Clarifying unfounded criticism against Justice Sebutinde’s dissenting opinion

COMMENT | NAYEBARE KARUHANGA  | Reading and listening to the media, it is apparent that there is general misconception of the International Court of Justice (ICJ’s) ruling as well as Justice Sebutinde’s dissenting opinion to mean that; (a) it was wrong for Justice Julia Sebutinde to reach a different opinion from the rest of the judges which shows bias, (b) it has been proved that Israel is guilty of committing genocide and Justice  Sebutinde is trying to absolve her from responsibility, (c) Justice Sebutinde is so insensitive that she even refused to grant humanitarian aid to the suffering people of Gaza, (d)  Justice Sebutinde gave a free hand to Israel to destroy evidence of genocide, and (e) Justice Sebutinde absolved Israel from filing a report to the court on the state of implementation of provisional measures.

It is important to note that Article 2 of the ICJ Statute recognizes that the judges of the ICJ are “… independent judges, elected regardless of their nationality…”. The members of the court are elected by the General Assembly and by the Security Council in accordance with the provisions of Articles 2 and 4 of the Statute. Further, Article 6 provides that “before making these nominations, each national group is recommended to consult its highest court of justice, its legal faculties and schools of law, and…” Article 20 of the Statute and Article 4 of the ICJ Rules require every member before taking up his/her duties to make a solemn declaration in open court that he/she will exercise his/her powers impartially and conscientiously. Whereas it is recognized that one’s national group play a role in their eventual election as judge of the ICJ, that does not make them government representatives or political appointees so as to be mouthpieces of the governments or countries from which they come in making judicial decisions. Therefore, it was wrong to for some members of the public to conclude that Justice Sebutinde’s dissenting ‘opinion did not represent the Government of Uganda’s position on the situation in Palestine.’ She used her judicial discretion and principles of law to evaluate the law, facts and evidence produced before the Court to make her decision. Although we are all entitled to our opinions, we are not justified to castigate her for reaching the opinion she did while she exercised her judicial independence and discretion in that regard. The fact that her opinion was different from the position taken by the majority does not render it legally incompetent or invalid.

I now turn to the issue of genocide allegedly being committed in Gaza by Israel as per South Africa’s Case, a view widely held by many members of the public. There is an unsettling feeling I get that points to lack of appreciation by a big section of the public which makes me think that they either did not take time to study both the majority ruling and the dissenting opinion, or they made their comments out of sheer malice. Let me take the bother to clarify that all the judges of the ICJ including Justice Sebutinde agreed in Paragraph 30 that the Court “at the present stage of the proceedings, the Court is not required to ascertain whether any violations of Israel’s obligations under the Genocide Convention have occurred. Such a finding could be made by the Court only at the stage of the examination of the merits of the present case.” All the court was enjoined to do at the time it gave its ruling two weeks ago was to “… establish whether the acts and omissions complained of by South Africa appear to be capable of falling within the provisions of the Genocide Convention.” Whereas the Court found some of these acts to fall within the provisions of the Genocide Convention, in-depth examination of the evidence is yet to happen and therefore Israel has not been found guilty of breaching her obligations under the Convention. If it is your desire to find out whether Israel is guilty of genocide or not, my advice is that you keep your eyes glued on the ICJ and wait for its time of examining the merits of the case. For now, relax, Israel is still innocent and has not committed genocide, it is only asserting her right to defend herself against the terrorists. I dare argue that this is the reason the ICJ could not order for a cease fire.

Let me now turn to the other 3 provisional measures heavily criticized in the press and social media. Regarding the fourth measure obligating Israel to “take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip,” it was Justice Julia Sebutinde’s finding that this measure has no link with any of the rights purportedly claimed under the Genocide Convention. Looking at the paragraphs 35 and 36 of the majority ruling, Court clarified that it was only enjoined to grant provisional measures for purposes of preserving rights claimed by the parties and was not called upon to determine definitively whether the rights for which South Africa sought protection for existed.  Justice Sebutinde observed that “… besides, there is evidence before the Court that the provision of humanitarian assistance is already taking place with the involvement of Israel and other international organizations, notwithstanding the continuing military operation. The evidence points to an improvement in the provision of basic needs in the affected areas. This measure too seems unnecessary in the circumstances.” All that Court needed to grant this provisional measure was to determine whether the rights claimed by South Africa, and for which it is seeking protection, are plausible and whether there exists a link between the rights whose protection is sought, and the provisional measures being requested. I agree with her position that “there was no link between this measure and the rights claimed by South Africa” since there is incontrovertible evidence in international media that shows that Israel has been clearing aid going into Gaza. If you have been keen, you should have seen on international media trucks and trucks of aid being cleared into Gaza through various borders. There was no point for the Court to provide a measure for something that was already happening.

About the Fifth measure obligating Israel to “take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Articles II and III of the [Genocide] Convention”, the Lady Justice found that “there does not seem to be any evidentiary basis for assuming that Israel is engaged in the deliberate destruction of evidence as such. Any destruction of infrastructure is not attributable to the deliberate efforts of Israel to destroy evidence but rather to the exigencies of an ongoing conflict with Hamas, which is not a party to these proceedings. It is difficult to envisage how one of the belligerent parties can be expected to unilaterally prevent the destruction of evidence while leaving the other one free to carry on unabated.” South Africa did not even attempt to produce plausible evidence to show Israel was destroying evidence. On the contrary, there is evidence of Hamas using civilians as human shields and have turned civilian objects into military objectives which offends against International Humanitarian Law. Is this obligation a one belligerent party affair? Whereas I agree that Hamas (and for that matter Palestinian Liberation Organisation (PLO)) is non-state actor which lessens its legal obligations in this war, it should be remembered that it exercises effective territorial control over Gaza which comes with international human rights and humanitarian law legal obligations for which they are bound to observe. In fact, under international humanitarian law, Common Article 3 of the Geneva Conventions of 1949 imposes obligations on non-state actors to a conflict even if they do not exercise territorial control. Common Article 3 has been expanded into Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), solely to apply to organized armed groups, under responsible command, and which exercise such control over a part of its territory as to impose upon them the obligation to implement this Protocol. At no single time do we see the ICJ in its ruling seeking to impose this obligation to Hamas as a belligerent party under this and other measures as imposed on Israel. (See Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (2011)). Was this a biased ruling or the ICJ was just ruling in approval of what happened on 7^th October 2023?

The Sixth measure, Her Lordship found that “given that the other measures are not warranted, there is no reason for Israel to be required to “submit a report to the Court on all measures taken to give effect to the Order.” What is wrong with this? This naturally would flow from her above opinion.

CONTINUED TOMORROW

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 Nayebare Karuhanga is a Human Rights Lawyer with LLM in International Law and Human Rights