ICJ should not request Israeli withdrawal from occupied Palestinian territories, US says

Meanwhile, Egypt and UAE call Israel's occupation illegal at latest hearings in The Hague

Richard Visek, right, representing the US Department of State, waits to address the UN’s highest court in The Hague over the legality of Israel's occupation of the West Bank and East Jerusalem. AP
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Israel's security needs would be at risk should the International Court of Justice request its military to unilaterally withdraw from Palestinian territories, a senior US official said on Wednesday on the third day of hearings into the legality of the occupation.

Richard Visek, acting legal adviser for the US Department of State, told the ICJ in The Hague that any request for withdrawal would make peace negotiations "even more difficult" as he focused his intervention on a "land for peace" formula anchored in UN Security Council resolutions 242 and 338.

He said: “Whatever the court’s opinion on the legal consequences of particular violations of international law, such an outcome would be contrary" to the land for peace formula, which is based on a withdrawal of Israeli forces in parallel to an end to hostility against Israel.

"Any movement towards Israel's withdrawal from the West Bank and Gaza requires consideration for Israel's very real security needs," said Mr Visek.

"We were all reminded of those security needs on October 7 and they persist. Regrettably those needs have been ignored by many of the participants" in the court's hearings, he added.

The court's advisory opinion, which it will deliver after hearing six days of evidence from international representatives, is not binding but may increase political pressure on the Israeli government over the war in Gaza, which has killed more than 28,300 Palestinians.

The hearings, which will end on February 26, are unrelated to the current war in Gaza and follow a 2022 request by the UN Security Council for an opinion on the "legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory, including East Jerusalem".

Mr Visek also seemed to dismiss arguments put forward by a number of participants in the hearings that the Israeli occupation of Palestinian territories should be deemed illegal by the court.

"International law does not provide for an occupation itself to be rendered unlawful or void based either on its duration or on any violations of occupation alone," said Mr Visek.

"The fact of an occupation is the basis for the occupying power to exercise its authority over an occupied territory."

Palestinian Foreign Minister Riyad Al Maliki told reporters after the US statement: "I expected much more. I didn't hear anything new."

Washington has been insisting the Israel-Palestinian conflict be addressed in other forums and not at the ICJ, Mr Al Maliki said.

"Well, we tried other forums for the last 75 years and we confronted the US veto and the US hegemony over decision-making processes within the UN system," he said. "And that's why we came to the ICJ."

The US intervention came in stark contrast to the UAE and Egypt, who also took the floor on Wednesday, with both describing Israel's occupation of Palestinian territories as illegal.

“The Palestinian people have suffered for far too long under an occupation that is seemingly immune from international law,” the UAE's ambassador to the UN Lana Nusseibeh told the court.

Jasmine Moussa, legal counsellor at the Egyptian Foreign Affairs Ministry, rejected arguments put forward by the US alleging that occupation cannot be called into question because it exists in fact.

Ms Moussa said Israel's occupation violates a number of legal procedures including the principle of self-determination for the Palestinian people.

She said Israel's "prolonged military rule and strategic settlement policy" intends to permanently change demographic characteristics in occupied territories, including East Jerusalem, and "enhance its Jewish component thereby achieving the de jure and de facto annexation of that territory".

In an apparent reference to the US, Ms Moussa said "only one state has attempted Israel's actions by ... justifying Israeli territorial expansion as a product of a defensive war".

These claims are "reminiscent of the archaic international law of the 19th century that justified territorial conquest through denying the sovereign status of colonised peoples", she said.

Israel was not acting defensively in the 1967 war when it annexed Gaza, the West Bank and East Jerusalem, she said. Even if it were, "a decade-long occupation is not reconcilable with customary international law conditions of necessity, immediacy and proportionality".

"The argument that a state may exercise self-defence against a territory under its own military occupation and effective control is counter-intuitive," said Ms Moussa.

Israeli leaders have long disputed the territories are formally occupied, on the basis that they were captured from Jordan and Egypt during the 1967 war rather than from a sovereign Palestine.

Updated: February 21, 2024, 4:44 PM