On October 22, the International Court of Justice (ICJ) issued its Advisory Opinion: 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.
The Opinion is the Court’s response to a request by UN General Assembly (resolution 79/232), made in December 2024, after Israel ceased cooperation with UNRWA. This followed evidence implicating UNRWA employees in supporting and aiding Hamas, including by participating in the October 7 attacks. The General Assembly asked the Court to opine on Israel’s obligations under international law.
A majority of the Court’s judges found that Israel’s UNRWA ban is illegal and that Israel must allow UN and other aid organisations unimpeded access to Gaza.
In a separate opinion, Vice-President Judge Sebutinde argued that the ruling constituted an abuse of the ICJ’s advisory function, that it lacked a sufficiently reliable evidentiary basis to accurately assess the current degree of effective control exercised by Israel over Gaza, and that it disregarded the complex realities of urban warfare as well as Israel’s security concerns.
The Advisory Opinion is one-sided and constitutes an abuse of process
The Opinion marked the third time that the General Assembly has requested an Advisory Opinion concerning Israel, constituting an abuse of process to prosecute lawfare against Israel. As noted by Judge Sebutinde, the ICJ should refuse to give an Opinion when necessary to safeguard the integrity of its judicial role.
Additionally, the Opinion prejudices two active contentious cases addressing Gaza’s situation: South Africa v. Israel and Nicaragua v. Germany, which substantially overlap with the Opinion concerning the scope, content and applicability of humanitarian obligations.
The ICJ heavily relied on UN reports – including from UNRWA itself – while disregarding alternative sources such as Israel and UN Watch, creating a circular evidentiary and reasoning process. It also focused solely on Israel’s obligations, while disregarding the effect upon them of the conduct of Hamas and other actors.
The ICJ misapplied humanitarian law and law of occupation
In discussing Israel’s obligations to supply humanitarian aid to Gaza, the ICJ overlooked Article 23 of the Fourth Geneva Convention. Instead, it primarily focused on Israel’s obligation under Article 59, which pertains to an ‘occupying power’.
The duty to deliver aid under Article 23 is not absolute but can be restricted if there is a risk of diversion and advantage to the hostile army. Given Hamas’ repeated diversion of aid, any restrictions imposed by Israel would have been justified.
The ICJ primarily focused on Article 59, which outlines the duties of an occupying power. However, the application of this article was problematic because the standard for ‘occupation’ under international law is not met. Occupation, as defined in various doctrines, including ‘The Law of War on Land’ (1880), Article 42 of the Hague Regulations (1907), and Article 6 of the Fourth Geneva Convention, requires both military and governmental control, which Israel does not have over Gaza.
Criticism by the ICJ of Israel’s aid pause between March and May 2025 stems from unreliable evidence that insufficient aid was delivered before the pause. However, Israel indicated that there was sufficient aid inside Gaza to feed the population for several months, satisfying the Article 59 obligations.
Israel is entitled to cease cooperation with UNRWA
The ICJ relied on an incomplete analysis of the legal framework for UNRWA’s operations to contend that Israel’s UNRWA ban contravenes the UN Charter and the 1946 Convention on the Privileges and Immunities of the United Nations. In doing so, it largely disregarded a key piece of treaty law – the Comay-Michelmore Agreement – which qualifies UNRWA’s immunities and privileges and permits Israel to cease cooperation with UNRWA in the territories on security grounds.
As highlighted by Judge Sebutinde, UNRWA’s privileges under the UN Charter and the Convention must also be interpreted according to the principle of “functional necessity”. This limits privileges and immunities to what is essential for UN agencies to carry out their functions independently and effectively, consistent with UN purposes. Clearly, UNRWA’s support for terrorism is not captured by this.
The ICJ downplayed UNRWA’s support for terrorism
The ICJ rejected evidence that UNRWA’s infiltration by Hamas and other terrorist organizations is so systematic that it compromises the agency’s neutrality. In effect, the court disregarded information provided by Israel.
The ICJ portrayed the involvement of UNRWA employees in the October 7 attacks as an isolated and remediable event, while disregarding UNRWA’s endemic and longstanding links to terrorism beyond October 7. It also disregarded UNRWA’s role in exacerbating the conflict since its inception, including by radicalizing Palestinians through its educational programs, and perpetuating the ‘right of return’ narrative.
Given the above, the ICJ also failed to consider Israel’s duties under international law to suppress terrorism and not to cooperate with organizations supporting terrorism, such as UNRWA.
Conclusion
The ICJ Advisory Opinion of 22 October 2025 constituted a misuse of judicial authority that subordinated the rule of international law in the UN to political necessity. It offered a flawed and incomplete assessment of Israel’s obligations under humanitarian law, the law of occupation, and UNRWA’s governing framework.
As shown in evidence that the majority of the ICJ bench disregarded, UNRWA is clearly a partisan actor in the conflict, has long enabled and supported terrorism, and has ceased to act as a neutral humanitarian organization, forfeiting its right to immunities and privileges. The dissenting opinion of Judge Julia Sebutinde outlined these flaws of the majority judgment.
The majority of the Court circumvented the existing Middle East sub-regional peace negotiation framework. Rather than endorsing a return to the negotiating table, it undermined fundamental principles of international law, such as sovereign state consent and unbiased adjudication.
The ICJ must begin to restore itself by curtailing its current enthusiasm for Advisory Opinion lawfare.
Read our full analysis here: https://thinc-israel.org/articles/obligations-of-israel-by-the-icj-analysis/
The Hague Initiative for International Cooperation (thinc.) is a global network of international lawyers who promote the fair and equal application of law to support international cooperation and development.
This article was co-authored by Prof Gregory Rose, Irene Petrakis, and Michael Pushenko.
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