ICJ's advisory exposes Israel to states that want it 'wiped off the face of the earth' — VP Sebutinde

International Court of Justice vice-president judge Julia Sebutinde has criticised the court’s advisory opinion that Israel’s occupation of Palestinian territories was illegal and should be withdrawn.

Last week, the court delivered its advisory to the UN general assembly, saying Israel has an obligation to “end its presence” in occupied Palestinian territories “as rapidly as possible”.

Sebutinde was the only judge who issued a dissenting opinion, saying the court should have declined to give an opinion. 

“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,” she said.

The UN general assembly asked the court for an opinion about disputed territories between Israel and Palestine, including the Gaza Strip, West Bank and parts of Jerusalem. 

Sebutinde argued the court’s opinion would expose the Jewish state to security concerns from those who want to “wipe them out”.

“It is indisputable that Israel’s continued presence in the disputed territories is in large part due to genuine security concerns as well as due to its own sovereignty claims to those territories, which can only be settled through negotiations.

“Another significant factor which the court has overlooked, and which distinguishes the Israel-Palestine conflict from other international situations involving calls for an ‘immediate, total and unconditional end’ of colonisation or occupation or expired legal mandate, is the existential and security threats posed to the Jewish people and state of Israel from the disputed territories and from its adversaries in the neighbourhood and beyond.

“It is undeniable there are states and non-state actors who have openly expressed a desire to see the state of Israel not just withdraw from the occupied Palestine territories but also wiped off the face of the earth, including from its own territory. 

“Time and time again Israel’s adversaries have launched surprise attacks on Israel within her borders and not just in retaliation for her occupation of Palestinian territory.” 

The court said Israel has an obligation to “end its presence” in occupied Palestinian territories.

“With regard to the court’s finding that Israel’s continued presence in the occupied Palestinian territory is illegal, the court considers such presence constitutes a wrongful act entailing its international responsibility. Consequently, Israel has an obligation to end its presence in the occupied Palestinian territory as rapidly as possible,” the court document read.

Sebutinde believed the opinion supported by most judges did not reflect a balanced and impartial examination, adding the legal questions posed by the UN were “one-sided”. 

The UN's main question read: “What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures?”

She said the Israeli-Palestinian conflict over land could be traced back to sovereignty claims over the territory in 1947. Frictions regarding disputed territory worsened after Britain ended its colonial mandate over Palestine.   

“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 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,” she said. 

“The Jewish people view this area as their historical homeland, while Palestinian Arabs and their allies regard it as the homeland of the Palestinian Arabs. The Jewish people, on the other hand, have an ancient history over the same disputed territory known during the British mandate as 'Palestine' and after independence as Israel.” 

She said an immediate withdrawal of Israel from the territories was “impossible”. 

“An immediate, total, and unconditional withdrawal of Israeli armed forces and civilian settlements is simply impracticable in the present circumstances. The complexities of the Israeli-Palestine conflict do not easily lend themselves to such a sweeping formulation. This is because Israel’s continued presence in the West Bank and Jerusalem (and recently in Gaza) is premised in part on real security concerns. Those matters will render the immediate and unilateral withdrawal of Israel practically impossible. 

“Historically, Israel assumed control over the disputed territories (the West Bank, the Gaza Strip and Jerusalem) in June 1967 in response to a clear and present threat, initiated by a group of Arab states, intent on annihilating the Jewish state.

“The legitimacy of Israel’s control of these territories at that time was uncontested, as it was understood that it had done so within the framework of the legitimate exercise of its right of self-defence. While the international community did eventually develop a framework for the resolution of this war, it was not contended at that time that Israel’s control of these territories, pending such resolution, was illegal.”

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