Eight Failures From The US Testimony At The International Court of Justice

Daniel Levy is the president of the U.S. / Middle East Project. 

The U.S. Government has made its oral statement at the International Court of Justice in The Hague. Sadly, if predictably, the position presented constituted a charter for permanent occupation and undermining International Law.

The International Court of Justice was tasked by the UN General Assembly in December of 2022 to provide an advisory opinion on the legal consequences and third party responsibilities arising from Israel’s prolonged occupation of the Palestinian territories. This process includes holding hearings and receiving statements, and it is the first time in 20 years (since the advisory opinion on the construction by Israel of a wall in Occupied Palestinian Territory) that the court has addressed these legal questions. At the hearings, an unprecedented number of states will be appearing to offer testimony – the vast majority will be supporting variations of the case put forward by the Palestinians while a small minority, led by the U.S. will do the opposite.

Here’s why the Biden administration’s disappointing argument should concern anyone who wants to see genuine movement towards peace and justice:

1. A core of the U.S. argument was that the Court and international law do have a role, but those must narrowly center around UN Security Council Resolutions and with a heavy emphasis on 242 and 338. That in itself is a sleight of hand by the United States Government. We know why the Security Council is always so limited and circumscribed – because the U.S. has consistently for decades vetoed anything which offers a broader application of international law to Israel’s actions and to its permanent belligerent occupation. What  the U.S. position is saying is that other equally important pre-emptory norms and conventions in international law cannot be applied to the case of Israel/Palestine – for instance the inalienable rights to self-determination, the Genocide Convention, the convention on the elimination of all forms of racial discrimination etc. The U.S. is deploying something of a tautology. It has broken the capacity of the Security Council to act by consistently using its veto and now it wants to apply those broken results to undermine the role of the International Court of Justice.

2. Given the centrality of UNSCRs 242 and 338 to the presentation of the U.S, it is worth placing those resolutions in their correct context. Neither make mention of the Palestinians directly or of the Palestinian right to self-determination, they are very much rooted in the then predominant language of the Israeli/Arab conflict. In approach they resemble the legacy of the 1947 UN Partition Plan – passed by a pre-decolonisation UN consisting of just 56 states, of whom 33 voted for partition (31 from the global north along with apartheid South Africa). Those two resolutions, 242 and 338, both more than half a century old, predate the major legal questions facing the ICJ in this advisory opinion – the massive proliferation of illegal settlements, de facto annexation, changes in the status of Jerusalem and the entrenchment of a discriminatory regime considered to meet the legal definition of apartheid.

3. In its oral statement, the U.S. recognized the illegality of the acquisition of territory by force and stated this is a principle it upholds universally. However, that does not stand up to the most basic scrutiny. The previous Trump administration recognized Israel’s illegal annexation of the Golan Heights and de facto changed its position on the status of the illegal annexation of East Jerusalem by moving the U.S. Embassy there. Neither of these steps have been reversed by the Biden administration.

4. The U.S. position was essentially to endorse the notion of permanent belligerent occupation. It talked about conditions for withdrawal, but of course its own policies prevent the most important condition for that withdrawal, namely the U.S. guaranteeing Israeli impunity and avoidance of costs or consequences for Israel’s continued illegal actions. The USG therefore ends up defending and owning Israel’s ongoing drift toward ever greater extremism.

5. The U.S. testimony conspicuously refused to reassert the illegality of Israel’s settlements – one of the central questions the court has already ruled on and on which there is near total international unanimity. U.S. testimony was an opportunity to assert a policy long neglected. Instead, the USG seems to want us to focus on a few bad apples of extremist settlers when the reality of the illegal settlement project is in it being a central plank of Israeli state policy to control land and resources, to advance demographic re-engineering, and is legally enabled, funded, secured, by every Israeli government of every political persuasion.

6. The U.S. position at the ICJ goes hand in hand with its vetoing of recent resolutions on Gaza at the UN Security Council. That position is to maintain a strict separation between a US-led peace process and international law. It is a separation which enables a 30-year peace process under which Israel’s violations of international law multiply and metastasize rather than being ended, in which numbers of illegal settlers exponentially increase and in which the peace process becomes cover for the enabling and entrenching of a reality of apartheid. It should therefore come as no surprise that of the submissions at the ICJ, 22 states and 2 International Groupings reference the apartheid reality. Reconnecting any future peace effort to international law is what is most necessary and what the USG is trying to prevent.

It is understandable why – if international law is applied to Israel then the legal complicity of the US, for instance, in supplying Israel with weapons, comes under the microscope. If the US can pick and choose and strong-arm – a process sometimes called “the rules based international order” – as a replacement for international law, then it can use the asymmetry of power to bully Palestinians as it has done to others. However, this will only make the situation worse and leave the US more exposed in its attempts to defend the mutual claims of Israel and the US to exceptional impunity. It also ultimately undermines Israel’s security because if international law does not apply to Israel, then it cannot apply to Hamas either and all parties must be in compliance with international law.

7. There were additional shortcomings, oddities, and missed opportunities in the USG’s oral statement. The U.S. was right to raise Israel’s legitimate security needs. However, Israel has defined its security in such an expansive and unreasonable way as to become a pillar underpinning the regime of separate and unequal ethno-nationalism. The U.S. appears to uncritically endorse the Israeli position claiming that security needs to be balanced against any possible future withdrawal of the occupation and thereby green lighting further decades of occupation. It was also noteworthy that without any relevance to international law or the ICJ hearings, the USG frequently promoted its priority of normalisation and integration into the region of Israel – again endorsing the approach of the Trump administration and subordinating international law and legitimate Palestinian rights to a geo-political vision which seeks to strengthen the U.S. but further obfuscate the issue of peace, rights and self-determination for the Palestinians.

8. Why does any of this matter? The court will probably only release its advisory opinion in several months. That outcome is unlikely to align with the arguments made by the U.S.

Another advisory opinion by the court clarifying legal questions around Israel’s prolonged occupation will not offer immediate actions that can be enforced but it matters because it will potentially provide new tools around which voters, consumers, shareholders, activists and national courts can challenge the existing status quo and the ways in which multiple governments and companies, arms suppliers, and apologists are complicit in this ongoing affront to international legality and indeed to the future wellbeing of not only Palestinians, but of Israelis for whom the role of oppressor can never deliver security or peace of mind.