Arms Exports to Israel Violate Canadian and International Law

Canada, War/Peace  •  January 31, 2024  •  Canadian and Palestinian Coalition

On January 28, a coalition of Canadians and Palestinians wrote to Minister of Foreign Affairs Mélanie Joly demanding that the federal government immediately halt all exports and transfers of Canadian military goods and technology to Israel.

The coalition, which consists of Canadian Lawyers for International Human Rights (CLAIHR), Al-Haq – Law in the Service of Man, Ayman Oweida and a confidential Palestinian asylum seeker, argues that the Export and Import Permits Act prevents Canada from issuing permits to Canadian companies to export military goods and technology to Israel due to the substantial risk that they could be used to commit serious violations of international law and serious acts of violence against women and children.

The coalition outlines the extensive evidence that Israel has committed and continues to commit such violations and acts in its military operations in Gaza and in the West Bank, including the real and imminent risk that Israel is violating the Convention on the Prevention and Punishment of Genocide.

The coalition has put the government on notice that, in these circumstances, issuing export permits for Canadian military goods and technology to Israel violates both Canadian and international law. The coalition has asked for a response from Canada confirming that it has stopped this illegal activity within fourteen days, failing which the coalition will consider its legal options.

“CLAIHR is seeking to hold the Canadian government to its legal obligations, both under international and domestic law, to ensure Canadian arms are not used to commit war crimes and crimes against humanity,” said Henry Off, member of Canadian Lawyers for International Human Rights. “We are calling on Foreign Affairs Minister Joly to comply with the law and halt all military export approvals to Israel.”

“The Israeli military is killing an average of 250 Palestinians per day in Gaza and has deliberately imposed a humanitarian crisis upon the 2.3 million Palestinian residents of Gaza, forcibly displacing 1.7 million people and bringing Gaza to the brink of famine – acts which are intended to destroy the Palestinian people in Gaza as a group” said Shawan Jabarin of Al-Haq – Law in the Service of Man. “Al-Haq is calling on Canada to honour its obligations under international law to stop the provision and transit of military equipment that may foreseeably be used in the commission of these international crimes.”

“As a Canadian, I am shocked that Canada is issuing permits to Canadian companies to export military goods that could be used to breach the fundamental human rights of my family in Gaza,” said Ayman Oweida.

“While Israel violates international law, Canada continues to profit by providing it with military goods and technology to commit those violations. In 2021, Canada exported over $26-million worth of military goods to Israel but refuses to say whether this continues,” said the confidential asylum seeker.

Key Excerpts – Export and Import Permits Act (R.S.C., 1985, c. E-19), sections 7.3-7.4.

Mandatory considerations — export and brokering

7.3 (1) In deciding whether to issue a permit under subsection 7(1) or 7.1(1) in respect of arms, ammunition, implements or munitions of war, the Minister shall take into consideration whether the goods or technology specified in the application for the permit

• would contribute to peace and security or undermine it; and
• could be used to commit or facilitate
  • a serious violation of international humanitarian law,
  • a serious violation of international human rights law,
  • an act constituting an offence under international conventions or protocols relating to terrorism to which Canada is a party,
  • an act constituting an offence under international conventions or protocols relating to transnational organized crime to which Canada is a party, or
  • serious acts of gender-based violence or serious acts of violence against women and children.

Substantial Risk

7.4 The Minister shall not issue a permit under subsection 7(1) or 7.1(1) in respect of arms, ammunition, implements or munitions of war if, after considering available mitigating measures, he or she determines that there is a substantial risk that the export or the brokering of the goods or technology specified in the application for the permit would result in any of the negative consequences referred to in subsection 7.3(1).

About the Letter Signatories

Canadian Lawyers for International Human Rights (CLAIHR), founded in 1992, is a non-governmental organization of lawyers, law students, and legal academics working to promote international human rights within and in connection to Canada;

Al-Haq – Law in the Services of Man is an independent Palestinian non-governmental human rights organization established in 1979 in Ramallah, West Bank, to protect and promote human rights and the rule of the law in the Occupied Palestinian Territory;

Ayman Oweida is a Palestinian-Canadian currently residing in Québec with family in Gaza, some of whom have been killed in suspected international crimes;

The confidential applicant is a Palestinian woman from Gaza who is currently seeking asylum in Canada.

Attachment: Schedule to the 28 January 2024 Letter to the Canadian Minister of Foreign Affairs from Canadian Lawyers for International Human Rights, Al-Haq – Law in the Service of Man, Ayman Oweida and a confidential applicant – available on the Just Peace Advocates website. [Also available for download here.]

For more information and media availabilities for each of the signatories, please contact:
Henry Off, CLAIHR Board Member info@claihr.ca

The Hon. Mélanie Joly
Minister of Foreign Affairs, Canada
House of Commons
Ottawa, Ontario K1A 0A6
melanie.joly@international.gc.ca

Dear Minister Joly,

Re: Canadian military goods and technology transfers to Israel since 7 October 2023

We are a coalition of Canadian and Palestinian individuals and entities, including:

Canadian Lawyers for International Human Rights (“CLAIHR”), a Canadian non-governmental organization comprised of lawyers, law students and legal academics, among others, working to promote international human rights within and in connection to Canada;

Al-Haq – in the Service of Man (“Al-Haq”), an independent Palestinian human rights organization that seeks to promote and defend the rule of law and respect for international humanitarian law and international human rights law, and fight impunity by holding perpetrators accountable, irrespective of their nationality;

Ayman Oweida, a Palestinian-Canadian currently residing in Québec with family in Gaza,
some of whom have been killed in suspected international crimes; and

_______, a 26-year old Palestinian woman from Gaza who is currently seeking asylum in Canada, and whose direct family still resides in Gaza.

On 26 January 2024, in proceedings instituted before the International Court of Justice (ICJ) by South Africa against Israel concerning alleged violations in the Gaza Strip of Israel’s obligations under the Genocide Convention, the ICJ concluded that “the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further” and that “there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights” of Palestinians in Gaza under the Convention.¹ The ICJ also recalled that under the Convention, all States Parties, including Canada, must “ensure the prevention, suppression and punishment of genocide, by committing themselves to fulfilling the obligations contained in the Convention.”² These and other legal obligations, both domestic and international, have profound implications for the transfer of military goods and technology from Canada having Israel as their ultimate destination.

Our concerns relate to the approval of permits for the brokering and exporting of military goods or technology (including arms, ammunition, and implements or munitions of war) that are transferred to Israel, which are then deployed in the Occupied Palestinian Territory, specifically the Gaza Strip and the West Bank, including East Jerusalem.

You and the Canadian government are obliged under domestic and international law to deny such permits where there exists a substantial risk that the goods or technology in question could be used to commit or facilitate a violation of international humanitarian law (“IHL”) or of international human rights law (“IHRL”), or serious acts of violence against women and children. A parallel obligation also exists where there is a substantial risk that any goods or technology exported may be used to commit or facilitate acts or omissions that engage the rights guaranteed under section 7 of the Canadian Charter of Rights and Freedoms.

Mandatory Review of Export and Brokering Applications under the Export and Import Permits Act (“EIPA”)

In deciding whether or not to approve a permit in respect of arms, ammunition, implements or munitions of war as Minister responsible for the application and enforcement of the EIPA, you must take into consideration:

• (a) whether the goods or technology specified in the application for the permit would contribute to or undermine peace and security; and
• (b) whether they “could be used” to commit or facilitate a serious violation of IHL or IHRL, or serious acts of violence against women and children.

If you determine that there is a “substantial risk” that the military goods or technology specified in the application for the permit could be used to commit or facilitate a serious violation of IHL or IHRL, or serious acts of violence against women and children, after considering available mitigation measures, you must not issue the permit.³

Furthermore, any permit issued to approve the export or brokering of military goods and technology in circumstances where there is a risk that those items could be used to commit or facilitate a serious violation of IHL or IHRL may engage the rights to life, liberty, and security of the person protected under section 7 of the Charter. Serious violations of such fundamental rules of international law could never be in accordance with the principles of fundamental justice, nor demonstrably justified in a free and democratic society.

With respect to international legal obligations, as a signatory to both the 1949 Geneva Conventions⁴ and the Genocide Convention, Canada has an obligation to prevent the commission of genocide and to ensure respect for the provisions of the Geneva Conventions. Canada’s transfer of military goods and technology to Israel may constitute violations of Canada’s obligations under these Conventions, and may constitute complicity in acts of genocide and grave breaches of the Geneva Conventions.

The “Substantial Risk” Posed by Military Goods or Technology Transfers to Israel

Since 2007, Israel has imposed an air, land and sea blockade on the Gaza Strip, collectively punishing its entire population and earning Gaza the label of the “world’s largest open-air prison.”⁵ While Israel’s inflicting of collective punishment on Palestinians has long been an ongoing catastrophe,⁶ the current hostilities have brought the scale of punishment to a new level.⁷ Shortly after Hamas’ attack against Israel on 7 October 2023, Israel announced a “total blockade” on Gaza, preventing the entry of food, water, medicine, fuel, and electricity, and Israel’s military operations in Gaza have resulted in tens of thousands of civilian deaths, the widespread destruction of Palestinian infrastructure, and the mass forced displacement of Palestinian civilian populations. These acts, among others, constitute serious violations of IHL and IHRL, and serious acts of violence against women and children. In its application to the ICJ, South Africa qualifies them as genocidal because they are intended to bring about the destruction of the Palestinians in Gaza as part of the broader Palestinian national, racial, and ethnical group.

That Israel’s acts and omissions in relation to Palestinians in Gaza violate the Genocide Convention

“is the shared view of numerous other States parties to the Convention […]. United Nations experts have also repeatedly sounded ‘the alarm’ […] that […] there is a ‘risk of genocide against the Palestinian people’. […] The Committee on the Elimination of Racial Discrimination […] has also called on ‘all States parties’ to the Genocide Convention to ‘fully respect’ their ‘obligation to prevent… genocide’.”⁸

Israel’s military attacks on Gaza have involved the sustained bombardment of one of the most densely populated places in the world. As of 26 January 2024, 1.7 million people were estimated to be internally displaced. Between 7 October 2023 and 26 January 2024, at least 26,083 Palestinians were killed in Gaza,⁹ including 10,000 children.¹⁰ 64,487 Palestinians were injured¹¹ and around 7,000 persons were missing under the rubble, including 5,000 children and women.¹² As of 23 January 2024, there were well over one million children in shelters at risk of dehydration, starvation, digestive and respiratory diseases, skin diseases, and anemia, and well over 50,000 pregnant women in shelters without water, food and healthcare, with about 180 women giving birth daily in unsafe and inhumane conditions.¹³

Furthermore, as South Africa stated,

“Israel has also laid waste to vast areas of Gaza, including entire neighbourhoods, and has damaged or destroyed in excess of 355,000 Palestinian homes, alongside extensive tracts of agricultural land, bakeries, schools, universities, businesses, places of worship, cemeteries, cultural and archaeological sites, municipal and court buildings, and critical infrastructure, including water and sanitation facilities and electricity networks, while pursuing a relentless assault on the Palestinian medical and healthcare system. Israel has reduced and is continuing to reduce Gaza to rubble, killing, harming and destroying its people, and creating conditions of life calculated to bring about their physical destruction as a group.”¹⁴

These acts constitute serious violations of IHL and IHRL, and serious acts of violence against women and children, as provided by the EIPA.

Other states, such as Italy, have recognized and reportedly met their domestic and international obligations, since 7 October 2023, to halt the transfer of military goods and technology to Israel so as not to “risk [their] weapons being used to commit what could be construed as war crimes.”¹⁵ Where states have not met their obligations, lawsuits in respect of arms transfers to Israel have been filed, namely in the Netherlands, the United Kingdom, and the United States.¹⁶

In light of the foregoing and for the reasons set out in greater detail in the attached Schedule, we ask you to confirm that you and/or the Canadian government:

• have canceled or suspended all permits (including general permits) to export or broker military goods or technology destined for Israel that were issued or active after 7 October 2023;
• have denied all applications to export or broker military goods or technology destined for Israel that were received or assessed after 7 October 2023;
• will issue no further permits to export or broker military goods or technology destined for Israel and/or where Israel is the end-user until such time as Israel ceases to violate international law as described in the attached Schedule;
• will immediately prevent all transfer of military goods or technology that are assembled in a third state before being transferred to Israel as an end-user until such time as Israel ceases to violate international law as described in the attached Schedule; and
• have removed or will immediately remove Israel from the Automatic Firearms Country Control List.

Please provide a full response, including confirmation of the above, together with a full and detailed explanation of what measures have (or have not) been taken to comply with your legal obligations, as well as detailed information on permits that have been issued for the brokering or exporting of military goods or technology transferred to Israel since 7 October 2023.

Canadians are entitled to transparency from their government on pressing matters of fundamental importance such as this. Given the urgency of the situation, please provide your response within fourteen (14) days.

Thank you in advance for your prompt reply.

Yours truly,
James Yap
President, Canadian Lawyers for International Human Rights

Shawan Jabarin
General Director, Al-Haq

Ayman Oweida

1. Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Order on the Request for the Indication of Provisional Measures, ICJ, 26 January 2024 at paras 72, 74. (“Provisional Measures Order”)
2. Provisional Measures Order at para 33.
3. Export and Import Permits Act (R.S.C., 1985, c. E-19), s. 7.3(1) and 7.4.
4. As implemented into Canadian law through, inter alia, Geneva Conventions Act ( RSC , 1985, c. G-3).
5. Human Rights Watch, “Gaza: Israel’s ‘Open-Air Prison’ at 15,” 14 June 2022.
6. UN Office for the Coordination of Humanitarian Affairs (UN OCHA), “Israel’s collective punishment of Palestinians illegal and an affront to justice: UN expert,” 17 July 2020.
7. Amnesty International, “Israel/OPT: Israel must lift illegal and inhumane blockade on Gaza as power plant runs out of fuel,” 12 October 2023.
8. Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Application instituting proceedings and request for the indication of provisional measures, ICJ, 29 December 2023 at para. 3 (“South African Application,” references omitted).
9. UN OCHA, Hostilities in the Gaza Strip – Reported Impact, 26 January 2024.
10. Save the Children, “Gaza: 10,000 Children Killed in Nearly 100 Days of War,” 11 January 2024; Palestine Red Crescent Society, Response Report # 288/2024, 23 January 2024.
11. UN OCHA, Hostilities in the Gaza Strip – Reported Impact, 26 January 2024.
12. Palestine Red Crescent Society, Response Report # 288/2024, 23 January 2024.
13. Palestine Red Crescent Society, Response Report # 288/2024, 23 January 2024; Palestine Red Crescent Society, Response Report # 283/2024, 19 January 2024.
14. South African Application at para 4.
15. See for example The Times of Israel, “Italian FM reveals country ceased arms shipments to Israel starting October 7,” 21 January 2024.
16. Al Jazeera, “Netherlands accused of war crimes complicity for Israeli military supplies,” 4 December 2023; The Guardian, “UK government faces legal challenge over arms exports to Israel,” 6 December 2023; Campaign Against Arms Trade, “Revealed: David Cameron advised continuing arms exports to Israel, accepting Israel has a different interpretation of its International Humanitarian Law obligations,” 19 January 2024; Center for Constitutional Rights, “Defense for Children International – Palestine v. Biden.”