Sarthak Sahoo
Introduction
On 22 October 2025, the International Court of Justice (ICJ/Court) delivered its advisory opinion on Israel’s obligations on humanitarian relief in the occupied Palestinian territories. This came pursuant to UN General Assembly resolution 79/232 of December 2024, which asked the Court to outline (although not assess compliance with) Israel’s obligations in this context.
As background, Israel had passed legislation a few weeks earlier, in October 2025, that prohibited the activities of the UN Relief and Works Agency (UNRWA) in the West Bank and the Gaza Strip.
For the Court to hear a case or render an opinion, it is not sufficient that it has jurisdiction. It also has the discretion not to exercise this jurisdiction if it considers the case inadmissible. It has held that it would only do so if there are ‘compelling reasons’ to do so.
In this context, both Israel (paras 2 to 4) and the United States (para 4) raised arguments on why the Court should, using its discretion, refuse to render an opinion. In its final opinion, the Court provided a summary dealing with these arguments and dismissed them.
In the commentary since the opinion has come out, there has been little to no emphasis or examination of the Court’s reasons for deciding to hear the case. This may stem from the general perception that objections on discretion are often rhetorical, not legally sound.
However, in this blog, I wish to contest that notion. I will explain the objections made, how the Court responded, and how certain choices made by it are either erroneous or seriously troubling. In this process, I shall also address how strong Vice-President Sebutinde’s views on discretion stand in my understanding.
The Assembly’s Question
The UNGA resolution 79/232 asked the Court’s opinion on the following question:
What are the obligations of Israel, as an occupying Power and as a member of the United Nations, in relation to the presence and activities of the United Nations, including its agencies and bodies, other international organizations and third States, in and in relation to the Occupied Palestinian Territory, including to ensure and facilitate the unhindered provision of urgently needed supplies essential to the survival of the Palestinian civilian population as well as of basic services and humanitarian and development assistance, for the benefit of the Palestinian civilian population, and in support of the Palestinian people’s right to self-determination?
After the 2004 Wall and 2024 Policies & Practices opinions, this was the third instance of the Assembly attempting to entrench and affirm what it considers the illegality of Israeli conduct in Palestinian territories. The Court identified four lines of argument on discretion that it would respond to. These are, that (1) hearing the case would prejudice the South Africa v Israel proceedings, (2) the opinion would overlap with the issues discussed in the previous two advisory opinions on Israel, (3) the Court does not have the appropriate ability to adjudicate the complex factual circumstances involved and (4) that the request was an abuse of process. It would only address objections on discretion brought up before the Court in either the Wall or Israeli Policies and Practices opinions (para 25).
The Prejudice Objection
The Court had to first respond to the concern that, in giving an opinion, it would prejudge a question before the court in Genocide Convention (South Africa v Israel) (para 26). This view is also held by VP Sebutinde in her separate opinion (para 14). In that case, South Africa has argued that Israel’s failure to ensure humanitarian assistance to those in Gaza would violate the Genocide Convention. To note, Article II(c) of that convention designates ‘[d]eliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’ as Genocide. Subsequent provisional measures indicated by the Court in those contentious proceedings have also asked Israel to ensure the provision of humanitarian assistance, such as not to violate the Genocide Convention (para 28).
In the current AO, the Court responded by stating that the subject matter of both proceedings was different. While the contentious case dealt with Israel’s adherence to the Genocide Convention, the AO proceedings dealt with the identification of Israel’s obligations with reference to the UN agencies, other international organisations, and third states. (para 27-28) Specifically, the Court found that ‘a determination made by the Court in the context of one obligation does not necessarily prejudge the question of compliance with a different obligation.’ (para 29)
Additionally, it then stated that ‘the facts that are relevant to a potential finding of a violation of obligations under the Genocide Convention are sufficiently distinct from the facts that are relevant to the identification of Israel’s obligations as an occupying Power and as a Member of the United Nations in the present context.’ (para 29) For those factual and legal aspects that are overlapping, it stated that parties to the contentious proceedings will have the chance ‘to present evidence and arguments on questions of fact and law’, based on which the Court will make its decision (para 30).
At the outset, the Court’s rhetorical stretch that both cases differ in ‘subject matter’ is a non-sequitur to the question of prejudice. It is obvious that both cases deal with different rules of international law, and in fact differ in their scope (identification v adherence) – it is rather the determination of facts that are common to the application of both laws that may be affected. The Court does not discharge the prejudice claim because of this fact.
It then implicitly concedes this by saying that the facts at hand are ‘sufficiently distinct’ (para 29) from those that’ll be referred to the Genocide Convention case. This bare statement is thoroughly unreasoned and unexplained. At least, it makes an in-principle concession that the facts in cases could be insufficiently different so as to trigger prejudice. Crucially, if such are indeed ‘sufficiently different’, then would the Court be willing to not take judicial notice of these facts when assessing Israel’s adherence to its obligations with the Genocide Convention?
Finally, on overlapping elements of facts and law, the Court relies on the ability of Israel to use its own chance to present evidence. However, this ignores the Court’s longstanding tradition of following its own ‘settled jurisprudence’, even though not required by Statute. It would be surprising if Israeli presentation of its efforts, or UNRWA’s lack of neutrality, will induce the Court to reconsider these issues, or even change its mind.
The Repetition Objection
Second, it responded to the concern that the opinion to be rendered in this case overlaps considerably with the content of the two advisory opinions related to Israel already so provided in Wall and Israeli Policies and Practices (para 32).
The Court states that two facts distinguish the present opinion from previous ones. First, the present opinion comes after Israeli legislation to prevent UNRWA’s activities was passed on 28 October 2024. Second, the Policies & Practices opinion was limited to opining on events before 7 October 2023 (para 34). It also goes on to cite the situation in South West Africa, which had required it to consider multiple contentious and advisory proceedings with reference to the same factual circumstances (para 34).
In my view, the Court need not have distinguished this opinion from the previous ones by reference to temporal facts (Israeli legislation or time limits). This is a serious concession on the Court’s ability to answer different questions of law across the same time, or the same questions of law at different times. This is opposite to VP Sebutinde’s concern about repetition, where she points out instances of reaffirming previous findings as indicative of such repetition (para 10-11).
In this case, the Court should have instead referred to its ability to simply address different aspects of this opinion with the previous ones. That their jurisprudence assists the Court in deciding this case is no impediment. Similarly, one may consider that the customary rule of law governing a situation changes over time. The Court should, in principle, be thus rendering an opinion changing its view on the legality of certain actions with reference to that changing law.
Instead, the Court’s act now logically (even if not realistically) limits its analysis to after 7 October 2023 (at least) and after 28 October 2024 (at best). There was no need to constrain itself in this way, and it should have emphasised the distinct nature of legal questions from previous advisory opinions, and increased the ability of the Court to refer to its own jurisprudence in trying to explain existing obligations, and potentially re-hearing them.
The Factual Investigation Objection
Third, it responded to the argument that the Court would have ‘factual investigations and make findings on disputed and evolving matters’ unsuited to its advisory capacities and functions (para 36).
The Court states that it has ‘ample documentation’ on the relevant facts. It mentions the UN Secretariat’s dossier and the participation of around 45 states across both stages of the proceedings. Interestingly, the Court specifically mentioned that ‘Israel and the observer State of Palestine’ gave information on the supply of essential services and basic supplies in relation to Gaza since 7th May (para 37).
There are two problems with the Court’s analysis on this point. For one, references to the volume of information available to the Court, or the number of States appearing, is not dispositive to the question of its sufficiency. This is not to say that the Court cannot assess complex facts in advisory opinions (even in this case). It is simply rather a criticism of the Court choosing to wave its hand against this objection, as opposed to asserting its competence per se to hear the matter.
Furthermore, the Court’s mention of Israel having led evidence seriously conflicts with its response to the first objection, where it indicates that Israel will have the ability to plead those very facts in issue with greater entitlements in contentious proceedings. Thus, the Court concedes at once that Israel may not be able to make its arguments conclusively in these proceedings as to the facts, but then uses the very fact of its participation as being enough to provide it with the requisite factual background.
The Abuse of Process Objection
Fourth, it responded to the claim that ‘the request abuses and “weaponizes” the international judicial process.’ The Court understood this to be an ‘abuse of process’ claim familiar to its jurisprudence (para 39). The Court signalled a slight scepticism that such abuse of process claims could arise in advisory proceedings (para 39). Then, it went on to say that simply because the dispute has a political nature does not prevent it from adjudication (para 40). Crucially, it observed that:
40. […] The fact that the question posed by the General Assembly has a political context does not suffice to deprive it of its character as a “legal question” (see Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 234, para. 13; cf. United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, I.C.J. Reports 1980, p. 20, para. 37). The General Assembly’s request calls on the Court to discharge its judicial function, namely to answer a legal question on the basis of the applicable rules of international law. Therefore, the Court does not consider that it would be inappropriate for the Court to answer the question put to it.
At the outset, we can assume a reductio ad absurdum to ascertain whether abuse of process is possible in advisory opinions. Take a situation where the UNGA asks the exact same question to the Court multiple times until it gives it the response (along with the specific observations) it wants. Intuitively, this would be akin to an abuse of process claim that is likely to succeed, and induce the Court to refuse to give its opinion at some point.
Moving forward with this assumption, the Court fails to answer this objection at all. It does claim that the political nature of the dispute is not relevant, but that was not the precise objection made by Israel. In fact, it then goes on to cite two cases where it has held that all the Court needs is a legal question, notwithstanding its political salience.
However, this ignores the fact that both cases here refer to the jurisdiction of the Court. In Nuclear Weapons, the cited portion states that:
The fact that this question also has political aspects, as, in the nature of things, is the case with so many questions which arise in international life, does not suffice to deprive it of its character as a “legal question” and to “deprive the Court of a competence expressly conferred on it by its Statute”
The requirement for a legal question is present in Article 65 of the ICJ’s Statute, which asks that the Court ‘may give an advisory opinion on any legal question’. However, since this objection is made at the discretion stage, the fact that the Court has jurisdiction is not dispositive to a potential abuse of process claim. The Court should have taken this objection seriously and dealt with it with the relevant facts and evidence, as per the standards of its existing jurisprudence.
Conclusion
The Court’s observations have outsized relevance as an arbiter of sovereigns. Thus, its loose dealing with objections raised by the States—which are also central to the dispute—portends poorly for State confidence in the Court to move beyond dominant narratives in international law and UN resolution patterns.
The next onus on the Court is to ensure that when South Africa v Israel is decided, it ensures strict consistency with its conclusions reached in this case. Otherwise, allegations that the Court sidesteps such concerns on a case-by-case basis to smuggle the dispute in would obtain serious ammunition.
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