gaza

Dear Prime Minister

Introduction

 We are UK-based or qualified lawyers, legal academics and former members of the judiciary committed to upholding the rule of law and to protecting fundamental rights; and who share deep concern about the catastrophe unfolding in the Gaza Strip.

In a letter dated 26 October 2023, over a thousand members of the legal profession wrote to you concerning your government’s obligations to avert and avoid complicity in serious breaches of International Humanitarian Law (“IHL”) in Gaza.

Since that letter, there have been significant developments in relation to the situation in Gaza. These include the provisional order of the International Court of Justice dated 26 January 20241, by which the Court concluded that there was a plausible risk of genocide in Gaza; UN Security Council Resolution 2728 on 25 March 2024 demanding an immediate ceasefire during the month of Ramadan; and the worsening situation in Gaza, where the UN and international aid agencies warn of imminent famine, and where a ground offensive is threatened in Rafah, the last place of refuge for two-thirds of the population.

We write in the light of these developments to remind you of your government’s obligations under international law, which require you to take, amongst others, the following five actions:

  1. to work actively and effectively to secure a permanent ceasefire in Gaza;
  2. to take all available measures to ensure safe access to and delivery of the essentials of existence and medical assistance to Palestinians in Gaza, including confirmation that UK funding to UNRWA will continue with immediate effect;
  3. to impose sanctions upon individuals and entities who have made statements inciting genocide against Palestinians;
  4. to suspend the provision of weapons and weapons systems to the Government of Israel; and
  5. to suspend the 2030 Road Map for UK-Israel bilateral relations and negotiations towards an enhanced trade agreement and to initiate a review into the suspension of the UK’s bilateral trade agreement with Israel and consider the imposition of sanctions.

A detailed account of our reasons follows.

I. The Provisional Order of the International Court of Justice (“the ICJ”)

 In its provisional order of 26 January 2024, the ICJ concluded, by reference to the statements of senior Israeli officials including the Prime Minister and the Minister of Defence2, as well as the manner in which the offensive in Gaza was being conducted, that South Africa’s claims “with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article III” [of the Genocide Convention3] were plausible.4 The Court considered that “the catastrophic humanitarian situation in the Gaza strip is at serious risk of deteriorating further”5 and indicated six provisional measures.6

gaza

The ICJ further expressed its grave concern about the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups, and called for their immediate and unconditional release.7

Provisional orders are binding on States Parties to the proceedings. In addition, all States Parties to the Genocide Convention have obligations under the Convention, the applicability of which to the situation in Gaza is made clear by the order for provisional measures.

On 16 February 2024 the ICJ noted that “the most recent developments in the Gaza

Strip, and in Rafah in particular, ‘would exponentially increase what is already a humanitarian nightmare with untold regional consequences’” and observed that this perilous situation “demands immediate and effective implementation of the provisional measures”.8 The same urgency must apply to the performance by all other States Parties of their preventative obligations under the Genocide Convention.

On 28 March 2024, the ICJ issued a further order. It noted that “the catastrophic humanitarian situation in the Gaza Strip which existed when it issued its Order of 26 January 2024 has deteriorated even further” with “unprecedented levels of food insecurity experienced by Palestinians in the Gaza Strip over recent weeks, as well as the increasing risk of epidemics”.9 The Court indicated two further provisional measures and emphasised the need for “the unhindered provision at scale” of humanitarian assistance.10

2024, paras 51 to 52. The Court also took note (para 53) of a document issued on 16 November 2023, by 37 Special Rapporteurs, Independent Experts and members of Working Groups part of the Special Procedures of the United Nations Human Rights Council, in which they voiced alarm over “discernibly genocidal and dehumanising rhetoric coming from senior Israeli government officials”. 3 Convention on the Prevention and Punishment of the Crime of Genocide 9 December 1948 4South Africa v. Israel Provisional Measures Order of 26 January 2024, para 54 5South Africa v. Israel Provisional Measures Order of 26 January 2024, para 72 6South Africa v. Israel Provisional Measures Order of 26 January 2024, paras 78-82 7South Africa v. Israel Provisional Measures Order of 26 January 2024, para 85 8Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Decision of the Court on South Africa’s request for additional provisional measures of 16 February 2024 9ICJ Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Order on South Africa’s Request for the Modification of the Order of 26 January 2024 Indicating Provisional Measures, Order of 28 March 2024 (“South Africa v. Israel Modification of Provisional Measures Order of 28 March 2024”), paras 30-31 10South Africa v. Israel Modification of Provisional Measures Order of 28 March 2024, paras 45, 51

II.    The worsening situation in Gaza Civilian death and injury

Since the ICJ’s provisional order, an average of 108 Palestinians have been killed and another 178 injured each day in Gaza.11 At least 32,623 Palestinians have now been killed and 75,092 injured in Gaza.12 Seventy percent of recorded deaths have consistently been women and children.13

The International Committee of the Red Cross has stated that “the situation in the Gaza Strip degenerates by the hour”, and that there is “nowhere safe for people to go.”3 Human rights groups including Amnesty International have recorded multiple instances of “entire families [being] wiped out in Israeli attacks even after they sought refuge in areas promoted as safe and with no prior warning from Israeli authorities”.4

Groups of starving Palestinian civilians waiting for food aid have been killed. On 29 February 2024, following 13 similar incidents involving the shooting and shelling of people gathered to receive desperately needed supplies, 118 civilians were killed and 760 were injured.5 While that incident provoked international indignation, lethal attacks by Israeli armed forces on Palestinians waiting for aid have continued, including the killing of at least 19 Palestinians waiting for aid in the same location on 23 March 2024.6

Strikes on UNRWA facilities have led to the deaths of 400 people seeking shelter under the UN flag. At least 165 employees of the United Nations Relief and Works Agency (‘UNRWA’) workers have been killed.7 In addition to UNRWA staff, other humanitarian workers and volunteers have been killed.8

11UNCRC, 21.03.24, Gaza: halt the war now to save children from dying of imminent famine https://www.ohchr.org/en/press- releases/2024/03/gaza-halt-war-now-save-children-dying-imminentfamine-un- committee-warns

12UN OCHA, 29.03.2024, https://www. ochaopt.org/content/hostilities-gaza-strip- and-israel-flashupdate-148

13Albanese, F., 25.03.24, Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, A/HRC/55/73 https://www. ohchr.org/sites/default/files/documents/ hrbodies/hrcouncil/sessionsregular/ session55/advance-versions/a-hrc-55-73- auv.pdf para.25

The situation of children

 The Commissioner General of UNRWA has described the Israeli military operation in Gaza as “a war on children and their future”, observing that more children have been killed in the last four months in Gaza than have been killed in the last 4 years of wars around the world combined.20 The UN Secretary General and UNICEF have each described Gaza as a “graveyard for children”.21

On 21 March 2024, the UN Committee on the Rights of the Child (‘UNCRC’) stated that children in Gaza were at risk of dying of preventable “imminent famine”.9 At least 27 children have already died of malnutrition or dehydration, but “[t]he true death toll from starvation is likely to be significantly higher, and it is set to rise. Children in Gaza can no longer wait, as each passing minute risks another child dying of hunger as the world looks on.”10 The UNCRC warned that “[d]eliberate actions such as blocking and restricting humanitarian aid appear to be calculated to bring about the physical destruction of Palestinian children”.11

At least 17,000 Children in Gaza are unaccompanied or separated from their parents.12

feeding in gaza

Risk of famine and deliberate infliction of starvation

 Food insecurity in Gaza has reached a catastrophic level. The Integrated Food Security Phase Classification (operated by UN agencies and humanitarian aid groups) warned on 18 March 2024 that “the entire population in the Gaza Strip (2.23 million) is facing high levels of acute food insecurity”.13 The World Bank Group warned on 19 March 2024 that more than half the population of Gaza is “on the brink of famine”.14 The Famine Early Warning System of the US Agency for International Development warned that famine in Northern Gaza is “imminent”.15 The Chair of the UK Parliament’s Foreign Affairs Committee, Alicia Kearns MP, described 20UN News, 13.03.24, Gaza: Number of children killed higher than from four years of world conflict: https://news.un.org/en/ story/2024/03/1147512

21Reuters, 6.11.23, UN chief says Gaza be- coming a ‘graveyard for childrenhttps://www.reuters.com/world/mid dle-east/un-chief-says-gaza-becoming- graveyard-children-2023-11-06/ , UNICEF, 31.10.23, Gaza has become a graveyard for thousands of children https:// www.unicef.org/press-releases/gaza-has-be- come-graveyard-thousands-children humanitarian workers living on animal feed and children drinking from puddles.29 On 23 March 2024, the UN Secretary General stated that a “situation of starvation existsin Gaza”, in the light of a UN-backed food security assessment which found that 1.1 million people in Gaza were struggling with “catastrophic hunger and starvation”.30

The UN High Commissioner for Human Rights has observed that “[t]he extent ofIsrael’s continued restrictions on entry of aid into Gaza, together with the manner in which it continues to conduct hostilities, may amount to the use of starvation as a method of war, which is a war crime”.16 The UN Special Rapporteur on the Right to Food has indicated that Palestinians in Gaza are being intentionally starved, stating that there “is no reason to intentionally block the passage of humanitarian aid or intentionally obliterate small-scale fishing vessels, greenhouses and orchards in Gaza – other than to deny people access to food”.17 The EU Foreign Policy Chief Josep Borrell has similarly stated that starvation is being used as a “tool of war.”18

In February 2024, Israel’s Welfare and Social Affairs Ministry halted the renewal of visas for international humanitarian aid workers, further hampering efforts in the delivery and distribution of aid in Gaza. The Association of International Development Agencies (“AIDA”), a coalition representing 80 international NGOs, stated in March 2024 that at least 99 aid workers’ visas have expired or are set to expire, and many risk deportation or removal.19

Your Foreign Secretary has described “arbitrary denials by the government of Israel and lengthy clearance procedures, including multiple screenings and narrow opening windows in daylight hours”.20 On 23 March 2024, the UN Secretary General visited the Rafah border and, describing the line of blocked relief trucks as a “moral outrage,” called upon Israel to facilitate access for humanitarian aid.21 On 24 March 2024, UNRWA announced that Israel had informed the United Nations that it will no longer approve the entry of its aid convoys into Northern Gaza.22

On 28 March 2024, the ICJ observed that “Palestinians in Gaza are no longer facing only a risk of famine… but that famine is setting in, with at least 31 people, including 27 children, having already.

 29Channel 4, 11.03.24, Interview with Alicia Kearns MP, available at: https://www. youtube.com/watch?v=eQrwePekEwE (5:25)

30BBC News, 23.03.24, Israel-Gaza war: Situation of starvation exists in Gaza, says UN chief, https://www.bbc.co.uk/news/av/

world-europe-68648409 died of malnutrition and dehydration according to the United Nations Office for the Coordination of Humanitarian Affairs”.38

Reports of torture and inhuman or degrading treatment

 The abuse of Palestinian civilians has touched every sector of society. The UN Special Rapporteur on torture has cited reports of mass detention, ill-treatment and enforced disappearance of Palestinians in Northern Gaza.39 Six UN experts have condemned the arbitrary detention, disappearance, deliberate targeting and extrajudicial killing of women and children in Gaza.40 Your Government is seeking a “full explanation” of allegations of arbitrary detention, torture and humiliation of medical staff from Al Nasser Hospital.41

Destruction of health facilities

hospital

 84% of health facilities in Gaza have been damaged or destroyed.42 The World Health Organisation (‘WHO’) Director General has described the state of the health system in Gaza as “catastrophic”, with hospitals “having turned into battlefields”, and warns of the “continued dismantling of the health system” in Gaza.43 One in three hospitals are only minimally or partially functional.44 Hospitals in Rafah are overwhelmed and struggling to keep up with needs. Operations of hospitals in Khan Younis have been jeopardised as a result of their being rendered non- or minimally functional through besiegement or damage.45 There is no access for Emergency Medical Teams to North Gaza hospitals due to the security situation.46 348 healthcare workers have been killed.47

38South Africa v. Israel Modification of Pro- visional Measures Order of 28 March 2024, para 2139 The Times of Israel, 8.03.24, UN torture expert probing alleged Israeli mistreat- ment of Palestinian detainees. https://www. timesofisrael.com/un-torture-expert-prob- ing-alleged-israeli-mistreatment-ofpalestin- ian-detainees/#:~:text=The%20UN%20 human%20rights%20office,thousands%20 in%20the%20West%20Ba nk.

40OHCHR, 19.02.24: Israel/OPT: UN experts appalled by reported human rights violations against Palestinian women and girls, https://www.timesofisrael.com/un-torture-expert-probing-alleged-israelim- istreatment-of-palestinian-detainees/#:~:- text=The%20UN%20human%20rights%20 office,thousands%20in%20the%20West%20 Ba nk.

41Guardian, 12.03.24 ‘UK pressing for ‘full explanation’ of alleged abuses after Gaza hos- pital raid’. UK pressing for ‘full explanation’ of alleged abuses after Gaza hospital raid | Foreign policy | The Guardian 42 ‘X’ UN Offi- cial Account, 15.02.24, https://twitter.com/ UN/status/1758221834401534212

43WHO, 03.03.24, Emergency Situation Re- port #24, https://www.emro.who.int/imag es/stories/Sitrep_issue_24.pdf , X, Director General of WHO, 22.02.24, https://twitter.com/DrTedros/sta- tus/1760556264373788882?t=vjNsG2jSaN-g4odegQ4tTNw&s=19,

27.02.24 https://twitter.com/DrTedros/ status/1762578621426811119?t=dH4iP8_ pNE7Kzh0gXwv2A&s=19

44‘X’, Director General of WHO, 08.03.24, https://twitter.com/DrTedros/sta- tus/1766223069184446573?t=NjXEUNZcD-4f4tewntzWibA&s=19  45 WHO, 03.03.24, Emergency Situation Report #24, https:// www.emro.who.int/images/stories/Sitrep    issue_24.pdf

46WHO, 03.03.24, Emergency Situation Re- port #24, https://www.emro.who.int/imag es/stories/Sitrep      issue_24.pdf

47UNOCHA, 15.03.24, Reported Impact Day 160, available at: https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-re- ported-impact-day-160 . WHO, 03.03.24, Emergency Situation Report #24, available at: https://www.emro.who.int/images/sto ries/Sitrep_-_issue_24.pdf

The collapse of the health care system has disproportionately impacted maternal and newborn care. UNICEF has stated that “the situation of pregnant women and newborns in the Gaza Strip is beyond belief, and it demands intensified and immediate actions. The already precarious situation of infant and maternal mortality has worsened as the healthcare system collapses. Mothers face unimaginable challenges in accessing adequate medical care, nutrition, and protection before, during and after giving birth”.48 Women giving birth by caesarean are being discharged within three hours due to overcrowding and limited resources. UNICEF has noted higher rates of undernutrition in new-borns, developmental issues and other health complications.49 The WHO has similarly documented an increase in ”dangerously underweight pregnant women” and ”newborn babies simply dying because they (are) too low birth weight”.50

Imminent ground invasion of Rafah

 The international community has sounded strong warning alarms against Israel’s threatened ground invasion of Rafah. The UN High Commissioner for Human Rights warned that a “potential full-fledged military incursion into Rafah — where some 1.5 million Palestinians are packed against the Egyptian border with nowhere further to flee — is terrifying”.23 The UN Under-Secretary for Humanitarian Affairs likewise warned that over a million people are “crammed in Rafah, staring death in the face”.24 Save the Children, highlighting the plight of the 610,000 children trapped in Rafah, has stated that “what happens next will be beyond our worst nightmares… With Israeli authorities telling people in Gaza that Rafah is a safe place to flee, 80% of the population – half of whom are children – is now crammed into this area, many with no walls or roofs to shelter and protect them”.25 The EU has requested that Israel “not take military action in Rafah that would worsen an already catastrophic humanitarian situation” and in doing so, highlighted that Israel must comply with IHL and with the ICJ’s provisional order.26 Despite these warnings, Israel has maintained its intention to launch the ground offensive imminently. The Israeli Defence Minister has stated that “those who think we are delaying will soon see”.55 The Israeli Prime Minister affirmed that his government is “determined” to invade Rafah.27

 These facts demonstrate a pattern of behaviour giving rise not only to specific violations of IHL and of crimes against humanity but also, when taken together with the evidence of genocidal intent in statements by senior Israeli officials cited by the ICJ in its Provisional Order (see fn. 2 above), a serious risk of genocide. That risk relates in particular to the Genocide Convention Article II (a) “killing members of the group”; (b) “causing serious bodily or mental harm to members of the group”; and (c) “deliberately inflicting on the group conditions of life calculated to bring about itsphysical destruction in whole or part”. In light of the infant and maternal mortality rates and the destruction of Gaza’s healthcare system described above, these facts may also give rise to violations of Article II(d), i.e. “imposing measures intended to prevent births within the group”.

netanyahu
Israeli Prime Minister Benjamin Netanyahu

We note that on 25 March 2024, the UN Special Rapporteur on the situation of human rights in the Occupied Palestinian Territories published a report which concluded that “there are reasonable grounds to believe that the threshold indicating Israel’s commission of genocide is met”.28

We note also the robust position adopted by your government in other contexts in relation to the legal scope of acts of geno- cide. The Joint Declaration of the UK and other States in the case of The Gambia v Myanmar before the ICJ correctly observed that the prohibition in Article II(c) Geno- cide Convention on the deliberate infliction of “conditions of life calculated to bring about [the group’s] physical destruction in whole or part” includes “subjecting a group of people to a subsistence diet, systematic expulsion from homes and the induction of essential medical services below minimum require- ment“.29

 

Section 2: The UK’s obligations to prevent genocide

 

  1. Obligations under the Genocide Convention

The UK is a party to the Genocide Convention, having acceded, without reservations, on 30 January 1970. As early as 1951, the ICJ held that the Genocide Convention imposes obligations on all State Parties which flow from “the universal character both of the condemnation of genocide and of the cooperation required ‘in order to liberate mankind from such an odious scourge’”.30

Article 1 of the Genocide Convention requires State Parties to undertake to prevent and punish genocide. The ICJ has confirmed the extraterritorial applicability of these obligations and has affirmed that State Parties to the Genocide Convention have a “common interest to ensure that acts of genocide are prevented and that, if they occur, their authors do not enjoy impunity”.31 The UK cannot wait until the Court decides the case on the merits; it must act now in accordance with its obligation to prevent genocide.

In relation to your government’s obliga- tions, we remind you that:

  1. The prohibition of genocide is recognised as a peremptory (or jus cogens) norm of international law, i.e. “a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted”.32 Peremptory norms reflect and protect fundamental values of the international community. They are universally applicable and are hierarchically superior to other rules of international law.33
  2. States are required “to employ all means reasonably available to them” to prevent genocide and responsibility is incurred if “the State manifestly failed to take all measures to prevent genocide which were within its power”. The notion of due diligence is of critical importance in this obligation.34
  3. The “obligation to prevent, and the corresponding duty to act, arise 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. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit”.35
  4. The UK cannot deny from 26 January 2024, when the ICJ issued its order for provisional measures, knowledge of the plausible risk of genocide through the actions of Israel in Gaza. The ICJ’s finding of plausible risk, together with the profound and escalating harm to the Palestinian people in Gaza, constitute a serious risk of genocide sufficient to trigger the UK’s legal obligations.
  5. The UK’s obligation to perform its treaty obligations in good faith36 requires it to carry out regular and ongoing assessments of the situation in Gaza on the basis of the information available, as to which we refer you to the summary above.
  6. In determining whether a state has discharged its obligations, its “capacity to influence effectively the action of persons likely to commit, or already committing, genocide” must be taken into account. This capacity “itself depends, among other things, on the geographical distance of the State concerned from the scene of the events, and the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events”.37
  7. The duty to prevent genocide “applies regardless of whether any one state’s actions alone are sufficient to prevent genocide”.38
  8. Article III (c) and (e) of the Genocide Convention provide that direct and public incitement to commit genocide and complicity in genocide are also punishable.
  9. International humanitarian obligations do not operate on thembasis of reciprocity. Even serious violations of IHL by one party to an armed conflict cannot therefore justify their commission by another. Similarly, as a peremptory norm of international law, the prohibition of genocide is absolute.
    Rishi Sunak
    United Kingdom Prime Minister Rishi Sunak

    Your government’s obligations to prevent genocide are not abrogated by the serious breaches of IHL committed by Hamas on October 7th or by Hamas’ ongoing holding of hostages.

II.    The UK’s capacity to influence

 In accordance with its duties under the Genocide Convention, the UK Government must take immediate action to address the risk of genocide unfolding in the Gaza Strip, commensurate with its distinctive capacity to influence Israel.

In recent years, your government has taken steps to deepen its relationship with the Israeli Government.39 In November 2021, your Government signed a Memorandum of Understanding with the government of Israel, elevating the relationship to a “strategic partnership” and announcing deepening ties and collaboration in the areas of diplomacy, defence and security, economy, cyber, science, technology, climate, health and gender.40 In March 2023, the British and Israeli governments announced a 2030 roadmap for UK- Israel bilateral relations, which set out plans to cohere, deepen and expand their collaboration “underpinned by extensive security and defence cooperation”.41 As explained in that strategy, the relationship between the British government and Israel “has never been closer”.42

Permanent membership of the Security Council gives the UK further political influence which it should bring to bear to address the risk of genocide in the Gaza Strip. Your government cannot claim that even if it had used all the means at its disposal, they would not have been sufficient to prevent the genocide. As set out above, the relevant obligation is one of conduct, not result.

Section 3: Five actions the UK must urgently undertake

 We are concerned that your government is not presently discharging its international obligations in relation to the Gaza Strip, including its obligations in respect of the risk of genocide. In order to properly to meet those obligations, we call upon your government urgently to take the following actions.

 

  1. Work actively and effectively with all the means available to it for an immediate and permanent ceasefire by all parties

 Rationale:

The ICJ’s Provisional Order requires Israel to: “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”.43 All States’ obligations to prevent genocide encompass these same measures. An immediate cessation of violence must be the first step in preventing the killing of members of the group and causing serious bodily and mental harm to members of the group contrary to Article II of the Genocide Convention.44

Mechanism:

The UK’s position and influence on the UN Security Council and other international fora should be utilised to call for an immediate and permanent ceasefire.45 We welcome your government’s recognition that “an immediate stop in the fighting is the only way to get the aid into Gaza that is so desperately needed”46 and its vote in favour of Security Council Resolution 2728 on 25 March 2024. However, that Resolution is not for a permanent ceasefire, but a ceasefire for the month of Ramadan, which ends on 9 April 2024.

II.    Take all available measures to insist upon safe access to and delivery of the essentials of existence and medical assis- tance to Palestinians commensurate to the needs of the population;47 and con- firm that the UK will continue aid pay- ments to UNRWA on the next due date (April 2024).

 Rationale:

The effects of the total blockade and siege of Gaza imposed by Israel since 9 October 202348 are so severe that cessation of the immediate violence alone will not alleviate the serious risk of genocide. The effects of that blockade include the denial to the population of adequate food, power and water. Without access to these essentials of survival on a regular, sustained and massive scale, further deaths or serious bodily and mental harm will continue for the people in Gaza, as will the conditions of life calculated to bring about their physical destruction in whole or in part.

The effective entry and distribution of the means of existence to Palestinians in Gaza, and by extension the prevention of genocide, requires funding of UNRWA, a matter which presently remains under review by the UK.49 As the UN Secretary- General has stated, UNRWA is the primary humanitarian agency working in Gaza, the “backbone of humanitarian distribution in Gaza” and “no other organization would be able to replace” its work in Gaza. “[T] he school system for the Palestinians is guaranteed by UNRWA, … the health system is guaranteed by UNRWA, … vital conditions are guaranteed by UNRWA.”50 Over two million people depend on UNRWA for their survival. The agency is funded almost entirely by voluntary contributions upon which it relies to fulfil its mandate. 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.

Mechanism:

The UK Government should 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.

The UK should through intensive diplomatic efforts secure safe and unobstructed passage for aid convoys. The UK should confirm the continuation of funding to UNRWA.

III.      Impose sanctions on those who have made statements inciting genocide 

Rationale:

The ICJ ordered Israel to “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.51 By imposing financial and/or immigration sanctions upon 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.

Mechanism:

The UK Government has at its disposal powers to impose financial sanctions on designated persons for purposes including the interests of international peace and security and to promote the resolution of armed conflicts or the protection of civilians in conflict zones.52 HM Treasury Guidance explains that such measures are generally imposed to “signal disapproval, stigmatising and potentially isolating a regime or individual, as a way of sending broader political messages, nationally or internationally”, and to “coerce a regime, or individuals within a regime, into changing their behaviour (or aspects of it) by increasing the cost on them to such an extent that they decide to cease the offending behaviour”.53

Your government moreover has the power to impose immigration sanctions, or ‘travel bans’ restricting the movement of identified foreign national individuals to enter or transit through the UK.54

Indeed, your government has imposed financial and travel restrictions upon “4 extremist Israeli settlers who have committed human rights abuses against Palestinian communities in the West Bank”.55 That is a welcome measure. However, your government has not applied sanctions against individuals, including senior members of the Israeli Government and military, responsible for the incitement of genocide in Gaza.

IV.  Suspend the provision of weapons/ weapons systems to Israel

Rationale:

The ICJ’s conclusion that there exists a plausible risk of genocide in Gaza has placed your government on notice that weapons might be used in its commission and that the suspension of their provision is thus a “means likely to deter” and/or “a measure to prevent” genocide.

The provision of military assistance and material to Israel may render the UK complicit in genocide as well as serious breaches of IHL. Customary international law recognises the concept of ‘aiding and assisting’ an international wrongful act.56 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, from the moment they became so aware onwards, to the perpetrators of the criminal acts or to those who were on the point of committing them, enabled or facilitated the commission of the acts”.86

On 23 February 2024, 34 UN experts called for the immediate cessation of weapons exports to Israel, including export licences and military aid, observing as follows:

“Such transfers are prohibited even if the exporting State does not intend the arms to be used in violation of the law – or does not know with certainty that they would be used in such a way – as long as there is a clear risk.”

 “The need for an arms embargo on Israel is heightened by the International Court of Justice’s ruling on 26 January 2024 that there is a plausible risk of genocide in Gaza and the continuing serious harm to civilians since then”, the experts said. The Genocide Convention of 1948 requires States parties to employ all means reason- ably available to them to prevent genocide in another state as far as possible. “This necessitates halting arms exports in the present circumstances”.57

 Continued arms exports to Israel moreover give rise to concerns regarding the United Kingdom’s compliance with its obligation under The Arms Trade Treaty.58

Mechanism:

The UK Government should suspend licens- ing arms for export to the Government of Israel. The UK’s Strategic Export Licencing Criteria (“SELC”) require the UK govern- ment to refuse to licence military equip- ment 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”.59 The same principles apply where arms or military equipment might be used to commit or facilitate acts which constitute genocide.90

 

V. 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 tradeagreement with Israel and the imposition of sanctions

Rationale:

The UK is required under the Genocide Convention to “employ all means reasonably available” to prevent genocide. A key area of the UK’s capacity to influence Israel is that of trade relations, the UK in previous years being Israel’s second largest trading partner.91 The Department of Internaional Trade has recognised the role that trade sanctions can have “to fulfil a range of purposes, including supporting foreign policy and national security objectives, as well as maintaining international peace and security, and preventing terrorism”.92

Strengthening ties through trade and investment, particularly in the defence and military sectors, risks contributing to the conditions which the 26 January ICJ Order identified as posing a plausible risk of genocide in Gaza, as well as increasing Israel’s capacity for violations of IHL.

Mechanism:

The 2030 Roadmap should be suspended. The UK should initiate an urgent review into its Bilateral Trade and Partnership Agreement with Israel (CS Israel No1/2019). That Bilateral Trade Agreement incorporates the EuroMediterranean Association Agreement between the EU and Israel. The Euro-Mediterranean Association Agreement states in its preamble that “the observance of human rights and democracy… form the very basis of the Association” and, in Article 2, that “Relations between the Parties, as well as all the provisions of the Agreement itself, shall be based on respect for human rights and democratic principles“.93 As set out in the explanatory memorandum to the 2019 Bilateral Trade Agreement, these provisions are “an essential element of the Agreement” and are incorporated mutatis mutandis, without modification.94 Article 82 of the Euro-Mediterranean Association Agreement states that “Each of the Parties may denounce the Agreement by notifying the other Party”.95

91See comments made by Anita Leviant, President of the Israel Britain Chamber of Commerce (IBCC), UK Press Release ‘UK and Israel Sign Trade Continuity Agreement’ (18 February 2019), available at https:// www.gov.uk/government/news/uk-and- israel-sign-trade-continuity-agreement 92Department of International Trade Guidance: Trade sanctions, arms embargoes, and other trade restrictions (October 2021), https://www.gov.uk/guidance/current-arms-embargoes-and- otherrestrictions

93Euro-Mediterranean Agreement, establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, https://eeas. europa.eu/archives/delegations/israel/ documents/eu_israel/asso_agree_en.pdf 94 Explanatory Memorandum on the Trade and Partnership Agreement between the Government of the United Kingdom and the Government of the State of Israel, https://view.officeapps.live.com/op/ view. aspx?src=https%3A%2F%2Fassets. publishing.service.gov.uk% 2Fmedia%2F5c75289fed

915d354bb0f98e%2FEM_CS_Israel_1.2019. odt&wdOrigin=BROWSELINK 

95 Euro-Mediterranean Agreement, establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, https://eeas. europa.eu/archives/delegations/israel/ documents/eu_israel/asso_agree_en.pdf

The Government should moreover cease steps towards negotiating ‘an enhanced, higher ambition free trade agreement’ with Israel,60 which is intended to build upon the existing trade agreements in place. The announcement of ongoing negotiations for a free trade agreement in July 2022 was caveated by a reassurance that the UK government “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”.61

The UK Government should also consider the use of its powers to impose sanctions. Pursuant to s.1(1)(a)-(b) and s.1(2) of the Sanctions and Anti-Money Laundering Act 2018, an appropriate Minister may make sanctions regulations where the Minister considers that it is appropriate to do so for the purposes of the UK’s compliance with a UN or any other international obligation, or for the purposes of furthering the interests of international peace and security, promoting the resolution of armed conflicts or the protection of civilians in conflict zones, or promoting compliance with international humanitarian law. For the reasons set out above, these considerations are squarely engaged in relation to the situation in Gaza. Pursuant to s.5 of the 2018 Act, regulations made under s.1 may make provision for trade sanctions measures, which can encompass arms embargoes, sector-specific export and import measures, and other trade restrictions.

We further call upon your government to continue to use all endeavours to secure the release of Israeli hostages held by Hamas in Gaza.

 The holding of hostages and deliberate targeting of civilians are clear violations of IHL. The UK Government is right to take all action it can to secure the release of hostages.

Conclusion

The present situation in the Gaza Strip is catastrophic, and the International Court of Justice has held that there is a plausible risk of genocide being committed against the Palestinian people in Gaza.

As the ICJ has previously emphasised, the obligation to prevent genocide is “normative and compelling”.62 The UK must take immediate measures to bring to an end through lawful means acts giving rise to a serious risk of genocide.63 Failure to comply with its own obligations under the Genocide Convention to take “all measures to prevent genocide which were within its power” would incur UK state responsibility for the commission of an international wrong,64 for which full reparation must be made.65

Serious action is moreover needed to avoid UK complicity in grave breaches of international law, including potential violations of the Genocide Convention.

We are concerned that the UK Government is failing to discharge its international obligations in these respects. While we welcome the increasingly robust calls by your government for a cessation of fighting and the unobstructed entry to Gaza of humanitarian assistance,102 simultaneously to continue (to take two striking examples) the sale of weapons and weapons systems to Israel and to maintain threats of suspending UK aid to UNRWA falls significantly short of your government’s obligations under international law.

The signatures below are given in a personal capacity unless otherwise stated.

The Platform
The Platform for Law, Justice & Society is published by Gitobu Imanyara & Co every month principally to offer a platform for informed and critical discussion of the National Values and Principles set out in Articles 10 (2) of the Constitution of Kenya.