Legal opinion expected after ICJ concludes hearings on Israel's aid obligations in Gaza
The United Nations' (UN) top court on Friday, 2 May, heard a final day of arguments on Israel's obligations as an occupying power to facilitate aid to Palestinians, proceedings that have been given fresh urgency following Israel's decision in March to block all aid into the Gaza Strip.
The public hearings, which began on Monday, 28 April, follow the UN General Assembly's request to the International Court of Justice (ICJ) in December 2024, to give an advisory opinion on Israel's obligations to allow the UN and other international groups to provide humanitarian assistance in the Gaza Strip.
The request came in response to Israel's decision to ban the UN Relief and Works Agency for Palestine (UNRWA), the main UN agency that helps Palestinians, from operating in its territories from late January, and other obstacles faced by other UN agencies in their aid work in Gaza.
The ban, passed by Israel's parliament last October, followed months of attacks on the agency by Israeli Prime Minister Benjamin Netanyahu and allies, who claim UNRWA has been infiltrated by Hamas – an allegation the agency refutes.
The legislation has forced UNRWA to suspend operations in Gaza and the West Bank.
The latest proceedings, held at the Peace Palace in The Hague, heard from representatives of some 40 countries and organisations, including South Africa, the African Union, the UN, Palestine, China, Russia, the UK and the US.
Israel did not appear at the hearings, but, in a written submission to the court on 28 February, rejected the questions raised by the proceedings as 'patently biased and one-sided'.
It argued that no obligation exists on it to respect the operations of a UN agency, when 'the legitimate security concerns of a member state are severely undermined by the agency in question, whose conduct manifestly contravenes the fundamental principles of neutrality, impartiality and independence'.
However, the UN's legal counsel on Monday said Israel has a clear obligation as an occupying power to allow and facilitate humanitarian assistance to Palestinians in Gaza.
The UN considers Gaza and the West Bank as Israeli-occupied territory. International humanitarian law requires an occupying power to agree to relief programmes for people in the occupied territory who are in need, and to facilitate them 'by all the means at its disposal'.
'In the specific context of the current situation in the occupied Palestinian territory, these obligations entail allowing all relevant UN entities to carry out activities for the benefit of the local population,' the UN undersecretary general for legal affairs, Elinor Hammarskjöld, told the court.
Hammarskjöld said Israel may not, as an occupying power, 'unilaterally declare' a UN agency is not impartial, 'and deny its relief schemes'.
'Such concerns must be addressed in consultation with the humanitarian organisation concerned,' she said, adding that the UN 'considers very seriously any credible allegations' against it.
Last August, the UN fired nine UNRWA staff members after an investigation found they ' may have been involved ' in the Hamas-led attack on Israel in October 2023, in which at least 1,200 people were killed and about 250 taken hostage. Israel's subsequent assault on Gaza has killed more than 52,000 people and wounded about 118,000 others, according to Palestinian health authorities.
Using aid as a 'weapon of war'
The latest proceedings come as Israel's total blockade on aid entering Gaza passed 60 days. No food, water or medical supplies have reached 2.3 million Palestinians in the devastated Gaza Strip since 2 March, when Israel imposed what has since become its longest blockade on aid into the territory since the start of the war.
Last week, Israeli Defence Minister Israel Katz said the country would continue to block aid from entering Gaza, in an attempt to force Hamas to free the remaining hostages.
The UN and other aid organisations have condemned the decision, saying Israel's ' deliberate ' aid ban is further threatening Palestinian's existence in Gaza.
Palestinian Ambassador to the Netherlands, Ammar Hijazi, told the court on Monday, 28 April, that 'death looms large' in Gaza, as Israel continues to forcibly displace and starve Palestinians.
'These are the facts: starvation is here. Humanitarian aid is being used as a weapon of war,' Hijazi said.
On Tuesday, South Africa's Department of International Relations and Cooperation (Dirco) director-general, Zane Dangor, told the court that 'under the world's watchful eye, Palestinians across the occupied Palestinian territory are being subjected to atrocity crimes, persecution, apartheid and genocide'.
'Israel continues to act with impunity as it does enjoy some form of exceptionalism from accountability to international law and norms. Conversely, any person or entity which seeks to hold Israel to account for its inhumane and unlawful actions, is subjected to counter-measures and censure, from which the United Nations and this court have not been spared,' Dangor said.
He added the collapse of the humanitarian aid system in Gaza is 'by design'.
'Palestinian NGOs and major aid groups have warned that Gaza is entering into famine, and that 'the humanitarian aid system is facing total collapse'. This collapse is by design,' he said.
Nokukhanya Jele, President Cyril Ramaphosa's special adviser on legal and international affairs, argued that Israel's conduct violates the law of occupation.
'As part of Israel's unlawful occupation, it does not care to fulfil its obligations as an occupying power, but seeks to wrongfully usurp rights. Israel's conduct and omissions clearly violate the law of occupation as a whole and its grave breaches of international humanitarian law cannot be allowed to persist,' Jele said.
On Wednesday, representatives for the US defended Israel's decision to ban UNRWA's operations in its territories, saying the country's persistent security needs overrule its obligations to provide aid.
Joshua Simmons, a lawyer for the US State Department, argued there is no legal requirement that an occupying power allow an international organisation 'to conduct activities in occupied territory that would compromise its security interests'.
He suggested that other organisations could fulfil UNRWA's role. However, UN officials have previously defended the agency's role, saying it could not be replaced.
'Novel legal interpretations will not bring an end to the ongoing conflict. They will not bring the hostages home. They will not create a better tomorrow for Israelis, Palestinians and the region.
'To be clear, the United States supports the flow of humanitarian aid into Gaza with safeguards to ensure it is not looted or misused by terrorist groups. We encourage the international community to focus on advancing a ceasefire and on fresh thinking for a better future for Israelis and Palestinians alike,' Simmons concluded.
Implications of an advisory opinion
Advisory opinions of the ICJ carry legal and political weight, but they are not binding and the court does not have any enforcement powers, according to a Reuters report. It's unclear when an opinion could be issued by the court, although the UN General Assembly sought guidance from the court 'on a priority basis'.
'We will have to see whether and to what extent the ICJ will talk about potential violations of international law by Israel. The court's challenge is to avoid any prejudice in relation to South Africa's case against Israel for alleged violations of the Genocide Convention, as that matter is still ongoing. I assume the court will, therefore, avoid any determination of violations in that regard,' Dr Atilla Kisla, the international justice cluster lead for the Southern Africa Litigation Centre, told Daily Maverick.
In separate proceedings before the World Court last year, South Africa accused Israel of committing genocide against Palestinians in Gaza. The court agreed with South Africa in January last year that there was a plausible case of genocide to be heard. It has yet to rule on that matter, but previously issued provisional measures against Israel in the case.
On Tuesday, Dangor told the court that providing an advisory opinion 'does not require the court to prejudge elements relevant' to South Africa's genocide case against Israel.
'The question asked of the court in the present matter concerns Israel's obligations as an occupying power and its obligations as a member of the United Nations, and specifically, the legal consequences arising from its acts and omissions in these contexts,' Dangor said.
In its written submission to the court, Israel said that there are multiple 'inextricable links' between the question asked of the court by the UN General Assembly and that of the 'the pending contentious proceeding between South Africa and Israel', and that the ICJ should use its discretion 'not to render the requested advisory opinion'.
Kisla said based on the specific request of the UN General Assembly and the fact that the ICJ dealt with similar arguments in its advisory opinion from 19 July 2024, which found Israel's occupation of the Palestinian territories was illegal, he did not believe the court would issue an opinion.
'It is further noteworthy that the question by the UN General Assembly to the ICJ speaks of 'obligations of Israel'. If the court issues an advisory opinion, it might limit itself to the 'obligations of Israel, as an occupying power',' Kisla said.
'In terms of practical impact, I think that if we receive an advisory opinion, even though non-binding, it can add to the pressure on Israel, but more importantly, on its allies and states that support Israel with arms. It is also a point that was raised in South Africa's submission, highlighting the responsibility of arms-exporting states and how they can enable breaches of international law,' he said. DM
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