U.S. Defends Israel at International Court of Justice

Latest Developments

The International Court of Justice “should not find that Israel is legally obligated to immediately and unconditionally withdraw from occupied territory,” a U.S. representative told the Court on February 21. Richard Visek, the State Department’s acting legal advisor, said such a finding would undermine the “land for peace” framework set forth in UN Security Council Resolutions 242 and 338.

Visek described “land for peace” as the principle “that the withdrawal of Israeli forces relies on, and is bound together with, the termination of belligerency, mutual recognition and respect for the right of Israel and every other State in the region to live in peace within secure and recognized boundaries free from threats or acts of force.” Thus, said Visek, “any movement towards Israel’s withdrawal from the West Bank and Gaza requires consideration of Israel’s very real security needs. We were all reminded of those security needs on 7 October, and they persist.”

Expert Analysis

“The U.S. presentation thoughtfully and accurately explained why the court should not find that Israel is legally obligated to immediately and unconditionally withdraw from territories it captured in 1967. As the U.S. presentation reflected, international law, as specified by the ‘land for peace’ framework set forth in UN Security Council Resolutions 242 and 338, requires that Israel need withdraw from territories occupied in its 1967 war of self-defense only if the Palestinians make concessions that provide Israel with lasting peace. Israel’s presence in territories it captured in 1967 continues to be legally justified because the Palestinian leadership has repeatedly refused Israeli offers to settle the conflict on terms that durably address Israel’s legitimate security concerns.” — Orde Kittrie, FDD Senior Fellow

“The ICJ case ignores how Israel came to possess the disputed territories and why it remains there. The Palestinians have rejected or ignored several Israeli proposals to create a Palestinian state on nearly all the land in question. Imposing unilateral demands for Israeli withdrawal would reward Palestinian rejectionism and make a negotiated solution less likely.” — David May, FDD Research Manager and Senior Research Analyst

The ICJ Case

The ICJ case comes at the request of a December 2022 United Nations (UN) General Assembly resolution calling on the court to issue an advisory opinion regarding the legal status and consequences of Israel’s presence in “the Palestinian territory occupied since 1967.” At least 52 countries and three international governmental organizations are scheduled to make presentations at the hearings between February 19 and 26. These countries include serial human rights violators Russia, China, Qatar, and Iran. Israel submitted a written statement but opted not to participate in the hearings. Meanwhile, the ICJ is separately proceeding with a case South Africa initiated accusing Israel of genocide in its war against Hamas.

Head ICJ Judge Has Problematic Record

Lebanese Judge Nawaf Salam took over as the ICJ’s chief judge in February. Despite never declaring his candidacy (or disavowing it), Salam finished second in Lebanon’s parliamentary balloting in both 2019 and 2022, raising questions regarding violations of the ICJ’s conflict-of-interest rules. As Lebanon’s ambassador to the UN from 2007 to 2017, Salam repeatedly denounced and cast votes against Israel’s military presence in the disputed territories, raising additional conflict of interest concerns.

Related Analysis

“The ICJ’s New Chief Judge Has a History of Bias Against Israel,” by Orde Kittrie

“The Pending Israel-Palestine ICJ Advisory Opinion: Threats to Legal Principles and Security,” by Orde Kittrie

“Pending ICJ Case Threatens to Demand Unconditional Israeli Withdrawal from West Bank,” by Orde Kittrie

“ICJ Rejects South Africa’s New Attack Against Israel,” FDD Flash Brief