Guilty of Disloyalty to the Charter? The International Court of Justice’s Latest Advisory Opinion on Gaza

[Elliot Dolan-Evans is a lecturer in law at Monash University and RMIT.

Sophie Rigney is a senior lecturer in law at RMIT University and the author of Fairness and Rights in International Criminal Procedure (EUP, 2022).]

On 22 October 2025, the International Court of Justice (ICJ) handed down its latest ruling concerning Israel and the Occupied Palestinian Territories (OPT). This Advisory Opinion was on the obligations of Israel in relation to the activities of the United Nations (UN) and other international organisations and states in relation to the OPT. Previous rulings enlivened widespread media coverage, grappling as they did with accusations of Israel’s apartheid policies and its genocide in Gaza, but the most recent Advisory Opinion had a relatively muted reception. However, as we argue below and build on Emilia Klebanowski’s initial analysis, this latest Opinion is a significant and important development in the Court’s jurisprudence. 

In the latest Opinion, the Court responded to a question from the United Nations General Assembly about the obligations of Israel, as an occupying power and member of the UN, to the presence and activities of UN agencies within the OPT. This concerned the delivery of humanitarian aid to Palestinians and in support of their right to self-determination. The United Nations Relief and Works Agency for Palestine Refugees, or UNWRA, is the UN agency at the centre of this question. It has been an integral agency since its founding in 1949, and it employs tens of thousands of workers that provide education, health and aid to millions of Palestinians. Importantly, UNRWA had delivered most food, temporary shelter, and education to Gaza since October 2023. 

The sequence of events that led to the General Assembly’s question is important to recap. In January 2024, Israel made allegations that a handful of UNRWA staff participated in the attacks on 7^th October by Hamas and other militant groups. Although still unsubstantiated, these allegations led to 16 States suspending funding to the UN agency, a US$450 million loss. By late October 2024, nearly all Palestinians in Gaza faced crisis-levels of food insecurity due to Israel’s blockade of most humanitarian aid. It was at this time that the Israeli parliament passed laws to ban UNRWA from operating across Israel and the OPT, which came into effect in January 2025. In response, Norway drafted a resolution at the General Assembly to put the above question to the ICJ, adopted with 137 votes in favour. Since then, Israel continued to weaponize aid, particularly through the ‘Gaza Humanitarian Foundation’ which Amnesty International called ‘illegitimate and inhumane’ and whose ‘aid sites’ often proved deadly for aid seekers. As a result, most Palestinians in Gaza are either in famine or at the immediately preceding phase of ‘emergency’. Most recently, the shaky October ceasefire has been continually breached by Israel, killing over 360 Palestinians, as Tel Aviv blocks humanitarian aid into the Strip. It is in this context that the ICJ delivered its most recent Opinion, with vital implications for not only Israel’s obligations as an occupier and towards UNRWA, but also for Palestinian’s right to self-determination and regarding other related cases that have seized the Court.

Duties of Belligerent Occupier

Initially, the Court grappled with Israel’s obligations to UN agencies as an occupying power. Israel’s status as an occupier in Gaza is important, as it carries vital implications under the Fourth Geneva Convention. Although there is debate on this designation after Israel ‘disengaged’ from Gaza in 2004, there is growing consensus that Israel now occupies the enclave, expressed by the International Committee of the Red Cross, the International Criminal Court, and a plain reading of article 42 of the Hague Regulations, which defines occupation as when the authority of the hostile army ‘has been established and can be exercised’. 

Somewhat surprisingly, the Court did not clearly name Israel as an occupier; instead designating Israel as having obligations under the law of occupation as its ‘effective control has increased’ over Gaza [86]. This ‘functional approach’ to occupation was also in the ICJ’s July 2024 Advisory Opinion on Israel’s policies and practices in the OPT [93-94]. In an attached, partially dissenting Opinion, Judge Gomez Robledo powerfully called this approach ‘timid’, and instead ruled that the ‘Gaza Strip is occupied territory, and continues to be occupied territory’ (our emphases) [5]. 

The inability of the Court to explicitly name Israel’s ongoing control of Gaza as occupation, which has been de facto the case long before 2004 up until the present, is a missed opportunity to clarify Israel’s ongoing legal obligations and the responsibilities of third-party states to Israel vis-à-vis the occupation of Gaza. Instead, the ‘functional’ approach the Court took seems to place Israel’s control as more fluid and changeable than it really is, obfuscating the reality of over fifty years of occupation. This neglect, dressed up in legal sophistry that attaches a sliding scale of commensurate duties to the laws of occupation, is disappointing and presents more wiggle-room for the occupying Israeli forces and international community to avoid their obligations towards the people of Gaza.

Providing ‘Every Assistance’ to UNRWA

The ‘meat’ of the question from the General Assembly is concerned with Israel’s actions towards UNRWA, restricting and then banning the UN entity from providing humanitarian relief in Gaza and across the OPT. The importance of UNRWA to Palestinian aid was accepted in the Advisory Opinion [54, 63], with the Court noting that it is ‘indispensable in delivering essential services to Palestinians’ [54]. Once Israel banned UNRWA, the occupying forces blocked all aid to Gaza between 2 March and 18 May, justified on allegations that Hamas was ‘stealing supplies’ [70, 72]. However, these claims are routinely shown as fabrications, even by the US government, with the looting of supplies carried out by illegitimate armed gangs protected and supplied by Israel, replicating familiar tactics it deployed during its 1980s occupation of Lebanon. 

Still, Israel launched the Gaza Humanitarian Foundation (GHF) on this pretext, which met sustained critique by the Court [73, 107, 123]. Israel justified banning UNRWA and implanting GHF on the basis that the former was not ‘impartial’ under Article 59 of the Fourth Geneva Convention, as Tel Aviv alleged that Hamas had extensively ‘infiltrated’ UNRWA. In response to the allegations, as the Court noted, UNRWA commissioned the independent Colonna Report and the UN set-up an independent Office of Internal Oversight Services (OIOS) investigation. The Colonna Report concluded that Israel had not substantiated its claims and there was no reason to doubt UNRWA’s impartiality. The OIOS conducted specific investigations into the staff named as Hamas operatives, finding that nine (from over 30,000) might have been involved in the 7^th of October attacks, and they were sacked [60, our emphasis]. As such, the Court dismissed Israel’s allegation that UNRWA was not neutral/impartial, nor were a ‘significant part on UNRWA employees’ members of Hamas or other factions [118]. Ironically, the GHF had no international legal personality and was not ‘impartial’ as per Article 59 of the Fourth Geneva Convention; rather a highly politicised Israeli effort to privatize and militarize aid distribution to the detriment of Palestinians, which may have broader ramifications for the global humanitarian system. 

As such, the Court found that Israel must give UNRWA ‘every assistance’ as per Article 2 of the UN Charter – though qualified this with the proviso that this Article must be read together with Charter provisions relating ‘to the powers of various organs’ of the UN [172]. This seemingly innocuous point was taken up by Judge Charlesworth in her separate Declaration, noting that this ‘cryptic’ qualification reflected a debate in the ICJ hearings as to whether this ‘assistance’ was to be provided for any UN action or just for Security Council resolutions [2]. This is significant, as the Council has persisted in a state of stupefaction since October 2023, with its permanent members ‘brazen[ly] abus[ing]… the right of veto’ as recalled by Judge Robledo [8], while it has been the General Assembly coordinating humanitarian relief for Gaza. Citing the Reparations case, Judge Charlesworth clarified there is no ambiguity in the Charter provisions – all UN member states have the duty to render ‘every assistance’ to all UN activities, not just the Council [6].

Palestinian Self-Determination

Finally, one of the significant points of the October 2025 Opinion relates to Palestinian’s right to self-determination, which formed the end-part of the question from the General Assembly. This builds on the jurisprudence on Palestinian self-determination that has been forming at the ICJ since the early 2000s, highlighted by Judge Xue in her separate Opinion [26]. The Palestinian right to self-determination was affirmed in the famous Wall case and the July 2024 Opinion was the first time self-determination was declared a peremptory norm, which adhered to the Palestinian people and was violated by the policies and practices of Israel. 

However, as noted by Judge Xue, Israel’s assault on the Gaza Strip likely ‘further erode[d] the conditions for the Palestinian people to exercise its right to self-determination’ [25], as it has ‘left behind an uninhabitable place’ [27]. Interestingly, this point from Judge Xue speaks to South Africa’s case against Israel for genocide in Gaza. As Ntina Tzouvala argues, South Africa’s argument is centred on Article 2(c) of the Genocide Convention, where genocide means ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’ (our emphasis). The conditions created in Gaza by the Israeli military is that of a landscape unable to sustain life or social reproduction, also noted as a risk to Palestinian self-determination by the Court [220]. These ‘more recent events’, hinted at separately by Judge Tladi, are ‘part and parcel of the broader problem in the OPT: the denial of the right of self-determination of the Palestinian people’ [12].   

Importantly, the Court placed UNRWA as fundamental to the right of Palestinian self-determination [221]. UNRWA was established in the wake of the Nakba, and its ongoing presence and operations is an important reminder of the right of return for Palestinian refugees. Judge Xue separately and strongly emphasised this connection [30]. The intertwined nature of UNRWA with the Palestinian right of return explain Israel’s long campaign against the organization. Judge Tladi, who extensively wrote on Palestinian self-determination in the July 2024 Advisory Opinion, explicitly linked Palestinian self-determination with Israel’s obligations under the Fourth Geneva Convention – Israel cannot choose the humanitarian organization providing relief, as it does not have the discretion due to ‘the unlawfulness of Israel’s occupation’ [4], which impedes Palestinian self-determination.

Conclusion

The Court resoundingly found that Israel had to facilitate and co-operate with relief schemes provided by UNRWA in good faith, respect the human rights of Palestinians in the OPT, and uphold the immunities and privileges of UNRWA. Unfortunately, the Court did not address the legal consequences for Israel of disregarding its obligations, a regret noted by Judge Robledo separately [15]. Of course, the scope of the question from the General Assembly was truncated and did not ask the Court to determine these consequences. However, the Court should have, especially as these findings relate to other cases. As noted by Judge Robledo [16], this Opinion has ramifications for Israel’s obligations to comply with Court rulings in South Africa v. Israel (March 2024 order [51], January 2024 order [86]) and the July 2024 Advisory Opinion [267-272]. Indeed, Israel has not ceased its occupation but expanded it; has not taken effective measures to provide urgent aid but banned UNRWA; and has not prevented the deliberate infliction of conditions calculated to bring about Palestinian’s destruction but furthered its genocidal aggression. This Opinion equally provides more evidence for the International Criminal Court’s arrest warrants against Benjamin Netanyahu and Yoav Gallant, for depriving ‘the civilian population in Gaza of objects indispensable to their survival’. And so, the Court should have commented on Israel’s ongoing obligations in these contexts. Outside of Israel’s obligations are those owed to Palestinian self-determination and survival by third-party States. These were also not addressed by the Opinion, but there must be consequences for the 16 States who suspended support to UNRWA based on Israel’s spurious accusations.

As concluded by Judge Tladi, if no heed is yet again paid to the Court by Israel, the cumulative effect may be that it ‘has become guilty of disloyalty to the Principles and Purposes of the Charter’ [14], quoting Judge Lauterpacht’s Separate Declaration from an 1954 ICJ Opinion on apartheid South Africa’s increasingly illegitimate control over present day Namibia. This choice of quote seemed deliberate in a double sense; Judge Lauterpacht’s Opinion was an early point in ICJ jurisprudence that eventually found South Africa’s occupation of Namibia illegal by 1971, echoing the evolution of the Court’s contemporary approach to Israel amid international isolation, and Judge Lauterpacht drafted Israel’s Declaration of Independence.