(Editor’s Note: The statement below is collectively signed by 22 former United Nations Special Rapporteurs and former UN experts in the field of human rights on the situation in Rafah and the obligations of UN Member States.)
Given the catastrophic humanitarian and human rights situation in Rafah, we wish to take the extraordinary step of expressing ourselves collectively as former UN Special Rapporteurs and former UN experts in the field of human rights. We are deeply concerned both about the grave human rights impact of Israel’s military action in Gaza and of the Hamas terrorist attack of 7 October 2023 which provoked it.
As the threatened attacks in Rafah have begun, killing untold numbers of civilians, including children, we call on the international community and member states of the UN to act with the utmost urgency to fully ensure respect for the provisional measures ordered by the International Court of Justice (ICJ) in the case regarding the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel). We also join the myriad international appeals for an immediate ceasefire by the overwhelming majority of UN member States, international and regional organizations, and UN officials and human rights experts.
We concur with the ICJ’s pronouncements in its order of 16 February that:
the most recent developments in the Gaza Strip, and in Rafah in particular, ‘would exponentially increase what is already a humanitarian nightmare with untold regional consequences’, as stated by the United Nations Secretary-General…
This perilous situation demands immediate and effective implementation of the provisional measures indicated by the Court in its Order of 26 January 2024, which are applicable throughout the Gaza Strip, including in Rafah…
The Court emphasizes that the State of Israel remains bound to fully comply with its obligations under the Genocide Convention and with the said Order, including by ensuring the safety and security of the Palestinians in the Gaza Strip.
We also recall the Court’s warning in its 26 January order that “the civilian population in the Gaza Strip remains extremely vulnerable.” (para. 70)
We note the statement of António Guterres, Secretary-General of the United Nations, on 8 February:
Reports that the Israeli military intends to focus next on Rafah are alarming.
Such an action would exponentially increase what is already a humanitarian nightmare with untold regional consequences.
We also note the statement of Martin Griffiths, Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, on 13 February:
…More than half of Gaza’s population – well over 1 million people – are crammed in Rafah, staring death in the face: They have little to eat, hardly any access to medical care, nowhere to sleep, nowhere safe to go. I have said for weeks now that our humanitarian response is in tatters. Today, I’m sounding the alarm once again: Military operations in Rafah could lead to a slaughter in Gaza.
We further note the 12 February statement of UN High Commissioner for Human Rights Volker Türk:
A potential full-fledged military incursion into Rafah – where some 1.5 million Palestinians are packed against the Egyptian border with nowhere further to flee – is terrifying, given the prospect that an extremely high number of civilians, again mostly children and women, will likely be killed and injured…
… [T]his incursion into Rafah may also mean the end of the meager humanitarian aid that has been entering and distributed with huge implications for all of Gaza, including the hundreds of thousands at grave risk of starvation and famine in the north.…Israel must comply with the legally binding orders issued by the International Court of Justice, and with the full span of international humanitarian law.
We are deeply concerned by the following statement from the Nobel Prize-winning UN World Food Program on 15 February: “Rafah is… the main entry point for aid into Gaza… [A]n expansion of hostilities risks a humanitarian disaster and would severely hamper aid operations.”
We support the 8 February statement by the UN Committee on the Rights of the Child “call[ing] upon the State of Israel to immediately comply with the ruling of the International Court of Justice.” We likewise support the 16 February statement of the UN Committee on the Elimination of All Forms of Discrimination against Women which “warn[ed] against any pending and potential military offenses and incursions into the already limited land space of Rafah where hundreds of thousands of forcibly displaced persons, predominantly women and children, are seeking refuge” and “appeal[ed] to the Security Council to claim an immediate and total cessation of the war in Gaza to ensure lasting peace and security in the region.”
We take note of the 12 February statement of the Prosecutor of the International Criminal Court, Karim Khan: “I am deeply concerned by the reported bombardment and potential ground incursion by Israeli forces in Rafah.”
Taken together, these statements represent a powerful warning of the likely and extremely grave and irreversible violations of international law, and of the Court’s orders, if the ongoing military action in Rafah (including air strikes) is continued and/or expanded at this time and under these circumstances. The current realities on the ground create a unique set of circumstances to which we believe the entire international community, and especially members of the Security Council, must respond with urgency and action.
Based on our collective years of global human rights experience, including in conflict zones, we assess that ongoing as well as increased military operations in Rafah under these circumstances will most probably lead to further actions which contravene the Court’s orders of 26 January 2024 in paras. 86(1), 86(2) and 86(4). Military action in such a densely populated area, already facing humanitarian crisis beyond the capacity of the United Nations to respond, is highly likely to lead to acts contravening para. 86(1) of the Court’s order prohibiting acts enumerated in Article II of the Genocide Convention, including killings of members of the group. Given that the Court ordered in para. 86(2) that Israel is to ensure that members of its military do not commit those acts, sustained military operations as appear to be in progress, implicate this paragraph of the order as well.
Additionally, if military action in Rafah continues and/or expands under these circumstances, it will be impossible for Israel to comply with the order under para. 86(4) to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip. Military action under these circumstances at this time in Rafah will render such assistance and services simultaneously more urgently needed and less available.
In our collective view, the military operations, including air strikes, announced and commenced by Israel in Rafah carry a real and imminent risk of irreparable prejudice to rights arising under the Genocide Convention and as such would violate the Court’s orders of 26 January and 16 February. It is clear from the Court’s order of 26 January that the State of Israel shall refrain from military operations that carry a real and imminent risk of physical destruction of a substantial part of the Palestinian people as a whole. The operations announced and commenced by Israel in Rafah, under these conditions, undoubtedly represent a real and imminent risk of physical destruction of the civilian population of Rafah, which forms a substantial part of the Palestinian people as a whole. It is also clear from the Court’s order of 26 January that the State of Israel shall refrain from any action, including military operations, that would prevent the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.
Let us be clear. The most effective way to implement all of the Court’s provisional measures ordered on 26 January, and to prevent further humanitarian catastrophe and the sustained violations of international law that order seeks to prevent, is an immediate ceasefire. We wholeheartedly join the call made in this regard by many current human rights experts and UN bodies. We also call on Hamas in the strongest terms to immediately release the remaining hostages taken on 7 October 2023, including all those allegedly held in Rafah. We underscore that all hostages must be treated humanely with access to food, water and medical care at a minimum pending their release.
The Security Council, as the guarantor of international peace and security, has a critical role to play in supporting the ICJ’s order and ensuring its full implementation. Hence, we call on the Security Council to pass, without delay, a ceasefire resolution so as to prevent further humanitarian catastrophe. Such a resolution is also necessitated by State obligations under the Genocide Convention to prevent genocide, an essential aspect of the discharge of the peace and security mandate of the Council. This responsibility falls particularly heavily on the twelve members of the Security Council who are States Parties to the Genocide Convention. We further remind all States Parties of their obligation to prevent violations of the Convention, including by withholding military support that creates a risk of complicity in such violations.
Pending a ceasefire, all parties to the conflict must ensure that their actions are consistent with their obligations under international humanitarian law to protect civilians, with particular reference to especially vulnerable populations such as women (including pregnant and nursing mothers), children, persons with disabilities, the sick, and the injured. As the international community watches Rafah teeter on the brink of an abyss of death and destruction, nothing less than the meaning of international law, and the very survival of a substantial part of the Palestinian people are at stake. We refuse to be silent witnesses of their destruction. The time for decisive action is now.
(in alphabetical order)
Philip Alston
Former UN Special Rapporteur on Extreme Poverty (2014-2020); Former UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (2004-2010)
Mads Andenas
Former Chairperson of the UN Working Group on Arbitrary Detention (member of group 2009-2015)
Karima Bennoune
Former UN Special Rapporteur in the field of cultural rights (2015-2021); Former expert for the International Criminal Court (2017)
Radhika Coomaraswamy
Former United Nations Special Representative for Children and Armed Conflict (2006-2012); Former (and first) UN Special Rapporteur on violence against women, its causes and consequences (1994-2003)
Yakin Ertürk
Former UN Special Rapporteur on violence against women, its causes and consequences (2003-2009)
Leilani Farha
Former UN Special Rapporteur on the right to adequate housing (2014-2020)
Pablo de Greiff
Former (and first) UN Special Rapporteur for the promotion of truth, justice, reparation, and guarantees of non-recurrence (2012-2018)
Cecilia Jimenez
Former UN Special Rapporteur on the human rights of internally displaced persons (IDPs) (2016-2022)
Davd Kaye
Former UN Special Rapporteur on freedom of opinion and expression (2014-2020)
John H. Knox
Former (and first) UN Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (2012-2018)
Michael Lynk
Former Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 (2016-2022)
Gay J. McDougall
Former (and first) UN Independent Expert on minority issues (2005-2011); Former UN Special Rapporteur on the issue of systematic rape, sexual slavery, and slavery-like practices in armed conflict (1995-1997)
Member of the UN Committee against Racial Discrimination (third term)
Juan E. Méndez
Former Special Advisor to the Secretary-General on the Prevention of Genocide (2004-2007) and Former UN Special Rapporteur on Torture (2010-2016)
Fionnuala Ní Aoláin
Former UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism (2017-2023)
Dainius Pūras
Former UN Special Rapporteur on the right to health (2014-2020)
Gerard Quinn
Former UN Special Rapporteur on the rights of persons with disabilities (2020-2023)
Gabor Rona
Former member of the UN Working Group on Mercenaries (2011-2018)
Ahmed Shaheed
Former UN Special Rapporteur on freedom of religion or belief (2016-2022); Former UN Special Rapporteur (with a country mandate, 2011-2016)
Rhona Smith
Former UN Special Rapporteur (with a country mandate, 2015-2021)
Leigh Toomey
Former Chairperson of the UN Working Group on Arbitrary Detention (member of group 2015-2022)
Fernand de Varennes
Former UN Special Rapporteur on minority issues (2017-2023)
Gentian Zyberi
Former member of the UN Human Rights Committee (2019-2022)