Closing the Humanitarian Law Gap: Lessons from the ICJ’s Gaza Opinion

Summary

The recent advisory opinion of the International Court of Justice on Gaza underlined not only the continuing principles of international humanitarian law but also its challenges in modern conflicts. While it reinforced the protection of civilians and access to humanitarian aid, it exposed critical gaps in its enforcement and serious ambiguities in its doctrine, particularly in the context of prolonged and asymmetric wars. This opinion highlights how political realities frequently undermine legal compliance, underscoring the need for urgent reforms to better protect civilians in today’s complex conflict environments.

I. Introduction

The International Court of Justice’s (ICJ) recent advisory opinion on the humanitarian situation in Gaza has arrived at a moment when international humanitarian law (IHL) is under unprecedented strain. Although this opinion of the ICJ reaffirms the long-standing commitment regarding problems such as the prohibition of starvation, assistance in aid delivery, and protection of civilians, it concurrently exposes deeper systemic deficiencies in the enforcement and interpretation of IHL in prolonged, lopsided conflicts. The current Gaza situation emphasises the view that legal clarity does not always guarantee legal compliance, especially when the tools to change are restricted by political restrictions.

Far from being a region-specific pronouncement, the Gaza opinion serves as a critical stress test for the systematic capacity of IHL to the people where there is inconsistency from the state, geopolitical favours overrule humanitarian imperatives, the hybrid control regime is unable to be accommodated as the mechanism designed for traditional warfare struggles to fulfil that. When you get a closer look at the opinion, it gives away four interlinked structural gaps: (i) poor implementation implementation of the judicial resolution, (ii) outmoded tenet governing occupations, (iii) operational resilience on the state’s consent for humanitarian access, and (iv) a stunted framework governing third state responsibility.

The article analyses each of these shortcomings and proposes institutional reforms to strengthen civilian protection in the new era of conflicts. Illustrating comparative insight from Ukraine, Myanmar, Yemen, and Syria. The main argument is that while the ICJ’s Gaza opinion restates clear normative standards, the existing architecture of international law remains unprepared to ensure compliance.

II. Enforcement Deficits: The Limits of Judicial Oversight in Contemporary Conflicts

The most significant gap highlighted by the Gaza advisory opinion lies in the structural limits of judicial oversight. Although the ICJ has pledged the fundamental humanitarian obligations, such as the duty to allow rapid humanitarian access, the opinions remain non-binding. This status severely limits its capacity to induce behavioural change, especially where states possess strong geopolitical backing or political incentives to disregard judicial findings.

Israel's non-compliance of the 2025 opinion underscores a broader pattern in which states tactically exploit the non-binding nature of advisory opinions to evade compliance. This isn’t something that is unique to the challenges faced by Gaza. Similarly, Russia spurned the ICJ’s 2022 provisional measures ordering the cessation of military operations in Ukraine, and Myanmar disregarded the ICJ’s directives regarding the Rohingya. These examples reveal a consistent trend in judicial pronouncements; nevertheless, authorities cannot serve as a proxy for a political operational pursuit mechanism.

Although the United Nations Security Council, as the institutional body capable of converting judicial resolutions into binding implementations, remains hampered by veto politics. There are a few historical precedents that reaffirm this problem, like there were clear findings of violation in Syria, Yemen, and South Sudan, the Security Council divisions came against the implementation of these overbearing measures that left the humanitarian norms dependent on political harmony rather than legal commitment.

This execution vacuum has two direct outcomes. Firstly, it creates uneven levels of legal obligations and the state’s catalyst, which encourages particular compliance. Second, it erodes the integrity of IHL as a shielding regime, particularly when an open judicial finding fails to yield any substantive improvement in humanitarian conditions. Without a mechanism to render reliable legal explication into palpable compliance.

III. Ambiguities in Occupation Law and the Challenges of Hybrid Control Regimes

The Gaza opinion reveals a critical doctrinal vulnerability in the law of occupation. The existing legal landscape, primarily the 1907 Hague Regulations and the Fourth Geneva Convention, contemplates conventional military occupation, in which “accompanying it at least some of the following characteristics”: physical presence, administrative control, and a governing authority. In contemporary warfare, effective control may be exercised across rather than within borders, airspace, the digital realm, or economic networks.

Israel’s assertion that it does not “occupy” Gaza because it has no standing ground forces there illustrates the inadequacy of conventional metrics. By contrast, the ICJ and other international institutions have made it clear that effective control, if not physical presence (so long as physical presence implies the capacity to secure entry and exit with priority) or infrastructure, can be deemed to exist, e.g., when a state enjoys paramountcy over doorways, porticos, and public utilities. The ambiguity arises because there are no treaty law guidelines on how these other control modes relate to occupational responsibility

Similar disputes have arisen elsewhere. Russia claimed it did not invade Donbas from 2014 to 2022, even as a massive military, financial and political sponsor of the separatist Divisions. Questions have been raised about direct occupation using proxy armed forces in Northern Syria, some of which are also being debated now. The cases demonstrate how states exploit the indeterminacy of doctrine to circumvent their obligations under occupations and undermine civilian protections in conflict-affected areas.

This supports the assertion that effective control may be maintained even where there is functional capability. However, while there’s no new doctrinal answer to the question of nations and non-state actors over war in a connected world, they’re likely to continue arguing about what constitutes a legal basis for action, which is bad news if one seeks either humanitarian assistance or accountability. An improved concept of actual control might expressly include long-distance operational management, computer programs, and financial controls, aligning with current practices of the states and technological advancements.

IV. International law’s operational weakness and humanitarian access

The opinion also emphasises the need for state cooperation to ensure the effective application of humanitarian law. Humanitarian access in Gaza, as in many other conflicts, is still contingent upon the agreement of the party in control of borders or territory, despite the ICJ’s reaffirmation of the obligation to guarantee unhindered aid delivery. Because of this structural dependence, there is an inherent vulnerability that while IHL establishes obligations, it does not give humanitarian actors the freedom to act independently in the event that state consent is revoked.

The operational gap is not just an issue unique to Gaza. In Syria, getting cross-border aid to Idlib needed yearly approval from the Security Council. This approval was often threatened or blocked by political disagreements. In Yemen, both the coalition and Houthi authorities placed limits on aid routes, inspections, and clearance processes, which greatly slowed down humanitarian efforts. In Sudan, the Rapid Support Forces have hindered aid delivery to Darfur, despite dire humanitarian needs. This case’s fundamental issue highlights a basic problem that humanitarian access often depends on negotiations with groups that may exploit aid for their own benefit.

The situation in Gaza is made more difficult by the fragmented control of authority and the use of military force in civilian areas. This situation hinders the work of humanitarian workers and the creation of safe passageways. The ICJ’s statement that starvation should not be used as a method of warfare is significant. However, the tools needed to enforce the ban, such as monitoring systems, independent access routes, and real-time verification, are still not fully developed.

Modern conflicts need a different approach that goes beyond simply asking for permission. A UN-supported rapid access system, backed by satellite monitoring and automated reporting, could establish humanitarian corridors when mass deprivation is detected. This system should include safeguards to prevent misuse while also ensuring that parties cannot abuse control over aid. 

V. Third-State Responsibility: The Stunted Framework for Accountability

The Gaza opinion raises questions about the responsibilities of third states, especially those that provide military, financial, or logistical support, which may facilitate violations of IHL. While the International Law Commission’s article on state responsibility establishes a duty not to assist wrongful acts, it remains unclear how to prove complicity, and this is often a politically charged issue.

The case filed by Nicaragua against Germany in 2024, claiming complicity through arms transfers to Israel, shows the practical challenges of enforcing third-state responsibility. Courts must assess not only if the arms transfer was legal, but also the intent, knowledge and level of contribution involved. These standards are often applied consistently across different jurisdictions. The UK’s review of arms sales to Saudi Arabia during the Yemen conflict highlighted flaws in due diligence, where political and commercial interests frequently take priority over humanitarian concerns.

The key Issue is the lack of a standard risk assessment process for arms transfers to active conflict zones. A coordinated civilian harm risk assessment by the body, similar to the EU’s dual-use export controls or the UN’s Panel of Experts verification practices, could create a standardised way to evaluate whether arms exports contribute to violations. This change will clarify third-state obligations and improve accountability by reducing the discretion states currently have in judging their own compliance.

VI. Conclusion and the Way Forward

The ICJ’s 2025 Gaza opinion reaffirms important humanitarian norms, but it also reveals critical gaps in the structure and functioning of international law. The lack of enforcement limits the actual impact of judicial findings. Ambiguities in occupational law allow states to avoid their obligations through narrow interpretations. Operational constraints hinder humanitarian access, and the responsibility of third states is not clearly defined or consistently applied. Together, these issues underscore a fundamental disparity between the robustness of international humanitarian law and its capacity to safeguard civilians in contemporary conflicts.

Closing this gap in humanitarian law needs a new model of oversight. Improving enforcement means linking advisory opinions to automatic review processes within the UN General Assembly, which would reduce reliance on vetoes in the Security Council. Updating the definition of effective control in occupation is necessary to reflect remote and hybrid governance systems. To strengthen humanitarian access, we should create a rapid response corridor activated by independently verified indicators of deprivation. Enhancing third-state accountability requires a clear framework for assessing the risks associated with arms transfers into conflict zones. With the help of strict sanctions by the allied countries that can put on some serious pressure on the oppressing countries and make it an effective way.

The Gaza opinion presents an opportunity not only for reaffirmation but also for reform. Its importance lies less in its legal wording, which repeats existing norms, and more in highlighting the system’s weaknesses. Addressing these gaps is crucial to ensure that humanitarian law operates as an effective system, providing real protection to civilians in today’s conflict settings.