Pending ICJ Case Threatens to Demand Unconditional Israeli Withdrawal from West Bank

The United States and other governments have until July 25 to submit their first round of written statements in an International Court of Justice (ICJ) case that could establish a new legal framework demanding Israel’s prompt and unconditional withdrawal from the disputed West Bank. Strong briefs by Washington and its allies opposing such a framework could prove pivotal to the outcome.

A United Nations General Assembly (UNGA) resolution passed on December 30, 2022, initiated the case by requesting that the ICJ issue an advisory opinion on the legal status and consequences of Israel’s presence in the West Bank. The resolution implemented a recommendation of an October 2022 report by a UN Commission of Inquiry (COI) investigating the Israeli-Palestinian conflict.

In the October 2022 report, the COI set forth “grounds to conclude that the Israeli occupation of Palestinian territory is now unlawful under international law.” The COI argued that the Israeli presence in the West Bank has become illegal as a result of Israel’s construction of settlements and a separation barrier, which the COI says amount to de facto annexation of occupied territory. The UNGA’s December 30 request to the ICJ was designed to elicit an advisory opinion echoing that COI conclusion.

Such an ICJ opinion would contradict the long-established international law of armed conflict governing occupations. Consistent with that law, the current legal framework adhered to by the UN Security Council, United States, and European Union holds that Israel’s presence in the disputed territories resulted from a legal use of preemptive force in self-defense. Israel’s presence remains justified due to continuing aggression and grave threats from those territories.

Per UN Security Council Resolution 242 and the Oslo Accords, Israel need withdraw only in exchange for lasting peace. Under the framework, any legal violations by Israel in how it conducts its presence in the West Bank must end, but they do not render the Israeli presence itself illegal or require Israeli withdrawal.

The conflict has endured because Palestinian leaders have rejected Israeli offers — in exchange for peace — of a Palestinian state in up to 94 percent of the West Bank. Israel won’t implement an ICJ opinion demanding unilateral withdrawal, which would turn the West Bank into a more strategically located version of Gaza, which Israel evacuated only to face thousands of Hamas rocket attacks. A similar West Bank departure would gravely endanger civilians within Israel’s pre-1967 borders and likely shutter Israel’s economy.

In practice, then, an ICJ opinion demanding unilateral withdrawal would cripple future Palestinian leaders’ ability to compromise. It would also delegitimize Israel and spur boycotts, divestments, and sanctions.

Thus, a Biden administration spokesman called the advisory opinion request “counterproductive” and warned it “will only take the parties farther away from the objective of a negotiated two-state solution.” In a June 2023 letter to Secretary of State Antony Blinken, 35 members of Congress urged the administration to submit a “strong brief to the ICJ” opposing a ruling against Israel.

Of the 15 total judges on the ICJ, eight are from countries that either voted against the December 30 resolution or abstained: the United States, Australia, Brazil, France, Germany, India, Japan, and Slovakia. While judges do not represent their own countries and are required to be impartial, there is strong evidence that judges tend to favor the expressed interests of their home states.  

The United States and its allies should intervene vigorously to avert an ICJ opinion that undermines peace prospects and the law of armed conflict. If they do not do so in their July 25 submissions, Congress will want to ensure that they do so by October 25, the deadline for the second, final round of written statements to the ICJ.

Orde F. Kittrie is a senior fellow at the Foundation for Defense of Democracies and a law professor at Arizona State University. He previously served for over a decade in legal and policy positions at the U.S. State Department. For more analysis from Orde, please subscribe HERE. Follow Orde and FDD on Twitter @OrdeFK and @FDD. FDD is a Washington, DC-based nonpartisan research institute focused on national security and foreign policy.