ICJ Vice President Julia Sebutinde objects to ICJ advisory opinion for the UN General Assembly

The International Court of Justice (ICJ) has rendered its long-awaited advisory opinion on the legal consequences of Israel's policies in the Occupied Palestinian Territory, igniting considerable dissension in diplomatic and legal circles worldwide and even in the International Court of Justice itself. Here is a report of proceedings in the ornate wood-paneled courtroom in The Hague, where black-robed judges presided over a diverse audience of diplomats, legal experts, and international observers.

The Court's decision to render an opinion was not quite unanimous, with a 14-1 vote. Vice-President Julia Sebutinde dissented foreshadowing her opposition to the majority opinion on all questions.

Full opinion of Julia Sebutinde

On core issues, the Court's conclusions proved far more contentious. By a slim 11-4 margin, (for a 2/3 majority) on the ICJ declared Israel's continued presence in the Occupied Palestinian Territory unlawful, calling for its rapid termination. This razor-thin majority underscores the deep divisions surrounding this complex conflict.

The Court ruled 14-1 that Israel must immediately halt all new settlement activities and evacuate existing settlers. The lone dissenter on multiple key points was Vice-President Sebutinde.

Judge Sebutinde's dissent reads like a legal broadside against the majority, accusing the Court of misapplying occupation law and adopting unfounded presumptions. She argues the ICJ failed to conduct critical analysis of pivotal issues, including competing sovereignty claims and the principle of uti possidetis juris as applied to former British Mandate territory.

Judge Sebutinde's emphasis on historical context was particularly convincing. She contends that a proper legal assessment requires understanding the region's complex history from ancient times through the British Mandate period. Sebutinde suggests the Court's reliance on 1949 Armistice lines as de facto borders is legally problematic and potentially legitimizes the use of force against Israel in 1967.

The Ugandan judge also takes aim at the Court's treatment of Israeli settlements, arguing that blanket illegality misrepresents both the Fourth Geneva Convention and the original Mandate for Palestine. On the thorny issue of occupation, Sebutinde posits that Israel's control stemming from lawful self-defense in 1967 cannot be simplistically deemed unlawful due to the passage of time.

Perhaps most significantly, Sebutinde's dissent highlights the existing negotiation framework for resolving the conflict, including UN resolutions and the Oslo Accords. She contends the Court's opinion may undermine these carefully written agreements, which she views as creating a lex specialis that should govern over general occupation law.

The Court's majority opinion calls for Israel to make reparations for damages caused to all natural or legal persons in the Occupied Palestinian Territory. Judge Sebutinde questions the appropriateness of applying this principle of full reparation to the complex Israeli-Palestinian conflict, arguing that the situation's intricacy, with blame attributable to various parties complicates determining Israel's precise share of responsibility.

In a 12-3 decision, the Court opined that all states and international organizations are obligated not to recognize as legal the situation arising from Israel's unlawful presence in the Occupied Palestinian Territory, nor render aid or assistance in maintaining this situation. Judges Abraham and Aurescu joined Sebutinde in dissenting on this point, further highlighting the legal complexities.

The ICJ advised, again by a 12-3 vote, that the United Nations, particularly the General Assembly and Security Council, should consider precise actions to end Israel's unlawful presence in the Occupied Palestinian Territory as rapidly as possible. This opinion might justify a call for more concrete attempt from UN Security Council in resolving the conflict.

While the ICJ's majority opinion will undoubtedly influence future diplomatic efforts, the forceful dissents - particularly Sebutinde's - serve as a reminder of the conflict's legal and historical complexities. As this writer has observed many times in the region, neat legal categorizations often falter in the face of on-the-ground realities.

Judge Sebutinde argues that the Court should have declined to render an advisory opinion, citing several reasons that jeopardize its judicial integrity. She contends the Court lacks sufficient accurate and reliable information to fairly assess the complex issues at hand. The framing of the General Assembly's questions, coupled with what she sees as a one-sided narrative presented by many participants, precludes a comprehensive examination of the conflict's distinctive historical background.

Sebutinde's dissent stresses the necessity of understanding the historical context of the Israeli-Palestinian conflict, including competing territorial claims in former British Mandatory Palestine. She provides a detailed account of the region's history, arguing this context is indispensable for appreciating the nuances of the conflict and the legal issues at stake.

A fundamental legal principle Sebutinde believes the Court overlooked is uti possidetis juris. This principle of customary international law, which aims to maintain stability in the demarcation of territorial boundaries of newly independent states, would dictate that Israel's borders upon independence in 1948 should coincide with those of the British Mandate for Palestine. The judge argues that applying this doctrine would mean Israel has territorial sovereignty over all the disputed areas of Jerusalem, the West Bank, and Gaza, except where it has voluntarily yielded sovereignty since independence.

The split decision and sharply worded minority views suggest that despite the ICJ's pronouncements, the path to resolving the Israeli-Palestinian conflict remains as complicated as ever. As diplomats and policymakers grapple with the Court's opinion, they would do well to heed Judge Sebutinde's call for a more nuanced approach that accounts for the full weight of history, opposing legal claims, and legitimate security concerns on all sides.

The ICJ's advisory opinion, though not legally binding, offers a framework for discussing the legal dimensions of the conflict. It may shape future diplomatic efforts and legal discussions surrounding the Israeli-Palestinian issue. The dissenting voices remind us of the situation's complexity and the need for careful consideration of all aspects of the conflict in pursuit of a just and lasting resolution.