An open letter to the UK prime minister signed by 600 lawyers and retired judges, including three former Supreme Court judges, expressed grave concern that the UK government is not discharging its international obligations under the Genocide Convention in relation to Gaza and called on the government to cease indulging Israel further.
Most prominent of the retired judges was Lord Sumption, a former Supreme Court judge of great legal intellect. On being asked in a BBC interview what made him sign he said that it was the finding by the International Court of Justice (ICJ) of January 26, 2024 of a plausible risk of genocide by Israel of the Palestinians in Gaza.
The ICJ had imposed provisional orders to prevent genocide the incitement of genocide. According to the lawyers’ letter the finding of a plausible risk of genocide also requires all state parties of the Genocide Convention to prevent Israel committing genocide. In other words, third states have a duty in their relations with Israel to factor-in their duty to prevent genocide in Gaza.
On February 16, 2024 the ICJ noted that “the most recent developments in Gaza and in Rafah in particular, would exponentially increase what is already a humanitarian nightmare’” and observed that this situation “demands immediate and effective implementation of the provisional measures.”
The ICJ addressed the crisis again on March 28, 2024. It noted that “the catastrophic humanitarian situation that existed when it issued its order of 26 January 2024 had deteriorated” with “unprecedented levels of food insecurity experienced by Palestinians in the Gaza Strip over recent weeks, as well as the increasing risk of epidemics” and made two further orders:
Israel shall (a) take all measures in full cooperation with the UN to ensure unhindered provision at the scale of basic services of humanitarian assistance to Palestinians throughout Gaza including by increasing the capacity and number of crossing points and (b) ensure that its military does not commit any acts in violation of the rights of the Palestinians as a protected group under the genocide convention, including by preventing, through military action, the delivery of urgently needed humanitarian assistance.
That was on Thursday, March 28. On Tuesday, April 2 seven humanitarian workers working for World Central Kitchen (WCK), an American charity founded by the well-known chef Jose Andres to feed people in times of war, unloaded 100 tons of humanitarian aid that had arrived from Cyprus in north Gaza.
After a hard day’s work, they set off for Rafah in the south in three cars clearly marked with the WCK logo. The charity workers included three British security advisers, all ex-servicemen, who informed the Israeli Defence Force (IDF) details of their drive south. According to the IDF investigation on Friday, this was not circulated to all IDF units in the area owing to a grave catalogue of errors.
To the outrage of friend and foe alike all seven aid workers were killed in the IDF airstrikes from a drone who many, including Jose Andres, believe were sacrificed deliberately as collateral damage. Although the IDF has now investigated the incident and found grave errors by its forces who misidentified the cars as Hamas, it is the fact that the killings are the tip of systemic failure to protect humanitarian aid workers – 196 of Palestinian origin the West ignored.
The killing of aid workers generally is a clear violation of the terms of the latest provisional measure requiring IDF to avoid military action that prevents the delivery of urgently needed humanitarian assistance. WCK ceased operations and returned to Cyprus without unloading the rest of the aid.
The provision of urgent humanitarian assistance is now a top priority by countries close to Israel who realise at last that they need to take practical steps to prevent starvation and famine decimating the Palestinian population in circumstances of plausible genocide. And it looks as though President Biden has persuaded the Israelis to open three border crossings in northern Gaza to facilitate delivery of humanitarian aid.
What makes the lawyers’ letter a turning point is that it sets out clearly that the finding by the ICJ of a plausible risk of genocide in Gaza by Israel triggered an obligation in all state parties of the Genocide Convention – especially close allies like the US and UK – to prevent genocide and the steps necessary to comply with their obligation as follows.
First to use UK’s position on the UN Security Council to call for an immediate and permanent ceasefire. The government now accepts an immediate stop in the fighting is the only way to get aid in.
Secondly, to insist on safe access and delivery of basic essentials and medical assistance to Palestinians commensurate to the needs of the population; and confirm that the UK will continue aid payments to the Palestinian UN relief agency UNRWA on the next due date in April 2024.
Thirdly, to impose sanctions on those Israelis who have made statements inciting genocide. The ICJ ordered Israel to “take all measures within its power to prevent and punish the direct and public incitement to commit genocide against Palestinians in Gaza”. By imposing financial and immigration sanctions on individuals who have incited the commission of genocide the UK would deter further such incitement and thus be acting to prevent genocide in accordance with its obligations under the Genocide Convention.
Fourthly, the lawyers warned the government to suspend the provision of weapons to Israel. The provision of military assistance may render the UK complicit in genocide. Customary international law recognises the concept of ‘aiding and assisting’ an international wrongful act. A state is complicit in the commission of genocide if: “its organs were aware that genocide was about to be committed or was under way, and if the aid and assistance supplied to the perpetrators of the criminal acts enabled or facilitated the commission of the acts.”
Finally, the letter suggests the UK 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 agreement with Israel and the imposition of sanctions.
So prime minister, you have been warned. And another thing, rulers are not exempt under article IV of the Genocide Convention
Alper Ali Riza is a king’s counsel in the UK and a former part time judge
