After more than a year of hostilities, there are no appropriate words to describe the humanitarian situation in Gaza. The situation is beyond the imaginable and every word that could be used risks understating the extent of human suffering.<\/p>\n
The UN Secretary General (UNSG) called it \u201ca moral stain on us all<\/a>\u201d, while the UN Inter-Agency Standing Committee described the situation in North Gaza as \u201capocalyptic<\/a>\u201d in another futile attempt to appeal to Israel and other actors for ceasefire and an unimpeded humanitarian assistance to everyone in need.<\/p>\n Yet, the Israeli government prioritised its campaign against UNRWA and chose to pass a ban on UNRWA from Israel<\/a>, which will effectively prevent UNRWA from operating in Gaza. Both the USA<\/a> and Germany<\/a>, but also the UNSG<\/a>, stated that they were \u201cdeeply concerned\u201d emphasising UNRWA\u2019s irreplaceable role, particularly in the middle of crisis. The UK Minister for Development recently<\/a> stated that the government would \u201cput pressure on the Israeli Government not to implement the legislation.\u201d<\/p>\n The Request for an Advisory Opinion<\/strong><\/p>\n Following an initiative of Norway<\/a> in connection with Israel\u2019s ban of UNRWA, the UNGA adopted Resolution 79\/232 on 19 December 2024<\/a> to request an advisory opinion from the ICJ. The question posed concerns Israel\u2019s obligations as an occupying power and a UN member state in relation to the presence and activities of the UN, other international organizations, and third states in the Occupied Palestinian Territory (OPT). In particular, the question addresses Israel\u2019s obligations to ensure and facilitate unhindered provision of essential supplies, basic services, and humanitarian assistance to the Palestinian civilian population.<\/p>\n In its preambular paragraphs, the resolution makes reference to the Convention on the Privileges and Immunities of the United Nations<\/a> (General Convention), while carefully stating that \u201ca situation may exist in which a difference has arisen between the United Nations and the State of Israel\u201d regarding the \u201cinterpretation or application of the General Convention\u201d. This is relevant given that Article VIII, Section 30 of the General Convention, which is applicable in the relations between UNRWA, a subsidiary organ of the UNGA, and Israel, as confirmed by the 1967 Comay-Michelmore Agreement<\/a>, provides that any advisory opinion requested will be accepted as binding by the parties.<\/p>\n In similar requests in the past, where applicable agreements designated advisory proceedings as a dispute settlement mechanism, such agreements were referenced in the question posed to the ICJ (see e.g. Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations<\/em><\/a>, ICJ, Request for Advisory Opinion<\/a>). <\/em><\/p>\n The decision of the drafters to omit a direct reference to the General Convention and the alleged dispute may have been driven by an effort to garner broad support for the resolution by \u201csoftening the tone\u201d and avoiding reference to any potential \u201ccontentious character\u201d of the advisory proceedings. The resolution was adopted with 137 votes in favour, 12 against, and 22 abstentions, a notably higher level of support compared to the request for an advisory opinion on Israel\u2019s policies and practices in the OPT (UNGA Resolution 77\/247 (2022)<\/a>; 87 in favour; 26 against; 53 abstentions).<\/p>\n In any case, given the urgency of the matter and the length of proceedings before the ICJ, the question arises whether the ICJ could either accelerate advisory proceedings or, in order to preserve the rights of UNRWA, indicate provisional measures proprio motu<\/em> in advisory proceedings.<\/p>\n Urgent Requests for Advisory Opinions<\/strong><\/p>\n In contentious proceedings, provisional measures serve to address situations of urgency, in which immediate and interim action is required in order to protect a right of either party. In the same vein, Article 103 of the Rules of Court introduces the possibility of accelerated advisory proceedings where the request \u201cnecessitates an urgent answer\u201d.<\/p>\n So far, two advisory opinions have been requested expressly under this provision, while others have been requested as \u201ca matter of urgency\u201d but without direct reference to Article 103 (see, e.g., Legality of the Threat or Use of Nuclear Weapons<\/em>, Request for Advisory Opinion<\/a>). In Applicability of the Obligation to Arbitrate<\/em>, the request citing Article 103<\/a> was filed with the ICJ on 7 March 1988 and the advisory opinion<\/a> was issued a bit over a month later, on 26 April 1988. Conversely, in the recent ILO request citing Article 103<\/a> regarding the right to strike under ILO Convention No. 87, the ICJ has, one year later, not even announced any dates for oral hearings.<\/p>\n The pending request regarding Israel\u2019s obligations asks the ICJ to render an advisory opinion \u201con a priority basis and with the utmost urgency\u201d (para. 10) without an explicit reference to Article 103 of the Rules of Court. In response, the President of the ICJ in an Order of 23 December 2024<\/a>, citing inter alia<\/em> Article 103 of the Rules of Court, fixed 28 February 2025 the time-limit for written statements by states and international organizations. Yet, the accelerated proceedings will not conclude before the entry into force of the ban, set for the end of January this year<\/a>, and hence not be able to effectively protect the rights of UNRWA.<\/p>\n Provisional Measures in Advisory Proceedings<\/strong><\/p>\n Though the resolution does not contain any request for the indication of provisional measures, the ICJ could in principle indicate provisional measures proprio motu<\/em> (Article 75 of the Rules of Court). While the ICJ has so far never indicated provisional measures in advisory proceedings, there are good arguments why this option would be available when such proceedings effectively serve as a dispute settlement mechanism.<\/p>\n Article 68 of the ICJ Statute gives the ICJ wide discretion in applying procedural rules pertaining to contentious cases to advisory proceedings \u201cto the extent to which it recognizes them to be applicable.\u201d This provision reflects the flexibility of advisory proceedings, where, depending on the circumstances, the ICJ may apply different procedural rules and assimilate the proceedings more to contentious cases. Pursuant to Article 102, para. 3, of the Rules of Court, advisory proceedings are not only designed for general legal questions but also for a \u201clegal question pending between two States\u201d. Thus, the closer the circumstances regarding advisory proceedings, such as their object and purpose and the existence of de facto<\/em> parties with opposing views, bring them to contentious cases, the more the ICJ could and should procedurally assimilate those advisory to contentious proceedings.<\/p>\n In this regard, the factual circumstances surrounding the Applicability of the Obligation to Arbitrate <\/em>share similarities to the current dispute between the UN and Israel. The USA prohibited the maintenance of the representative office of the Palestinian Liberation Organization (PLO) at the UN, which the UN deemed contrary to the Headquarters Agreement between the UN and the USA. The UNGA requested an urgent advisory opinion as a dispute settlement mechanism also referencing Article 41 of the ICJ Statute (provisional measures) in its request<\/a>, in light of the immediate danger of the closure of the PLO office.<\/p>\n In its Order of 9 March 1988<\/a>, the ICJ considered that such reference did not constitute a formal request for the indication of provisional measures, but left the possibility of such measures in advisory proceedings open (see p. 4). Given that the ICJ issued the advisory opinion approximately a month later, there was arguably no need for it to indicate provisional measures proprio motu<\/em>.<\/p>\n With regard to the ban of UNRWA, there arguably exists a dispute between the UN and Israel in the sense of Article 102 of the Rules of Court. For instance, the UNSG warned Israel<\/a> that the ban would violate international law and the General Convention. Some scholars object that provisional measures in advisory proceedings are void of any purpose since there are no rights of parties that need protection and since advisory proceedings do not lead to a \u201cfinal decision\u201d pursuant to Article 41 which would resolve the dispute (see e.g. Quintana 2015<\/a>, p. 1253).<\/p>\n However, these objections are unconvincing in cases where advisory proceedings would effectively serve as a dispute settlement mechanism between the UN, and other international organizations, and a member state. In such cases, e.g. under the General Convention, advisory procedings serve as a substitute for contentious proceedings before the ICJ, which are only open to states. Thus, there would exist rights that are able to be preserved with the help of provisional measures and the advisory opinion would, by separate agreement of the parties, be accepted as legally binding and be able to resolve the dispute.<\/p>\n It is unclear whether the UNGA intended to invoke the dispute settlement clause of the General Convention through its reference in the preambular paragraphs of the resolution. The broad scope of the question, which extends beyond the alleged dispute under the General Convention, the absence of any direct reference to the Convention or the dispute, and the fact that the ICJ need not establish the existence of a dispute to answer the question, make it unlikely that the ICJ will treat these proceedings as a dispute settlement mechanism under the General Convention (see Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations<\/em><\/a>, ICJ, para. 34; Applicability of the Obligation to Arbitrate<\/em><\/a>, ICJ, para. 7). Consequently, it is unlikely that the ICJ will indicate provisional measures in the pending advisory proceedings, even if the underlying facts of the request would justify such action.<\/p>\n Conclusion: Does It Matter?<\/strong><\/p>\n While any advisory proceeding regarding inter alia<\/em> UNRWA under the General Convention would warrant either accelerated proceedings or the indication of provisional measures, one cannot but wonder whether provisional measures would make any difference.<\/p>\n Israel\u2019s ban on UNRWA may already violate the provisional measures indicated in South Africa v. Israel<\/em> (Order of 28 March 2024<\/a>, para. 51), as noted by several states (e.g., Denmark, Finland, Iceland, Norway, Sweden<\/a>). The parties to the conflict have shown little commitment to comply with international law and the request for an advisory opinion reflects broad frustration with the lack of meaningful dialogue to address the dire situation in Gaza.<\/p>\n While the tragic events since and including the horrendous attack of 7 October serve as a stark reminder of the limitations of international law, it remains crucial to continue engaging with international law as it provides the framework for any future political solution. Today, however, we as international lawyers are left with little more than a collective plea for reason and the hope that the announced<\/a> release of hostages and the ceasefire will materialise and pave the way for further steps toward de-escalation and peace.<\/p>\n","protected":false},"excerpt":{"rendered":" After more than a year of hostilities, there are no appropriate words to describe the humanitarian situation in Gaza. The situation is beyond the imaginable and every word that could be used risks understating the extent of human suffering. The UN Secretary General (UNSG) called it \u201ca moral stain on us all\u201d, while the UN […]<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[3743,3811,5617,3680],"authors":[6908],"article-categories":[6000],"doi":[],"class_list":["post-23835","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-icj","tag-palestine","tag-provisional-measures","tag-united-nations","authors-haris-huremagic","article-categories-article"],"acf":{"subline":"Could the ICJ Indicate Provisional Measures?"},"meta_box":{"doi":"10.17176\/20250124-192033-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/23835","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=23835"}],"version-history":[{"count":3,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/23835\/revisions"}],"predecessor-version":[{"id":23837,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/23835\/revisions\/23837"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=23835"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=23835"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=23835"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=23835"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=23835"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=23835"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}