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Dissenting opinion of Judge Sebutinde, Order of 26 January 2024, South Africa v. Israel

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aliasesSebutinde dissenting opinion, South Africa v. Israel, 26 January 2024

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Summary

Judge Sebutinde dissents from the six Provisional measures indicated in South Africa v. Israel (Genocide Convention): in her view the Israel-Palestine dispute is essentially and historically a political one calling for negotiated settlement and good-faith implementation of Security Council resolutions, not judicial settlement; South Africa has not shown even prima facie that Israel’s acts were committed with the necessary Genocidal intent, so the acts are not capable of falling within the Genocide Convention and the rights asserted are not plausible; the requested measures are not linked to those rights; and the measures the Court did indicate are redundant, unlinked or unwarranted (Dissenting opinion of Judge Sebutinde, Order of 26 January 2024, South Africa v. Israel, PDF p.1, p.9, p.15-17).

What the file is

The dissenting opinion appended to the Order of 26 January 2024 in I.C.J. Reports 2024, printed p.35-51, General List No. 192. 17 PDF pages, about 7,404 words. 35 numbered paragraphs in six parts, signed Julia Sebutinde (PDF p.17). The text copy is clean, with PDF page markers; hyphenated line-breaks in the text copy are the printed lineation.

Section by section

  • Headnote and I. Introduction: Context (PDF p.1-3). The headnote states her conclusions (PDF p.1). A. Limited scope (paras. 1-2): indicating measures determines neither breach of the Convention (merits only, Order para. 30) nor that asserted rights exist, nor jurisdiction on the merits or admissibility (Order para. 84); she quotes The Gambia v. Myanmar (Order of 23 January 2020, para. 66) that the Court is “not called upon, for the purposes of its decision on the Request for the indication of provisional measures, to establish the existence of breaches of the Genocide Convention” (PDF p.1-2). B. Jurisdiction is limited to the Genocide Convention (para. 3): both States are parties without reservation; prima facie jurisdiction does not extend to IHL breaches, and grave IHL violations do not in themselves constitute Article II genocide unless committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” (PDF p.2). C. The controversy is historically political (para. 4): a political, territorial “(and, I dare say, ideological)” dispute; States unable to settle politically may make “a pretextual invocation of treaties like the Genocide Convention”, rather like the proverbial Cinderella’s glass slipper (her simile); she voted against operative paragraph 86 (PDF p.3).
  • II. Political context of the Israeli-Palestinian conflict (paras. 5-11, PDF p.3-6). Partition under General Assembly resolution 181 (II) (29 November 1947) and Israel’s creation in May 1948; Security Council resolutions 242 (1967) and 338 (1973) and their withdrawal, recognised boundaries and negotiation terms; General Assembly resolution 47/64 (D) (1992); the 1979 Egypt and 1994 Jordan treaties and the 1993 Oslo Accords and Declaration of Principles (13 September 1993), which she says continue to bind the parties; Security Council resolutions 1515 (2003, Quartet Roadmap), 1850 (2008) and 2334 (2016); General Assembly resolutions 77/25 (2022), 76/10 and 75/22 for a two-State solution on pre-1967 borders; and the Court’s own Wall Advisory Opinion, para. 162, on negotiated settlement. Her conclusion (para. 11): a permanent solution “cannot be imposed from outside, much less through judicial settlement” (PDF p.6).
  • III. The events of 7 October 2023 (paras. 12-15, PDF p.6-8). Para. 12, on Hamas’s invasion, massacres, rapes and abductions: Israel reports over 1,200 murdered, more than 5,500 maimed and over 240 hostages abducted that day (figures attributed to Israel in the text) (PDF p.6-7). Para. 13: South Africa claims 1.9 million displaced (85 per cent), over 22,000 Palestinians including over 7,729 children killed, over 7,780 missing, over 55,243 injured and 355,000 homes destroyed (figures attributed to South Africa in the text) (PDF p.7). Paras. 14-15 rehearse South Africa’s Application and requested measures (Order paras. 2 and 11) and Israel’s answer — its duty to defend, rescue hostages and enable over 110,000 internally displaced Israelis to return, and its request to reject the Request and remove the case from the General List (PDF p.7-8).
  • IV. Some conditions for provisional measures have not been met (paras. 16-32, PDF p.8-15). Para. 16 states the three criteria from the jurisprudence: prima facie jurisdiction, plausible rights linked to the measures requested, and urgency with risk of irreparable prejudice. A. No indicators of genocidal intent (paras. 17-23): the intent element is what distinguishes genocide from other grave violations; even provisionally the Court should look for indicators of intent; South Africa’s Article II(a)-(d) and III(c) claims and the officials’ statements it cites (Prime Minister, Deputy Speaker of the Knesset, Defense, Energy and Infrastructure, Heritage, President and National Security ministers) are answered, she holds, by Israel’s restricted and targeted attacks, warnings by leaflets, radio and telephone, and facilitation of humanitarian assistance, and by the full context of the statements — the vast majority referred to Hamas, renegade statements by officials not prosecuting the operation were highly criticized by the Israeli Government, and official war policy contains no indicators of genocidal intent or incitement; suffering is exacerbated by Hamas embedding among civilians (PDF p.8-11). B. No link (paras. 24-32): the first and second requested measures would require unilateral cessation of all operations, consistent with Bosnia v. Serbia (1993) and The Gambia v. Myanmar (2020) not to bar them; the third merely repeats the Convention obligation; the fourth and fifth, without genocidal intent, amount to IHL compliance — quoting Bosnia and Herzegovina v. Serbia and Montenegro (Judgment, 2007, para. 190) that “[n]either the intent, as a matter of policy, to render an area ‘ethnically homogeneous’, nor the operations that may be carried out to implement such policy, can as such be designated as genocide”; the sixth repeats the fourth and fifth; the seventh (evidence) has no basis in deliberate destruction and access for fact-finding missions goes beyond the Convention, citing Canada and Netherlands v. Syrian Arab Republic (Order of 16 November 2023); the eighth and ninth raise the one-belligerent problem with Hamas not a party (PDF p.11-15).
  • V. The measures indicated by the Court are not warranted (paras. 33-34, PDF p.15-17). The first three indicated measures mirror Articles I, II and III obligations and are redundant; the fourth (humanitarian assistance) has no link to Convention rights — a State party has no Convention duty to enable assistance as such — and assistance is already taking place with improvement; the fifth (evidence) has no basis in deliberate destruction, infrastructure destruction being attributable to the exigencies of conflict; the sixth (report) falls with the others. Para. 34 joins the majority’s grave concern for the hostages (Order para. 85) and encourages South Africa, given what was brought to the Court’s attention about its cordial relationship with Hamas’s leadership, to use its influence to persuade Hamas to release the remaining hostages as a goodwill gesture (PDF p.16-17).
  • VI. Conclusion (para. 35, PDF p.17). The measures are not warranted and she voted against them; the dispute is essentially and historically political, for diplomatic settlement and good-faith implementation of all relevant Security Council resolutions.

Key passages

  • “the dispute between the State of Israel and the people of Palestine is essentially and historically a political one” (PDF p.1, headnote; repeated PDF p.17).
  • Her simile for a pretextual invocation of a treaty is Cinderella’s glass slipper (PDF p.3, para. 4, wording in the reading notes).
  • “It is not a legal dispute susceptible of judicial settlement by the Court” (PDF p.1, headnote).

Evidence the work relies on

  • The Order itself (paras. 2, 11, 18, 30, 35-36, 84-86 as cited); The Gambia v. Myanmar provisional measures orders and the Bosnia genocide judgment (para. 190) and 1993 provisional measures order; Ukraine v. Russian Federation (2022) and Iran v. United States (2018) for the provisional-measures criteria; Canada and Netherlands v. Syrian Arab Republic (2023) on access; the Wall Advisory Opinion, para. 162; Security Council resolutions 242, 338, 1515, 1850 and 2334, General Assembly resolutions 181 (II), 47/64 (D), 77/25, 76/10 and 75/22, and the 1993 Declaration of Principles — all as presented in the opinion (PDF p.2-15).
  • The parties’ figures as she attributes them: Israel’s 7 October figures and South Africa’s Gaza figures (PDF p.6-7).

Analysis

The opinion is a single-judge dissent built as a jurisdictional and intent argument: it first narrows the Court to the Convention alone, then treats absence of prima facie genocidal intent as defeating both capability under the Convention and plausibility of rights, and treats each requested and indicated measure in turn as unlinked, redundant or an IHL matter. Its historical part (paras. 5-11) supports the political-dispute premise only from UN resolutions and the Oslo framework as she presents them. Its factual assessments — that statements referred to Hamas, that attacks were restricted and targeted, that assistance was improving — are stated as her examination of the parties’ evidence, without a separate evidentiary record in the opinion.

People, organizations, places and events

Julia Sebutinde, Aharon Barak, Hamas, International Court of Justice, South Africa, Israel, Gaza, Palestine Liberation Organization

Concepts

Genocide Convention, Genocidal intent, Provisional measures, Genocide, South Africa v. Israel (Genocide Convention)

How it relates to other sources

Open questions

  • Para. 14 (PDF p.7) dates South Africa’s filing of the Application to 28 December 2023; the Application and the Order give 29 December 2023. Both dates are recorded as printed.
  • What evidence, beyond the parties’ pleadings as rehearsed here, supports the findings in paras. 21-22 and 33 on targeted attacks, warnings, criticism of renegade statements and improving assistance is not set out in the opinion.

Coverage

PDF p.1-17 of 17, read in full

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