By Eric Reidy
LEGAL and humanitarian experts say that Israel’s attacks on aid in the Gaza Strip, detailed in a months-long investigation by The New Humanitarian, may be relevant to ongoing international cases about alleged Israeli genocide and war crimes against Palestinians and are part of a wider global pattern of striking aid activities with impunity.
Published earlier this month, The New Humanitarian’s investigation shows how Israeli forces carried out a series of apparently targeted attacks, killing dozens of Palestinians who had partnered with UN agencies to secure food aid deliveries to the northern Gaza Strip earlier this year.
The partnership between UN agencies and communities in northern Gaza was a last-ditch attempt to try to bring food aid to areas of the enclave that had largely been cut off for months by Israeli blockade, where children were dying of starvation on a near-daily basis.
The effort succeeded for a few days in mid-March, but Israel’s attacks destroyed it, helping to cement the collapse of public order in Gaza that – along with Israeli obstruction – continues to hinder aid efforts to this day.
“The piece describes a pattern of apparent war crimes – intentional attacks on civilians – with calamitous consequences for the population as a whole,” said Adil Haque, professor of law at Rutgers University in the US.
The International Criminal Court (ICC) issued arrest warrants on 21 November for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant for war crimes and crimes against humanity committed in Gaza since 8 October 2023.
At the International Criminal Court (ICJ), the UN’s highest court, South Africa has accused Israel of committing genocide against the Palestinian people in the Gaza Strip – a claim the court found “plausible” in an initial ruling in January 2024. It is expected that the court will take years to reach a final determination in the case.
Humanitarians said the pattern of apparently targeted killings investigated by The New Humanitarian is reminiscent of the worst attacks in recent years on aid efforts in contexts like Syria, Yemen, Ukraine, and Sudan – if not even more egregious.
“At a fundamental level, it is an abandonment of the Geneva Conventions if aid operations can be struck with impunity,” said Jeremy Konyndyk, president of the NGO Refugees International.
“They’ve been struck with impunity in places like Syria, Ukraine, Yemen, and Sudan for years. But generally, that’s something that Western governments, including the US, have condemned rather than equipped,” Konyndyk added, referring to the US and many Western governments’ support for Israel’s war.
International legal implications
When it comes to international law, the events documented by the investigation may be most directly relevant to the ICC investigation that resulted in the arrest warrants for Netanyahu and Gallant.
“[The investigation] reflects a lot of the charges that the court has now sustained and that are the basis of the arrest warrants,” Haque said.
In issuing those warrants, the court found “reasonable grounds” to believe the two Israeli leaders bear criminal responsibility for the war crime of using starvation as a method of warfare. The warrants also cover the crimes against humanity of murder and persecution, and the war crime of intentionally directing an attack against a civilian population.
“Probably the allegation that is the most relevant [to the investigation] is directing attacks at a civilian population because that’s the one that directly maps on to what you’re describing in the piece, but the actions you report could be a component of all of the prosecutor’s allegations,” said Tom Dannenbaum, an associate professor of international law at the Fletcher School of Law & Diplomacy at Tufts University in the US.
“The investigation reflects a lot of the charges that the court has now sustained and that are the basis of the arrest warrants.”
To satisfy the threshold of individual criminal responsibility for most of the allegations, there would need to be evidence directly connecting Netanyahu and Gallant to the specific actions described in the investigation, Dannenbaum explained.
When it comes to the crime of intentionally directing an attack against a civilian population, however, the bar is slightly lower. “The arrest warrant, specifically on those actions, applies a command responsibility… mode of liability,” Dannenbaum said. “In other words, they don’t allege that Netanyahu and Gallant were directing those actions or providing an essential contribution to them, but that they were in a position of superiority within the command chain over those who were engaged in that conduct and failed to act to prevent it.”
When it comes to the ICJ case, intent is a key element of the crime of genocide, which – in the absence of a specifically articulated state policy – is often difficult to prove. But as part of the proceedings of South Africa’s case accusing Israel of genocide, the ICJ ordered Israel twice – in January and March – to take “immediate and effective measures” to enable the provision of humanitarian aid in Gaza and to ensure the provision of humanitarian assistance “without delay, [and] in full co-operation with the United Nations”.
Those provisional measures have legal force that is separate from the ultimate determination of whether Israel is committing genocide, according to Dannenbaum. “Even if the ICJ were ultimately to determine that there were no violations of the Genocide Convention, it would still be able to find a violation of the provisional measures orders,” he said.
“The provisional measures ordered by the court were supposed to give Israel a chance, an opportunity, to distance itself from the consequences of its prior conduct and to show that ‘we didn’t mean this,’” Haque added. “If Israel just continually fails to take those opportunities… then I think the court will likely look at that as some evidence of intent – that the reason Israel won’t alleviate the consequences is that it intends the consequences.”
Humanitarian consequences
For Ali al-Za’tari, a former senior UN humanitarian official who worked in Syria, Sudan, Libya, and elsewhere in the Middle East, the killing of local community members working to secure UN aid convoys in northern Gaza goes beyond what he has seen in other contexts.
“The UN in Gaza, I feel, was caught in a fix,” al-Za’tari said. “They needed to deliver humanitarian aid. They thought that the communities would be able to provide that means, and then they were double crossed… by the Israelis.”
Konyndyk said that the killing of the local community members in Gaza reminded him of the government of former President Bashar al-Assad and Russia bombing hospitals and aid activities in Syria. In Gaza, the pattern has been very widespread, he added. “If you shred the prohibitions in international humanitarian law on striking aid workers, you’re going to get a lot more dead aid workers. And that’s the long term effect here,” Konyndyk said.
Arwa Damon, former senior correspondent at CNN and president and founder of the NGO INARA, read the investigation while on an aid mission in Gaza. “It’s what we’ve all been seeing and feeling,” she said. “And it’s unfortunately on the spectrum of being one of the most extreme examples as to how we’ve been seeing the weaponisation of aid and hunger and starvation in this war.”
“The tools that we have as humanitarians have all but been taken away from us. We are crippled, but we’re not going to stop,” Damon continued.
Asked if she thought The New Humanitarian’s investigation might help change anything, she said: “We’re hoarse from all of the advocating that we’ve been trying to do. And I think it’s very clear that Israel knows that it can act with complete and total impunity.”
“It’s a record of history that will be referred back to,” she continued, referring to the investigation. “It’ll be referred back to when there is a reckoning over what happened. That’s the best we can do sometimes.”
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The New Humanitarian puts quality, independent journalism at the service of the millions of people affected by humanitarian crises around the world. Find out more at www.thenewhumanitarian.org.
