In part two of my series on my trip to Israel, I discuss what I learned about international law. I indicated that the International Court of Justice would soon issue an opinion on the status of the West Bank, or Judea and Samaria. The ruling was made on Friday. Not surprisingly, the ICJ found that Israel’s occupation of the territory violated international law.
The Court issued only one opinion, combining fourteen separate works. (The court has fifteen members). You can save some time and skip to the only member who dissented from the entire decision, Ugandan judge Julia Sebutinde. Here is a summary of her views:
The Court has jurisdiction to entertain requests for advisory opinions – however, in order to exercise its discretion judiciously and preserve the integrity of its judicial role, the Court should have refrained from providing the requested advisory opinion – Advisory Opinion Ignore the historical background Crucial to understanding the multifaceted Israeli-Palestinian dispute, this amounts to One-sided “forensic audit” Israel’s compliance with international law – where the advisory opinion did not reflect a balanced and impartial examination of the relevant legal and factual issues – must grasp the historical nuances of the Israeli-Palestinian conflict, including the parties’ competing territorial claims. , as well as previous and ongoing efforts to resolve the conflict through the negotiating framework established by the Security Council – Court Lack of adequate, accurate, balanced and reliable information so that it can intelligently arrive at impartial assessments and conclusions on disputed factual issues – the advisory opinion not only circumvents Israel’s consent to the Court’s resolution of the issues involved; Could jeopardize the existing internationally recognized and legally binding negotiating framework for resolving the Israeli-Palestinian conflict— The Advisory Opinion also had some shortcomings, in particular with regard to its answer to question 2 — the court’s proposed timetable for Israel’s withdrawal from the occupied territories was unrealistic and Ignoring what was agreed in the existing negotiating framework, the security threats posed to Israel and the need to balance competing sovereignty claims— The Court’s application of the principle of full compensation was inappropriate in the context of the Israeli-Palestinian conflict — The Court misapplied the law of belligerent occupation and adopted the presumption implicit in the General Assembly question without prior critical analysis. Relevant issues include the application of the legal principle of physical possession to the territory of the former British Mandate, the question of Israel’s borders and its competing claims to sovereignty, the nature of the Palestinian right to self-determination and its relationship to Israel’s own rights and security issues –The only way to permanently resolve the Israeli-Palestinian conflict remains the negotiating framework set out in the United Nations and bilateral agreements.
Sebutinde accurately expressed my understanding of the ICJ proceedings: a one-sided effort to use legal principles to force Israel to submit to a complex diplomatic situation. A group of elite lawyers in The Hague could put a perspective on a myth that Israelis and Palestinians have been grappling with for decades.
You might not think of Uganda as a staunch defender of Israel, but Sebutinde has taken issue with various ICJ rulings against Israel over Gaza. Unfortunately, President Biden’s Supreme Court appointee Judge Sarah Cleveland agrees with the majority.
The Wall Street Journal’s Robert Nicholson provides some background on Sebutinde that may explain her jurisprudence:
Even more interesting is the phenomenon that Judge Sebutinde represents. She is an African woman of Pentecostal Christianity who has a natural affinity for one side of the conflict. If Judge Salam’s Muslim identity influenced his views, Judge Sebutinde’s Christian faith undoubtedly influenced hers – and she was no exception. In a key geopolitical development of the past century, American missionaries sowed the seeds of evangelical Christianity in Africa, Asia, and Latin America, bringing with them a well-known evangelical preference for Zionism. The political consequences are only now emerging.
I agree with Robertson’s conclusion:
Judge Sebutinde wrote that the Israeli-Palestinian conflict will be resolved through a political process based on negotiations between the parties, rather than a judicial settlement in The Hague. She was incredibly courageous, breaking boundaries with her peers and upholding the legitimacy of Jewish rights throughout Mandatory Palestine. Citing the legal documents and principles that justify these rights, she recounted the history of Palestinian intransigence and noted that the Jewish people have been present in this land since ancient times. “Israel,” she wrote, “is not a colonizer.”
Judge Sebutinde also pointed out how “pro-Palestinian national groups” have hijacked institutions such as the International Court of Justice to create on paper something they cannot build on the ground. This group of countries speaks in the language of law, but its goals and motivations do not come from the law. The Palestine Liberation Organization is launching a multifaceted legal action after rejecting seven peace proposals and mismanaging the West Bank and Gaza. uprising Designed to influence public opinion and prompt action by the United Nations Security Council.
President Biden has been pretty firm on Israel so far, but that may change now. A lame duck, he no longer seeks the nomination or even a general election vote. Furthermore, given his diminished mental capacity, it’s unclear who is actually giving the orders. Whichever committee is making the decision will now face the choice of how to respond to the ICJ’s decision. The president could announce this decision for reasons explained by Sebutinde and stand in solidarity with Israel. Or the president could call for sanctions. Or the President, powerless.
Vice President Harris, the likely Democratic nominee, may or may not agree with President Biden. Any disagreements between them could bring some confusion and consternation to our foreign policy. This six-month lame duck period, coupled with the president’s declining mental capacity, will create many new difficulties for a single executive.
