The Volokh Conspiracy
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The International Court Of Justice's Decision Against Israel
"The only avenue for a permanent solution to the Israeli-Palestinian conflict remains the negotiation framework set out in the United Nations and bilateral agreements."
In Part II of my series on my mission to Israel, I discussed what I learned about international law. I signaled that the International Court of Justice (ICJ) would soon issue an opinion concerning the status of the West Bank, known as Judea and Samaria. That ruling came on Friday. To no one's surprise, the ICJ found that Israel was occupying the territory in violation of international law.
There is a single opinion of the Court, combined with fourteen separate writings. (There are fifteen members of the Court). You can save yourself some time, and jump to the only member who dissented from the entire decision, Judge Julia Sebutinde of Ugande. Here is the summary of her opinion:
The Court has jurisdiction to entertain the request for an advisory opinion - However, in exercising its discretion judiciously and maintaining the integrity of its judicial role, the Court should have refrained from rendering the advisory opinion requested - The Advisory Opinion omits the historical backdrop crucial to understanding the multifaceted Israeli-Palestinian dispute and is tantamount to a one-sided "forensic audit" of Israel's compliance with international law - The Advisory Opinion does not reflect a balanced and impartial examination of the pertinent legal and factual questions - It is imperative to grasp the historical nuances of the Israeli-Palestinian conflict, including the competing territorial claims of the parties in former British Mandatory Palestine, as well as the previous and ongoing efforts to resolve the conflict through the negotiation framework identified by the Security Council - The Court lacks adequate, accurate, balanced and reliable information before it to enable it to judiciously arrive at a fair assessment and conclusions on the disputed questions of fact - The Advisory Opinion not only circumvents Israel's consent to the Court's resolution of the issues involved, but also circumvents and potentially jeopardizes the existing internationally sanctioned and legally binding negotiation framework for the resolution of the Israeli-Palestinian conflict - The Advisory Opinion also contains several shortcomings, in particular with respect to its answer to Question 2 - The timeline proposed by the Court for Israel's withdrawal from the occupied territories is impracticable and disregards the matters agreed upon 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 reparation is not appropriate in the circumstances of the Israeli-Palestinian conflict - The Court has misapplied the law of belligerent occupation and has adopted presumptions implicit in the question of the General Assembly without a prior critical analysis of relevant issues, including the application of the principle of uti possidetis juris to the territory of the former British Mandate, the question of Israel's borders and its competing sovereignty claims, the nature of the Palestinian right of self-determination and its relationship to Israel's own rights and security concerns - The only avenue for a permanent solution to the Israeli-Palestinian conflict remains the negotiation framework set out in the United Nations and bilateral agreements.
Sebutinde captures, to a tee, how I understand the proceedings before the ICJ: a one-sided effort to use legal principles to force Israel to capitulate on a complicated diplomatic situation. It is a myth that some elite lawyers in the Hague can solve with an opinion what the Israelis and Palestinians have struggled with for decades.
You may not think of Uganda as a staunch defender of Israel, but Sebutinde has consistently dissented on the various rulings the ICJ issued against Israel with regard to Gaza. Regrettably, President Biden's appointee to the court, Judge Sarah Cleveland, concurred with the majority.
Robert Nicholson in the Wall Street Journal provides some background on Sebutinde that could explain her jurisprudence:
More intriguing is the phenomenon Judge Sebutinde represents. She is an African woman steeped in Pentecostal Christianity who feels a natural kinship with one side of the conflict. If Judge Salam's Muslim identity shapes his views, Judge Sebutinde's Christianity no doubt shapes hers—and she is no outlier. In a crucial geopolitical development of the last century, American missionaries seeded evangelical Christianity across Africa, Asia and Latin America—and with it, the famous evangelical penchant for Zionism. The political consequences are only now emerging.
I agree with Robertson's conclusion:
The Israel-Palestinian conflict will be solved by a political process based on negotiations between the parties, Judge Sebutinde wrote, not a judicial settlement in The Hague. She is nothing if not brave, breaking ranks with her peers in asserting the legality of Jewish rights in all of Mandatory Palestine. She cites the legal documents and principles that justify those rights, recounts the history of Palestinian intransigence, and notes a Jewish presence in the land going back to ancient times. "Israel," she wrote, "is not a colonizer."
Judge Sebutinde also points out how a "pro-Palestinian group of states" is hijacking institutions like the ICJ to create on paper what they can't build on the ground. This group of states speaks in legal language, but its goals and motives flow from anything but law. After rejecting seven peace offers and mismanaging the West Bank and Gaza, the Palestine Liberation Organization is waging a multifront legal intifada designed to sway public opinion and prompt the U.N. Security Council to act.
To date, President Biden has been fairly solid on Israel, but things could change now. As a lame duck, he is no longer seeking the nomination, or even votes in the general election. Moreover, given his decline in mental capacity, it is unclear who is actually calling the shots. Whatever committee is making decisions will now be faced with a choice of how to respond to the ICJ's decision. The President could call out the decision for the reasons Sebutinde explains, and stand with Israel. Or the President could call for sanctions. Or the President, could do nothing.
Vice President Harris, who likely will be the Democratic nominee, may agree with President Biden, or may disagree with him. Whether there is any daylight between them could create some chaos and consternation with our foreign policy. This six-month lame duck period, combined with the President's declining mental faculties, will present many novel difficulties for the unitary executive.
