Sebutinde ruling on Gaza crisis leaves many dazed

Uganda’s Julia Sebutinde is one of the two judges who voted mostly against the six emergency measures in response to South Africa’s genocide case against Israel, leaving many observers around the world dazed and confused.

Justice Sebutinde, who is serving the second and last term on the International Court of Justice (ICJ) bench, cast the only dissenting vote against all measures by the 17-judge panel. Israel’s appointed ad-hoc judge, Aharon Barak, voted in favour of two and ruled against four measures, in the case closely watched around the world.

As the world’s highest court, the ICJ, provides advisory opinions on legal conundrums submitted by other UN organs or agencies, and also adjudicates legal disputes between states.

Backstory

South Africa dragged Israel to The Hague-based court on December 29, 2023, accusing it of committing genocide against Palestinian people, in violation of the Convention on the Prevention and Punishment of the Crime of Genocide.

This was in the wake of the Israeli government’s retaliatory campaign to “demolish” the Palestinian Islamic Resistance Movement (Hamas). It followed Hamas’s surprise attack on October 7, 2023, on a music festival and other areas, south of the country, in which 1,139 people were killed, scores injured, and 253 taken as hostages.

The court convened oral hearings on January 11 and 12 during which both South Africa and Israel laid their case and defence, respectively.

After two weeks of closed-door deliberations, on Friday, the panel of judges led by Justice Joan E. Donoghue, the presiding judge, began by underlining that “the court is acutely aware of the extent of the human tragedy that is unfolding in the region and is deeply concerned about the continuing loss of life and human suffering.”

The panel of judges comprises 15 judges, who are elected by an absolute majority in both the UN General Assembly (97 votes) and Security Council (8 votes). Five seats come up for election every three years.  A winning candidate has to secure majority votes in both.

The judges come from Uganda, US, Brazil, Australia, Slovakia, Morocco, France, India, Lebanon, Somalia, China, Germany, Jamaica, Australia, and Russia. Two judges are ad hoc, appointed by Israel—appointed its former supreme court president, Justice Barak—and South Africa—tapped its deputy chief justice, Dikgang Moseneke.

The ad-hoc appointments are specific to the case at hand.

Verdict

While the court did not decide the merits of the genocide allegations against Israel, which will take years like in all cases, it found that the legal conditions for pronouncement of provisional measures were met, in particular that it was plausible that genocide was being committed in Gaza.

Similarly, while the judges stopped short of calling for a ceasefire, they ruled on six measures Israel must implement, take all measures in its power to prevent all acts violating the Geneva Convention; must ensure its military does not commit any acts of genocide; must punish all incitements to commit genocide, must take immediate and effective steps to provide humanitarian assistance in Gaza; must take effective measures to avoid destruction and preserve evidence of actions relating to the Geneva Convention; and must report to ICJ within one month on all measures taken in line with the orders

The panel of judges voted as: 15-2 on measure one, two, five and six, and 16-1 on measures three and four.

The court does not have the tools to enforce its decisions.

Surprise

Justice Sebutinde voted against all six, which position left many Ugandan watchers online and others around the world, who took to social media, bewildered, barely a week after Uganda assumed chairmanship of the Non Alignment Movement (NAM), the collective voice of 121 majority poor and developing countries, including Palestine. The Palestine question of full autonomy and the ongoing conflict, that has so far left some 26,000 Palestinians dead, was on top of the agenda.

There was even stalemate on the inclusion of the word “genocide”, supported by the majority NAM states, in the 416-page Outcome Document.

The word genocide was eventually left out after consensus was reached behind closed doors that it is for court, in this case ICJ, to decide. The Kampala NAM summit, however, came up with the Political Declaration on Palestine in which member states cautiously criticised Israel and its backers.

Independent opinion

In her 11-page dissent, Justice Sebutinde opined that the Israel-Palestine conflict is “essentially and historically a political one” needing a diplomatic or negotiated settlement, and for the implementation in good faith of all relevant Security Council resolutions by all parties concerned, rather than a legal matter for the court.

“The provisional measures indicated by the court in this Order are not warranted,” she reasoned.

For instance, on measure one of Israel taking all measures in its power to prevent all acts violating the Geneva Convention, Justice Sebutinde argued that “given the unprecedented global interest and public scrutiny in this case, as can be gathered from, inter alia, media reports and global demonstrations, the reader of the present Order must be cautious not to assume or conclude that, by indicating provisional measures, the court has already made a determination that the State of Israel (“Israel”) has actually violated its obligations under the Genocide Convention. This is certainly not the case at this stage of the proceedings, since such a finding could only be made at the stage of the examination of the merits in this case.”

Majority observers online expressed outrage at her dissension, which was construed as fence-sitting in a conflict where the United States and European Union have offered Israel full support “in its right to self defence” irrespective of grave outcomes, especially in Gaza.

Kampala responds

The outrage prompted Uganda’s Permanent Representative to the UN, Ambassador Adonia Ayebare, who crusaded for her re-election to the bench in November 2020 to spring to her defence in a post on X (formerly Twitter) that: “Justice Sebutinde’ ruling does not represent the government of Uganda’s position on the situation in Palestine. She has previously voted against Uganda’s case on DRC. Uganda’s support for the plight of the Palestinian people has been expressed through Uganda’s voting pattern at the United Nations.”

The Kampala establishment, although conflicted as it maintains strong defence and military relations with Israel and are executive clients for arms supply and related technology including spyware, maintains that it supports a two-state solution, which was conceptualised in 1993, but has largely remained on paper.

Mixed reactions

The Friday ICJ ruling, on a case panned by the US and UK, elicited mixed reactions around the world. In an address after the ruling, South African President Cyril Ramaphosa said: “We expect Israel as a self-proclaimed democracy and a state that respects the rule of law to abide by the measures handed down by the ICJ.”

Israeli Prime Minister Benjamin Netanyahu said in response: “The charge of genocide levelled against Israel is not only false, it’s outrageous, and decent people everywhere should reject it.”

The Secretary General of Amnesty International, Ms Agnès Callamard, described the decision as “an authoritative reminder of the crucial role of international law in preventing genocide and protecting all victims of atrocity crimes. It sends a clear message that the world will not stand by in silence as Israel pursues a ruthless military campaign to decimate the population of the Gaza Strip.”

While the ruling is binding on all parties concerned, the absence of mechanism to enforce such decisions makes it hard to enforce. Matters are made worse when the big world powers are on opposing sides.

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