On Feb. 22, the Worldwide Courtroom of Justice (ICJ) delivered its Advisory Opinion on Israel’s obligations in direction of the presence and actions of third events (the UN, different worldwide organizations, and states) within the Occupied Palestinian Territory (OPT). The Opinion joins the flurry of worldwide litigation on Israel-Palestine, together with two others on the ICJ , final yr’s Advisory Opinion on the legality of the occupation (“the Legality Opinion”) and the continuing South Africa v. Israel case, and the ICC arrest warrants issued in opposition to Israeli leaders.
The direct impetus for the UN Common Meeting’s request for this Opinion was the enactment of two Israeli legal guidelines final yr, aiming to stop United Nations Aid and Works Company for Palestine Refugees (UNRWA)) operations each in “the sovereign territory of Israel” (which, in Israel’s view, contains East Jerusalem), and within the OPT. The latter was effected by Israel’s cancellation of the 1967 “change of letters” between Israel and UNRWA (which regulated its continued operations within the OPT post-1967), and by prohibiting all Israeli companies (together with the army authorities within the OPT) from interacting with UNRWA (for the textual content of the legal guidelines, see paras 63-65 of the Opinion; for the change of letters, see para 50). In accordance with these legal guidelines, UNRWA was compelled to evacuate its East Jerusalem compound; its worldwide employees misplaced their standing and had been expelled; and UNRWA has been prohibited from bringing assist into Gaza for the reason that crossings are managed by Israel. It ought to be famous that in follow, nonetheless, UNRWA continues to operate widely both in Gaza and the West Bank on the premise of its native employees, though its operations are severely impeded. This demonstrates the illogical nature of Israel’s transfer, because it each “bans” UNRWA whereas persevering with to depend on it. As we will see, this level proved essential within the Opinion.
Nonetheless, Israel justified the legal guidelines on the premise of its allegations that UNRWA employees had been concerned in Hamas’s October 7 brutal assaults; that a whole lot of its employees are in actual fact members of terrorist organizations; and by its repeated claims that armed teams are working in its compounds. A UN investigation found that 9 UNRWA workers might need been concerned within the October 7 assaults. UNRWA, for its half, denied the allegation that a whole lot of its workers are concerned in terrorism, acknowledged that it has certainly condemned cases the place it was conscious that its premises had been utilized by armed teams, and that generally, not one of the allegations assist a blanket description of the “establishment as an entire” – which employs 30,000 individuals – as infiltrated by Hamas. Critics of Israel claimed that the true motivation behind Israel’s transfer was its hostility in direction of the mere recognition of Palestinian refugees and their rights. Others had been involved with the results of the restrictions in opposition to UNRWA on the humanitarian situation on the ground, given its central position in offering providers and assist to Palestinians.
The Request for an Advisory Opinion
In opposition to this background, the Common Meeting requested the Courtroom to supply an Opinion on
“the obligations of Israel, as an occupying Energy and as a member of the United Nations, in relation to the presence and actions of the United Nations, together with its companies and our bodies, different worldwide organizations and third States, in and in relation to the Occupied Palestinian Territory, together with to make sure and facilitate the unhindered provision of urgently wanted provides important to the survival of the Palestinian civilian inhabitants.”
Three issues ought to be identified about this query from the outset: first, not like the Legality Opinion, the ICJ was not requested right here to find out instantly whether or not Israel violated its obligations. Second, the query considerations obligations in direction of the UN and different third events in occupied territories, not in a state’s sovereign territory. Third, the request targeted on Israel’s obligations each as an occupying energy – which means, on the premise of the legal guidelines making use of in occupation – and as a UN member state per se. This opened the door to essential and fascinating discussions on the obligations of states to cooperate with the UN extra usually.
The Opinion itself contains determinations on many authorized questions, together with points similar to worldwide human rights legislation; obligations beneath worldwide humanitarian legislation in direction of detainees; self-determination; the accountability of the UN relating to the query of Palestine; and immunities of the United Nations. Typically, owing to the formulation of the Common Meeting’s query, these determinations are fairly normal and restate well-established obligations. Furthermore, some determinations are related to the precise context and historical past of Israel-Palestine, whereas others have extra normal utility.
On this piece, I’ll give attention to two key elements which can be each central to the problem and acquired detailed remedy within the Opinion: the occupying energy’s obligations to supply important wants, and the way these work together with the actions of worldwide organizations; and the final obligation of states to cooperate with the UN. The latter query spawned a debate between the judges of their particular person declarations, which provides rise to a lot broader theoretical and jurisprudential questions on the position and nature of the UN. I can’t handle the query of immunities right here. Due to its fairly technical nature, it ought to be addressed in a separate and detailed piece.
Certainly, the Opinion shows consensus on most points. The only operative dissenting opinion, on some factors, is by Vice-President Sebutinde – an opinion that requires a separate evaluation. I might additionally prefer to name consideration to Decide Cleveland’s essential declaration which incorporates vital factors in regards to the duties of non-state actors similar to Hamas in relation to the problems in query, whereas emphasizing the non-reciprocal nature of those obligations.
The Standing of Gaza
The scope of a state’s duties regarding humanitarian assist in armed battle depends upon whether or not a territory is occupied or not. In hostilities absent an occupation, belligerents are solely required to permit and facilitate assist, topic to their proper to prescribe technical preparations (see the brand new ICRC commentary here). Nonetheless, as soon as a territory is beneath the efficient management of the antagonistic celebration, the legislation of occupation kicks in, and “constructive” duties to supply assist apply (see here). Extra usually, the occupant should ensure public order and security in the occupied territory. The important thing query that the Courtroom needed to grapple with, on this context, was how these duties work together with the actions of third events within the territory, together with the UN, different worldwide organizations, and states.
First, the Courtroom needed to decide the standing of the related territories. Concerning the West Financial institution and East Jerusalem, there’s a longstanding worldwide consensus on their standing as occupied territory – a standing which the Courtroom had already validated in two earlier Advisory Opinions – and which it solely needed to briefly repeat within the present Opinion (para 83). Concerning Gaza, the scenario grew to become extra sophisticated after Israel’s “disengagement” in 2005. Within the Legality Opinion, the Courtroom briefly held that “Israel’s withdrawal from the Gaza Strip has not completely launched it of its obligations beneath the legislation of occupation” and these “remained commensurate with the diploma of its efficient management over the Gaza Strip (Legality, para 94);” and furthermore, that that is “much more so since 7 October 2023” (Legality, para 93).
Within the new Opinion, the Courtroom holds that within the months for the reason that Legality Opinion, and owing to its army presence on the bottom and different actions, “Israel’s efficient management over the Gaza Strip has elevated considerably,” and that accordingly “Israel’s obligations beneath the legislation of occupation have additionally elevated considerably, commensurate with the rise in its efficient management over the territory.”(Para 86)
That is one more manifestation of the “practical method” to occupation (espoused additionally by the ICRC), which views occupation not as a binary set of obligations however as a sliding scale of obligations, the existence and scope of that are derived from the belligerent’s precise management over governmental features (for the definitive theoretical remedy, see Aeyal Gross here).
This willpower prompted a partial dissent from decide Gómez Robledo, who opined that the Courtroom ought to have flat out dominated that Gaza “is now beneath full-scale occupation” (para 3). Contemplating the scope of Israel’s floor presence in Gaza on the time, this dissent is comprehensible. It was additionally my very own opinion (along with several colleagues) that no less than in July 2025 “Israel is taken into account an occupying energy in all or practically all of Gaza.”
Nonetheless, the practical method has its personal non-escalatory deserves, notably contemplating the present fluctuating scenario on the bottom. As an example, if we take significantly the all-or-nothing method to occupation, we’d argue that Israel, because the occupant, now has to re-enter components of Gaza to forestall retribution by Hamas in opposition to Palestinian residents, however the ceasefire in impact. Certainly, like all the legal guidelines of struggle, the legislation of occupation has a facilitative aspect which can be utilized to respectable drive that we must always not lose sight of.
Be that as it might, since Israel undoubtedly controls the movement of humanitarian assist into Gaza, whether or not one adopts the practical or binary method to occupation is much less consequential right here.
Humanitarian Obligations beneath Occupation, Third Events and UNRWA
Having reiterated that the West Financial institution and Gaza (functionally) are occupied, the Courtroom moved to investigate the precise provisions of worldwide humanitarian legislation (IHL) relating to humanitarian entry in occupied territories, as they relate to actions by third events. Right here, the Courtroom’s reasoning supplies a lot welcome readability on a posh set of norms.
The Courtroom constructed these obligations within the following means: Articles 55 and 56 of the Fourth Geneva Conference (GCIV) impose constructive obligations on occupying powers to make sure that the inhabitants is equipped with important wants. In circumstances the place, for no matter cause, the inhabitants is “inadequately equipped,” further obligations – specifically these included in Article 59 – come into play (para 92). Article 59 holds that in such circumstances, the occupying energy should agree, along with its constructive obligations to make sure the wants itself, to “reduction schemes” and facilitate them. These could also be undertaken both by states or neutral humanitarian organizations.
Because the Courtroom dominated, when the inhabitants is inadequately equipped, the duty to permit reduction schemes is “unconditional,” and it triggers direct obligations between the occupying energy and third states and worldwide organizations that search to supply assist. Nonetheless, this obligation applies provided that these actors are neutral (paras 94-95). Importantly, though Article 59 doesn’t point out this explicitly, the Courtroom held that owing to its management over the territory, the occupant has a proper to examine assist and be happy that it’s going to certainly be delivered to the inhabitants (para 97). This is smart, for the reason that occupant is usually entitled to take security measures within the territory. Furthermore, since a belligerent is entitled to prescribe technical preparations relating to assist to non-occupied territory, it might have been unusual if it weren’t permitted to take action in territory beneath its de facto management.
On this context, the Courtroom makes a vital willpower that is likely to be ignored. All through the Gaza battle, Israel has claimed that it’s allowing a major quantity of assist into Gaza, however it doesn’t attain the inhabitants for the reason that UN fails to gather it from the Gazan facet of the border. Regardless of the factual deserves of those claims, the Courtroom clarified that the obligation to supply assist doesn’t finish merely when it crosses the border, and that in circumstances of occupation,
“an occupying Energy should do greater than merely enable the passage of important gadgets into the occupied territory. It should additionally use all means at its disposal in order that this stuff are distributed in an everyday, truthful and non-discriminatory method, together with by facilitating entry to them” (para 101).
Having decided that, the Courtroom turned to investigate the appliance of Article 59 within the case at hand. In Gaza, it relied closely on worldwide studies similar to by the World Meals Programme, Built-in Meals Safety Part Classification (IPC), World Well being Group and the UN’s Workplace for the Coordination of Humanitarian Affairs (OCHA), and famous Israel’s full block of assist from March to Could 2025, in addition to the inadequate operations of the Gaza Humanitarian Basis, to conclude that the inhabitants in Gaza has certainly been inadequately equipped (paras 102-109) (the Courtroom doesn’t elaborate on the query of the prohibition on hunger, past recalling it briefly. See paras. 143-145).
As a facet observe, I used to be a bit stunned by the centrality of the “inadequately equipped” normal within the Courtroom’s evaluation. That is each as a result of an excessive amount of emphasis on this take a look at facilitates abuse by occupying states (and belligerents generally – since comparable language is discovered additionally regarding non-occupied territories, see Art. 70(1) of Additional Protocol I), as these would possibly exploit the indeterminacy of the usual; and, extra essentially, the usual is problematic as a result of generally a belligerent would object to 3rd celebration assist exactly as a result of it desires to trigger shortage.
Nonetheless, because the Courtroom discovered that the individuals of Gaza are inadequately equipped, and Israel thus should comply with reduction schemes by third events, the query turned to UNRWA. Right here, Israel claimed that it has no obligations to work with UNRWA since it’s not “neutral,” as Article 59 requires (para 111).
Whereas “impartiality” is normally understood as non-discrimination within the distribution of assist, the Courtroom, rightfully for my part, learn into the idea of impartiality additionally the requirement of “neutrality,” which means, that the group shouldn’t be “taking sides” within the battle (para 113-116). Right here, the Courtroom checked out Israel’s allegations in opposition to UNRWA, and reached the conclusion that these can not set up UNRWA’s lack of neutrality “as a corporation.” Merely put, the Courtroom’s view was that in quantitative phrases, there are not any findings that may implicate a whole group of 30,000 workers (para 118).
On this context, Israel additionally argued that even when Article 59’s requirement to allow “reduction schemes” applies, it has no obligation to cooperate with a selected group similar to UNRWA. The Courtroom agreed that generally an occupying energy is free to decide on the group it really works with (paras 119-120) (a discovering that’s in rigidity, for my part, with its later findings relating to the obligation to cooperate with the UN, and leaves many open questions in regards to the remedy of third states that search to supply assist). Nonetheless, it held that this “discretion” should in the end be assessed in gentle of the occupant’s obligation to make sure the welfare of the inhabitants. Within the particular context of Gaza, the Courtroom famous the widescale and essential humanitarian operations by UNRWA, and paired with the truth that Israel has not moved to exchange it with any credible mechanism, led to the conclusion that Israel can not ban UNRWA from Gaza with out violating its duties as an occupant (120-124). The Courtroom additionally prolonged this reasoning, with out a lot elaboration, to different worldwide organizations and third states (paras 125-127).
For my part, the Courtroom may have reached an analogous conclusion by means of the final guidelines of the legislation of occupation, particularly the obligation to take care of public order (Article 43 Hague Convention). Arguably, the choice to abruptly ban an company so elementary to the welfare of the native inhabitants merely doesn’t match with the occupant’s obligation to take care of public life.
In regards to the West Financial institution, the Courtroom added an extra essential clarification. Within the West Financial institution, since there was no declare that the inhabitants is “inadequately equipped” within the acute sense of Article 59, it may very well be argued – as per the Courtroom’s personal understanding of Article 59 – that Israel is beneath no obligations to permit third events to supply assist there. The Courtroom, nonetheless, rejected this risk, based mostly on the precise and longstanding follow of the Israeli occupation. Because it famous, within the OPT, Israel “left the accountability” to supply the wants enumerated in Articles 55-56 of GCIV “to the United Nations appearing by means of UNRWA, in addition to different worldwide organizations and third States.” Because it selected to take action fairly than to supply these providers itself, it can not now limit their actions (para. 132).
In different phrases, Israel can’t have it each methods: it can not delegate its constructive tasks to worldwide our bodies, whereas on the similar time arguing for an absolute energy to limit them. The Courtroom’s key discovering right here is that for the reason that reliance on worldwide our bodies has been “central” to Israel’s efficiency of its obligations, it’s obligated both to “facilitate these operations or to in any other case make sure that these obligations are absolutely met” (para 133). Since Israel has no credible plans to take over UNRWA’s operations, and contemplating the extent of the operations of UNRWA and different worldwide our bodies on the bottom, their actions can’t be banned or impeded.
Once more, this conclusion could be reached additionally by making use of the final obligations of occupying powers (as per Article 43, Hague Conference), and actually displays a broader, “public legislation” mind-set, stressing the precise reliance of the native inhabitants on the providers of worldwide our bodies in figuring out the scope of the authorized obligation.
Crucially, the evaluation above is strictly involved with the legislation of occupation, earlier than the Courtroom addressed the precise duties of Israel in direction of the UN as a member state. As we will see, within the view of the Courtroom, these duties additional limit its discretion when it comes to exterior assist. Nonetheless, versus the Courtroom’s clear evaluation of the previous, its remedy of the obligation to cooperate leaves a lot house for hypothesis.
The Obligation to Cooperate with the UN
The Courtroom analyzed Israel’s obligation to cooperate with the UN in gentle of particular elements of the Israeli-Palestinian battle. It famous the particular accountability of the UN in direction of the query of Palestine, inter alia by means of the operation of UNRWA; in addition to the catastrophic struggle in Gaza which additionally affected UNRWA’s premises and personnel, killing a whole lot of its workers and folks sheltering in its amenities (para. 166-69). Nonetheless, the query of the scope of States’ obligations to cooperate with the UN is way wider. In a way, it goes to the foundation of elementary questions on the character of the UN, and whether or not it’s a quasi-constitutional physique representing the worldwide neighborhood as entire, or, fairly, a world group strictly empowered by States to carry out specific roles.
On this context, Article 2(5) of the UN Constitution establishes the obligation to cooperate with the UN, by offering that in pursuit of the UN’s functions, “All Members shall give the United Nations each help in any motion it takes in accordance with the current Constitution.” In conditions of occupation, as an illustration, one may argue that the obligation to cooperate with the UN delimits the occupant’s discretion whereas fulfilling its obligations beneath the legislation of the occupation, similar to in Article 59 of GCIV. This might restrict, as an illustration, the power of the occupant to refuse to permit UN our bodies to take part in assist operations.
The query, after all, is the scope of this obligation to cooperate. Does it come up solely when the group seeks to meet a legally binding UN resolution (similar to a Safety Council decision)? Does it apply solely along side different pre-existing binding guidelines, similar to the principles of IHL? Or fairly, is it an all-encompassing obligation to help the UN?
The Courtroom left this query a bit muddled, owing maybe to the disagreements revealed in a number of the judges’ particular person declarations. Because it held, the obligation to cooperate “should be learn along with the provisions of the Constitution regarding the powers of varied organs of the United Nations” (para 172), a formulation that may be understood in quite a few methods.
The particular utility of the obligation to the Israeli-Palestinian context was equally imprecise in its reasoning. The Courtroom emphasised that since Israel shouldn’t be sovereign within the OPT, it can not invoke any sovereign prerogative to not cooperate with the UN in these territories (paras. 176, 184). Whereas that is hardly objectionable, it’s nonetheless a far cry from a constructive concept on the scope of such cooperation. Finally, the Courtroom held that since UNRWA has been entrusted by the Common Meeting to supply reduction to Palestinians, and contemplating its essential position on the bottom, Israel can not resolve unilaterally to withhold its cooperation with the UN. On this foundation, it held that Israel should, beneath Article 2(5), cooperate with the UN and never impede its actions (paras 177-79). So, plainly within the view of the Courtroom, the actual fact Israel shouldn’t be sovereign within the territories, coupled with the particular authorized and factual context of UNRWA’s operations, ends in an obligation to cooperate with it.
The person declarations and opinions by the judges highlighted the scope of disagreement throughout the Courtroom on this problem. Decide Gómez Robledo, in {a partially} dissenting opinion, criticized the Courtroom for adopting a “timid and excessively formalist” method, by not explicitly specifying that the duty to cooperate entails an obligation (in sure circumstances) “to lend help to the Common Meeting in any motion undertaken by it” (para 7). He additional asserted that the Courtroom truly restricted the obligation to cooperate to use “solely throughout the slim framework of strictly binding obligations imposed by sure our bodies, at first the Safety Council” (para. 8). Whereas I’m uncertain about this studying of the Courtroom’s opinion (this reasoning is extra explicitly present in Sebutinde’s dissent, para. 91), it’s true that the Courtroom stopped a lot wanting what Gómez Robledo steered: to acknowledge that the Common Meeting “embodies the need of the worldwide neighborhood as an entire” and that the United Nations “synthesizes the civitas maxima preferrred, the last word supply of worldwide legislation” (para. 8).
After all, some would instantly object that this in impact confers binding energy to the Common Meeting. Judges Abraham and Cleveland, for their part, additionally lamented the dearth of readability within the Courtroom’s reasoning on the obligation to cooperate (para. 11). Nonetheless, they superior a a lot narrower view of the obligation, warning {that a} broad view would “bestow on the Article [article 2(5)] a rare energy to remodel non-binding ‘actions’ of United Nations organs into legally binding ones” (para 6). They thus held that the obligation “essentially operates along side the authorized obligations {that a} Member State has undertaken.” These can emanate from UN Safety Council obligations, and likewise from different sources similar to guidelines of IHL, IHRL, and different relevant legislation(paras. 5, 11). Abraham and Cleveland, nonetheless, don’t specify the approach by means of which these “exterior” obligations are remodeled into duties to cooperate beneath Article 2(5). To be clear: there are methods to make such an argument, however the judges don’t handle it right here.
Judges Charlesworth and Xue take an intermediate path. Decide Charlesworth decries the Courtroom’s “cryptic” reasoning on the obligation (Artwork. 3), and reads sure passages of the Courtroom’s seminal Reparation for Accidents Suffered within the Service of the United Nations case as imposing an obligation to cooperate that doubtlessly goes “past the 4 corners of the Constitution” and the confines of binding Safety Council resolutions (para 5). Nonetheless, Decide Charlesworth stresses that Common Meeting Resolutions can’t be made binding by means of this interpretation; in her view, the duty beneath Article 2(5) is just one among open-ended “good religion cooperation” with the actions of the UN (para 6). Decide Xue, in a powerful purposive and historic evaluation of Article 2(5), equally understands it as a “normal obligation” to provide help to the UN, even absent binding selections or pre-existing exterior authorized obligations (paras. 4- 24).
There’s a lot house for dialogue right here. To me, the obligation to cooperate could be conceptualized as an obligation to not arbitrarily refuse to help the UN in its actions beneath the Constitution, in areas which aren’t beneath a State’s sovereign prerogative. However one can consider many different formulations near that impact.
In sum, the Advisory Opinion supplies a lot readability on some elements, mainly regarding humanitarian obligations beneath the legislation of occupation, whereas sustaining ambiguity on others, such because the scope of the obligation to cooperate with the UN. One factor is for sure: the Opinion will certainly gas debates for years to come back.
FEATURED IMAGE: A boy sits exterior the doorway to the United Nations Aid and Works Company for Palestine Refugees (UNRWA) constructing advanced in Gaza Metropolis on September 6, 2025. (Picture by Omar AL-QATTAA / AFP) (Picture by OMAR AL-QATTAA/AFP by way of Getty Pictures)
