ODVV Interview: The Human Rights Situation in Gaza and the Legal Tools

ODVV Interview with Rana Moustafa Essawy, Assistant Professor of International law at Alexandria University (Egypt).

Rana Moustafa Essawy is an Assistant Professor of Public International Law, in Alexandria University, Egypt. She is also an Expert Member of the Committee on the Protection of People Living with HIV established by the African Commission on Human and Peoples’ Rights.
On 28 August 2024, the Organization for Defending Victims of Violence (ODVV) has conducted an interview with Rana Moustafa, to discuss the human rights situation in Gaza and some of the recent international developments in the region.
A summary of the interview, which is edited and summarized by ODVV is as follows:

Q: How do you see the situation of human rights in Gaza, with the international crimes, including genocide, being committed in the region, and what is the threshold for genocide?

A: You need to prove that the perpetrator has had the "intent" to destroy the population and some scholars believe that with the claim of the IDF that the attacks are aimed at the destruction of Hamas, it is difficult to prove the genocidal intent of Israel. I have written an article on the issue which is published in Ejiltalk.

Q: What do you think the ICJ final judgment would be?
A: I don't really think that I can predict that now, it depends on how the South Africa and other States will be able to prove that the "genocidal intent" exists, before the Court. Personally, I believe that genocide has taken place in Gaza.

Q: Francesca Albanese, the UN Special Rapporteur on the Occupied Palestinian Territories (OPT), presented a report to the UNHRC 55th Session, titled "The Anatomy of Genocide". How do you see this report?
A: It was a highly informative report, which presented and proved a counter argument for the IDF allegation that the attacks are targeting Hamas. The report is going to present an important piece of evidence to the ICJ.

Q: The global public opinion expects the UN bodies to take effective steps in Gaza, what are the potential legal tools that the international law can use in this regard?
A: I like to be as optimist as possible, but the UN has so far failed to prevent the genocide in Gaza, the reports presented by the UNRAWA and the UN Special Rapporteurs are totally ignored or refuted by the Western governments.
The UN Special Rapporteur on the Occupied Palestinian Territories (OPT) has done a great work in proving evidence to refute the claims of the Israeli side, she is doing immense work with limited tools at hand.
The UN General Assembly has issued many resolutions condemning what is happening in Gaza, but the resolutions do not have real effect. [There is not strong will behind the resolutions].
The Security Council which can issue binding decisions, has issued a resolution, which was vague and its interpretation was left to the Western countries to refute its binding character and it was not implemented in the end.
UN organs can provide legal tools that can be used later on to hold the perpetrators accountable, but for effective and real times action, I think the UN has failed so far.

Q: There are two UNHRC mechanisms to address the situation of Palestine, one is the UN Special Rapporteur on the Occupied Palestinian Territories (OPT) and the other is the UN Commission of Inquiry on the OPT, what do you think of their effectiveness, for example, can their findings be used in the ICC cases on the occupied Palestinian territories?
A: There is a research conducted on how the ICC can take the evidence provided by commissions of inquiry, but I think the ICJ can use the evidence offered these commissions, and the latest ICJ advisory opinion, on the prolonged occupation by Israel, relied heavily on all the information provided by the UN Secretary General and the Commission of Inquiry on the OPT, they do provide really valid evidence that ICJ has taken by and I don't think there is any legal impediments before ICC to also take them into consideration, especially when the ICC has been denied access into Gaza. I think they should take by the evidence provided by the UN COI on OPT and the Special Rapporteur.

Q: On the recent ICJ advisory opinion, what are its key findings and how it can enhance the principles of the international law? How it has improved in comparison with the 2004 ICJ advisory opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory?

A: I try not to be pessimist, when the ICJ advisory opinion was issued, it was celebrated and it should be celebrated, but is it going to be implemented? The 2004 ICJ advisory opinion was not taken into consideration, neither by Israel and not by the Western countries, so I'm somehow pessimist about the legal implications of the recent advisory opinion. But here comes the role of the civil society, who are required to use their advocacy tools to push the governments into making Israel abide by the ICJ advisory opinion.
One of the main findings of this advisory opinion was on the obligation of third States, who were required to cooperate to bring the illegal Israel occupation to an end.
There are parts of the recent ICJ advisory opinion which are controversial and disputed by the academia. I feel sorry about the ICJ argument about the prolonged occupation, which has left room for so much debate and would weaken the power of the civil society in putting pressure on governments to push Israel toward compliance by the ICJ opinion.
It is good that the civil society can have influence on the governments and the UN bodies such as the ICJ, but on the issue of Palestine, it is worrisome that such influence has not been translated to on-the- ground relief for the Palestinian people.
Finally, I believe that we need to hold on to international law and try to improve its implementation.     

You can watch this interview on YouTube