ICJ hearing statement on behalf of the Secretary-General of the United Nations by H.E. Ms. Elinor Hammarskjöld, Under-Secretary-General for Legal Affairs and United Nations Legal Counsel

 

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28 April 2025

International Court of Justice advisory proceedings 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

 

INTERNATIONAL COURT OF JUSTICE

Oral proceedings of 28 April – 2 May 2025

Statement on behalf of the Secretary-General of the United Nations

H.E. Ms. Elinor Hammarskjöld
Under-Secretary-General for Legal Affairs and United Nations Legal Counsel

28 April 2025

[Opening statement – English] 

Thank you, Mister President.

Mister President, Members of the Court, it is a great honour for me to appear in front of you on behalf of the Secretary-General of the United Nations in the context of this request for an advisory opinion.

At the outset, I want to underline that the Secretary-General is making every effort to alleviate and bring to an end the ongoing and persistent human suffering of the population in Israel and in the Occupied Palestinian Territory, including the hostages and their families and all those affected by the ongoing armed conflict.  There is an urgent need to return to a ceasefire, and for the parties to respect their obligations under international law.

The Secretary-General has consistently reiterated his strong and unequivocal condemnation of the abhorrent acts of terror by Hamas and other Palestinian armed groups on 7 October 2023.  He has also repeatedly called for all the hostages to be released immediately and unconditionally.

No humanitarian aid or commercial goods have been allowed into Gaza since 2nd of March, which has devastating humanitarian consequences in the Gaza Strip.  The Secretary-General continues to call for humanitarian aid to reach all people in need.

As I stand before you, 295 United Nations personnel have died in Gaza since the 7th of October 2023.

Mister President,

The request in General Assembly resolution 79/232 that the Court render an advisory opinion focuses on the obligations of the State of Israel. This statement will therefore do likewise. Before doing so, I want to reiterate that all parties to a conflict must comply with all their obligations under international law, including international humanitarian law and international human rights law, at all times.

In the context of the situation in Israel and in the Occupied Palestinian Territory, Israel, the State of Palestine, and non-State actors, including Palestinian armed groups such as Hamas, have obligations under international law that must be observed.

 

[Structure de l’exposé oral – Français] 

Monsieur le président, Mesdames et Messieurs les juges,  

L’objectif de cet exposé oral est d’assister la Cour dans le cadre de la présente procédure consultative portant sur les obligations d’Israël, en tant que puissance occupante et membre des Nations Unies, en ce qui concerne la présence et les activités des Nations Unies dans le Territoire palestinien occupé et en lien avec celui-ci.

Les Nations Unies ont un intérêt spécial et direct dans cette procédure.

Des informations détaillées ont déjà été fournies dans l’exposé écrit sur la présence et les activités des treize entités des Nations Unies [1] qui se trouvent sur le Territoire palestinien occupé.  Je ne répéterai donc pas cette information aujourd’hui.

Je me limiterai à rappeler que toutes ces entités sont des organes subsidiaires des Nations Unies au sens de la Charte, ou font partie du Secrétariat des Nations Unies.  Je souligne à cet égard que le statut de ces entités est irréfutable.

Ces entités sont engagées dans la « fourniture sans entrave d’articles de première nécessité essentiels à la survie de la population civile palestinienne » [2].  Aussi, dans certains cas, ces entités sont engagées dans la fourniture de « services de base et d’une aide humanitaire et d’une aide au développement, dans l’intérêt de la population civile palestinienne et à l’appui du droit du peuple palestinien à l’autodétermination » [3].

Aujourd’hui, mes propos seront exposés de la manière suivante :

En premier lieu, je me référerai aux obligations d’Israël en tant que puissance occupante.

En second lieu, je me référerai aux obligations d’Israël en tant que membre des Nations Unies.

 

 I. Obligations of Israel as the occupying Power – English 

Mr. President, Members of the Court,

I will now elaborate on the obligations of Israel as an occupying Power.  After making initial preliminary remarks, I will turn to three specific issues: (1) first, the scope of relief schemes under the Fourth Geneva Convention; (2) second, the limitations on the authority of the occupying Power to administer an occupied territory; and (3) third, the protection of humanitarian, medical and United Nations personnel in general.

***

Israel has several obligations in relation to the presence and activities of the United Nations in the Occupied Palestinian Territory by virtue of its status as the occupying Power.  These obligations include the following obligations under international humanitarian law:

• the overarching obligation to administer the territory for the benefit of the local population,
• the obligation to agree to and facilitate relief schemes,
• the obligation to facilitate the proper working of all institutions devoted to the care and education of children, and
• the obligation to maintain the medical and hospital establishments and services, including those set up by United Nations entities.

In the specific context of the current situation in the Occupied Palestinian Territory, these obligations entail allowing and facilitating all relevant United Nations entities to carry out their activities for the benefit of the local population.

In addition to international humanitarian law obligations, international human rights law obligations are also applicable to the conduct of Israel with regard to the Occupied Palestinian Territory.  This includes respecting the decisions of the representative of the Palestinian people to receive basic goods and services from United Nations entities in order to fully enjoy their right of self-determination.

Israel is bound to respect the decision of the Palestinian people on the manner in which the dependence of the West Bank, including East Jerusalem, and Gaza on Israel for the provision of basic goods and services should be reduced.  Israel has the obligation to render assistance to such activities of the United Nations.

***

Mr. President, Members of the Court,

Against this background of an overarching framework, I would like now to more specifically address three points of international humanitarian law.

*

First, I would like to address the scope of relief schemes under Article 59 of the Fourth Geneva Convention.  I recall that, under Article 59, the occupying Power is required to agree to relief schemes and facilitate them, if the whole or part of the population of an occupied territory is inadequately supplied.

Article 59 refers to “relief schemes” in general.

The plain terms of Article 59 do not limit relief schemes to objects that are urgently needed for the survival of the civilian population.

Article 59, paragraph 2, specifically refers to foodstuffs, medical supplies and clothing.  These are examples of relief supplies, and do not constitute an exhaustive list of objects that constitute relief schemes.

The content of relief schemes depends on the needs of the population of an occupied territory.  The legal obligation covers those needs that have to be addressed immediately.  For example, when a large number of population is displaced due to military operations, relief schemes would comprise items that are essential to address their immediate needs, such as food, water, shelter and hygiene facilities.

The definition should also be understood to cover needs which may be more long-term, in particular in cases of prolonged occupation.  For example, relief schemes to address long-term needs may include items that are essential for the construction and repair of certain infrastructures, including medical and sanitation facilities, and items and services to eradicate poverty.

Therefore, the needs of the population in an occupied territory could evolve depending on the nature and the duration of occupation. And relief schemes need to be adapted to the evolving needs.  The occupying Power must agree to such relief schemes, as adapted, and facilitate them.

*

Second, the authority of the occupying Power to administer an occupied territory must be exercised in a manner that is consistent with international humanitarian law.

Any measures taken by the occupying Power to ensure its security must be exercised in a manner that would not deny impartial humanitarian organizations, such as the United Nations, the ability to carry out relief schemes, while part of the population of an occupied territory continues to be inadequately supplied.

In instances where the occupying Power has concerns with the impartiality of a humanitarian organization, the occupying Power may not unilaterally declare that such humanitarian organization is not impartial, and deny its relief schemes.  Such concerns must be addressed in consultation with the humanitarian organization concerned.  I will elaborate on this point later.

*

Third, under international law, including international humanitarian law, humanitarian relief personnel, medical personnel and United Nations personnel must be respected and protected.

As such, attacks may not be directed against such personnel, as long as they are entitled to the protection given to civilians under international humanitarian law.

At every stage of the conduct of military operations, all feasible precautions must be taken to avoid, and in any event to minimize, incidental casualties to humanitarian, medical and United Nations personnel.

They must be treated humanely and must not be subjected to harassment and intimidation.

They are also protected by international human rights law.  As such, they must not be subjected to arbitrary arrest or detention.

United Nations personnel, including those who carry out humanitarian and medical work for the United Nations, are also accorded particular status under the Charter of the United Nations and the Convention on the Privileges and Immunities of the United Nations, to which Israel is a party.  Consistently with their status as United Nations officials or experts, United Nations personnel may not be attacked, arrested or detained or subjected to any form of legal process in connection with their official functions.

Privileges and immunities are granted to United Nations personnel in the interests of the Organization. Interference with their functions impedes the activities of the United Nations as an organization.

 

II. Obligations of Israel as a Member of the United Nations – English 

Mr. President, Members of the Court,

I will now move on to the second part of my statement, which concerns Israel’s obligations as a Member of the United Nations.

I will start by recalling the unlawfulness of Israel’s continued presence in the Occupied Palestinian Territory and the relevance of this to the present proceedings.

I will then recall the general obligations arising from the Charter and the 1946 Convention on the Privileges and Immunities of the United Nations, which I shall refer to in my statement as the “General Convention”.

I will then specifically discuss first, the inviolability of United Nations premises, second, the general obligation of cooperation with the United Nations, and third, the issue of the impartiality of certain United Nations entities.

***

Mr. President, Members of the Court,

I will now turn to the first point: the unlawfulness of Israel’s continued presence in the Occupied Palestinian Territory and the relevance of this to the present proceedings.

Under international law, States, including Members of the United Nations, are prohibited from acquiring territory by force.

In the Advisory Opinion of 19 July 2024, this Court concluded that Israel’s assertion of sovereignty over and its annexation of certain parts of the Occupied Palestinian Territory constitute a violation of the prohibition of the acquisition of territory by force.

On this basis, the Court has authoritatively determined 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.

The enactment of the “Law to Cease UNRWA Operations” and of the “Law to Cease UNRWA Operations in the Territory of the State of Israel” by the Knesset of Israel on 28 October 2024 appears to constitute an extension of sovereignty over – or exercise of sovereign powers in – the Occupied Palestinian Territory, including East Jerusalem.

The same can be stated regarding any measures taken on the basis of those laws and other applicable Israeli law in the Occupied Palestinian Territory, including East Jerusalem.

They are, as such, inconsistent with Israel’s obligations under international law.

Insofar as the “Law to Cease UNRWA Operations in the Territory of the State of Israel”, among other effects, prevents UNRWA operations in East Jerusalem, which Israel considers to be part of the territory of the State of Israel, the enactment and implementation of this law is also inconsistent with the international legal status of East Jerusalem.

***

I will now turn to certain general obligations under the Charter.

The present proceedings are crucial because they will afford the opportunity to clarify certain fundamental elements of the legal framework applicable to the United Nations.

The status of Israel as a Member of the United Nations entails several legal obligations concerning the presence and activities of the United Nations in and in relation to the Occupied Palestinian Territory.

These obligations are all essential for the Organization to properly function and perform the mandates it has been entrusted by its Member States.

The “exclusively international character” of these functions and mandates is enshrined in Article 100 of the Charter.  When the basic elements of this legal framework are not observed, the very nature of the work of the Organization on behalf of its Member States is in jeopardy.

The basic elements of the legal framework of the United Nations include:

• general principles of good faith and cooperation with the Organization;
• obligations concerning the safety and security of United Nations premises, property, assets and personnel; and
• more specifically, obligations concerning the privileges and immunities of the United Nations and its premises, property, assets and personnel.

Regarding these, I wish to note that the Charter confers certain privileges and immunities to the Organization so that it may fulfil its purposes, as Article 105 of the Charter makes clear.  Such privileges and immunities are applicable to all entities that are integral to the United Nations, including its subsidiary organs such as UNRWA, which was established by the General Assembly as its subsidiary organ.

In the written statement of the Secretary-General, the obligations stemming from the Charter and from the General Convention were elaborated in detail.

These principles are well set in law and practice.  In this regard, I welcome the fact that a clear majority of Member States having submitted written statements appear to agree on the importance of the privileges and immunities of the Organization and its personnel.

Today, I wish to underline, before turning to certain specific points, the importance for United Nations operations of the obligation to uphold the immunity from legal process of the United Nations and its personnel, irrespective of which United Nations entity they may be assigned to.

Equally important is the obligation to facilitate the movement of supplies, goods and equipment of the United Nations and the freedom of movement of its personnel.

Particularly since the end of January this year, United Nations operations on the ground, specifically for UNRWA, have faced increasingly difficult conditions. Following the enactment and implementation of the Knesset Laws, the issuance of visas to UN personnel has been further denied or restricted, and actions have been taken against UNRWA personnel in connection with their duties for the Organization. There has been unauthorised entry into UNRWA schools and orders for their closure have been issued, notwithstanding the ongoing mandate for UNRWA activities.

In this regard, it is necessary to uphold the privileges and immunities of the United Nations and its personnel. As set out in documents contained in the dossier provided to the Court, violations of these obligations have occurred.[4] Differences arising out of the interpretation or application the General Convention may result in a situation in which a difference under the General Convention has arisen between the United Nations and Israel.

***

Mr. President, Members of the Court,

I would like now to elaborate more specifically on three points.

*

First, I wish to emphasize the absolute and mandatory obligation to respect the inviolability of United Nations premises, property and assets at all times, including during armed conflict, in accordance with international law.

Article II, Section 3, of the General Convention provides that the “premises of the United Nations shall be inviolable”; also, that the “property and assets of the United Nations, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action”.

Consistently with this provision, inviolability entails that State agents may not enter or otherwise physically penetrate or physically interfere with the United Nations premises without the prior consent of the United Nations.

It also entails a duty on the part of the State to take all appropriate measures to prevent the United Nations premises being entered or otherwise physically penetrated, damaged or interfered with by other actors.

State officials, including members of the armed forces and domestic law enforcement authorities, may not enter United Nations premises without authorization by the United Nations.  Any other form of interference is also prohibited by Article II, Section 3, of the General Convention.

These obligations therefore also prohibit any State authorities, including a State’s armed forces or security forces from hitting, damaging or attacking United Nations premises, property and assets. There are no stated qualifications to, or limitations on, inviolability in the General Convention, and other relevant agreements. There is no reference to inviolability being merely “functional” in nature, as is the case for other provisions in the General Convention; nor is there any reference in the General Convention to situations of armed conflict, civil unrest or other emergency situations as constituting possible limitations on such inviolability.

The respect for the inviolability of United Nations premises, property and assets is an indispensable precondition for the Organization to be able to implement its mandated activities all over the world, including in the Occupied Palestinian Territory.

Serious breaches of international law have been committed by parties to the ongoing conflict.  But a breach by one party does not excuse breaches by other parties.

*

I will now refer to the second point: the general principles that enshrine obligations of cooperation with the United Nations.

It is from the Preamble of the Charter that we derive the notion that Member States have committed to “combin[ing] [their] efforts” to accomplish the aims of the Organization.

Among the Principles set out in Article 2 of the Charter is that “[a]ll Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter” (Article 2, paragraph 2).

Another of the Principles is set out in Article 2, paragraph 5 of the Charter, which requires, in its first part, that “[a]ll Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter”.

Consistently with the Court’s interpretation of Article 2, paragraph 5, of the Charter in its Advisory Opinion concerning Reparation for injuries suffered in the service of the United Nations, in the practice of the Secretariat, Article 2, paragraph 5 of the Charter has generally been interpreted as meaning that Member States are required to provide every assistance to United Nations entities to ensure the effective implementation of their mandates.  In this context, it has been generally relied upon when calling upon States to comply with their obligations under Article 105 of the Charter and the General Convention.

In the present case, the United Nations “action” consists of the activities carried out by a number of United Nations entities in the Occupied Palestinian Territory.  Such activities are carried out consistent with resolutions of the Security Council and the General Assembly and with mandates provided by various United Nations bodies, in a context in which this Court has authoritatively held that Israel is not entitled to sovereignty or to exercise sovereign powers.  In these circumstances, Article 2, paragraph 5 of the Charter is directly relevant in the context of Israel’s responsibilities vis-à-vis the presence and activities of the United Nations in and in relation to the Occupied Palestinian Territory, in accordance with international law, including other provisions of the Charter.

*

Finally, my third point, referred to in certain written submissions, relates to allegations that have been raised as to the impartiality of certain United Nations entities.

The United Nations considers very seriously any credible allegations against the Organization, including those involving its personnel or misuse of its premises. Any such concerns must be brought to the attention of the Organization so that the matter may be considered by the United Nations in accordance with its legal framework, including the privileges and immunities of the Organization and its personnel.

The Organization has established a framework to address and investigate specific allegations of incidents brought to its attention, which is in line with the status, privileges and immunities of the United Nations.  With regard to allegations against United Nations personnel, the regulatory frameworks of the United Nations require such allegations to be confirmed through an internal administrative investigation, which may include referring the allegations to the Office of Internal Oversight Services (“OIOS”) for investigation. [5]

The ability of the United Nations to further inquire into allegations depends on the full cooperation of Member States, including the provision of relevant documents and materials, without which the Organization may not have sufficient basis to take further action in specific cases.

Where concerns relate to broader issues, the Organization has taken further steps to review the matter.  For example, following allegations that have been raised against UNRWA and its personnel, UNRWA and OIOS have taken steps to investigate those allegations in line with the Organization’s regulatory framework and continue to do so.   In response to Israel’s concerns regarding the neutrality of UNRWA personnel more broadly, the Secretary-General appointed the former Foreign Minister of France, Catherine Colonna, to lead an independent review to assess whether UNRWA was doing everything within its power to ensure neutrality and respond to allegations of serious neutrality breaches when they are made.

The Secretary-General and UNRWA have expressed their commitment to fully implementing the review’s recommendations, with the support of Member States.  We note that such steps have been welcomed by the General Assembly [6] and by a number of Member States in their written submissions for these proceedings.

 

[Conclusion – Français] 

Monsieur le président, Mesdames et Messieurs les juges,

Je conclus, en rappelant qu’Israël continue à lancer des frappes dévastatrices sur Gaza, des frappes qui continuent d’emporter la vie de nombreux civils, y compris du personnel des Nations Unies.  En outre, aucune aide humanitaire n’a été autorisée à rentrer dans la bande de Gaza depuis début mars.

En conséquence, le Secrétaire général a pris la décision difficile de réduire la présence de l’Organisation dans la bande de Gaza, alors même que les besoins humanitaires augmentent massivement et que notre inquiétude par rapport à la protection des civils croît.

L’Organisation des Nations Unies est déterminée à exercer ses mandats dans le Territoire palestinien occupé, y compris Gaza, notamment en fournissant aux civils l’aide dont ils ont besoin afin d’assurer leur survie.

Pour que les entités des Nations Unies puissent exercer leurs fonctions, toutes les parties au conflit doivent pleinement respecter leurs obligations en vertu du droit international, y compris l’obligation de protéger l’inviolabilité absolue des locaux des Nations Unies et l’obligation de garantir le respect de l’indépendance et du statut du personnel des Nations Unies.

A cet égard, le respect par Israël de ses obligations en vertu du droit international est indispensable pour l’exercice par les entités des Nations Unies de leurs mandats dans le Territoire palestinien occupé et en lien avec celui-ci.

Un tel respect du droit international est tout aussi indispensable pour la protection des civils. Et pour que les collègues des Nations Unies continuent à travailler pour sauver la vie de civils sans faire face à des risques intolérables.

Le respect du droit international par toutes les parties prenantes demeure la seule option possible pour une paix durable, ainsi que pour la sécurité et la justice des Israéliens et des Palestiniens.

Monsieur le président, Mesdames et Messieurs les juges, je vous remercie pour votre attention.

 

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[1]  The thirteen entities are: the Office for the Coordination of Humanitarian Affairs (OCHA), the Office of the High Commissioner for Human Rights (OHCHR), the United Nations Children’s Fund (UNICEF), the United Nations Development Programme (UNDP), the United Nations Entity for Gender Equality and the Empowerment of Women (UN–Women), the United Nations Human Settlements Programme (UN-Habitat), the United Nations Mine Action Service (UNMAS) of the Department of Peace Operations, the United Nations Office for Project Services (UNOPS), the United Nations Office on Drugs and Crime (UNODC), the United Nations Population Fund (UNFPA), the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), the United Nations Special Coordinator for the Middle East Process (UNSCO), and the World Food Programme (WFP).

[2] General Assembly resolution 79/232, 19 December 2024, para. 10.

[3] Ibidem.

[4] For instance, dossier Nos. N295, N296, N298, N299, N303, N305, N309, N310 and N311.

[5] The Office of Internal Oversight Services (OIOS) is the internal oversight body of the United Nations.  It was established by General Assembly resolution 48/218 B adopted on 29 July 1994.

[6] General Assembly resolution ES-10/25, 11 December 2024, para. 17.