Israel’s Defiant Posture on UN Aid and Refugee Relief to Gaza and Palestinians: Can the International Court of Justice Make any Difference? | Gautam Sen

On 28th April this year, the International Court of Justice (ICJ), the UN`s top court and one of its principal organs, has begun hearings on Israel`s legal obligations to facilitate deliveries of relief material and life-sustaining goods to the Palestinians in Gaza. This in the backdrop of more than 2 million Gaza-based Palestinians affected by internal displacement and also death and destruction on an unimaginable scale consequent on the HAMAS-Israel conflict raging since October 7th 2023. Since March 2nd this year, Israel has prevented all supplies, including food, water and medicine from entering Gaza, with the objective of forcing HAMAS to re-negotiate the ceasefire deal agreed in January 2025, between Israel and HAMAS with international mediation and good offices of Qatar, Egypt and USA.

The significance of the ICJ hearings may be appreciated in the context of ban imposed by Israel since January this year, on the functioning of UNRWA (United Nations Relief and Works Agency for Palestine Refugees in the Near East). UNRWA is the primary UN agency established under a Resolution 212(III) of the UN General Assembly of 19th November 1948, for the succor of the hugely displaced Palestinians in Gaza and the Palestine territory east of River Jordan in politically delineated territory of Transjordan, presently Jordan. The ICJ has intervened after a vast majority of UN member states voted in December 2024 to get the UN top court involved for a definitive interpretation of international law and Israel`s obligations.

Israel is not participating in the hearings but has presented its position before the ICJ highlighting that, it is entitled to block aid to Gaza because as per inputs available with its government at Tel-Aviv, HAMAS, which ruled Gaza prior to the present conflict and is presently its opposing combatant entity, seizes the aid. Furthermore, Israel has also alleged that 19 of UNRWA`s approximately 13000 staff (since dismissed by Commissioner General of UNRWA) in Gaza, participated in HAMAS`s attack in southern Israel in October 2023.

The US government representative before the ICJ hearings, Joshua Simmons, Legal Adviser of the country`s State Department, has opined that ``an occupational power retains a margin of appreciation concerning which relief schemes to permit``. The US State Department official has invoked the legal doctrine of `margin of appreciation`, developed by the European Court of Human Rights intended to judge whether a state party to the European Convention on Human Rights should be sanctioned for limiting the enjoyment of rights. In international jurisprudence, the above-mentioned legal doctrine is not deemed at par with jus cogens or peremptory norms of international law and hence may not be deemed as applicable in the Palestine-Gaza context. The US representative has further emphasized by dwelling on so-called Israel`s serious concerns about UNRWA`s alleged impartiality in the ongoing conflict with HAMAS , inter-alia stating that ``Israel cannot be forced to accept UNRWA resuming its activities in Gaza``. Thus, the ICJ has a difficult task at hand to rule on the legitimacy of Israel`s action in the backdrop of the UN mandate based on which the UNRWA has been functioning, humanitarian law vis-a-vis persons affected by war in the most gruesome manner and devoid of the basics of human existence viz. food, shelter and security interpreted in its widest ambit.

While the ICJ composed of a 15 member international judges` panel and presided over by Judge Yuji Iwasawa of Japan, has just concluded its first week of hearing on 2nd May 2025, the UN top court will take several months after the hearings to form an opinion in the matter. Moreover, advisory opinion of the ICJ, though carrying legal and political weight, is neither binding nor enforceable without cooperation of the states forming part of the UN system and most importantly, of the UN Security Council which is the primary UN organ concerned with matters of peace and security of its member states and the world at large.

Nevertheless, the decision or advisory opinion of the ICJ could still have a deterministic effect on limits or permissible latitude of a UN member state`s action vis-à-vis UN created entities - in this case, Israel`s constricting measures against UNRWA. Furthermore, there are some fundamental issues involved now, like action of a member state contributing to genocide by denial of food, shelter and basics of human livelihood to a large population – Palestinians and the Gazans in particular, consequent on UNRWA ceasing to operate with no alternative structures or mechanisms in place in a verifiable manner. The ICJ cannot be oblivious to its obligations stemming from the mandate of the UN Charter, its duty to uphold the rights and responsibilities of an institution (the UNRWA in this case) set up within the ambit of the said Charter, and in regard to the issues concerning violation of humanitarian law and administrative action of a member state contributing to genocide.

Notwithstanding the present context of the ICJ`s hearing and further action which could ensue in the near future from a Court`s verdict proscribing any state action to derogate from the UN Charter and render ineffective, albeit destroy, UN institutions, it will be of essence if a majority of the UN Security Council member states including a majority of its permanent members take a posture upholding the UNRWA`s right to operate in Gaza. Incidentally, UK, Germany and France have urged Israel to allow aid to enter Gaza. While a UN Security Council Resolution in this respect condemning Israel in the event Tel-Aviv does not permit the resumption of functioning of UNRWAS, would in all probability be vetoed by USA, an ICJ verdict enjoining on Israel to uphold the UN Charter and maintain the remit and functionality of an UN institution like the UNRWA, would have a demonstrative and politically ameliorative effect.

(Author: Shri Gautam Sen, a retired Civil Service officer of the rank of Special Secretary to Government of India and an analyst of international affairs. The views are personal)

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Some relevant materials for further reading:

• Israel’s Gaza aid blockade contested in World Court hearings
• Israel, Gaza, and the Starvation Weapon: The ICC Tests a Rarely Prosecuted War Crime
• International Court of Justice — Press Release No. 2025/23 (May 2, 2025)
• Video Recording of World Court concludes hearings in case against Israel https://www.youtube.com/live/DZYq9xB3SCQ?si=SYXFKyUr4l_6fF38