The West’s action taken against UNRWA may not be compatible with international law or a two state solution, argues Nadine Finch.

On 26th January 2024, the seventeen judges who currently comprise the International Court of Justice announced the provisional measures to be imposed on Israel pending a full hearing of the case brought by South Africa, asserting that Israel was in breach of the UN Convention on the Prevention and Punishment of the Crime of Genocide.

Fifteen of these judges had been elected to serve terms of nine years by the UN General Assembly and the UN Security Council, sitting and voting simultaneously. Two others were ad hoc judges, only sitting on this case. One was appointed by South Africa and one by Israel. Despite fears articulated by some before the hearing, all but two of the judges accepted the legal arguments relied on by South Africa in their entirety and the Israeli ad hoc judge agreed with two of the provisional measures imposed by the ICJ.

The case for South Africa was put by a highly skilled and articulate team of international lawyers. The evidence it relied upon was impeccably sourced and the propositions of law it relied upon were accepted by the ICJ.

In contrast, the team instructed by Israel sometimes relied on facts that had been proven to be false or were highly contested. Its legal content was weak and none of its submissions were accepted in the ICJ judgment. For example, it complained that the actions of Hamas should also have been explored by the Court, ignoring the fact that the Convention only applies to member states. (Any actions found to be war crimes committed by Hamas will fall within the jurisdiction of the separate International Criminal Court.)

The ICJ accepted that Palestinians were a group for the purpose of the Genocide Convention and that the actions of Israel were capable of amounting to genocide. It also found that it was necessary to impose provisional measures to protect the rights of this group pending the final hearing.

It is true that the ICJ did not include a ceasefire in its provisional measures. But given its findings and the other provisional measures, the orders made by the court cannot be achieved without a ceasefire. This has been amply identified by the continuing bombardment of Gaza that is killing Palestinians, causing them serious bodily and mental harm and deliberately inflicting harm on the group’s conditions of life calculated to bring about the group’s destruction in whole or in part – all of which are breaches of the ICJ’s first provisional measure.

Another provisional measure supported by a 16–1 majority, which included Israel, was that:

“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.”

This was in the light of the ICJ’s finding that Israel had been denying the inhabitants of Gaza access to food, water, sanitation, health care, safety or education.

But, having failed to win the legal argument against this provision in the ICJ, Israel proceeded to appeal to the Western states to stop funding the major agency providing such aid to the population of Gaza, the United Nations Relief and Works Agency for Palestinian refugees in the Near East. Many of these states were already arming and/or supporting Israel’s military actions for their own strategic, economic and political reasons.

The pretext for this attack on the major source of humanitarian aid in Gaza was the alleged action of 12 UNRWA employees on 7^th October, 2023, One of whom is known to be dead, two who have not been identified and nine who have already been dismissed by UNRWA.

The dismissals were confirmed on 27th January 2024, by Philippe Lazzarini, the Commissioner General of UNRWA, who said that “to protect the Agency’s ability to deliver humanitarian assistance, I have taken the decision to immediately terminate the contracts of these staff members and launch an investigation in order to establish the truth without delay.”

The twelve employees represent 0.04% of the 13,000 UNRWA employees in Gaza and, as Philippe Lazzarini also stated, “UNRWA is the primary humanitarian agency in Gaza, with over 2 million people depending on it for their sheer survival. Many are hungry as the clock is ticking towards a looming famine. The Agency runs shelters for over 1 million people and provides food and primary health care even at the height of the hostilities.”

Antonio Guterres, the Secretary General of the UN has also stated that “the tens of thousands of men and women who work for UNRWA, many in some of the most dangerous situations for humanitarian workers, should not be penalised. The dire needs of the desperate populations they serve must be met.”

Despite this, some of the major donors to UNRWA – the UK, US, Germany, Finland, the Netherlands, Italy, Sweden, Canada and Australia – immediately suspended all funding for UNWRA.  

This places them in breach of international law and potentially culpable of genocide themselves. As was made clear by the ICJ, all member states share a responsibility to prevent and punish genocide. This is why South Africa was deemed to have the jurisdiction to bring the case before the ICJ. The provisional measures imposed by the ICJ sought to prevent any actions capable of amounting to genocide pending the final hearing of the case. Therefore, any state that also, by implication, prevents the timely provision of basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip may be said to be assisting in a genocide.

They are also aiding Israel to inflict collective punishment on the whole population of Gaza, who are already facing famine conditions, no viable shelter or access to medical treatment and are being herded by the IDF into an ever-smaller section of Gaza to precipitate a second Nakba. Those who work for UNRWA, 99% of whom are locally recruited Palestinians, are suffering a different form of collective punishment, as they will no longer be paid a salary to support themselves and their families.

The attack on UNRWA also puts in question the support for a two-state solution, much vaunted by many of the states who have suspended funding.  UNRWA was established by the UN General Assembly on 8th December 1949 and became operational on 1^st May 1950. It was given responsibility for the 700,000 Palestinians rendered homeless and destitute by the Nakba. Part of its mandate, under Resolution 194 of 1948 of the UN General Assembly, was to promote a right of return.

Some 75 years later, Palestinians remain permanent refugees in camps in Lebanon, Syria, Jordan. the West Bank, as well as Gaza. Most of them are also excluded from the Refugee Convention, as the UN deemed them to be the responsibility of UNRWA in what was intended to be a short- term measure only, pending a resolution of their displacement.

Support for Palestinians will now fall on small states, such as Ireland and Norway, who are continuing to support UNRWA and those of us who provide support to UNRWA. Individuals can donate here.

Nadine Finch is a former barrister who specialised in human rights law and is the author of several books on family, immigration and comparative law. She writes in a personal capacity.

Image: c/o Labour Hub