Yesterday, the International Court of Justice delivered its advisory opinion on the Obligations of Israel in relation to the Presence and Activities of the United Nations, Other International Organizations and Third States in and in relation to the Occupied Palestinian Territory – which primarily deals with Israel’s ban on the operation of UNRWA, but also with some other obligations of Israel within the occupied Palestinian territory. A one-sentence summary would be that the Court found that Israel has a duty not to impede and to facilitate the humanitarian relief work of UNRWA and other organizations, because this is the only feasible way in which Israel could comply with its more general obligations as an occupying power. On many points the Court was unanimous; on others – especially those pertaining specifically to UNRWA – the opinion was delivered by 10 votes to 1, with Judge Sebutinde (unsurprisingly and very unfortunately) dissenting.
The Court’s (near-)unanimity is perfectly justified. Many of the Court’s conclusions are beyond any reasonable disagreement. There is, however, a variety of interesting, more conceptual points that arise throughout the opinion. I will be discussing some of them in a future post. In this post, I want to say a few words about the basic bottom line of the opinion.
It is important to understand in that regard how the Court chose to interpret the question that it was asked by the General Assembly:
What are the obligations of Israel, as an occupying Power and as a member of the United Nations, in relation to the presence and activities of the United Nations, including its agencies and bodies, other international organizations and third States, in and in relation to the Occupied Palestinian Territory, including to ensure and facilitate the unhindered provision of urgently needed supplies essential to the survival of the Palestinian civilian population as well as of basic services and humanitarian and development assistance, for the benefit of the Palestinian civilian population, and in support of the Palestinian people’s right to self-determination?
For the Court, this question did not include an examination of whether Israel violated any of the obligations incumbent upon it and what remedies should follow, unlike, for instance, the 2024 AO on the legality of the occupation, where it was expressly asked about the ‘legal consequences’ of Israel’s actions. Here, by contrast, the Court is in an identification and interpretation mode (AO, para 77). So, if we were to think of a typical judicial decision as logically following an Issue-Rule-Application-Conclusion structure, the Court generally stops midway through the Application analysis.
This is to some extent unsatisfying, but such an approach both reflected the formulation of the question and likely enabled a greater degree of consensus on the bench. That said, the Court does not merely opine on various issues in the abstract. It looks carefully at the facts and does apply the law to them. Moreover, upon reading the opinion it is often reasonably clear what the Court’s conclusion would have been if the analysis had continued to its logical end (i.e. that Israel has not, in fact, acted in compliance with the obligations binding on it). The Court itself also signals to that effect:
- Under the circumstances in the Occupied Palestinian Territory, Israel’s obligations under international humanitarian law and international human rights law require it to refrain from impeding the United Nations’ operations. The Court notes that, while UNRWA has played a central role in facilitating humanitarian activities in the Occupied Palestinian Territory, Israel’s obligations apply broadly and encompass the United Nations generally, other international organizations and third States.
- As noted above, the Court has not been requested to address the legality or the legal consequences of Israel’s actions and omissions (see paragraphs 77-78). However, the Court cannot fail to observe that Israel’s conduct in the Occupied Palestinian Territory raises serious concerns in light of its obligations under international humanitarian law and international human rights law, as outlined above. Thus, the Court reaffirms that Israel remains bound by these obligations and is required to comply with them.
So, in understanding the outcome of this case it is crucial to bear in mind the limitations of the question that was put to the Court. It is then important to understand the basic structure of the approach that the Court takes to reaching the conclusion that Israel, inter alia, has a duty to not impede the work of UNRWA. The Court does not think that this duty exists as such, i.e. that there is some kind of UNRWA-specific rule that Israel has to follow. Rather, that duty follows from more general obligations that Israel has (1) under international humanitarian law; (2) under international human rights law; and (3) under the UN Charter.
Thus, for example, under Article 59 of the Fourth Geneva Convention, ‘[i]f the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal.’ According to the Court, and to just grossly simplify this, the (i) population of Gaza is, in fact, inadequately supplied; (ii) the work of UNRWA (and other organizations) are the only feasible way of ensuring adequate supply; and therefore (iii) Israel must not impede the work of UNRWA – see AO, paras. 93-124. The Court rejects Israel’s arguments that alternative methods of provision would be effective, noting in particular (para 121) that: ‘it is not possible to replicate the capacity of the United Nations, acting through UNRWA, to ensure that the population of the Gaza Strip is adequately provided for. UNRWA cannot be replaced on short notice and without a proper transition plan.’
The Court thus concludes as follows:
- The Court concludes that, under these circumstances, the United Nations, acting through UNRWA, has been an indispensable provider of humanitarian relief in the Gaza Strip. As the United Nations Secretary-General has observed, “there is currently no realistic alternative to UNRWA that could adequately provide the services and assistance required by Palestine refugees” (see identical letters dated 8 January 2025 from the Secretary-General addressed to the President of the General Assembly and the President of the Security Council, UN doc. A/79/716-S/2025/18, 9 January 2025, p. 3). Thus, having regard to Article 59 of the Fourth Geneva Convention, and in the circumstances, the Court considers that Israel is under an obligation to agree to and facilitate relief schemes provided by the United Nations and its entities, including UNRWA.
This type of reasoning, which to my mind makes perfect sense in the circumstances, is employed by the Court for various rules of IHL and IHRL. And, in doing so, the Court also rejects the argument that prohibiting UNRWA from operating was justified by security considerations, in particular because UNRWA was allegedly infiltrated by Hamas to a great degree. Thus, the Court says that security concerns are not some kind of freestanding exception from the various obligations incumbent upon Israel, but have to be integrated within each specific rule it identified and applied in good faith (AO, para 89). Moreover (para 100) ‘the occupying Power may never invoke reasons of security to justify the general suspension of all humanitarian activities in an occupied territory.’ Finally, according to the Court, Israel has not substantiated its allegation that UNRWA was infiltrated by Hamas to the degree that Israel has alleged (para 118).
Article 59 GC IV played a central role in the Court’s reasoning, but, as noted above, the Court also addresses various other rules and how they would apply to these particular facts. This includes the duty of the occupying power to ensure the basic needs of the population, which does not depend on that population being inadequately supplied (paras 128-133). In particular:
- The Court observes that Israel’s obligations under Articles 55 and 56 [GC IV] are not dependent on the local population being “inadequately supplied” and therefore also extend beyond the Gaza Strip to other parts of the Occupied Palestinian Territory. In the Court’s view, under these provisions, Israel is not only required to perform the positive obligation to ensure essential supplies to the local population “to the fullest extent of the means available to it”, but it is also under a negative obligation not to impede the provision of these supplies or the performance of services related to public health. In this respect, to the extent that Israel does not itself fulfil the obligations under Articles 55 and 56, leaving that responsibility to the United Nations acting through UNRWA, as well as other international organizations and third States, Israel is under the same positive and negative obligations to support and not to restrict the activities of those entities.
- The operations of the United Nations, through UNRWA, and those of other international organizations and third States have been central to Israel’s performance of its obligations as an occupying Power under Articles 55 and 56 of the Fourth Geneva Convention. Consequently, Israel’s obligations under these provisions require it either to facilitate those operations or to otherwise ensure that these obligations are fully met.
Again, because UNRWA is practically the only way of complying with this duty, impeding its work without providing feasible alternatives would be inconsistent with GC IV, not just in Gaza but in the West Bank as well.
The Court also examines how impeding the operations of UNRWA would figure in the context of the prohibition on forcible transfer and deportation, noting that (para 141) ‘Israel, as an occupying Power, is prohibited from restricting the presence and activities of the United Nations, other international organizations and third States in and in relation to the Occupied Palestinian Territory to a degree that creates, or contributes to, conditions of life that would force the population to leave.’
Finally, the Court rightly concludes its examination of IHL by looking at the prohibition on the use of starvation as a method of warfare:
- As the Court has noted (see paragraphs 70-72 above), Israel blocked aid into the Gaza Strip, preventing the entry of humanitarian aid into the region from 2 March until 18 May 2025. In the view of the Court, Israel’s consent to the operations of the Gaza Humanitarian Foundation since 27 May 2025 and to other limited humanitarian aid has not significantly alleviated the situation (see paragraphs 73-74 above). The Court further refers to its finding at paragraphs 102-109 above that the local population in the Gaza Strip has been inadequately supplied. In these circumstances, the Court recalls Israel’s obligation not to use starvation of the civilian population as a method of warfare.
Again, the Court does not expressly say here that Israel has used starvation as a method of warfare in 2025 – but that very much seems to be implication. The Court also obviously does not say that the ICC prosecutor and judges were correct in issuing arrest warrants for Israeli leaders for using starvation in 2024 (which equally obviously I would think they were), but the Court’s analysis is, at a minimum, consistent with what the ICC has done in this regard.
So, that’s the bottom line of the UNRWA AO – to my mind, the Court performed its role here admirably. There are many other issues to be discussed, including some deliberate ambiguity as to Israel’s status as an occupying power, or Gaza’s status as an occupied territory; the Court’s use of IHRL; the examination of the privileges and immunities of the UN; and some of the Court’s citation practices, including repeated cites (for the first time in the opinion of the Court itself) to the ICRC Customary IHL Study. I will be discussing some of these in a follow-up post.
