On 26 January 2024, the International Court of Justice (ICJ) issued an interim Order in response to South Africa’s application against Israel alleging violations of the Genocide Convention for its actions in Gaza since 7 October 2023. The Court determined that “at least some of the rights claimed by South Africa and for which it is seeking protection are plausible”. It also found a “real and imminent risk” of irreparable harm to the rights protected under the Convention. The rights the Court is referring to are the rights of the Palestinians in Gaza to be protected from genocide. What are the implications of the ICJ order for corporations with operations or business relationships with or in Israel?

The prohibition to commit genocide is a jus cogens norm from which no party, including corporations, can derogate. In situations of armed conflict, international humanitarian standards apply to corporations and individual business leaders, who must consider whether their operations contribute to violations during an armed conflict. The UN Guiding Principles on business and human rights (UNGPs) also provide that business should respect the standards of international humanitarian law in situations of armed conflict.

Corporations and their managers could be held liable for the commission of acts of genocide. Article VI of the Genocide Convention specifies that ‘persons’ may be held liable for genocidal acts – which include individual businessmen as natural persons and may include corporations as legal persons. While the International Criminal Court (ICC) does not have jurisdiction over legal entities, company personnel as natural persons of States Parties to the Rome Statute may fall under its jurisdiction. The ICC can prosecute those who facilitate the commission of crimes, including through the provision of means.

Corporate complicity implies that corporations may be “aiding” or “abetting” genocidal acts perpetrated by the State. International criminal law suggests that direct complicity requires intentional participation, but not necessarily an intention to do harm, only knowledge of foreseeable harmful effects. As such, a corporation or corporate leader may be complicit in the commission of genocide where it decides to participate through assistance in the commission of the acts by the State of Israel and that assistance has a “substantial effect” on the commission of the crime of genocide. Companies investing in or partnering with the Israeli government or Israeli State-owned enterprises face a salient risk of aiding and abetting genocide or other violations of international humanitarian law.

Arms, weapons, ammunition, vehicles and other military supplies, including technology and fuel, are essential for the activities of the Israeli air force, ground forces and navy, and make an essential contribution to violations of international humanitarian law in Gaza. Dozens of companies domiciled in Third States (especially in the US and Germany) are currently providing Israel with weapons and other military equipment. They are doing so knowing that their supplies are used in Israel’s war in Gaza. These companies and their managers risk charges of complicity in genocide and other international crimes in their home States or international courts. Banks and other financial institutions that finance companies selling arms or other military supplies to the Israeli military or that provide funds directly to the Israeli State may also being contributing to the commission of genocide in Gaza. In this case the fungibility of monetary funds is crucial.

Business with operations or business relationships in Israel should address a range of complex impacts related to conflict and its root causes and their impact on the wider economy. Companies must conduct heightened human rights due diligence regarding both their operations and their whole supply chain to identify risks of where they may be contributing to violations against Gaza’s civilian population. Generally, under the UNGPs and OECD Guidelines, before considering ending relationships, companies should seek to be part of the solution by addressing adverse impacts through exercising leverage. There are, however, special considerations in cases of possible complicity in gross human rights abuses. In relation to the current situation in Gaza, where business enterprises lack the leverage to prevent or mitigate adverse impact, they should consider ending any existing relationships.

Independently from State regulation, companies have their own responsibility to abide by international law as recognised in the UNGPs “over and above compliance with national laws and regulations”. Companies whose activities, products or services are directly linked to severe human rights violations currently happening in Gaza are expected to consider responsible disengagement. Companies that provide weapons, arms, ammunition, technology, oil and fuel, intelligence and other military supply to the government of Israel should stop any further operations to avoid risk being directly complicit in ongoing violations. Other companies must also cease any activity or cut financial ties that could contribute directly or indirectly to ongoing crimes committed by the Israeli authorities. Businesses should also develop effective mechanisms to provide remedy to rights holders in Palestine that have been affected by their operations.

Dr. Irene Pietropaoli is Senior Fellow in Business and Human Rights at the British Institute of International and Comparative Law. This blog is based on an expert legal opinion commissioned by Al-Haq Europe and SOMO.