By Andrew Tucker
Last Friday 12 December, Norway and other states tabled a resolution for adoption by the UN General Assembly “endorsing” the recent Advisory Opinion of the International Court of Justice (ICJ) on Israel’s obligations on Gaza.
This resolution is yet another example of how a number of UN member states are using the UN system (including the ICJ) to push their version of the facts and political preferences and pretend that these have the force of law. It is a highly dangerous trend, that undermines the rule of law and is seriously affecting the integrity of the ICJ.
The ICJ Opinion was issued in response to a request issued by the Assembly after Israel terminated its cooperation with UNRWA, the UN’s agency for assistance to the Palestinian refugees, earlier this year. The reason for doing so was Israel’s intelligence that UNRWA has been infiltrated by Hamas. Israel provided the Court with extensive information about how UNRWA became irreparably compromised through its infiltration by terrorist organizations, systemic violations of the principle of neutrality, and persistent refusal to remedy this situation. Israel maintained that under international law it was entitled, as a sovereign state, to terminate its relationship with UN organisations in circumstances where cooperation undermines its security.
The Court issued its Opinion on 22 October 2025. It rejected Israel’s claims. The Court opined that Israel’s suspension of cooperation with UNRWA was unlawful and that Israel must permit unimpeded access for humanitarian organizations into Gaza.
However, in a strong dissenting opinion, Vice-President Judge Julia Sebutinde criticized the ruling as an abuse of the ICJ’s advisory function, arguing that it overlooked the complex realities of urban warfare as well as Israel’s security concerns, and noted the limited and unreliable evidence before the Court.
Last week’s draft Resolution was intended, in principle, to adopt the Advisory Opinion. Like the Advisory Opinion, there were significant procedural and legal flaws with the Resolution. Moreover, the draft Resolution introduced new issues that were not included in the Advisory Opinion, purported to attach legal significance to the Opinion that it does not have, and ignored new developments on the ground.
We strongly advised a number of UN countries to vote against this resolutions. The reasons included:
- The Opinion risks prejudicing two active contentious cases – South Africa v. Israel and Nicaragua v. Germany – which also address humanitarian issues in Gaza.
- The Court focused only on Israel’s obligations and embarked on a tangential excursion, affirming the Palestinian right to self-determination through statehood, while neglecting to scrutinise the roles and responsibilities of other actors, such as Hamas and Egypt
- The Court relied heavy on UN-supplied evidence, while disregarding alternative sources, creating a circular and biased evidentiary process.
- The Court rejected evidence provided by Israel and other sources that UNRWA’s infiltration by Hamas and other terrorist organizations is so systematic that it compromises the agency’s neutrality. It portrayed the involvement of UNRWA employees in the October 7 attacks as an isolated event, although UNRWA’s links to terrorism are endemic and longstanding.
- The Court also disregarded UNRWA’s role in exacerbating the conflict since its inception, including by radicalising Palestinians through its educational programs.
But we also noted that the resolution went considerably further than the ICJ Opinion:
- The Resolution refers to the recent New York Declaration on Palestinian statehood – a non-UN document which many States neither supported nor adopted, and which was not discussed within the UN framework.
- The Resolution refers to “judgements” against the State of Israel, despite the fact that no binding judgement issued by the ICJ against Israel (Advisory Opinions are neither binding nor judgements).
One of the most concerning things about the Resolution is that it contains a preamble that twists the ICJ’s position regarding sovereignty of Judea and Samaria (the West Bank), Gaza and East Jerusalem:
“Recalling that Israel is not entitled to sovereignty over or to exercise sovereign powers in any part of the Occupied Palestinian Territory on account of its occupation, …”
This wording suggest that because Israel is an occupying power it can have no sovereignty rights in the “occupied territories”. That is not an accurate statement of the law, and it is not what the ICJ has said. In fact, the ICJ said in its 2004 and 2024 Advisory Opinions that it makes no determination that no such claims exist – it only opined that Israel’s status as an occupying power does not (in and of itself) confer on it any sovereign claims. That is a very different thing from saying that Israel cannot have any sovereignty claims at all. The reason this is so concerning is that the UN member states who promoted this resolution seem to be using General Assembly resolutions to give an appearance of legal authority to their political position that the “occupied territories” do not – and cannot – belong to Israel.
As it turns out, resolution A/80/116 was adopted by 139 member states. Twelve (12) states voted against, nineteen (19) abstained and twenty (20) states did not attend the meeting.
While this may seem a large majority, in fact it reflects that fifty-four states (almost one third of the total 193 UN member states) did NOT support the resolution. That is a very significant number.
This lack of universality shows a division in the UN on some of the issues contained in the resolution. In any event, such resolutions do not create customary international law.
Amongst the “no” votes were: Argentina, Paraguay, Bolivia, Hungary, and United States. Among the abstainers were several European states: Albania, Bulgaria, Czechia, Serbia and Slovakia. Remarkably, most Pacific Island states voted against or abstained: Fiji, Micronesia, Nauru, Palau, Papua New Guinea, Samoa, Tonga, and Tuvalu.
