Complicity in a (Plausible) Genocide? On UNRWA, Holodomor and the ICJ on Gaza

[Adrian Kreutz studied for his PhD at the University of Oxford and is currently a Lecturer in Political Theory at the University of Amsterdam]

The ICJ has ruled positively on the plausibility of South Africa’s genocide case brought against Israel. This situation has produced a series of ripple-on political and jurisprudential questions. The matter of complicity is one of these acutely emerging issues. The ICJ hearing coincided with the coordinated defunding of UNRWA, the principal humanitarian aid agency operating in Gaza. The USA, the United Kingdom, and Germany have already withdrawn their support. I outline the basis of an argument suggesting that the withdrawal from UNRWA risks liability for complicity under Article 2.3(e) of the Genocide Convention.

UNRWA

UNRWA, the United Nations Relief and Works Agency, faced renewed scrutiny last month following accusations from the Israeli government. Israel claimed that approximately a dozen of UNRWA’s over 13,000 Gaza employees were involved in Hamas’s attack on southern Israel on October 7, resulting in a reported death toll of 1,139 people.

Responding promptly, UNRWA terminated the employment of the implicated individuals and initiated an investigation into the allegations, which it deemed “shocking” and “serious.” Additionally, UN Secretary-General Antonio Guterres appointed an independent panel to probe further into the matter.

Despite lacking concrete evidence from Israel to substantiate its claims, eighteen countries, including the US, the UK, and Germany have since suspended their funding to UNRWA. This suspension of funds effectively jeopardizes UNRWA’s ability to carry out its vital operations in the occupied Palestinian territories, Jordan, Syria, and Lebanon. In light of the accusations, even the European Union announced its intention to review its funding of UNRWA. The United Nations say that further loss of support would effectively dismantle the agency and with it cause serious disruptions to the established humanitarian aid channels in Gaza and elsewhere. 

UNRWA plays the single most important role in providing assistance to 2.3 million Palestinians in Gaza, who are enduring dire humanitarian conditions exacerbated by ongoing conflict and siege. UNRWA provides 75% of all Palestinian refugees in Gaza with food. Only three months ago, a German state official announced 25 million Euros in support of UNRWA’s food programme, saying that “Germany recognizes UNRWA’s essential role in providing vital food support to the people of Gaza with its strong presence on the ground.”

Amidst a likely famine, the UNRWA itself predicts mass starvation should humanitarian support be prevented from reaching the Gazan population. Moreover, should the UNRWA be effectively dismantled through a lack of financial support, the logistical hurdles for alternative lines of humanitarian aid to the Palestinian population are gigantic, it is claimed.  De facto, the withdrawal from UNRWA equals a death sentence to established humanitarian aid channels in the region. Without sufficient funding, UNRWA warns that it may be forced to cease operations in Gaza and the wider region by the end of February. The International Rescue Committee and other humanitarian groups said, “UNRWA’s humanitarian role in this crisis is indispensable and cannot remotely be replaced by any other aid organization”.

The WFP warned of the “immediate possibility” of starvation, highlighting that reliable supply of food and water outside the established humanitarian aid corridors were practically non-existent. Already on December 3, the organisation issued its report, highlighting the “high risk of famine” in the Gaza region. 

Meanwhile, the ICJ has ruled positively on the plausibility of South Africa’s genocide case brought against Israel. This situation has now produced a series of ripple-on political and jurisprudential questions, some of which concern the nature and scope of complicity. Most acutely, perhaps, is the question of UNRWA’s future itself, and the possible effects a breakdown might have on the Gazan population and the Palestinian people more broadly.

Starvation and the Holodomor Case

The first significant stride towards establishing the prohibition of starvation as a tactic of warfare came with the adoption of the two Additional Protocols of 1977 to the Geneva Conventions. The Convention not only prohibits the deliberate starvation of civilians as a method of warfare but also condemns the destruction of objects vital to the survival of civilian populations.

According to Article 8 (2) (b) (xxv) of the Rome Statute, it is necessary to demonstrate that a perpetrator intentionally used starvation as a method of warfare. Countries grappling with conflict often face a multitude of complex challenges alongside mass starvation and famine, including food insecurity, malnutrition, and disease. These complexities can complicate efforts to prosecute individuals for intentionally employing starvation as a tactic of warfare––and will complicate matters in the case of Gaza.

In 2022, the European Parliament made some symbolic steps in the direction of recognising starvation as a manifestation of genocidal action. Almost a century after the events at issue, Resolution 2022/3001(RSP) recognises the famine-induced mass killings of Ukrainians during the Soviet regime––commonly known as the Holodomor––as a “genocide against the Ukrainians”. The resolution states that the European Parliament

“recognises the Holodomor (the artificial famine of 1932-1933 in Ukraine) as a genocide against the Ukrainian people that aimed to destroy the social foundations of the Ukrainian nation, its traditions, culture, national identity and statehood [and] calls on all the countries and international organisations that have not yet recognised the Holodomor as a genocide to do so without delay.”

The exact death toll of the Holodomor––a starvation politics, orchestrated by Stalin––is uncertain. While Timothy Snyder, Professor of History at Yale University, estimates the number to be around 3.3 million, some argue that the actual figure was much higher. Despite the magnitude of this catastrophe, no individual has ever been prosecuted.

Striking about this resolution is how the European Parliament chose to refer to the Holodomor explicitly as a “genocide”, rather than subsuming it under the existing Article 8 (2) (b) (xxv) of the Rome Statute, or the relevant norms set out in the Geneva Conventions. By calling the Holodomor an act of “genocide”, the European Parliament substantiated the famously non-descript Genocide Convention, which defines genocide as “the killing of members of the group”, and yet leaves unspecified––and for good reasons––what conduct precisely triggers Article 2(a), or any of the subsequent provisions.

The ICJ on Genocide in Gaza

The ICJ order of 26^th January 2024 concludes that the court has found “plausible” South Africa’s referral to the genocide convention (Section 75), and ordered that pending a final decision, 

“Israel must, in accordance with its obligations under the Genocide Convention, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention”

Section 78

The order references a report issued by the WHO, saying that as of 21 December 2023:

“An unprecedented 93% of the population in Gaza is facing crisis levels of hunger, with insufficient food and high levels of malnutrition. At least 1 in 4 households are facing ‘catastrophic conditions’: experiencing an extreme lack of food and starvation”

Section 48

‘Complicity’ or ‘Aiding and Abetting’?

A further point of concern is the role of third parties in a genocide. Article 2 of the convention recognises this and defines as one of the crimes that can be punished under the convention, point 3(e), the “complicity in genocide”.

The provision was further specified in the statutes of both the ICTY and the ICTR. There, the jurisprudence of the two Tribunals reveals a certain challenge in fully grasping the interrelation of these two concepts. This challenge has led some Judges to perceive a redundancy between the two concepts. Conversely, Judges who have not viewed the terms as redundant have encountered complexities in their legal analysis while attempting to delineate a distinction between the two notions and consequently assign significance to each. Both judicial perspectives commonly struggle due to an inclination towards delving into the qualitative interpretations of the two concepts.

Clarifying those issues, Daniel Greenfield has argued that the judges of the ICTY have “erroneously determined that complicity in genocide is identical to aiding and abetting” genocide. This explains why the ICTY theorised that complicity is not in itself a crime but creates for the third party “merely a misplaced and superfluous liability provision for the crime of genocide”, says Greenfield. His article goes on to distinguish the two crimes and explains how operationalising this distinction will lead to the recognition of very different perpetrators. The way Greenfield distinguishes the legal concepts is as follows:

“One guilty of aiding and abetting genocide had as his very purpose the facilitation of the commission of genocide. A perpetrator of the crime of complicity in genocide, in contrast, may not have had genocide as his purpose. Instead, genocide may merely have been the foreseeable result of his action. As such, one found guilty of aiding and abetting genocide must have the heightened, and difficult to establish, mens rea of the genocidaire […] By comparison, one guilty of complicity in genocide need not have this heightened mens rea. Instead, a lesser mens rea such as malice […] should suffice to attach guilt. Failure to appreciate this difference creates a gasping loophole in international criminal law, providing unwarranted sanctuary to those who enable genocide”.

The collapsing of these two categories signalled unaccountability to facilitators and given the high standard of mens rea in aiding and abetting, made it even more difficult to prosecute for this crime as it is difficult to prosecute genocidal conduct itself. 

Conclusion

The above considered comprehensively suggests the following line of argument, which explains how those who defund UNRWA are at risk of being found complicit––pending the final ICJ judgment, of course:

(1) The ICJ has deemed plausible the accusations of genocide of the Palestinian people in Gaza. 

(2) The European Parliament recognises intentional starvation (Holodomor, 2022/3001(RSP) as genocidal conduct. 

(3) The WFP predicts a war-induced famine and mass-starvation in Gaza should reliable humanitarian aid cease to reach the region. 

(4) UNRWA secures indispensable humanitarian aid in the region. 

(5) Defunding UNRWA renders the agency inoperable, causing the collapse of indispensable avenues of humanitarian support.

It follows that 

(6) defunding UNRWA has the foreseeable consequence of mass-starvation. And therefore, withdrawal from UNRWA creates complicity in (a plausible) genocide. Or, 

(7) depending on a thorough assessment of the role of omission within the facilitation of genocide, withdrawal from UNRWA creates the high-culpability crime of aiding and abetting (a plausible) genocide.

It goes without saying that these are the bare outlines of an already tentative argument. The reality is, of course, more complicated. For one, the argument requires a showing of both some level of contribution and more importantly the requisite degree of fault. A predictable counterargument, therefore, will be as follows: 

First, the ICJ’s finding of plausibility is low, and second, even if one took foreseeability (rather than certainty) as the standard of mens rea, the mere fact that defunding humanitarian aid might assist in a genocide will still be below what is needed to establish fault. 

Greenfield’s view on fault is not the only, and certainly not an uncontested view. Legal scholars have provided a great variety of normative positions on matters of fault and complicity in international criminal proceedings. The ICJ itself approached complicity in the Bosnian Genocide case with a much higher degree of fault, setting fault at an epistemic standard of knowledge at the minimum. 

These are jurisprudential obstacles for an argument like the one that I have outlined. However, many obstacles are not unsurmountable. At the very least, my argument cautions the United Nations member states withdrawing or thinking of defunding UNRWA of the potential risk of being found complicit in genocide. Should not this risk alone be a deterrent?