A Follow-Up on the ICJ’s UNRWA Advisory Opinion

In my earlier put up, I mentioned the underside line of the ICJ’s UNRWA advisory opinion – basically the Courtroom’s discovering that Israel’s obligations beneath IHL, IHRL and the UN Constitution compelled it to not impede UNRWA’s work, within the specific circumstances of the occupied territories. I didn’t talk about in that put up the problem on which the judges appeared to have been probably the most divided, particularly the interpretation of the responsibility to cooperate with the United Nations beneath Article 2(5) of the Constitution, and I can’t talk about it right here both – Eliav Lieblich has a superb put up on Simply Safety that examines this query intimately.

On this put up, I’ll cowl some points that I personally discovered to be very fascinating. However the AO raises many others; I’m not aiming to be complete (however I will likely be a bit nerdy). First, I’ll talk about the Courtroom’s strategy to the standing of Gaza as an occupied territory. Second, its utility of human rights regulation. Third, how the Courtroom conceptualized the inviolability of UN premises throughout armed battle. Lastly, how the Courtroom cited the ICRC Customary IHL Research.

Gaza as occupied territory, and Israel because the occupying energy

A lot of the UNRWA AO is premised on the applicability of the regulation of occupation, particularly the varied provisions of the Fourth Geneva Conference. That’s uncontroversial as to the West Financial institution, however has been a degree of some rivalry as to Gaza. Broadly talking, many worldwide regulation students and basically the entire humanitarian neighborhood regarded Gaza as occupied even after Israel’s 2005 disengagement, whereas many attorneys with a navy background regarded Gaza as not being occupied resulting from Israel not having boots on the bottom and thus not having efficient management over the territory (clearly all of this pertains to the state of affairs earlier than 7 October 2023). Within the 2024 advisory opinion on the legality of the occupation, by which it rightly held that Israel’s continued presence in all the occupied territories was unlawful, the Courtroom adopted a variant of the so-called purposeful strategy, holding that Israel’s obligations with regard to Gaza (pre-7 October) assorted with the diploma of its efficient management (2024 AO, para 92).

Nevertheless, as I defined in an earlier put up, the Courtroom’s 2024 AO was rigorously crafted to retain a sure diploma of ambiguity as to the standing of Gaza, presumably to be able to allow consensus on the bench. Specifically, whereas the Courtroom held that the regulation of occupation utilized to Gaza, it didn’t expressly say that Gaza, wholly or partly, was occupied. The AO was drafted in order that it is also learn as holding that Gaza was certainly occupied. Nevertheless it is also learn as holding that Gaza was once occupied, that now it could or is probably not occupied, however that Israel nonetheless retained some residual obligations even when Gaza was not occupied. This ambiguity was expressly famous in Choose Iwasawa’s separate opinion:

Thus, whereas the Courtroom makes clear that Israel continues to be certain by sure obligations beneath the regulation of occupation, it doesn’t take a place as as to if Gaza remained “occupied” throughout the which means of the regulation of occupation after 2005.  […] The state of affairs in Gaza has drastically modified since 7 October 2023. Nevertheless, occasions happening after that date are past the temporal scope of the Courtroom’s inquiry (para. 1 above).

This ambiguity (Gaza nonetheless occupied v. not occupied however obligations apply residually and functionally) is usually missed in a few of the dialogue of the 2024 AO, however once more it was fairly deliberate. (Be aware additionally in that regard the temporary reference to the AO within the freshly minted 2025 ICRC Commentary on GC IV, para 378, which to my thoughts additionally appears to be very rigorously drafted, if I can put it that method).

This brings us to the 2025 UNRWA AO. Right here, clearly, the most important materials distinction in comparison with the 2024 AO is that the brand new case offers with the post-7 October 2023 interval, by which Israel has had an in depth navy presence inside Gaza, with boots on the bottom in a lot, however not all, of the territory. If one was of the view that Gaza was occupied even pre-7 October, then subsequent occasions merely strengthened Israel’s maintain over the territory. Conversely, those that thought that Gaza was not occupied earlier than could now assume that it’s occupied at present, both wholly or partly.

Right here, once more, the Courtroom deploys some strategic ambiguity. Earlier than quoting from the Courtroom it’s price noting, in that regard, that Choose Iwasawa is now President of the Courtroom and that he was ex officio a member of the drafting committee of the 2025 AO, since he was within the majority. I’ll quote right here the three key paragraphs and their heading in full:

1. Israel’s standing as an occupying Energy within the Gaza Strip

85. A small group of contributors contested Israel’s standing as an occupying Energy in relation to the Gaza Strip. The Courtroom recollects that it discovered within the Advisory Opinion on the Authorized Penalties arising from the Insurance policies and Practices of Israel within the Occupied Palestinian Territory, together with East Jerusalem that, after the withdrawal of its navy presence in 2005, “Israel remained able to exercising, and continued to train, sure key components of authority over the Gaza Strip”, and that Israel’s obligations beneath the regulation of occupation “have remained commensurate with the diploma of its efficient management over the Gaza Strip” (Advisory Opinion of 19 July 2024, paras. 93-94). These findings had been primarily based on the management exercised by Israel over the Gaza Strip previous to 7 October 2023, together with management of the land, sea and air borders, restrictions on motion of individuals and items, assortment of import and export taxes, and navy management over the buffer zone (ibid., para. 93; see paragraph 43 above).

86. Since that date, Israel’s efficient management over the Gaza Strip has elevated considerably, as evidenced, inter alia, by Israel’s elevated navy management in giant parts of the territory and Israel’s blocking of support between 2 March and 18 Might 2025, which prevented all humanitarian support from coming into into the Gaza Strip (see paragraphs 70-72 above). Subsequently, the Courtroom finds that Israel’s obligations beneath the regulation of occupation have additionally elevated considerably, commensurate with the rise in its efficient management over the territory. These obligations embrace the obligations beneath the regulation of occupation thought-about on this part.

87. The Courtroom observes that the truth that hostilities are ongoing doesn’t essentially preclude the simultaneous utility of the regulation of occupation. When hostilities happen in an occupied territory, the regulation of occupation applies alongside different guidelines of worldwide humanitarian regulation referring to the conduct of hostilities, and the occupying Energy should adjust to each units of guidelines. Nevertheless, the depth of the hostilities might have an effect on the implementation of sure obligations beneath the regulation of occupation, and due to this fact the actual conduct required of the occupying Energy.

This all appears proper to me – however the ambiguous drafting right here must be acknowledged. It’s fascinating how the Courtroom, in a sub-section posing the query whether or not Israel is the occupying energy within the Gaza Strip, doesn’t clearly say that it’s. That is form of implicit within the final sentence of para 87, however notice how that entire paragraph is framed within the summary, relatively than as being instantly utilized to the state of affairs in Gaza. The Courtroom additionally doesn’t say wherever within the AO that Gaza is an occupied territory, in entire or partly – that language is simply not used, besides when the Courtroom refers to Gaza as a part of the capitalized entity ‘Occupied Palestinian Territory.’ Nevertheless, all through its subsequent evaluation the Courtroom refers to Israel because the occupying energy (see, e.g., paras, 92, 94, 128, 141, 157, 176); lots of these references clearly embrace Gaza, and never simply the West Financial institution, inside their scope.

In brief, the UNRWA AO is extra in line with the ‘Gaza is occupied’ concept than with the one which sure duties are making use of residually post-occupation. However the Courtroom is once more being considerably coy – one might, as an illustration, think about that a few of the judges thought that Gaza was not occupied pre-7 October, however was re-occupied within the hostilities that adopted, and that the anomaly we have now accommodated their views sub silentio.

Just one decide discusses this challenge individually – Choose Gómez Robledo – and he was not happy with the Courtroom’s coyness, noting at para. 3 of his opinion that ‘the Courtroom’s pronouncement [in paras. 85-7 AO] seems to convey a want to keep away from expressly concluding that the Gaza Strip is now beneath full-scale occupation’ and at para. 6 that ‘there isn’t a justification for the anomaly within the Courtroom’s reasoning and {that a} extra express assertion was warranted, since it will have strengthened the Courtroom’s findings on Israel’s obligations in Gaza.’

Does all of this even matter? It maybe issues much less for the case of Gaza, and extra for making use of the regulation appropriately in some future state of affairs. It issues for distinguishing between these conditions by which an occupation clearly beforehand existed after which there was a unilateral withdrawal, from these by which the institution of the occupation itself could also be executed by means apart from having troops on the bottom in (all of) the territory involved. And it could matter for the applying of the responsibility of the occupying energy to take care of public order within the occupied territory, per Artwork. 43 of the Hague Rules. As Eliav notes in his put up, saying that (all of) Gaza is occupied at present might allow the argument that Israel has the precise to renew hostilities in opposition to Hamas to be able to forestall Hamas from participating in extrajudicial executions and different types of violence within the territory.

To conclude, the UNRWA AO is of nice worth for the vexing questions of assessing the start and finish of occupations, and of the start and finish of the applying of the regulation of occupation. However a few of the ambiguity utilized by the Courtroom merely implies that it will probably’t be the ultimate phrase on the matter, particularly if we’re considering of eventualities past Gaza.

Human rights regulation within the UNRWA AO

IHL was positively centre-stage within the AO, however human rights regulation additionally performed an necessary position. The underside line end result was that Israel couldn’t adjust to its obligations beneath human rights regulation in the direction of the inhabitants of the occupied territory if it impeded the work of UNRWA and different humanitarian organizations. Within the technique of getting there, the Courtroom made a number of noteworthy factors.

First, the Courtroom reaffirmed its discovering within the 2004 Wall AO and the 2024 Legality AO that Israel’s human rights obligations apply extraterritorially, to these territories that it doesn’t personal however is occupying (paras 148-9).

Second, in doing so, the Courtroom held (para 150) that ‘the precept {that a} State’s human rights obligations lengthen to acts taken by that State within the train of its jurisdiction exterior its personal territory, notably in occupied territories, applies additionally with respect to CEDAW, the CAT and the CRPD.’

This paragraph is necessary for not less than two causes. The Courtroom is clearly saying that the ‘train of its jurisdiction’ is an idea wider in utility than merely management over territory (notably in occupied territories, however not restricted to them). The Courtroom thus opens the door to non-spatial conceptions of state jurisdiction within the human rights context of the sort already utilized by varied human rights our bodies, e.g. the non-public mannequin of jurisdiction as management over the sufferer by a state agent – assume, as an illustration, of US drone strikes, amounting to extrajudicial executions, in opposition to suspected drug traffickers on the excessive seas. Furthermore, the Courtroom is holding that state jurisdiction is the related authorized precept for the extraterritorial utility of treaties that don’t point out this time period (CEDAW and the CRPD). This can be a non-obvious strategy to take, but it surely is smart as a coverage matter to take care of consistency between completely different components of the human rights regime.

Third, the Courtroom twice referred to customary human rights regulation (paras 146 & 151). Whereas it doesn’t say so expressly, an affordable implication is that it regarded all the rights listed in para 151 as being customary in character.

Fourth, the Courtroom additionally repeatedly referred to the state responsibility to respect, defend and fulfil human rights (paras 146, 152, 153, op para in 223). I could also be fallacious, however I feel that is the primary time that the Courtroom endorsed this terminology and even used it within the operative paragraph of the opinion – which (once more until I’m not mistaken) originated in Henry Shue’s scholarship within the Nineteen Eighties and was then mainstreamed by varied human rights our bodies. The mainstreaming is now full!

Fifth, the Courtroom has additionally cited, as persuasive authority, two normal feedback of the Human Rights Committee (GC 36 on the precise to life) and the Committee on Financial, Social and Cultural Rights (GC 12 on the precise to meals), at AO paras 154 and 155 respectively.

Sixth, in doing so, the Courtroom didn’t simply strengthen the authority of the treaty our bodies, it additionally endorsed their interpretations of the regulation on crucial factors. For instance, the Courtroom endorsed the Human Rights Committee’s view that the precise to life is just not confined merely to these conditions that instantly end result within the deprivation of life, however has a much wider dimension. Thus, ‘[t]he responsibility to guard the precise to life additionally requires States to take measures addressing widespread starvation and malnutrition in addition to excessive poverty and homelessness. Additional, the place essential, States should be certain that people have entry at once to important items and providers resembling meals, water, shelter, well being care, electrical energy and sanitation.’

Seventh, the Courtroom at no level even mentions the lex specialis precept – it noticed no battle between IHL and IHRL in any respect, and easily utilized IHRL by itself.

Lastly, the Courtroom referred to many guidelines of IHRL addressing points on which IHL is basically silent (e.g. psychological well being, the rights of peoples with disabilities, the state of affairs of pregnant ladies – paras 155-160). All in all, this effectively demonstrates how IHRL and IHL can apply collectively in battle conditions, together with these of occupation. In all of those points, I might submit that the opinion makes a significant contribution.

UN immunities in armed battle

This brings us to the third matter I want to talk about. Paras 180 et seq of the AO take care of the query of the privileges and immunities of the UN, together with UNRWA as a subsidiary organ of the Normal Meeting. Right here too the Courtroom makes a number of fascinating findings.

First, in para 184 the Courtroom concludes, fairly appropriately, that ‘throughout the territory of Israel, the presence and actions of the United Nations and its entities are topic to the consent of Israel. Nevertheless, within the occupied territory, over which Israel, as an occupying Energy, enjoys no sovereignty, it’s not entitled to resolve unilaterally, with respect to the presence and actions of the United Nations in and in relation to the Occupied Palestinian Territory, in the identical method as in its personal territory.’

Second, in para 185 the Courtroom establishes that Article 105 of the Constitution and the Normal Conference should not restricted of their territorial scope, and that ‘[i]n the context of an occupation, an occupying Energy workouts jurisdiction and management over the occupied territory and thereby assumes an obligation to respect the privileges and immunities accorded to the United Nations beneath Article 105 of the Constitution and the Normal Conference within the occupied territory. This obligation, by its nature, derives from a State’s membership of the United Nations and its standing as a celebration to the Normal Conference.’

Third, in para 186 the Courtroom holds that UN privileges and immunities additionally apply throughout armed battle. None of those three factors can, for my part, be contested. The actual query is just not whether or not, however how, UN privileges and immunities apply throughout occupation and armed battle.

In that regard, maybe a very powerful is the rule set out in Article II, Part 3, of the Normal Conference, which supplies for the inviolability of UN premises and their immunity from any type of interference. And right here the important thing query turns into how that rule, which is framed in absolute phrases, ought to apply in conditions of armed battle.

The primary state of affairs right here, one which Israel alleges has occurred with some frequency, is the usage of UNRWA premises, resembling UNRWA-run colleges, by Hamas for navy operations – for instance, to launch missiles in opposition to Israel, or to retailer weapons or home fighters. Beneath the concentrating on guidelines of IHL, a civilian object that’s used for such functions would turn out to be a navy goal and would lose safety from assault. And so the query right here turns into whether or not the UN privileges and immunities would apply on prime of those guidelines of IHL and limit what would in any other case be a lawful assault in opposition to such an object, as a result of categorical nature of the safety for inviolability. (For extra background and dialogue of those points, see this Articles of Battle put up by Ori Pomson).

Right here the Courtroom causes as follows:

The duty to respect the inviolability of United Nations premises and the duty to not intrude with United Nations property and belongings should even be upheld within the context of armed battle, as such inviolability and non-interference are important to safeguarding the impartial and efficient efficiency of the features of the Group beneath all circumstances. The Courtroom acknowledges that the context of an armed battle raises challenges, particularly within the state of affairs of potential lack of management by the United Nations over sure of its premises. Nevertheless, it’s for the United Nations to find out whether or not a selected facility stays the premises of the United Nations. Within the view of the Courtroom, such a dedication by the United Nations creates a presumption that will solely be put aside for probably the most compelling causes and is to be given the best weight by States (cf. Distinction Referring to Immunity from Authorized Means of a Particular Rapporteur of the Fee on Human Rights, Advisory Opinion, I.C.J. Studies 1999 (I), p. 87, para. 61). The duty to respect the inviolability of these services qualifying as United Nations premises should be noticed by all events to the hostilities, together with the duty to not intrude with the property and belongings of the Group. Injury to or destruction of the premises and different property and belongings of the United Nations because of navy actions could quantity to a violation of obligations beneath Article II, Part 3, of the Normal Conference. (emphasis added)

There are lots of transferring components to this paragraph, and lots of issues left unsaid – I didn’t discover it altogether convincing, or as offering enough steerage. First, the Courtroom acknowledges that UN premises can be utilized by events to a battle for navy functions (the ‘challenges’ it refers to). A rule saying that UN premises can by no means lose immunity from assault, regardless of how they’re used, can simply incentivize their misuse by events to the battle. Second, the Courtroom, on the one hand, says that it’s for the UN to find out whether or not a selected facility ought to stay inviolable, however then, however, says that that is solely a presumption that may be put aside for probably the most compelling causes.

So, take into account a state of affairs by which Hamas shops ammunition and different provides inside an UNRWA faculty. My sense from what the Courtroom is saying is that in such a state of affairs Israel  must try to liaise with the UN to find out what’s going on in that faculty and to place an finish to any misuse – it couldn’t merely proceed with an assault, even when such an assault could be lawful beneath IHL (topic to any proportionality concerns). However then the Courtroom means that the inviolability presumption may be put aside for probably the most compelling causes. One would think about that one such purpose could be hearth at Israeli troopers coming instantly from an UNRWA constructing – certainly in that state of affairs Israel couldn’t fairly be anticipated to have interaction in a diplomatic dialogue with the UN earlier than performing. (Clearly, the evaluation right here assumes that Israeli forces are performing in good religion, relatively than pretextually counting on the supposed misuse of those services to be able to justify attacking them. I depart that factual level apart – my inquiry is concerning the strategy that ought to be taken in precept.)

The Courtroom signifies that that is the way it ought to be understood by saying within the final sentence that harm to UN buildings could quantity to violations of inviolability, however should not at all times such. If that is proper, it’s unclear on what exact conceptual foundation that conclusion ought to be drawn. Is it that UN premises lose inviolability as a result of they’re now not beneath UN management, regardless of the UN saying that they’re? Or is there some type of implied exception, with unclear parameters, maybe counting on IHL (notice, once more, the absence of any reference to lex specialis)? Or that necessity or misery as circumstances precluding wrongfulness might do some work right here? It’s troublesome to know, and the Courtroom simply doesn’t clarify itself totally. And what are we to do with the state of affairs by which an UNRWA constructing is just not made the article of an assault, however is broken by the way when an assault was directed in opposition to a navy goal near it, or the state of affairs by which an UNRWA constructing is broken resulting from an sincere and affordable mistake, which arose despite the fact that the attacker took all possible precautions according to IHL?

Lastly, it’s price noting that the Courtroom is saying that every one events to hostilities should observe the inviolability of UN premises. However once more it’s unclear on what actual foundation the Courtroom is making this pronouncement. In worldwide armed battle, that place could be easy in these circumstances by which the battle is being fought between two UN member states. However in a non-international battle, or one with blended traits, that’s much less clear. Why, precisely, is Hamas as a non-state actor, which isn’t a celebration to the UN Constitution or the Normal Conference, certain to respect the immunity and inviolability guidelines in these treaties? Once more, IHL straightforwardly applies to organized armed teams, however I’m not positive that UN privileges and immunities do and on what foundation. A treaty can bind non-state actors which haven’t consented to it, similar to customized can – however I wonder if these two treaties accomplish that. (I must also notice that Choose Cleveland offers with a few of these points in her separate opinion).

Citations to the ICRC Customary IHL Research

I’ll conclude this put up by have a look at a comparatively small level, however one which I discovered to be of specific curiosity: how the Courtroom cites the ICRC Customary IHL Research. Readers could recall that just a few years in the past Sandy Sivakumaran and I revealed an article analyzing the growing authority of the Research, partly by measuring citations to the Research from worldwide and home courts (IRRC article right here, dataset right here).

In recent times, many courts have cited the Research, thereby contributing to its authority. This contains, for instance, varied main judgments of the Grand Chamber of the European Courtroom of Human Rights coping with armed conflicts, together with the Ukraine and Netherlands v. Russia judgment from earlier this yr. The ICJ has, nonetheless, traditionally been notably selective with its quotation practices. Whereas ICJ judges have cited the Research of their particular person opinions, the Courtroom itself has not executed so – till now.

In para 84 of the UNRWA AO, the Research is cited for the primary time; that is once more executed, for various propositions however in the identical format, at a number of locations within the judgment (paras 91, 135-6, 139, 143). Right here’s how that appears on two events:

The Courtroom emphasizes the elemental significance of the precept of distinction beneath worldwide humanitarian regulation. Beneath the precept of distinction, events to a battle should always distinguish between civilians and civilian objects, on the one hand, and combatants and navy targets, on the opposite. Army operations could solely be directed in opposition to combatants, and so they should not be directed in opposition to civilians (see ICRC, Customary Worldwide Humanitarian Regulation Research, Quantity II: Follow, Chapter 1, Part A, referring to Rule 1. The Precept of Distinction between Civilians and Combatants). As a corollary to this precept, the precept of proportionality prohibits assaults that could be anticipated to trigger incidental lack of civilian life, damage to civilians, harm to civilian objects, or a mixture thereof, that may be extreme in relation to the concrete and direct navy benefit anticipated (see ibid., Chapter 4, referring to Rule 14. Proportionality in Assault). The precept of precaution requires a celebration to a battle to take fixed care to spare civilians and civilian objects. Accordingly, within the conduct of navy operations, all possible precautions should be taken to keep away from, or not less than to reduce, incidental lack of civilian life, damage to civilians and harm to civilian objects (see ibid., Chapter 5, Part A, referring to Rule 15. Precautions in Assault).

…

The precept that humanitarian reduction personnel should be revered and guarded kinds a part of customary worldwide regulation (see ICRC, Customary Worldwide Humanitarian Regulation Research, Quantity II: Follow, Chapter 8, Part A, referring to Rule 31. Security of Humanitarian Aid Personnel). Beneath Article 71, paragraph 2, of Further Protocol I, relevant to occupied territories by advantage of Article 69, paragraph 2, of the identical Protocol, States have an obligation to respect and defend personnel taking part in reduction actions. Article 71, paragraph 3, clarifies that the actions of the reduction personnel could also be restricted and their actions could also be quickly restricted solely “in case of crucial navy necessity”. These provisions mirror customary worldwide regulation.

I’ve no downside in any respect with the Courtroom citing the Research – quite the opposite. What I discovered very fascinating right here is the idiosyncratic method by which the Courtroom chooses to take action. The perceptive reader could have already got seen that the Courtroom is at all times citing Quantity II of the Research, assembling the apply that the ICRC used to compile the Research, and never Quantity I containing the principles – the principles are solely cited not directly, in that the apply is ‘relating’ to them.

The explanation why that is so fascinating is that hardly another court docket citing the Research ever bothers with Quantity II (i.e. the database) on apply. They simply cite the principles in Quantity I. Don’t get me fallacious, they just like the consolation of realizing the apply is there, however they nearly by no means consider any of it.

I can solely guess why the Courtroom selected this specific quotation format – similar to I can solely guess that a lot time and pedantry had been spent throughout the Courtroom and its Registry till they arrived at an answer that everybody was comfy with. The Courtroom (or not less than some judges) wished to keep away from the impression that they’re holding that any given rule is customary merely on the ICRC’s say-so. They could additionally wished to present the impression that they did their homework and checked out all of that apply and did some verification thereof (which after all they didn’t). The Courtroom likes establishing customized just by assertion, and the ICRC Research was handy in making these assertions seem extra rigorous. In doing so, nonetheless, and regardless of its peculiar quotation format, the Courtroom inevitably added to the Research’s authority.