Introduction
On Jan. 14, 2025, Nawaf Salam, then president of the International Court of Justice (ICJ), resigned from the Court with immediate effect. His departure came just one day after a substantial majority of members of Lebanon’s parliament recommended that President Joseph Aoun appoint Salam to form a new government as prime minister. While media coverage has focused on the geopolitical and domestic political implications of Salam’s appointment as Lebanon’s prime minister-designate, in particular the significant blow to Hezbollah (see e.g., here, here, here, here and here), relatively little has been said within legal circles about the ramifications of this transition for the ICJ — particularly its institutional legitimacy, ethical standards, and procedural safeguards.
Salam’s move is unprecedented: never before has a sitting President of the ICJ vacated the post to assume political leadership in a member State. This raises difficult questions about judicial impartiality, conflicts of interest, and the scope of acceptable non-judicial activity by judges of the world’s principal judicial organ. This article aims to examine the legal and ethical challenges presented by this unusual situation and to propose avenues for reform that could help insulate the ICJ from similar controversies in the future.
Background
For some observers, Salam’s designation came as a surprise. Yet in Lebanon, his political ambitions had been the subject of speculation for years. Elected to the ICJ presidency in 2024 and a member of the Court since February 2018, Salam had been floated as a potential prime ministerial candidate in every major round of political consultations from 2019 to 2022. In each of those years, namely in 2019, 2020, 2021 and 2022, he secured the second-highest number of parliamentary endorsements to form a government. While he never formally declared his candidacy, Salam reportedly welcomed the nominations and maintained an ongoing presence in Lebanese political discourse (see e.g., here and here).
That presence was not merely symbolic. In 2021, Salam published Le Liban d’hier à demain — a collection of essays on Lebanon’s political future, later translated into English. In 2022, he reportedly met with political and civil society leaders and discussed the possibility of running in that year’s parliamentary elections. He ultimately declined, but his political visibility remained. He also made periodic appearances in Lebanese media and occasionally posted commentary on domestic politics via social media platforms such as X (formerly Twitter) (see e.g., here and here).
A longstanding obstacle to his political ascent had been opposition from Hezbollah — Lebanon’s Shia Islamist party and paramilitary force, designated as a terrorist organization by over two dozen countries — which accused him of being aligned with U.S. interests. However, by early 2025, the political landscape had changed significantly. Hezbollah’s influence was diminished following its military confrontation with Israel, the dramatic collapse of Bashar al-Assad’s regime, its key ally, which reduced its regional clout, and growing American and Saudi support for alternative leadership which further shifted the balance. These developments paved the way for Salam’s appointment.
Although the ICJ has seen judges move into political roles before — most notably Judge Awn Al-Khasawneh, who became prime minister of Jordan in 2011 — Salam’s transition is distinguishable. Unlike Al-Khasawneh’s sudden elevation during the Arab Spring, Salam’s candidacy had been politically cultivated for years. This prolonged duality — simultaneously a judge on the ICJ and a potential head of government — heightens the legal and ethical stakes.
When assessing the potential incompatibility between Salam’s non-judicial conduct and his position as a member of the ICJ, it is useful to follow Robert Kolb’s distinction between absolute incompatibility and relative incompatibility, as reflected in the ICJ Statute.
Absolute Incompatibility?
The notion of absolute incompatibility refers to forms of non-judicial conduct that ICJ judges are categorically barred from undertaking, regardless of context. Article 16(1) of the ICJ Statute is the key provision:
“No member of the Court may exercise any political or administrative function, or engage in any other occupation of a professional nature.”
Recent controversies concerning this provision have mostly centered on whether judges can serve concurrently as arbitrators, particularly in investment disputes. Yet international and domestic political engagement, too, poses serious risks to judicial independence — and receives far less scrutiny.
Despite the occasional occurrence of judges commenting on domestic politics or engaging in social justice initiatives, the ICJ’s recently published “Compilation of Decisions Adopted by the Court Concerning the External Activities of its Members” is silent on political involvement. This absence is revealing. Salam’s sustained political presence — including meetings with party leaders, policy publications, and public political commentary, as detailed above — arguably crossed the threshold from civic engagement, which is permitted, to prohibited political activity.
Former ICJ Registrar Philippe Couvreur has maintained that “judges must refrain from participating in any way actively or directly in national political life,” including public political expression. While this view allows space for civic acts like voting, it would arguably prohibit Salam’s conduct, which was sustained, visible, and clearly aimed at taking a public role in shaping Lebanon’s political direction.
A counterargument may point to the formal nature of “political or administrative function” — suggesting that such language requires actual appointment or formal duties. Yet this narrower interpretation fails to capture the spirit of Article 16(1), which is designed to preserve not only impartiality, but the perception of impartiality. The line between active political life and formal political function may be legally contestable, but in this case, Salam appears to have straddled — if not overstepped — that boundary while still sitting on the bench.
Relative Incompatibility?
As Kolb explains, relative incompatibility, by contrast, “concerns the impartiality of a judge in a particular case”; in other words, whether the judge can sit in a particular case. It is governed by Articles 17 and 24 of the ICJ Statute.
Article 17(2) prohibits judges from hearing cases in which they have previously participated “as agent, counsel, or advocate” for a party, or in another relevant professional capacity. Clearly, Article 17 is concerned with instances where the judge previously engaged, in a different capacity in the same case or in a case or dispute with “sufficiently similar issues of law and fact.” For example, Judge Weeramantry recused himself under this provision from sitting in the Certain Phosphate Lands in Nauru case because “he was Chairman of a Commission of Inquiry which reported on matters which may be pertinent in [the] case.”
Given the frequent occurrence of judges being elected to the Court almost immediately after serving in a diplomatic capacity, Article 17(2) has been interpreted to exclude most forms of prior diplomatic service. Thus, Salam’s prior role as Lebanon’s ambassador to the United Nations would not automatically disqualify him from adjudicating related issues.
Article 24(1) of the ICJ Statute, however, allows for a broader, more subjective form of recusal:
“If, for some special reason, a member of the Court considers that he should not take part in the decision of a particular case, he shall so inform the President.”
This article recognizes that some forms of incompatibility may not be formally disqualifying, but still raise concerns about a judge’s objectivity in the eyes of the parties or the public. As such, Article 24 serves as a basis of recusal for judges for reasons not covered by Article 17, namely for a “special reason,” which presumably “indicate[s] that such a reason is one which is special to a particular case; and not that it has to be a reason of exceptional importance” (Jennings & Couvreur, p. 530). Moreover, the provision is colored by subjectivity, since it is triggered by what a member of the Court “considers.” Nevertheless, even a provision giving a person or organ discretion should be applied in good faith and reasonably, with the aim of upholding the paramount goal of impartiality.
It seems that one form of proper use of Article 24(1) is to address instances of a concrete conflict of interest regarding a particular case. For example, Judge Basdevant recused himself under Article 24 in the 1954 Effects of Awards advisory proceedings because his daughter, Suzanne Bastid, was the president of the tribunal whose awards were implicated by the request for an advisory opinion.
What about Nawaf Salam? Salam’s situation arguably warranted recusal under Article 24 — particularly in cases involving the Arab-Israeli conflict, and in particular, the Israeli-Palestinian conflict. He had previously served as a vocal proponent of Palestinian rights in diplomatic forums, and even cited Lebanon’s commitment to the Palestinian cause in defending himself against accusations of pro-American bias. These political positions were later leveraged in support of his prime ministerial candidacy.
Domestically, Salam was also under pressure to align with Lebanon’s official stance. Following the ICJ’s second order in South Africa v. Israel, Hezbollah supporters accused him of siding with Israel. In the Court’s next order, he appended a declaration interpreting the ruling as requiring a ceasefire — a reading that could be seen as responsive to domestic political pressure.
Most strikingly, after being named Lebanon’s prime minister-designate, Salam publicly referred to Israel as an “enemy.” This statement — made on the same day as his resignation from his post as President of the ICJ — raises retrospective concerns about his ability to impartially adjudicate cases involving Israel. His use of politically charged language, particularly in a moment of political ascent, calls into question the appearance of neutrality required of an international judge, and may erode confidence in the Court’s independence in highly sensitive matters.
Notably, Israel did not formally challenge Salam’s participation in the proceedings, even though Article 34(2) of the Rules of Court permits confidential objections to be submitted to the president. This may be explained by procedural ambiguity — especially given that the president himself was the subject of concern — and by the practical futility of such challenges. The ICJ has never accepted a party’s request to disqualify a judge, even under clear provocation. For example, in the 2004 Wall advisory proceedings, the ICJ by 13 votes to 1 rejected Israel’s challenge to Judge Nabil Elaraby’s participation, despite his arguably having prejudged the matter in a personal capacity, shortly before his election to the Court. In the 1971 Namibia advisory proceedings, the challenged Soviet judge plainly ignored a party and indulged in reading a newspaper during oral pleadings – yet, he was still allowed to participate in the case.
Ultimately, Salam’s continued participation in politically sensitive cases may not have violated a bright-line rule. But it likely compromised the appearance of impartiality — a cornerstone of international adjudication.
Moving Forward
Salam’s political activities and appointment as prime minister while still serving as President of the ICJ expose critical vulnerabilities in the Court’s institutional safeguards. While his resignation preempted any formal conflict of role, his political engagement during his judicial tenure presents a deeper challenge: how to reconcile the prestige and trust placed in ICJ judges with the risks posed by parallel political ambitions. Unfortunately, scholars highlighting the tensions and problems of his immediate move from ICJ president to prime minister have been few and far between. However, as we hope to have illustrated, Salam’s non-judicial activities were of dubious legality, or at least arguably should have come at the expense of sitting on particular cases.
Legally, the consequences of Salam’s conduct remain uncertain. Few would argue that his involvement taints the validity of the Court’s decisions. But the damage to their persuasive authority — and to the broader reputation of the Court — may be significant, especially considering his central role in drafting majority opinions as ICJ President from February 2024 through January 2025. At the very least, this confluence of circumstances regarding Salam creates an appearance of a conflict of interest, which, by itself, is consequential for the legitimacy and efficacy of relevant decisions and advisory opinions. At risk of stating the obvious, “justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
We believe that the Court must learn from this episode. Three steps would be prudent:
- Clarify rules on political activity. The ICJ should issue interpretative guidance or internal rules delineating acceptable political engagement for its members. A judge should not be permitted to engage in national political positioning while serving on the Court, even in unofficial capacities.
- Amend recusal procedures. The Rules of Court should be updated to provide clear procedures for challenges involving the Court’s president. Without such provisions, institutional accountability is undermined at precisely the moment when it matters most.
- Broaden scrutiny of non-judicial activity. The Court has recently prohibited judges from sitting in commercial and investor-State arbitration and capped involvement in inter-State arbitrations. Similar restrictions should apply to political engagement, which brings no added judicial value and carries much higher institutional risk.
The ICJ is a cornerstone of the international legal order. Its judges must not only exercise impartiality but be seen to embody it. The Salam case demonstrates how easily that perception can erode — and why clear ethical boundaries are essential to the Court’s continued authority and legitimacy.
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For feedback or inquiries please contact the authors. This piece reflects the authors’ personal views and not those of any institution.
