ICJ tells Israel to let UN aid flow into Gaza – but UN’s own failures throughout the war loom large

by Ben L Murphy

The UN’s top court, the International Court of Justice (ICJ), demanded that Israel allow aid into Gaza in an advisory opinion on October 22.

It held that Israel is in breach of its obligations as a UN member state by having failed to do so adequately over the past two years.

The opinion was requested ten months ago by the UN general assembly after Israel’s parliament banned the UN Relief and Works Agency (Unrwa) from operating in territories occupied by the country.

Unrwa has long played a pivotal role in delivering humanitarian aid to Palestinians.

In its verdict, the ICJ unanimously reaffirmed that the use of starvation as a method of warfare is prohibited under international law.

The court also ordered Israel, by ten votes to one, to agree to and facilitate humanitarian relief in Gaza provided by the UN and its entities.

This aspect of the opinion should be celebrated. The precarious ceasefire in Gaza has not been accompanied by a simultaneous influx of aid. Conditions of famine, destitution and death continue to define the day-to-day experience of those living in Gaza.

However, some observers will be sceptical about whether the ICJ’s advisory opinion will have any tangible impact.

A collection of judicial and institutional pronouncements on the illegality of Israel’s conduct in Gaza over the past two years has fallen on deaf ears.

These include the ICJ’s January 2024 order for Israel to take all measures to prevent genocide in Gaza, which a recent UN human rights council commission of inquiry report concluded it is committing.

The International Criminal Court also has outstanding arrest warrants for the Israeli prime minister, Benjamin Netanyahu, and his former defence minister, Yoav Gallant. Issued for alleged war crimes and crimes against humanity committed in Gaza, these warrants have not been enforced.

The ICJ’s recent opinion will be added to this list. Israel did not participate in the oral proceedings for the opinion, and in a post on social media immediately after the verdict, the country’s foreign ministry stated that it “categorically rejects” the court’s findings.

UN falling short

In its advisory opinion, the ICJ held that “Israel has an obligation to cooperate in good faith with the United Nations by providing every assistance in any action it takes”.

Here, the court was referring to action by Unrwa to assist Palestinians in Gaza. But this statement should prompt consideration of other types of “action” the UN has failed to take over the past two years of war.

As the ICJ said in its recent verdict, self-determination for the Palestinian people should include the “right to an independent and sovereign state”. However, Palestine continues to be denied full UN membership – a key element of statehood.

In May 2024, a majority of states in the UN general assembly determined that Palestine qualified for membership in accordance with the UN charter.

But, despite only nine states voting against the resolution from a total of 193, Palestine was not granted membership.

This was a result of the UN’s dysfunctional structure. The five permanent members of the UN security council (China, France, Russia, the UK and US), the organ that is tasked with maintaining international peace and security, have veto power to block a resolution from being adopted.

And as Israel’s strongest military and diplomatic backer, the US has used its veto power continuously to defend Israeli interests.

As long as Israel effectively wields a proxy veto at the security council through its alliance with the US, the UN’s ability to take action in support of the Palestinian people will be restricted and this never-ending loop will continue.

Judicial and institutional pronouncements on Israel’s conduct can have a broader cumulative effect in the pursuit of the realisation of Palestinian self-determination. A timely pronouncement can also be an important rhetorical tool in the quest for concrete goals, such as the reopening of humanitarian routes in Gaza.

But it is important to be aware of the fact that the UN is not a neutral arbiter of rights and obligations. In its current form, which allows members of the security council to block resolutions based on their own national interests, it is complicit in the current humanitarian catastrophe in Gaza.

Ben L Murphy is a Senior Lecturer in Law at the University of Liverpool