The UN in the Line of Fire

On 22 October 2025, the International Court of Justice (ICJ) issued its advisory opinion on the Obligations of Israel in Relation to the Presence and Activities of the United Nations, Other International Organizations and Third States in and in Relation to the Occupied Palestinian Territory. While the Court’s reasoning is largely well-founded (as already observed by Marko Milanovic and Eliav Lieblich), providing significant clarity on certain aspects – chiefly those concerning humanitarian obligations under the law of occupation – the advisory opinion leaves some other issues rather ambiguous. This post focuses specifically on the Court’s reasoning regarding Israel’s obligations to respect the inviolability of UN premises.

Addressing Israel’s obligations to respect UN immunities, Article 105 of the UN Charter and the Convention on the Privileges and Immunities of the United Nations (the General Convention), to which Israel is a State Party, form the core legal framework. Article 105 provides the constitutional and functional foundation, establishing in general terms that the UN shall enjoy the privileges and immunities necessary for the fulfilment of its purposes. The General Convention gives concrete expression to that principle by setting out detailed rules, including the UN’s legal personality, the inviolability of its premises and assets, immunity from legal process, and the privileges and immunities of officials and experts on mission. Two key issues nevertheless arise in practice: the applicability of these immunity provisions in the Occupied Palestinian Territory (OPT), and their relationship with the law of armed conflict (LOAC).

UN Immunities and Privileges Beyond Member States’ Territories

The question of the territorial scope of UN privileges and immunities arises from the wording of its foundational instruments. Article 105 of the UN Charter confines the enjoyment of the Organization’s privileges and immunities to “the territory of its Members.” The General Convention, for its part, does not explicitly define its territorial scope of application, referring only in its preamble to Articles 105 of the UN Charter. Although Palestine has not been admitted to the UN as a Member state, and the OPT does not form part of the territory of Israel (a Member state of the UN), this does not mean that the UN Charter and the General Convention are inapplicable in the occupied territories. In paragraph 185 of its advisory opinion, the Court establishes that Article 105 of the Charter and the General Convention are not limited in their territorial scope, stating that:

[I]n the context of an occupation, an occupying Power exercises jurisdiction and control over the occupied territory and thereby assumes an obligation to respect the privileges and immunities accorded to the UN under Article 105 of the Charter and the General Convention in the occupied territory. This obligation, by its nature, derives from a State’s membership of the UN and its status as a party to the General Convention.

The Court’s conclusion in this paragraph is correct, but the reasoning may be insufficiently framed. Admittedly, the Court’s observation that the obligation of an occupying Power to respect UN privileges and immunities by virtue of its jurisdiction and control over the occupied territory is innovative. The Court appears to draw on the logic of extraterritorial human rights obligations, which are widely recognized as binding on a state in territories under its effective control. However, unlike human rights treaties, for which extensive judicial precedent exists on extraterritorial application, there is virtually no case law addressing the extraterritorial scope of UN immunity provisions. Consequently, in the absence of such precedent, the Court’s reasoning here may be regarded as comparatively fragile.

In fact, some states have put forward valuable arguments in their written submissions, asserting that subsequent practice and the purpose of the Convention – as key elements of treaty interpretation – provide the primary guidance for the application of the UN’s immunities and privileges provisions (see France, pp. 12-13; China, pp. 36-38; Palestine, pp. 122-123). They noted that the UN has repeatedly affirmed that Article 105 of the UN Charter and the General Convention apply to the Occupied Palestinian Territory – a position that has been widely recognized by the international community and unopposed in principle by Israel – thus forming a consensual interpretation based on consistent subsequent practice. Moreover, the 1967 Comay-Michelmore Agreement between Israel and UNRWA also constitutes relevant subsequent practice. They further emphasized that UN privileges and immunities are intended to ensure that the Organization can fulfill its purposes and functions. Accordingly, whether the organs enjoy such privileges and immunities depends on their status and the performance of UN functions, rather than the territory in which they are located. These ways of interpretation may supplement the Court’s conclusion on the territorial ambit of UN privileges and immunities.

Interaction Between the Inviolability Provisions and LOAC

The following question is how the inviolability provisions of the UN’s privileges and immunities, framed in absolute terms, apply in situations of armed conflict.

Scholarly opinion is divided on whether the UN’s immunity provisions take precedence over LOAC rules regarding damage to UN premises. The tension arises because, on the one hand, the UN privileges and immunities regime explicitly guarantees the inviolability of its premises; on the other hand, the LOAC accepts incidental harm to civilians and civilian objects, including specially protected objects, during attacks on lawful military objectives, and provides exceptions to the immunity of such objects when they are used for military purposes. This creates a direct conflict between the UN’s immunity protections and LOAC’s rules on permissible collateral damage.

According to some, the General Convention does not govern damage to UN premises during military operations, and the LOAC, as a lex specialis applicable to armed conflicts, should therefore prevail over other regimes (see pp. 62-63), including immunities. By contrast, others maintain that UN privileges and immunities are absolute and cannot be curtailed due to military exigencies (see p. 83), and that under Article 103 of the UN Charter, obligations under the Charter prevail, meaning that the inviolability of UN property takes precedence over any conflicting rules (see p. 131).

The Court subtly recognizes the absolute immunity of the UN, indicating that the inviolability of UN premises retains priority over the LOAC even in the context of armed conflict. As the Court states in paragraph 196:

The obligation to respect the inviolability of UN premises, as well as the obligation not to interfere with UN property and assets, must be upheld even in the context of armed conflict, as such inviolability and non-interference are essential to safeguarding the independent and effective performance of the Organization’s functions under all circumstances. … Damage to or destruction of UN premises or other property and assets as a result of military operations may constitute a violation of obligations under Article II, Section 3, of the General Convention.

As Marko Milanovic has noted, the Court’s reasoning remains somewhat vague and lacks concrete guidance. Perhaps the most serious issue is that the Court did not use a firm tone to state that the inviolability provisions take priority over the LOAC, merely indicating that damage to UN buildings “may” constitute a violation of obligations under the General Convention. This renders its position ambiguous and lacks confidence.

In fact, the absolute nature of UN privileges and immunities in armed conflict is widely supported by state practice. The vast majority of states in their written submissions explicitly affirmed that UN privileges and immunities shall not be limited on the grounds of military necessity or other considerations under the LOAC, and no state expressed an opposing view (Algeria, p. 11; League of Arab States, pp. 76-77, 86; Egypt, pp. 65-69; Ireland, pp. 13, 15; Pakistan, pp. 34-35; Palestine, pp. 106-107, 121-122; France, pp. 12-13; Qatar, pp. 20-21; Kuwait, pp. 21-22; Luxembourg, p. 5; Maldives, pp. 45-46; Malaysia, pp. 23-25; Bangladesh, p. 18; Mexico, p. 19; Namibia, pp. 32-34; Jordan, pp. 68-70; Chile, pp. 20-22; China, pp. 34-38). Therefore, such consensus among states reflects either an emerging rule of customary international law or subsequent practice regarding the interpretation of the General Convention, both of which affirm the absolute nature of UN privileges and immunities, even in the context of armed conflict, and may be relied upon by the Court in its reasoning.

Giving up the Shield?

The Court’s ambiguity is not confined to the absolute nature of UN immunity. It is equally apparent in its treatment of when a facility may cease to qualify as United Nations premises and thus lose inviolability. In this regard, the Court states in paragraph 196 that:

“The Court acknowledges that armed conflict may pose challenges, particularly where the United Nations may potentially lose control over certain premises. However, it is for the United Nations to determine whether a facility qualifies as United Nations premises. According to the Court, such a determination creates a presumption that may only be rebutted for the most compelling reasons and should be given the greatest weight by States.”

The Court seems to leave unclear the circumstances under which the United Nations could lose its privileges and immunities. In particular, it does not specify when the presumption arising from the UN’s determination could be rebutted, nor does it explain what would qualify as “the most compelling reasons.”

It is difficult to imagine that, on a rapidly evolving battlefield, parties to a conflict would be required to contact the United Nations and obtain its consent before striking a target. Accordingly, it appears that the UN may need to develop a new mechanism to enable the timely waiver of its privileges and immunities in such circumstances. One possible approach may be to establish a dedicated office or special rapporteur within the UN to monitor the use of its premises in armed conflicts and urgently assess whether continued inviolability is justified. This body could quickly advise the Secretary-General on whether a waiver or clarification is needed, ensuring decisions are centralized yet responsive. Such a mechanism would allow the Organization to respond promptly when its premises are used for military purposes, ensuring that the inviolability of UN property is not exploited in ways that ultimately harm the civilians most dependent on the UN’s services.