On 4 November, Israel officially informed the United Nations of its decision to cut ties with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) following the passage of two bills opposing UNRWA’s activities on Israeli territory. The new laws also designate UNRWA as a terrorist organisation and strip its staff of legal immunity. As many commentators (e.g. Eirik Bjorge), including state officials, have criticised, those bills seriously threaten the operational viability of UNRWA in the occupied Palestinian territory.
Israel’s ability to unilaterally impede the flow of humanitarian assistance highlights the precarious positions of humanitarian organisations operating in conflict zones and the civilians dependent on aid. Criticisms of Israel’s actions have largely focused on the clear treaty and customary obligation of belligerent states to allow humanitarian aid access to civilians in need. However, this focus is too narrow, as the obligation has clearly failed to motivate Israel to comply.
In the Israel/Palestine conflict, I argue that every state—not just Israel—has a legal duty to ensure humanitarian relief to the extent they can. The humanitarian contribution of third states has mostly been poured into organisations such as UNRWA and the World Food Programme in monetary terms. Not much direct aid has been provided to the occupied regions, with a few exceptions (e.g. the Qatari and the Tunisian governments). Much of the provision of humanitarian aid has also been influenced by a combination of moral obligations and domestic political factors rather than a legal duty to aid. More must be done.
Genocide Convention and the duty to prevent
The Genocide Convention imposes on all states (by virtue of its customary character) an obligation “to prevent and to punish” the crime of genocide (Article I). The Convention, including the Bosnian Genocide Case, which clarified its operation, is silent on what states should do to prevent genocide (William Schabas 2009). It is, however, clear that states must “employ all means reasonably available to them, so as to prevent genocide so far as possible”; the obligation “is one of conduct and not of result” (Bosnian Genocide Case at [430]).
This duty to prevent emphasises genocide as an extremely serious, global concern where there are neither territorial nor strict methodological limits (see Marko Milanović at 685). This obligation applies globally and, in a literal sense, erga omnes (Björn Schiffbauer at 86; see also John Heieck; Jinan Bastaki). As to timing, the ICJ held that the duty does not only arise “when perpetration of genocide commences”; rather, “a State’s obligation to prevent … arise[s] 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” (at 431).
This duty can be read together with Common Article 1 of the Geneva Conventions, which in effect obliges states not only to “respect” but also to actively “ensure respect” for humanitarian principles (Nicaragua v United States at [220]).
The case of Israel/Palestine plainly invokes the duty to prevent genocide. The crime of genocide is the intentional destruction of a national, ethnic, racial or religious group, in whole or in part (Article II, Genocide Convention). The clear warning signs of genocide in Gaza and other parts of Palestine have been highlighted countless times (e.g. Muhammad Abu Salmiya). In January 2024, the ICJ ordered Israel to prevent any military actions that might constitute genocide, noting that “there is a real and imminent risk that irreparable prejudice will be caused to the rights claimed before the Court” (namely, the rights of the Palestinian people in Gaza to be protected from genocidal conduct) (at [61]) and that “the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further” (at [72]). Of the six provisional measures ordered, the Court mandated that Israel allow humanitarian aid into Gaza. Yet Israel has continued to ignore its duty to meet the basic needs of Palestinians—something that, by now, needs no further repetition.
States can take different actions to fulfil their duty to prevent genocide, with one indispensable duty here being the duty to aid. The most obvious impact of Israel’s attacks has been the catastrophic humanitarian crisis, with ninety per cent of Gaza’s population being displaced and more than three million people currently in need of urgent humanitarian aid. Humanitarian assistance is an immediate, preventive (in this case also remedial) measure to address urgent needs that, if unmet, could escalate into more severe genocidal conditions.
“Best efforts” and proportionality
This takes us to the crucial question of what exactly third states must do to support humanitarian aid delivery. The answer is the unenlightening “it depends”, but two things should be said.
First, the duty to prevent requires that states take continuous action to reduce the risk of genocide, using whatever means they are capable of implementing and even if the impact may seem minimal. In the Bosnian Genocide Case, the Court observed that a State’s responsibility for failure to prevent will be assessed by reference to its “capacity to influence” which “depends … on the geographical distance … and on 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” (at [430]). The court further explained that the obligation to prevent is imposed on any state “which, in a given situation, has it in its power to contribute to restraining in any degree the commission of genocide” (at [461]). In other words, the duty inherently requires states to act in a way that matches their ability and proximity to influence the situation.
This factor of “capability” also serves as a guide for the minimum actions required of states to discharge their duty to prevent. I accept that the duty to aid should not place an undue or excessive burden on states. Realistically, Israel controls Gaza’s entry routes and would likely prevent access by third states. I also accept that, as a practical matter, states cannot and will not unilaterally use force to gain access to Gaza.
States must nonetheless demonstrate “best efforts” in fulfilling this duty. Beyond donations to humanitarian organisations, there are many actions states, especially the politically and financially stronger ones, could take despite their restricted access to Gaza. They could support neighbouring countries in establishing refugee camps. They may offer physical protection to aid workers entering existing safe zones or humanitarian corridors. They may impose more sanctions on leaders obstructing aid. They could also provide more trucks, use remote monitoring, fund mobile clinics and even provide telemedicine to support trauma care. They must also step up diplomatic pressure on Israel to remove aid restrictions. To the fullest extent possible, states should employ any available methods to get aid into Gaza.
Imposing duties on states with limited control over a region is not unprecedented. In Ilascu v Moldova, in the context of Article 1 of the European Convention on Human Rights, the European Court of Human Rights held that despite Moldova’s lack of effective control over Transnistria, it was still required to make “best efforts” to protect the applicants’ rights and secure their release. These efforts included taking “diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with international law” (at [331]). The Court noted that “[w]hen faced with a partial or total failure to act, the Court’s task is to determine to what extent a minimum effort was nevertheless possible and whether it should have been made”. Similar observations can be applied in the context of the duty to prevent genocide. This duty, as discussed, underscores the gravity of the crime and compels states to act with all available means, regardless of borders.
Second, as a legal matter, I accept that the duty to prevent works in tandem with other international obligations (Bosnian Genocide Case at [430]), yet most of the aid initiatives described above would remain compatible with them. The two obligations with which the duty to prevent may primarily conflict are sovereignty and non-interference. To this, I say two things. One is that there is no infringement of Israel’s sovereignty or non-interference. Israel does not hold full sovereign authority over Gaza and the West Bank, a position Israel agreed. Israel’s presence and control over these areas constitute an occupation and are illegal. The principle of non-interference similarly applies to sovereign states within their territories or pure domestic affairs. Actions by third states to deliver humanitarian aid do not prima facie infringe on Israel’s sovereignty.
The other is that the proportionality of humanitarian aid interventions is relatively straightforward to monitor and any perceived conflicts with other international obligations are less concerning. Actions taken for humanitarian purposes are generally (or should be) limited in time and scope, focusing on immediate needs and are intended to cease once the humanitarian crisis is stabilised. This nature must be viewed in contrast to broader interventions (such as military interventions invoked under the Responsibility to Protect/ R2P) which might involve extended and potentially transformative missions. Such interventions carry a greater risk of selective application and could potentially veer away from purely humanitarian objectives.
Conclusion
The duty to prevent genocide imposes a legal obligation on all states to ensure that humanitarian aid reaches civilians to free them from “such an odious scourge” as genocide. The duty is neither optional nor merely moral, but legal and binding.
