With the humanitarian consequences of Israel’s ongoing assault on Gaza reaching ever-more horrifying extremes, recent steps taken by the Government are to be commended. In particular, the decision to provide an extra €20 million to the United Nations Relief and Works Agency and the joint call by the Irish and Spanish governments for the EU to review its trade agreement with Israel are important measures. More recently, at the White House on St Patrick’s Day, Leo Varadkar told President Joe Biden that Irish people identify strongly with Palestinians, saying: “We see our history in their eyes. A story of displacement and dispossession, a national identity questioned and denied, forced emigration, discrimination, and now – hunger.”
Judged, however, against the international law obligation on all states to prevent genocide, even these measures and statements, by themselves, fall well short. The nature of this obligation was explained by the International Court of Justice (ICJ) in its 2007 judgment in the Bosnia v Serbia (”Bosnian Genocide”) case. As to when the obligation is activated, the ICJ held that this happens the moment a state “learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed”.
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Since the ICJ’s order on January 26th, 2024, requiring Israel to refrain from committing genocide in Gaza, all states have been on notice of a serious risk of genocide there. The ICJ found that there was “a real and imminent risk that irreparable prejudice will be caused to the rights found by the court to be plausible” – including the “right of the Palestinians in Gaza to be protected from acts of genocide”.
The ICJ’s Bosnian Genocide judgment also explains what measures states must now take to comply with their obligation to prevent genocide: they must “employ all means reasonably available to them, so as to prevent genocide so far as possible”, with the specific means depending “on the strength of the political links, as well as links of all other kinds, between the authorities of [a] state and the main actors in the events”.
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One of the most significant links that Ireland and the EU has with Israel is trade. In 2022, Ireland imported a total of €4.8 billion in goods from Israel, while total trade in goods between the EU and Israel that year exceeded €46 billion. It follows from the Bosnian Genocide ruling that Ireland and the EU must use this trade link to try to deter Israel’s assault on the people of Gaza. Simply put, this should involve the adoption of the type of targeted trade sanctions reflexively imposed by EU member states on Russia.
The Government, however, may take the view that, because trade is an “exclusive competence” of the EU, only the latter can suspend aspects of its trade agreement with Israel – something which is highly unlikely given the divisions on Israel among member states. This is the argument the Government deployed to justify opposing the Occupied Territories Bill – which would ban trade with illegal settlements on occupied territories – despite the fact that a leading expert on EU law categorically rejected this view.
It follows from the Bosnian Genocide ruling that Ireland and the EU must use their trade link to try to deter Israel’s assault on the people of Gaza
If the Government’s position on the Occupied Territories Bill is wrong, any view that it cannot act unilaterally to fulfil its obligation to prevent genocide is even more untenable. The obligation to prevent genocide is a part of customary international law, which is itself well-established as forming a part of the EU legal order. This means that the EU’s failure to do anything at all in response to Israel’s assault on Gaza is a clearcut breach of both the duty to prevent genocide and (as a result) EU law itself. Were a member state to seek to fulfil its duty to prevent genocide through unilateral action, the EU would not have a legal leg to stand on if it sought to challenge this.
Still, a small state like Ireland might ask, what impact it can have on Israel acting alone. But the ICJ held in the Bosnian Genocide case that it “is irrelevant whether the state […] claims, or even proves, that even if it had employed all means reasonably at its disposal, they would not have sufficed to prevent the commission of genocide” because “the combined efforts of several states, each complying with its obligation to prevent, might have achieved [this] result”.
The obligation to prevent genocide is a part of customary international law, which is itself well-established as forming a part of the EU legal order
According to the Egyptian authorities, there are now 7,000 trucks waiting to deliver aid to Gaza. At the same time, the World Food Programme tells us the people there are starving to death, a fact the UN secretary general, António Guterres, calls “a moral outrage”.
According to a recent Ireland Thinks poll carried out for Sadaka, 71 per cent of people in Ireland believe that sanctions should be imposed on Israel in response to its attack on Gaza. While recent steps taken by the Government are important, it must do much more both to fulfil its obligations under international law and to act on the views of the Irish people.–
Éamonn Meehan is chair of Sadaka-the Ireland Palestine Alliance; Gerry Liston is a senior lawyer in the Global Legal Action Network
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