The ICJ’s New Chief Judge Has a History of Bias Against Israel

Presiding was the ICJ’s newly promoted chief judge, Nawaf Salam, who since joining the court in 2018 has twice been a candidate for prime minister of Lebanon.
Presiding was the ICJ’s newly promoted chief judge, Nawaf Salam, who since joining the court in 2018 has twice been a candidate for prime minister of Lebanon.

Summary

Nawaf Salam has also been a candidate for Lebanese prime minister twice since joining the bench in 2018.

The proceedings at the International Court of Justice are even more of a travesty than Israel’s defenders realize. The court began hearings Monday on meritless claims that international law requires immediate and unconditional Israeli withdrawal from the West Bank and east Jerusalem, regardless of risk to Israel’s security. Presiding was the ICJ’s newly promoted chief judge, Nawaf Salam, who since joining the court in 2018 has twice been a candidate for prime minister of Lebanon.

Later this month Judge Salam will preside over next steps in the separate ICJ case generated by South Africa’s spurious allegations that Israel is committing genocide in Gaza. Both ICJ cases threaten to undermine the ability of Israel, the U.S. and the North Atlantic Treaty Organization to defend themselves against terrorism.

Judge Salam finished second in the parliamentary balloting for prime minister in both 2019 and 2022. Hezbollah, an Iranian-sponsored political party and terrorist organization known for assassinating domestic opponents and firing rockets at Israel, has a stranglehold over Lebanese politics. It voted against him both times, although a 2022 article in Beirut’s Al Akhbar newspaper suggested that Hezbollah later floated his name as part of a compromise deal.

Judge Salam never officially declared his candidacy for prime minister, but he didn’t he disavow it. The ICJ’s conflict-of-interest rules specify that no judge “may exercise any political or administrative function, or engage in any other occupation of a professional nature."

The ICJ charter also states that no judge “may participate in the decision of any case in which he has previously taken part" as “advocate" or in “any other capacity." Yet Mr. Salam served as Lebanon’s ambassador to the United Nations from 2007 to 2017, repeatedly denouncing and casting votes against Israel’s military conduct and presence in the disputed territories. In addition, he has demonstrated personal bias against Israel. In 2015 he tweeted a meme that read “unhappy birthday to you: 48 years of occupation."

This week’s hearings were generated by a United Nations General Assembly resolution prejudicially crafted to elicit an ICJ advisory opinion that international law requires unconditional Israeli withdrawal. That would undermine not only Israel’s security but Mideast peace efforts under the “land for peace" legal framework established by the U.N. Security Council and the Oslo accords. That framework provides that Israel need withdraw from territories occupied in its 1967 war of self-defense only in exchange for peace. The Arab peace initiative, approved by all Arab League member states, explicitly endorsed the land-for-peace principle. Iran, Hamas and Hezbollah have rejected land for peace and all other options for peaceful coexistence with Israel.

U.S. officials have rightly criticized the proceeding as “one-sided" and warned it will undermine prospects for “a negotiated two-state solution." Future Palestinian or other Arab leaders would find it hard to make concessions that the ICJ has ruled Israel doesn’t deserve.

If the General Assembly, dominated by Third World dictatorships, succeeds in producing an ICJ opinion that undermines the Security Council’s land-for-peace framework, it would undermine the authority of the council. It would also create a sovereignty-shattering precedent that the General Assembly and ICJ can use advisory opinions to judge a dispute even when the affected nation hasn’t entered into any treaty subjecting itself to such jurisdiction.

The next step in South Africa’s ICJ case will occur around Feb. 26, by when the court has ordered Israel to report on its compliance with last month’s provisional order. South Africa will likely respond by resubmitting previous requests, including for an ICJ order halting Israeli military operations, and making new ones.

Last month’s ICJ order has undermined U.S. and allied security by creating incentives for terrorist groups and authoritarian militaries to commit the war crime of hiding behind human shields. The court entirely ignored Hamas’s use of civilians as human shields, which has caused needless Palestinian casualties, and then cited those casualties to justify its preliminary measures against Israel.

This is a critical issue for the U.S. and its allies. ISIS, the Taliban and others have used human shields against U.S. and NATO troops, as has Russia against Ukraine. These and other undemocratic actors are more than willing to commit war crimes and sacrifice civilian lives to accuse Western militaries falsely of war crimes—and, after last month’s order, genocide.

The use of human shields is also central to the strategy of Hezbollah, which has stationed weapons and fighters in thousands of southern Lebanese homes near the Israeli border. For the ICJ to continue ignoring Hamas’s use of human shields would set a precedent invaluable for Hezbollah, which would hold the key to a future prime ministership for Judge Salam.

With so much at stake for the U.S., NATO and Israel, the Biden administration should act quickly to alter the ICJ’s course by putting maximum pressure on South Africa. Some $3 billion in South African exports enter the U.S. duty-free each year thanks to the African Growth and Opportunity Act. Last year a bipartisan group of senators led by Chris Coons (D., Del.) and James Risch (R., Idaho) warned that South Africa, by aiding Russia’s military, was “in danger of losing AGOA benefits" as per the statutory requirement that beneficiaries “not engage in activities that undermine United States national security or foreign policy interests." The administration should end South Africa’s AGOA benefits unless Pretoria halts its ICJ activities that undermine U.S., NATO and Israeli security.

The administration should also urge Judge Salam’s recusal, push back hard in this week’s oral hearings and in written submissions, and encourage allies to take similar steps. The U.S. should make clear that regardless of any politically driven ICJ ruling, it will continue supporting Israel’s security and ensure that direct bilateral negotiations remain the only route for addressing the Israeli-Palestinian conflict.

Mr. Kittrie is a senior fellow at the Foundation for Defense of Democracies and a law professor at Arizona State University.

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