ICJ says Israel obligated to work with UNRWA; Jerusalem ‘categorically rejects’ notion

The International Court of Justice issued an advisory opinion on Wednesday, asserting that Israel is legally obligated to allow the UN’s controversial Palestinian relief agency to provide humanitarian aid in Gaza, and stating that the provision of aid to the Strip during the war there has been inadequate.

The court dismissed Israel’s main argument for its legislation blocking UNRWA’s operations — that the organization is no longer impartial or neutral due to its “infiltration” by the Hamas terror group — stating that there was no evidence UNRWA breached the impartiality requirements under Article 59 of the Fourth Geneva Convention, which it said related to discrimination in the provision of humanitarian aid and services.

The advisory opinion also found, unanimously, that Israel was obligated to ensure that the population of Gaza, as well as the West Bank and East Jerusalem, “has the essential supplies of daily life, including food, water, clothing, bedding, shelter, fuel, medical supplies and services.”

The advisory opinion, which is not legally binding, was issued by 10 votes to one, with court Vice President Julia Sebutinde dissenting and writing that the court did not “sufficiently consider” Hamas’s infiltration of UNRWA, and stating that there is “no obligation to assist UN agencies acting contrary to the Charter’s principles,” or work with any specific organization.

Israel’s Foreign Ministry stated in response that it “categorically rejects” the opinion, adding that “Israel will not cooperate with an organization that is infested with terror activities.”

In October last year, the Knesset passed legislation banning UNRWA from functioning in sovereign Israeli territory, which under Israeli law includes East Jerusalem, and prohibiting state agencies from having any contact with UNRWA, creating obstacles for the agency’s broad operations in Gaza.

The legislation was passed due to Israel’s claims that UNRWA has been thoroughly infiltrated by Hamas, that hundreds of UNRWA employees are Hamas members, that UNRWA employees participated in the October 7, 2023, massacres, and that the agency disseminates incitement to hatred and violence against Israel.

The new law prompted several UN member states to request in December last year that the ICJ issue an advisory opinion on whether Israel was obligated to cooperate with UNRWA.

In the ICJ’s advisory opinion issued on Wednesday, it asserted that Israel had an obligation under Article 59 of the Fourth Geneva Convention “to agree to and facilitate relief schemes if the local population is inadequately supplied,” and that this obligation was “unconditional.”

The court also said it found that the Gazan population had not been adequately supplied with aid.

The opinion conceded that “an occupying Power” was in principle “free to choose the humanitarian organizations” through which it fulfills its obligation to facilitate humanitarian relief, but contended that discretion was limited by the requirement to adequately supply the dependent population.

The court further opined that it was not possible to replace UNRWA’s capacity as a provider of aid for Gaza, calling it “an indispensable provider of humanitarian relief in the Gaza Strip.”
Israel is therefore “under an obligation to agree to and facilitate relief schemes provided by the United Nations and its entities, including UNRWA,” it ventured.

It dismissed Israel’s arguments that UNRWA was not an impartial organization as required under Article 59 of the Fourth Geneva Convention, arguing that this term refers to a prohibition on discriminating against the population being served on the basis of nationality, race, religious belief, class or political opinion, something the court said UNRWA had not done.

And regarding Israel’s contention that UNRWA was not a neutral organization, the court said neutrality was not a requirement under Article 59, and that the “information before the court is not sufficient” to establish that UNRWA is not a neutral organization.

The opinion also stated specifically that the court had found that Israel had not substantiated its allegations that a significant part of UNRWA employees were members of terrorist groups.

Sebutinde, who has frequently issued opinions and rulings in favor of Israel, stridently dissented, however, saying the court did not “sufficiently consider” Israel’s arguments that Hamas operatives have infiltrated UNRWA.

The judge also argued that “Israel retains discretion under international humanitarian law to determine how aid is delivered” in Gaza, and asserted that Israel is “not legally required to channel such assistance specifically or solely through UNRWA.”

Sebutinde also wrote that there was “no obligation to assist UN agencies acting contrary to the Charter’s principles,” as Israel has alleged that UNRWA is doing.

“There is no legal requirement for Israel to permit specific third States or international organizations to conduct humanitarian activities in the Occupied Palestinian Territories, if doing so would compromise its security,” Sebutinde wrote.

Israel argued in its submission to the ICJ that UNRWA has been subject to “widespread infiltration by terrorist organizations,” stating that “Hamas command-and-control centers, hideouts and weapon storage facilities” were found within or in the immediate surroundings of at least 32 UNRWA facilities, including schools, warehouses, compounds and apartments in Gaza during the course of the current war.

It also noted that several UNRWA employees took part in the October 7, 2023, massacres by Hamas and other terrorist groups; that senior Hamas military personnel were UNRWA members; and alleged that over 1,400 of UNRWA’s approximately 13,000 Gaza employees were members of Hamas or other terrorist groups.

And it accused the agency of “virulent incitement to violence, jihad and martyrdom” in the teaching materials it uses in UNRWA schools.

“It is against the background of these extraordinary circumstances of UNRWA’s widespread infiltration by terrorist organizations and longstanding breaches of neutrality, coupled with the lack of any prospect of these serious matters being adequately addressed by the UN notwithstanding multiple requests, warnings, and opportunities, that Israel ultimately reached the conclusion that UNRWA could no longer be trusted to fulfill its humanitarian objectives, and to act in accordance with the principles of neutrality, impartiality, and independence,” Israel’s submission asserted.

It also pointed out that Israel had facilitated the passage of humanitarian aid to Gaza with other UN agencies and humanitarian organizations other than UNRWA to ensure the provision of such aid to the Strip.

Israel also argued that Article 2 of the UN Charter requires member states to cooperate with the UN “in accordance with the charter,” but noted that the UN’s goals under Article 1 of the charter include developing “friendly relations among nations” and strengthening “universal peace,” which it argued UNRWA violates.

The Foreign Ministry said in response to the ruling that it “categorically rejects” the advisory opinion, saying the court ignored the “extensive evidence” Israel provided regarding what it said was UNRWA’s “infiltration” by Hamas and the organization’s complicity in terrorist activities.

“This is yet another political attempt to impose political measures against Israel under the guise of ‘International Law,'” said the ministry.

“Hamas terror activity within UNRWA took place before the October 7th massacre, during the massacre, and after the massacre,” the ministry added, asserting that the UN had failed to properly investigate the level of Hamas infiltration in UNRWA.

“Israel will not cooperate with an organization that is infested with terror activities,” the ministry insisted, adding that it “fully rejects the politicization of International Law, which seeks to produce political outcomes and impose measures intended to harm the State of Israel.”