High Court orders state to demonstrate aid supply to Gaza is sufficient

Justices accept request for interim orders in petitions alleging Israel isn’t doing enough to alleviate the humanitarian situation in Strip, give state 10 days to respond

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

In this photo provided by US Central Command, humanitarian aid arrives in Gaza, June 8, 2024. (US Central Command via AP)
In this photo provided by US Central Command, humanitarian aid arrives in Gaza, June 8, 2024. (US Central Command via AP)

The High Court of Justice issued interim orders against the state over the supply of humanitarian aid to Gaza, in effect placing the burden of proof on the government to demonstrate it’s providing enough humanitarian supplies to the Palestinian population in the war-torn territory to meet its legal obligations.

The state has 10 days to respond, after which the court will likely hold another hearing before making a final ruling.

Following a three-hour hearing on Monday, the High Court issued an interim order instructing the state to explain why it should not allow unfettered access of humanitarian aid, equipment and staff into the Gaza Strip in light of the severe humanitarian situation in the enclave amid the ongoing war started by Hamas’s October 7 attack.

And the court acceded to the petitioners’ second request for an interim order instructing the state to explain why it should not be considered an occupying power in Gaza and therefore be responsible for providing essential humanitarian aid to the local population.

The orders suggested the court was taking the concerns raised by petitioning organizations seriously and that the state will have to supply more information than it so far has to counter the claims that it continues to hinder to some extent the supply of humanitarian assistance to Gaza.

In its decision, however, the court said that it was issuing the order “without taking a position and in order to enable the court to get a full and comprehensive factual basis” for the case.

Palestinians inspect the damage outside Gaza’s Shifa hospital after the Israeli military withdrew from the complex housing the hospital on April 1, 2024. (Photo by AFP)

The hearings and written responses of both sides have been notable for the discrepancies in the dire picture painted of humanitarian conditions in Gaza by the petitioning organizations, and the claims made by the state in response that although bad, the humanitarian situation is not catastrophic.

The order regarding whether Israel is now legally occupying Gaza was also notable as a final ruling determining it is would have a significant legal impact, with the obligations of an occupying power to a local population considerably greater than those required under the laws of armed conflict, which the state argues is the relevant legal framework for its operations in Gaza at present.

Despite the order regarding the supply of humanitarian aid, the High Court justices underlined on several occasions to the petitioners that the state and its appendages were better placed to know what the true humanitarian situation in Gaza currently is, given their direct access to local sources and ongoing coordination with UN agencies and international aid groups.

The petitioners nevertheless contended that the state has not provided a full and reliable account of the humanitarian situation in Gaza, pointing to testimony from medical staff working in the territory which contradicted the state’s account on the condition of medical services in the enclave.

The cases against Israel in both the International Court of Justice (ICJ) and the International Criminal Court (ICC) focus on the supply of humanitarian aid to Gaza’s population, with the ICJ expressing concern that conditions in the enclave could violate the prohibition in the Genocide Convention against creating conditions of life designed to destroy civilian life, and the ICC accusing Israel of using starvation as a weapon of war.

The High Court petitions have therefore taken on deep significance in the state’s attempts to show that it Israel is meeting its legal obligations and not committing the crimes it has been accused of at both courts in The Hague.

Attorney Osnat Lipshitz-Cohen representing the Gisha human rights organization which is the primary petitioner, acknowledged at the start of the hearing that her organization was not itself able to give a “well-founded factual basis” on the situation in Gaza due to the “chaos” and the dynamic situation in the territory.

“We understand that you don’t have direct information. It’s also a problem to a certain extent,” said acting Supreme Court President Uzi Vogelman in response.

Displaced Palestinians line up to receive food in Rafah, on the southern Gaza Strip, on May 19, 2024 (Photo by AFP)

When discussing the situation regarding access to medical treatment and services which Lipshitz-Cohen argued has worsened, she noted that the state in its arguments previously cast doubt on Gisha’s claims when it cited hospital directors in Gaza and alleged that they were compromised by their links to the Hamas governing authority.

Now, Lipshitz-Cohen noted, the state itself was saying that the medical situation was improving based on connections with Gazan hospital directors.

“The state has tools to know… if Hamas is behind the publication [of information]. The state can know this better than you,” Justice Noam Sohlberg told her.

Lipshitz-Cohen acknowledged that the situation in northern Gaza, where international organizations said the humanitarian situation was most acute, has improved.

“Since then we have seen a certain improvement in the situation in northern Gaza, we have seen the reopening of the water pipeline, the transfer of fuel for pumping [at wells] and desalination plants, and the opening of crossings for humanitarian aid and food,” which, she said, had led to “a certain improvement regarding food and water.”

She contended that problems with sewage and medical access had gotten worse however.

Lipshitz-Cohen also argued that there were still serious problems with distributing aid inside Gaza once it’s transferred through the border crossings.

She pointed to a Sunday update by the Coordinator of Government Activities in the Territories (COGAT), a Defense Ministry agency, in which it said that significant numbers of requests by humanitarian organizations to collect and distribute aid — as much as 50% in some cases — were rejected the day before.

An image of what the Coordination of Government Activities in the Territories (COGAT) agency of the Israeli Defense Ministry says is aid consignments from 650 truckloads of humanitarian aid awaiting collection and dispatch by the UN and aid agencies after being transferred into Gaza, May 21, 2024. (Courtesy COGAT)

COGAT head Maj. Gen Ghassan Alian, who addressed the court at length, stated however that a total of some 8,000 distribution requests had been okayed by COGAT during the course of the war, with an approval rate of 88 percent.

The issue of distribution has become critical, with UN agencies and humanitarian organizations claiming the mass influx of aid consignments across the Gaza border crossings has not been effective in alleviating the humanitarian crisis due to a lack of sufficient distribution outlets, which they claim Israel has not provided.

COGAT has long insisted however that it is the UN and aid agencies which have failed to increase distribution capacity.

Just last week, the World Central Kitchen aid organization said it has ongoing communications with COGAT and that it has succeeded in supplying its numerous kitchens in Gaza with aid brought in through the crossings which it has managed to deliver to its operation centers.

“We have opened new goods crossings, we have increased the manpower [working at the crossings], bought more inspection equipment [to increase supply capacity] and increased operating hours,” Alian told the court.

“While we have worked to improve our capabilities and increased capacity, the international organizations are still in the process of adapting their logistical and organizational processes.

“That is how a gap has been created between our capacity to inspect aid and their capacity to distribute it,” he said, noting that only 26 additional aid distribution trucks have been entered Gaza since the beginning of the war, despite COGAT’s offers to facilitate such imports.

Added Alian: “These gaps represent a significant obstacle in the distribution of aid to those who need it.”

He noted that on Sunday, 144 trucks of humanitarian aid were picked up from the Kerem Shalom crossing at the southern end of Gaza.

Alian said that there were nine regular hospitals currently functioning in Gaza, together with 11 field hospitals whose establishment COGAT facilitated.

When asked what the bed occupancy rate was at the hospitals, Alian gave a figure of 70%, which Vogelman immediately questioned, noting that aid agencies claimed the figure was far higher.

Lipshitz-Cohen also picked up the discrepancy, saying “there is a big gap in the picture provided by both sides which is only getting bigger.”

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