Israel's Supreme Court Discussed the Starving of Gaza. Only the Urgency Was Missing
Dani Bar On Haaretz
The justices didn't lash out at the state, they opted for soft activism, even though around a third of small children in northern Gaza are believed to be suffering from acute malnutrition
"All told, we understand that the policy is to funnel unlimited humanitarian aid," acting Supreme Court President Uzi Vogelman said from the bench. He invited the government to think of creative ways to increase the aid flow to the Gaza Strip, after rights groups had petitioned the court.
"If you find more effective ways ... bless you, and I'm sure the petitioners will be happy as well," he added.
This was the conclusion early this month in the Supreme Court building's largest, most impressive hall. This iconic space, inspired by Roman basilicas, glowed that day. Natural light wafted in, flattering the wooden benches.
But Vogelman's "bless you" was strange. After all, the issue was Gaza's children starving to death, not a Scouts meeting. The situation in Gaza, everyone in the hall agreed, was severe. Even Justice Noam Sohlberg, no leftist, described it as "acute, harsh and desperate," a situation that "touches any human heart." So, "bless you"?
Only the legal experts in the hall knew what was happening: the presumption that the state is functioning appropriately and fulfilling its obligations.
"The court doesn't step into the decision-makers' shoes," said attorney Osnat Cohen-Lifshitz, one of the lawyers for the petitioners. "So, most often, it approaches the issue with caution and hesitation, requesting the state to make an effort, showing a lot of patience to the state, giving it considerable credit.
"This is the opposite of how people see the High Court of Justice. People think the state comes to court trembling with the fear of being reprimanded. But actually the court is very careful not to intervene."
But the Supreme Court – serving as the High Court of Justice because it was responding to a petition – found a way to intervene. It didn't lash out at the state, it opted for soft activism.
"The court, in its wisdom, entered through the opening that the state gave it," says Eyal Benvenisti, an international law professor at Cambridge University. "The justices told the state, 'You're saying you're taking steps; let's hear what you're really doing. And what you can do more of."
The state showed up with a wild card: its promise to open the water main in northern Gaza that had been closed since the beginning of the war. The situation in Gaza is worst in the north, so the hearing focused on it.
"I'm quite excited to say," Cohen-Lifshitz said for the petitioners, "that before the debate my colleague told me that Israel had finally decided to open the water main." "Colleague" referred to the state's representative, attorney Yonatan Berman. "Children are dying of thirst, drinking brackish water, and only now Israel has decided to open the pipe," she said.
For his part, Berman also announced the extending of the border crossings' opening hours, which only a moment ago the state had claimed were sufficient.
"We're happy there are developments," Vogelman said amicably. Justice Isaac Amit added that the petition was "important for the country" and asked if there were more "obstacles" that Cohen-Lifshitz wanted to discuss. Sohlberg sarcastically asked if the petitioners' lawyers expected Israeli soldiers "to stand and distribute hot soup on demand" when a terrorist could emerge from any hole and shoot them.
"With all due respect, Your Honor, we're as far as the east is from the west from a situation where soldiers hand out food to children," Cohen-Lifshitz responded, using a phrase from Psalms 103:12.
Her questions were much more basic. Why, for example, does the state ban aid organizations from buying baby formula and diapers in Israel and bringing them to Gaza? And why doesn't the aid by land enter directly in the north?
"We don't dispute that there are significant humanitarian needs in the Gaza Strip," Berman conceded, adding that the state has no quota for food, water, medical equipment and equipment for building shelters. He said Prime Minister Benjamin Netanyahu had "instructed" that the issue be handled faster, and noted that all kinds of initiatives were in store like the enabling of another 60 aid trucks to enter daily.
Berman referred to the "death" of the seven World Central Kitchen aid workers. He called it a "difficult, tragic" event without mentioning who was responsible. He requested and received permission to submit, behind closed doors, sensitive security information to justify his claims, and mentioned Israel's "constant contact" with "the international community, the aid organizations ... very, very tactical coordination."
Cohen-Lifshitz wondered why the state was so proud of its coordination with the aid agencies if in the same breath it rejected their reports about the acute humanitarian crisis in northern Gaza, arguing that these reports are based on Hamas' phony numbers.
When Cohen-Lifshitz took issue with a statement by the Defense Ministry's Coordinator of Government Activities in the Territories on social media, Vogelman cut her short: "Madam will leave social media out of this."
That evening, U.S. President Joe Biden spoke with Netanyahu about the humanitarian aid. Obstacles were immediately lifted. Suddenly Israel agreed, for example, to transfer aid directly to the north via the Erez crossing on Gaza's northern border, and to increase the pace of deliveries from Jordan. On Sunday, April 7, Israel displayed unusual speed and let a record 322 aid trucks into the Strip – and the following day 419 trucks.
So has the crisis been solved and there's no need for the petition? Time will tell, the petitioners say, adding that many of the steps to alleviate the situation remain on paper.
"The humanitarian crisis we've created oils the processes of Israel's South Africanization," says Prof. Menachem Mautner, former dean of Tel Aviv University's law faculty. "These processes will ultimately lead to a collapse of Israel's economy."
He believes that the High Court's influence pales in comparison to the international pressure that Israel has tried to ward off. He says that in starving the Gazans and the Israeli hostages with them, Israel has stained itself morally and will pay in the international arena.
A moment before the audience left the courtroom, right-wing activist Yonatan Shai stood at the door and broadcast himself live using his phone. "I'm simply in shock by what we've seen here today," he told the 290,000 Facebook followers of right-wing group Im Tirtzu.
"More than two hours of a High Court hearing, organizations of moles and haters acting with foreign funding, are trying to force Israel to bring more aid into Gaza ... to bring it to its knees and provide more ammunition, food and medication to the enemy. They should be ashamed. We'll expose their faces."
Shai then aimed his camera at Cohen-Lifshitz and her colleagues from the rights groups, who were leaving the room. "Aren't you ashamed to be worrying about the Nukhba children?" he asked her, referring to Hamas' elite Nukhba force. "Are you a security expert? Your sources are the UN, an antisemitic organization. Are you telling the IDF who to consult with? Aren't you ashamed?"
Cohen-Lifshitz replied: "I'm proud."
The court session didn't deal with the war itself, and of course none of the rights groups that petitioned the court – Gisha (the lead group), HaMoked, Physicians for Human Rights, the Association for Civil Rights and Adalah – denied the enormity of the October 7 massacre and the abduction of Israelis. The petitioners asked for the state's help regarding the scope of the killing in Gaza and added that they knew that Hamas "makes a considerable contribution" to Gazans' suffering. But they said that Hamas' actions don't exempt Israel from its obligation to adhere to international law.
As legal experts explained it to Haaretz, Israel is obligated to enable fast delivery of aid to the Gazans, and the state doesn't dispute this.
The petitioners believe that the state's obligations are even greater as the occupier of northern Gaza. An occupier is obligated not only to enable but to ensure that the population receives the aid it needs – this is the position that the International Court of Justice in The Hague took.
So the government is in a bind. The more it boasts of subduing Hamas in northern Gaza, the more it will be admitting its responsible for the people there. As a result, the state doesn't repeat these statements in court.
"Significant operative achievements have been made in the fighting," said Berman, the state's representative. "But Hamas is still operating government functions and trying to return to areas it was driven from."
Still, according to the petition, "UN agencies and nongovernmental organizations operating in the Gaza Strip have repeatedly warned that if Israel does not enable ... the passage of all the required humanitarian aid, the rate of dead and wounded ... is expected to exceed the number of fatalities in the military offensives."
The petitioners submitted research by Francesco Checchi, a professor of epidemiology and international health at the London School of Hygiene & Tropical Medicine. Checchi was recently interviewed by Haaretz's Netta Ahituv.
He said 30 to 40 percent of children 6 months to 5 years old in northern Gaza are probably suffering from acute malnutrition. He estimated this rate in southern Gaza at 14 to 18 percent.
That's not the impression given in the state's 38-page response to the High Court. "IDF forces are making tremendous efforts during the war to enable ... the bringing in of aid ... by sea, land and air ... in as large a scope as possible," the state wrote.
It said that Israel has allowed millions of doses of vaccines into Gaza, along with dozens of incubators and oxygen tanks. It said Israel is transferring fuel and water while working around the clock ("including on Shabbat and nights") in full coordination with aid organizations and the international community. In short, it is "fulfilling its obligations and even beyond."
In the hearing, Berman mentioned the "stockpiles of food reserves" in Gaza before the war – "agricultural areas, pasture areas, supermarkets, food in the private sector and inside houses," though he failed to mention how many of these houses collapsed in Israel's bombardments.
The state says that some of the aid it lets through may fall into Hamas' hands, so it is permitted to stop it. But Cohen-Lifshitz told Haaretz: "When a side to the fighting is obligated to enable the supply of aid, it's allowed to supervise how it's distributed and to whom. This permission doesn't revoke the obligation to enable the aid."
In court, Sohlberg asked Cohen-Lifshitz if her arguments about the severity of the crisis were based only on "media reports."
"We're not denying that there's a difficulty with the facts," she replied, maintaining that part of this difficulty stemmed from Israel's ban on journalists and researchers from entering northern Gaza, where 200,000 to 300,000 people remain.
But she said that the evidence is sufficient. "Reports arrive from senior officials at key global aid agencies. ... They're out there on the ground. ... They tell of undernourished women giving birth to babies whose weight doesn't allow them to survive," she said.
"Officials of aid agencies saw this with their own eyes and everything is documented. ... The testimonies coming from the Strip – without Hamas' filter – show unequivocally that people don't have anything to eat. When aid is parachuted in, people go insane as they try to grab it. They endanger their lives. They drown in the sea. They're crushed alive under these deliveries.
"People who have enough to eat don't do those things. ... When a person enters a state of malnutrition, the moment when the condition is irrevocable and the damage is irreparable comes suddenly. The report [by Checchi and his colleagues] warns that we're near that moment."
In the petition, a mother of four from Gaza City said: "Our older neighbors died because of a shortage of food and a lack of treatment. Babies have also died because of a lack of milk. Unfortunately, these incidents have become routine."
A father of three from northern Gaza said he'd like to pick wild weeds but they grow near the border fence and "it's very dangerous there." To survive, one of the things he and his family have eaten is bird food. "My son is 9. I feel his bones sticking out and see his arteries. I'm very scared," he said.
In addition to Berman, Lt. Col. Nir Azuz, the chief economic analyst at COGAT, responded for the state. He said that he and his colleagues were aware of the humanitarian situation in Gaza; Israel's sources there were providing "authentic information."
When Azuz said he believed that the Gazans were receiving a "reasonable response," Cohen-Lifshitz made a comment along the lines of, "So they're running after the trucks and dying just for the fun of it." Berman made a face suggesting he wasn't impressed, and Vogelman said: "Ms. Lifshitz, you will be able to respond, of course."
Azuz proudly recounted that "just last month we brought in more than 400 trucks that went north and reached the population." When Cohen-Lifshitz's turn came, she pounced.
"He's talking about 400 trucks a month? The UN secretary general, the World Health Organization and all the organizations are saying that northern Gaza needs 300 trucks a day, and we're hearing from you about 400 trucks a month.
"Even if the UN is … exaggerating, if the UN secretary general is exaggerating, the difference between 400 trucks a month and 300 trucks a day is a huge difference, a difference causing the death of babies, of children. And if we don't compensate for this difference immediately, it will lead to a catastrophe unlike anything we've seen in recent decades."
Justice Amit, meanwhile, questioned the petitioners' claim that from the start of the war through the end of March, fewer than 70 trucks of food per day entered all of Gaza, not just the north. Amit said: "It's simple math – 12,000 trucks divided by the number of days comes out to 140 to 150."
Cohen-Lifshitz and her team then did their own calculations. "Sixty-six, Your Honor: 181 days of war, 12,000 trucks – we're at 66, Your Honor," she said excitedly.
Amit wrote something down; it seemed he was doing long division. Vogelman said that though the number of aid trucks increased in March, "the overall number doesn't seem enough."
Later that day, the justices told the state to respond within a week to questions on the delayed aid. Then the petitioners will respond and the justices will decide.
When the hearing was over, a large group of students from a pre-military academy entered the hall; they were on a tour of the Supreme Court building. Berman was asked to say a few words to the group. He told them that, responding to a petition on aid to Gaza, the state said that it was doing a lot, and the justices said that more had to be done.
"As a side in the war, we have duties under international law," he told the young people, who looked at him skeptically. Was he about to say that we also have a moral duty? Then he finished his sentence: "It's also an Israeli interest that there not be a humanitarian crisis in Gaza."