT) — countries that have ratified and are bound by the treaty, which is aimed at preventing arms from being used to facilitate atrocities — have continued business as usual. [3] 

The ongoing proceedings in Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) concern Israel’s military campaign in Gaza, launched after Hamas’s October 7, 2023, attack on Israel. These proceedings follow Israel’s military campaign in Gaza, launched after Hamas’s October 7, 2023, attack on Israel. South Africa alleges that the Israeli military actions and blockade imposed upon the Gaza Strip are genocidal against the Palestinian people and in contradiction of the 1948 Genocide Convention. [4] South Africa has requested provisional measures to ensure Israel’s compliance with its obligations under the Convention while the Court considers the merits. [5] At this stage, the ICJ has not determined whether genocide is occurring; it asks only whether the rights asserted by South Africa are “plausible” and whether there is a “real and imminent risk” of irreparable prejudice to those rights sufficient to justify emergency measures. [6] This provisional assessment of genocide risk underpins the export-control obligations examined in this article. 

Provisional measures are emergency orders that the ICJ issues under Article 41 of its Statute to protect rights while a case is pending. [7] They function as international injunctions, which are temporary but legally binding on parties to the dispute. [8] The binding nature of these measures was definitively established in LaGrand (Germany v. United States), where the ICJ rejected the United States’ argument that provisional measures were merely recommendatory. [9] Despite the US contention that “the language used by the Court…is not the language used to create binding legal obligation,” the Court held that provisional measures under Article 41 have binding effects that create legal obligations for the parties, not mere recommendations. [10]

The disconnect between the provisional measures and the ATT States Parties continuing to export is rooted in legal ambiguity. ICJ provisional measures bind only the parties to the dispute–here, South Africa and Israel–leaving unclear what obligations, if any, fall on third states that export arms to the respondent. [11] The ATT establishes export control standards based on “knowledge” of atrocity crimes (Article 6(3)) and “overriding risk” of serious violations (Article 7). [12] Still, it does not specify whether ICJ judicial findings constitute the type of knowledge or risk that triggers these obligations. Meanwhile, arms-exporting states argue they lack definitive proof of genocide and export decisions are a matter of foreign policy discretion, rather than justiciable legal duties. [13] This creates a gap between international judicial findings and export control practices that undermine the ICJ’s authority and the ATT’s preventative purpose. [14]

When the ICJ publicly determines, based on extensive evidence and legal submissions, that genocide-related rights are plausible and face real and imminent risk, it transforms a contestable political allegation into a judicially recognized fact at the provisional stage. This article argues that such findings should operate as an epistemic trigger for ATT States Parties, meeting the "knowledge" and "overriding risk" standards in Articles 6(3) and 7, respectively, and thereby requiring the suspension, denial, or reassessment of arms export licenses to the respondent state.

On January 26, March 28, and May 24, 2024, the Court produced three provisional measures containing two critical factual determinations. [15] First, the Court found that Palestinians in Gaza possess “plausible rights” under the 1948 Genocide Convention–meaning rights that appear to exist based on the Court’s preliminary examination of evidence. [16] Second, it identified a “real and imminent risk” of irreparable prejudice to those rights. [17] This is the evidentiary threshold required for urgent judicial intervention. The Court ordered Israel to take “all measures within its power to prevent acts listed in Article II of the Genocide Convention, prevent and punish direct and public incitement to genocide, and enable humanitarian assistance.” [18] Subsequent orders in March and May reaffirmed their findings.

While these measures bind only South Africa and Israel as parties to the dispute, they create an epistemic effect for third states, particularly arms-exporting ATT States Parties. Third states cannot credibly claim ignorance of risk when making export decisions. 

The Genocide Convention itself additionally reinforces the analysis. Article I requires every contracting state to “prevent and punish” genocide, which the ICJ articulates in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro (2007)), which is its judgment on the atrocities of the Bosnian war. In this case, Bosnia alleged that Serbia was guilty of genocide against Bosnian Muslims; the Court ultimately concluded that genocide had been committed at Srebrenica but found Serbia guilty not of committing genocide, but of failing to prevent it and punish those responsible. The Court explained that the obligation to prevent is “a distinct obligation” of conduct that “arise[s] at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.” [19] This due diligence standard means states must take all measures reasonably available to them as soon as they are aware, or deemed to have been aware of such a risk, even before it is established that genocide occurred. 

The Court applied this preventative logic in Application of the Genocide Convention (The Gambia v. Myanmar (2020)), where it recognized that provisional measures are justified when there is a “real and imminent risk” of irreparable prejudice to rights under the Genocide Convention. [20] This is a threshold that is consistent with, and can be read alongside, the Bosnia v. Serbia standard that the duty to prevent arises once a state knows or should have known of a serious risk of genocide. [21]

For ATT States Parties, this creates a triangulated obligation: the Genocide Convention requires prevention upon awareness of serious risk, ICJ provisional measures establish that risk as a judicial fact, and the ATT provides the specific mechanism–export denial or suspension–through which prevention must occur. 

The Arms Trade Treaty establishes this preventive duty through a two-tier system of export controls that intersect with the ICJ’s findings. Article 6(3) establishes an absolute prohibition, stating that a States Party “shall not authorize any transfer of conventional arms… if it has knowledge at the time of authorization that the arms would be used in the commission of genocide, crimes against humanity, or grave breaches of the Geneva Conventions.” [22]

The question is whether ICJ provisional measures constitute “knowledge” under Article 6(3). These factors support an affirmative answer. First, the Court’s determination relies on extensive evidence and legal submissions from both parties, making it more authoritative than intelligence assessments or media reports. [23] Second, the ICJ’s factual findings, even at the provisional stage, carry unique institutional weight. Third, the Genocide Convention’s prevention duty requires states to act on awareness of a serious risk, not to prevent genocide. If the ICJ’s finding of “plausible rights” facing “real and imminent risk” doesn’t establish constructive knowledge that arms could be used in genocide, it is unclear what factual predicate ever would. States cannot maintain willful blindness by demanding higher standards of proof than the international legal system itself requires. 

Article 7 establishes exports and export assessments. Under Article 7(1), states must assess whether exports “would contribute to or undermine peace and security” or could be used to commit serious violations of international humanitarian law (IHL) or human rights law. Article 7(4) mandates consideration of whether arms could be used to commit or facilitate serious acts of gender-based violence or violence against women and children. If an “overriding risk” of negative consequences exists after considering possible mitigation under Article 7(2), the state “shall not” authorize the export under Article 7(3). Article 7(7) encourages states to reassess their policies in light of new information. This appears permissive, but its mandatory force is evident when read alongside Article 7(3), which declares that states “shall not” authorize exports where an “overriding risk” exists. Once the ICJ provisional measures establish facts that constitute “new relevant information” that fundamentally alter risk assessment, Article 7(7)’s procedural encouragement becomes irrelevant. The substantive prohibition in Article 7(3) already applies; Article 7(7) simply clarifies the procedure. A state that refuses to reassess in light of ICJ genocide findings cannot plausibly claim it has met Article 7(1)’s requirement to ‘assess’ whether exports could facilitate IHL violations. [24]

ICJ provisional measures can trigger both these tiers of the ATT export control system. For Article 6(3), the combination of the Court’s findings with corroborating evidence from UN bodies and credible non-governmental organizations (NGOs) can meet the knowledge threshold for genocide. For Article 7, provisional measures at a minimum constitute the type of “new relevant information” requiring immediate reassessment of existing licenses and create strong evidence of an “overriding risk” that exports could facilitate serious IHL violations. [25]

Litigation in the Dutch Supreme Court demonstrates how these principles operate in practice. Three Dutch NGOs brought suit, arguing that the F-35 parts exports made the Netherlands complicit in serious IHL violations in Gaza. The case engaged European Union (EU) and domestic export-control law alongside the ATT. [26] Under Criterion 2(c) of EU Common Position 2008/944/CFSP, Member States must deny export licenses if there is a “clear risk” that items “might be used” to commit serious IHL violations, notably an even lower threshold than the ATT’s “overriding risk” standard. Applying this standard, the Hague Court of Appeal ordered the government in February 2024 to halt exports of F-35 parts to Israel, finding a clear risk of their use in serious IHL violations. [27]

When the case reached the Dutch Supreme Court on October 3, 2025, the Court held that “the Court of Appeal was not entitled to make its own assessment of whether there is a clear risk of serious violations of international humanitarian law,” ruling instead that “the Minister must reassess the license based on that criterion.” The Supreme Court ordered the reassessment to occur within six weeks and confirmed that the export suspension must remain in place during that period. The Supreme Court also noted that, following the Court of Appeal’s decision of 12 February 2024, the Minister amended the license so that export of F-35 parts to Israel was not allowed, demonstrating that license terms can be dynamically adjusted as circumstances evolve. [28]

The Dutch litigation reveals the contested nature and justiciability of these obligations. While the Court of Appeal attempted to enforce export prohibitions based on IHL risk, the Supreme Court held that substantive risk assessment belongs to the executive branch, not courts. At the same time, the Supreme Court affirmed a critical principle: once the Minister’s reassessment identifies a clear risk that F-35 parts might be used to commit serious IHL violations, the license must be suspended or revoked with no discretion to authorize exports on other grounds. This two-step structure mirrors what ATT Article 7(7) anticipates when an exporting state “becomes aware of new relevant information”: a duty to reassess, and when risk is confirmed, to suspend or revoke existing authorizations. [29]

When the ICJ determines that genocide related rights are “plausible” and face “real and imminent risk”, it establishes an authoritative factual predicate that ATT States Parties cannot ignore. This finding changes the legal landscape for arms export decisions in three ways. First, it can satisfy the “knowledge” threshold under ATT Article 6(3), particularly when combined with corroborating evidence from UN bodies and credible NGOs. Second, it constitutes “new relevant information” under Article 7(7), triggering mandatory reassessment obligations. This, when read alongside the Genocide Convention’s due diligence duty to prevent genocide upon awareness of serious risk, these provisional measures create a triangulated legal obligation: prevent, assess, and deny or suspend. 

The Dutch F-35 litigation demonstrates how this framework operates in practice. Even as courts deferred substantive risk assessment to executive discretion, they affirmed the principle that licenses must be suspended during reassessment, and if clear risk is confirmed, must be revoked with no discretion to authorize on other grounds. This operationalizes the procedural default this article advocates: suspension pending transparent reassessment when confronted with ICJ genocide findings. 

Twenty-two months after the ICJ’s first provisional measure, the continued flow of arms exports to Israel reveals a dangerous gap between international judicial findings and export control practice. Closing this gap requires recognizing that ICJ provisional measures function as epistemic triggers or authoritative determinations that activate existing legal obligations under the ATT and Genocide Convention. States Parties can no longer claim uncertainty when the ICJ has spoken. 

Edited by Begum Gokmen and Claire Thornhill

[1] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, I.C.J.

[2] Zain Hussain, “How Top Arms Exporters Have Responded to the War in Gaza,” Stockholm International Peace Research Institute, 3 October 2024; Louisa Brooke-Holland, “UK Arms Exports to Israel,” House of Commons Library Research Briefing, 8 January 2025.

[3] Zain Hussain, “How Top Arms Exporters Have Responded to the War in Gaza,”Stockholm International Peace Research Institute, 3 October 2024; “States Parties to the ATT (in Alphabetical Order), Status as of 23 September 2025,” United Nations, Arms Trade Treaty, ch. XXVI-8.

[4] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, I.C.J.; Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 28 March 2024, I.C.J.; Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 24 May 2024, I.C.J.

[5] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, I.C.J.; Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 28 March 2024, I.C.J.; Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 24 May 2024, I.C.J.

[6] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, I.C.J.; Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 28 March 2024, I.C.J.; Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 24 May 2024, I.C.J.

[7] Statute of the International Court of Justice, art. 41.

[8] International Court of Justice, “LaGrand Case (Germany v. United States of America), Press Communiqué No. 2001/16,” 27 June 2001.

[9] International Court of Justice, LaGrand (Germany v. United States of America), Judgment of 27 June 2001, I.C.J. Reports 2001, p. 466, para. 96.

[10] International Court of Justice, LaGrand (Germany v. United States of America), Judgment of 27 June 2001, I.C.J. Reports 2001, p. 466, paras. 96, 109.

[11] Statute of the International Court of Justice, 26 June 1945, art. 59.

[12] Arms Trade Treaty, U.N. Doc. A/CONF.217/2013/L.3 (adopted 2 April 2013; entered into force 24 December 2014), arts. 6(3), 7.

[13] Lea Brilmayer and Isaias Yemane Tesfalidet, “Third State Obligations and the Enforcement of International Law,” New York University Journal of International Law and Politics 44, no. 1 (2011): 8.

[14] Lea Brilmayer and Isaias Yemane Tesfalidet, “Third State Obligations and the Enforcement of International Law,” New York University Journal of International Law and Politics 44, no. 1 (2011): 12.

[15] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, I.C.J.; Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 28 March 2024, I.C.J.; Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 24 May 2024, I.C.J.

[16] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, I.C.J., para. 66.

[17] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, I.C.J., para. 74.

[18] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, I.C.J., paras. 70, 78, 86(1), 86(3).

[19] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, para. 431.

[20] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J., para. 64.

[21] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, para. 431.

[22] Arms Trade Treaty, art. 6(3).

[23] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, I.C.J., paras. 52–55.

[24] Arms Trade Treaty, arts. 7(1), 7(3)–(4), 7(7).

[25] Arms Trade Treaty, arts. 6(3), 7(1), 7(3)–(4), 7(7); Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, I.C.J.

[26] “Supreme Court: Minister Must Perform Reassessment of Licence to Export F-35 Parts to Israel Again,” Supreme Court of the Netherlands, 3 October 2025, https://www.hogeraad.nl/actueel/nieuws/supreme-court-minister-must-perform-reassessment-of-licence-to-export-f-35-parts-to-israel-again.

[27] Annick Pijnenburg, Michiel Tjepkema, and Casper Smeulders, “Dutch Supreme Court Orders Executive Branch to Reassess Export of F-35 Parts to Israel in Light of International Obligations,” Opinio Juris, 8 October 2025, https://opiniojuris.org/2025/10/08/dutch-supreme-court-orders-executive-branch-to-reassess-export-of-f-35-parts-to-israel-in-light-of-international-obligations/.

[28] “Supreme Court: Minister Must Perform Reassessment of Licence to Export F-35 Parts to Israel Again,” Supreme Court of the Netherlands, 3 October 2025, https://www.hogeraad.nl/actueel/nieuws/supreme-court-minister-must-perform-reassessment-of-licence-to-export-f-35-parts-to-israel-again.

[29] “Supreme Court: Minister Must Perform Reassessment of Licence to Export F-35 Parts to Israel Again,” Supreme Court of the Netherlands, 3 October 2025,https://www.hogeraad.nl/actueel/nieuws/supreme-court-minister-must-perform-reassessment-of-licence-to-export-f-35-parts-to-israel-again; Annick Pijnenburg, Michiel Tjepkema, and Casper Smeulders, “Dutch Supreme Court Orders Executive Branch to Reassess Export of F-35 Parts to Israel in Light of International Obligations,” Opinio Juris, 8 October 2025,https://opiniojuris.org/2025/10/08/dutch-supreme-court-orders-executive-branch-to-reassess-export-of-f-35-parts-to-israel-in-light-of-international-obligations/.