It is six months since the terrible attacks that launched the current war in Gaza. Over 33,000 Palestinians have now been killed, about half of them children. About twice that number have been injured. And an unknown number are buried under the rubble, possibly including some of the 134 Israeli hostages who remain in the hands of Hamas and other groups.
Gaza has become a wasteland. Famine stalks the land.
So far, the world has largely tolerated the appalling carnage in Gaza. Despite considerable evidence that Israel is committing serious breaches of international humanitarian law, few countries have even discussed measures such as sanctions, let alone imposed them.
But this “softly, softly” approach has manifestly failed. Israel is planning an invasion of Rafah that would by itself likely constitute a Srebrenica-style genocide (remembering that Srebrenica was, like Rafah, supposedly a “safe space”). And despite growing condemnation even from its allies, it continues to kill and maim civilians by the hundred.
The West must act to stop this obscenity. It is time for punitive sanctions on Israel.
Killing Western aid workers was a “big mistake”
The extrajudicial killing of six Western aid workers, three of them British military veterans, drew harsh criticism from Western governments. Israel has been killing Palestinian aid workers with impunity for months: nearly 200 have died since 7th October. But killing foreign nationals engaged in humanitarian work crossed a line. Unless Israel came up with a good explanation, it would be regarded as a hostile act.
Israel scurried around trying to find an excuse for its apparently motiveless killing of seven unarmed aid workers, and eventually promised an “independent investigation with full transparency”. But the investigation it actually conducted was led by a retired Israel army general who is chief executive of a company that makes missiles that may have been used in the attack. Unsurprisingly, the investigation found that it was all a terrible mistake by junior officers. So the IDF sacked a couple of them and reprimanded a few more. The heads of the top brass who evidently had no control whatosever of operations on the ground remain firmly attached to their necks. The “best army in the world” has been exposed as an undisciplined, thuggish rabble.
To make matters worse, this far-from-independent investigator then alleged that the aid convoy had been accompanied by Hamas gunmen for part of its journey. Quite why Western governments should accept such a despicable slur against their nationals is a mystery. But at present they seem minded to do so, even though Israel provided no evidence to support its allegation and later admitted that what its operatives thought was a gun might have been a bag. So far, none of the countries whose nationals Israel killed has taken any punitive action such as expelling Ambassadors or imposing sanctions. The families of the aid workers might well feel that their governments are not on their side.
However, it does appear that the US is now losing patience. This is good news, since the US is the only country that could force Israel to change course.
The US abstained from a UN Security Council resolution demanding a ceasefire during the Muslim holy month of Ramadan, rather than using its veto. As a result, the resolution passed, the first such resolution in this conflict. Israel and Hamas, of course, both ignored it. Israel has continued to bomb Gaza throughout Ramadan, and Hamas has continued to fire rockets into Israel.
Then, following the killing of the aid workers, there was a “tense” phone call between the US President and Israel’s Prime Minister. We don’t know what Joe Biden said, but it had quite an effect. Israel agreed to open several new routes for humanitarian aid, including one through the Erez crossing, and allow aid through the Ashdod port north of Gaza.
If Israel can safely open these routes now, it could, of course, have done so long ago. It would seem, therefore, that Israel has deliberately restricted aid to Gaza, just as humanitarian aid groups and United Nations agencies have been saying. This is a serious breach of international humanitarian law, and it has been done with at least the connivance of the US. And if the intent was to engineer a famine, then it could also constitute genocide.
From the start of this conflict, ministers in Netanyahu’s government, advisors to that government, members of the Knesset, and senior armed forces personnel have repeatedly expressed a desire for Palestinians to be forced out of Gaza through starvation. In the face of evidence that Israel has all along been perfectly capable of admitting more humanitarian aid but chose not to do so, there seems no reason any more to regard their statements as merely rhetorical. They meant exactly what they said.
The International Court of Justice
This reinforces South Africa’s case against Israel at the International Court of Justice under the Genocide Convention. The Court has not as yet passed judgment on South Africa’s claims, but in January it ordered (pdf) six provisional measures to prevent further deterioration of the humanitarian situation in Gaza. I quote them here verbatim:
(1) The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular:
(a) killing members of the group;
(b) causing serious bodily or mental harm to members of the group;
(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and
(d) imposing measures intended to prevent births within the group;(2) The State of Israel shall ensure with immediate effect that its military does not commit any acts described in point 1 above;
(3) The State of Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip;
(4) The State of Israel shall take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip;
(5) The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Convention on the Prevention and Punishment of the Crime of Genocide against members of the Palestinian group in the Gaza Strip;
(6) The State of Israel shall submit a report to the Court on all measures taken to give effect to this Order within one month as from the date of this Order.
In February, South Africa petitioned the Court for further provisional measures, but the Court merely reinforced the original six. However, in March, when South Africa issued a further petition, the Court agreed that more were necessary. On 28th March, it added a further two measures (pdf):
The State of Israel shall, in conformity with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, and in view of the worsening conditions of life faced by Palestinians in Gaza, in particular the spread of famine and starvation:
(a) Take all necessary and effective measures to ensure, without delay, in full co-operation with the United Nations, the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance, including food, water, electricity, fuel, shelter, clothing, hygiene and sanitation requirements, as well as medical supplies and medical care to Palestinians throughout Gaza, including by increasing the capacity and number of land crossing points and maintaining them open for as long as necessary;
(b) Ensure with immediate effect that its military does not commit acts which constitute a violation of any of the rights of the Palestinians in Gaza as a protected group under the Convention on the Prevention and Punishment of the Crime of Genocide, including by preventing, through any action, the delivery of urgently needed humanitarian assistance;
Notably, even the Israeli judge agreed with the first of these measures, though he dissented from the second.
It seems their Lordships and Ladyships were not satisfied with the report provided by Israel regarding its compliance with the original measures, and were deeply concerned about the deterioration in humanitarian conditions within Gaza. Their language is harsh (my emphasis):
The Court recalls that, in its Order of 26 January 2024, it concluded that the civilian population in Gaza was extremely vulnerable, noting that many Palestinians in the Gaza Strip had “no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating”…
In its decision communicated to the Parties by letters of 16 February 2024, the Court noted, quoting the United Nations Secretary-General, that the developments in the Gaza Strip, and in Rafah in particular, “would exponentially increase what is already a humanitarian nightmare with untold regional consequences”...
The Court observes with regret that, since then, the catastrophic living conditions of the Palestinians in the Gaza Strip have deteriorated further, in particular in view of the prolonged and widespread deprivation of food and other basic necessities to which the Palestinians in the Gaza Strip have been subjected.
They go on to give a comprehensive evaluation of the disastrous humanitarian situation in Gaza, supported by quotations from numerous sources - not one of which, interestingly, is the conflicted UNRWA.
These provisional measures, like the original six, are legally binding on Israel as a signatory to the Geneva Convention on Genocide. Perhaps more importantly - since Israel has a habit of ignoring international law that does not suit it - they are also binding on the other signatories of the Geneva Convention. Those signatories include all of Israel’s main Western allies.
Many people have called for the International Court of Justice to “take action” or “take stronger action” against Israel. But the Court does not itself have any capacity to take action other than ordering Israel to take certain actions and/or desist from certain actions. That, it has done. It is now the responsibility of the signatory states to take whatever actions they see fit to force Israel to comply with the Court’s order.
What actions should Western countries take?
So far, Western countries, led by the US, have preferred to use words rather than actions to try to force Israel to comply with international law. But the International Court of Justice’s latest order shows that this approach has manifestly failed. Far from complying with the original provisional measures, Israel has breached them so comprehensively that the Court has felt it necessary to add a further two specifically requiring Israel to allow sufficient aid into Gaza and stop its army interfering with the distribution of that aid.
The time for words is clearly over. It is now time for actions. But what actions should Western countries take?
Perhaps the most obvious is suspension of arms sales. In February, President Biden issued a directive authorising immediate suspension of military aid to any country that violated international laws protecting civilians. There would seem to be clear justification for him to invoke this directive with regard to Israel, though politically it could be problematic in an election year. But it is, to coin a term, ammunition. Once it is used, it is spent. Threatening to suspend military aid is, in the first instance, a better option than actually suspending it - though if Israel doesn’t comply with his demands, Biden will have to follow through.
The UK is far from a major provider of arms to Israel, but there is nevertheless growing pressure on the Government to end arms sales. A 17-page letter from a 600-strong group of lawyers (pdf) explicitly calls on the government to suspend the licensing of arms exports to Israel.
The UK press has managed to give the impression that this is all the lawyers have called for. But in fact, it is only one of five actions they say the UK government must "urgently undertake". Taken together, these actions constitute a comprehensive package of punitive measures against Israel comparable to that imposed on Russia in 2022.
Here’s the full list.
1. Work actively and effectively with all the means available to it for an immediate and permanent ceasefire by all parties
The lawyers point out that the ceasefire the UN Security Council ordered (and Israel has ignored) is only for Ramadan, which ends on 9th April.
2. Take all available measures to insist upon safe access to and delivery of the essentials of existence and medical assistance to Palestinians commensurate to the needs of the population; confirm the UK will continue aid payments to UNRWA on the next due date (April 2024).
The lawyers say suspension of funding to UNRWA potentially contributes to genocide:
The suspension of funding to UNRWA – or indications that future contributions will be suspended – will prevent it from doing its essential work and exacerbate the serious risk of genocide.
The lawyers demand the UK Government reinstates UNRWA funding, and
"coordinate and work with UNRWA and other international humanitarian organisations to facilitate and fund significantly increased delivery of essential supplies, including food, medical aid and water." And they add - importantly, in the light of Israel’s repeated attacks on humanitarian aid convoys:
The UK should through intensive diplomatic efforts secure safe and unobstructed passage for aid convoys."
3. Impose sanctions on those who have made statements inciting genocide
The lawyers welcome the travel bans imposed on some extremist settlers, but say sanctions should be extended to senior members of the Israeli government and military who have made statements inciting genocide. This would include the President and Prime Minister, the Defence minister and other senior ministers, and many of the IDF top brass. The sanctions could include both travel bans and financial sanctions.
4. Suspend the provision of weapons/weapons systems to Israel
The lawyers say that arming Israel breaches both international law and the UK’s own rules for export of arms. First, international law:
The provision of military assistance and materiel to Israel may render the UK complicit in genocide as well as serious breaches of IHL.
This is extremely serious. Arming Israel is not merely failing to intervene, it is actively assisting in the commission of war crimes and genocide.
Note that even if genocide is not proven, the overwhelming evidence that Israel is breaching IHL is sufficient to justify ending arms sales.
Regarding the UK’s own rules, the lawyers observe that the UK’s Strategic Export Licencing Criteria (“SELC”) require the UK government to refuse to licence military equipment for export where there is “a clear risk that the items might be used to commit or facilitate a serious violation of international humanitarian law". And they add that the same principles apply “where arms or military equipment might be used to commit or facilitate acts which constitute genocide."
It’s not entirely clear why the press has homed in on this section of the letter and ignored the rest, but the possibility that the UK could be breaking its own rules as well as international law might have something to do with it.
5. Suspend steps for furthering a ‘strategic partnership’ with Israel and negotiations for extending and deepening trade and investment; and initiate urgent reviews into the suspension of current bilateral trade agreements with Israel and the imposition of sanctions.
This is a far-reaching recommendation which would have serious implications for the UK's long-term relationship with Israel.
The background to this is perhaps not widely known. In 2021, the UK and Israel signed a Memorandum of Understanding for a strategic partnership. This committed the parties to commencing consultations on the development of a bespoke UK-Israel “bilateral roadmap” to “extend and deepen bilateral and multilteral cooperation” on issues of shared priority.
In March 2023, the parties issued a policy paper defining the roadmap out to 2030. It is this that the lawyers say should now be suspended.
As part of this roadmap, the parties agreed to work towards a new free trade agreement. The current trade agreement between the UK and Israel, which is based on EU-Israel trading arrangements, doesn’t adequately cover services. In 2022, the UK’s Department for International Trade issued a paper outlining a strategic approach to a broader and deeper agreement, especially focusing on services. The lawyers say that not only should this be put on ice, but the existing trade agreement should also be reviewed with a view to suspending it.
However, the roadmap is not limited to trade. Other areas covered by the roadmap include defence and security, science and technology, cyber, health, climate, development of low-income countries, and gender rights. And importantly, diplomacy. Suspending the roadmap would amount to ending normal diplomatic relations with Israel. I do not believe this is compatible with a continuing Ambassadorial presence.
The lawyers’ argument is that mutual commitment to international humanitarian law and human rights underpins not only the 2030 roadmap and the proposed new free trade agreement, but also all existing agreements. They note that Israel's poor human rights record was already an issue in the trade negotiations even before the current conflict (my emphasis):
Announcement of negotiations for a free trade agreement in July 2022 was caveated by reassurance that the UK govt “takes seriously its international obligations and commitments, including on human rights... the UK calls on all states to uphold international human rights obligations and will continue to speak frankly about these issues with Israel through Ministerial and diplomatic channels.”
Israel’s egregious breaches of IHL and potentially genocidal acts make it impossible for the UK to proceed further with these negotiations, and they also call into question the legality of continuing to trade under existing agreements.
In addition to suspending the 2030 Roadmap, ending negotiations towards a new free trade agreement and reviewing the existing bilateral trade agreements, the lawyers say the UK should consider imposing trade sanctions such as arms embargoes, sector-specific export and import measures, and other trade restrictions.
All states must act to prevent IHL violations and genocide
The UK government has obtained its own legal advice regarding Israel’s breaches of IHL. It has refused to make it public, but the guarded comments by ministers suggest that the advice is not entirely positive about the UK government’s position. Under international law, government ministers can be held personally accountable for serious violations of IHL and genocidal acts committed by another government, if they do nothing to prevent them. If Israel does not change course, the UK government may have to implement some or all of the measures recommended by the group of lawyers, if only to protect ministers from legal action at The Hague.
The measures demanded by the lawyers would be painful not only for Israel, but also for the UK. But the lawyers say they are necessary to prevent the UK government being complicit in breaches of IHL and, potentially, genocide.
And if these measures are necessary for the UK government, then they are also necessary for other countries, including the mighty US. The West cannot any longer connive at Israel’s behaviour.
Sanctions are necessary, but not enough
We should remember that it is not only Israel that is violating IHL. Hamas continues to hold hostages, both military and civilian, and attack civilians within Israel. It is painfully evident that despite the terrible death toll in Gaza, Hamas is still functioning, not only in the south but also in the north where Israel claimed to have taken control. Many observers are now questioning whether Israel’s stated objective to eliminate Hamas is even achievable, let alone justifies the enormous cost in human lives.
The hostages have become bargaining chips in ceasefire negotiations. But it’s not clear how many are still alive, nor what condition they are in. Israel alleges that they are being tortured and abused, and eyewitness evidence from some released hostages supports this. And like everyone else in Gaza, the hostages are also at constant risk of death, not only from bombing, shelling and shooting (though we know some have been killed) but also from starvation, dehydration and lack of medical care. Many of those released have complained that they were inadequately fed and didn’t have proper medical care. But in the circumstances, it is hard to see how they could have had better treatment.
The International Court of Justice deplores the continuing captivity of the hostages and demands their immediate release. And the British lawyers call upon the UK Government to "continue to use all endeavours to secure the release of Israeli hostages held by Hamas in Gaza."
But the two sides in this conflict are still far apart, and neither seems minded to give any ground. Punitive sanctions on Israel, though necessary, will not by themselves bring this conflict to an end. Unless the world intervenes to force some kind of resolution, the hostages will remain on Death Row. And so will the entire population of Gaza.
Related reading:
Image: By Palestinian News & Information Agency (Wafa) in contract with APAimages, CC BY-SA 3.0, Wikimedia Commons
The phrase that has been in my head for a while is that Israel has become a rogue state, seeing itself as accountable to no-one and not obliged to follow the norms of civilised democracies. All the while claiming that it is the only true democracy in the region. I see Nesrine Malik in the Guardian now using the same word:
https://www.theguardian.com/commentisfree/2024/apr/07/six-months-war-in-gaza-israel-allies?CMP=Share_iOSApp_Other
Sanctions on defence exports should be just the start. Both imports and exports should stop. Better still, UN forces in Gaza with a no fly, no drone zone. And much the same in the West Bank until all the Israeli colonialists leave. And yes they are colonialist living on land stolen through force of arms.
When I hear the comments from Sunak and Braverman, I think of where there might be a country with a right wing, nationalist, deeply Islamophobic government that the two of them have links to and might be keen to cosy up to. And it's Modi's India, where Modi has come out strongly in support of Israel.