Court orders unnecessary, judge Sebutinde says on ICJ ruling in SA's case against Israel

International Court of Justice judge Julia Sebutinde, who voted against all emergency measures ordered by the world court for Israel to undertake in the Gaza war, including one which compels the Jewish state to ensure provision of aid, believes the orders were “redundant and not warranted”.   

The ICJ ordered that Israel ensure immediate provision of basic services and humanitarian assistance to Palestinians in the Gaza Strip and ensure its military does not commit any acts of genocide.

These were some of the six orders the court made against Israel in South Africa’s application in which it accused the Jewish state of violating the Genocide Convention, saying thousands of civilians had died because of military operations in Gaza since Hamas attacks on Israel on October 7.

Sebutinde and Israeli judge Aharon Barak were the only two judges who issued dissenting opinions against the court’s ruling which found some actions South Africa alleged Israel had committed in Gaza may have violated the Genocide Convention.

Of the 17 judges, Sebutinde was the only one who voted against all the measures granted including the request to compel Israel to ensure aid is delivered in Gaza. She described the court orders as redundant saying some of the measures were the same as laws under the Genocide Convention to which Israel was a signatory. 

“The fourth measure [aid] obligating Israel has no link with any of the rights purportedly claimed under the Genocide Convention. Under the convention, a state party has no duty to provide or to enable the provision of, humanitarian assistance, as such. There may be an equivalent duty under international humanitarian  law but not the convention.” 

She said provision of humanitarian assistance was taking place already. Though there has been aid in Gaza, the UN and British foreign secretary David Cameron said access to deliver aid was restricted. 

Sebutinde said South Africa in its argument did not present preconditions necessitating the court to grant the measures.

“South Africa has not demonstrated, even on a prima facie basis, that the acts allegedly committed by Israel, were committed with the necessary genocidal intent, and that as a result, they are capable of falling within the scope of the Genocide Convention,” she said.

She argued the genocidal intent allegations were invalid because Israel “warns” civilians of military operations in Gaza.

“I agree that any genocidal intent alleged by the applicant is negated by Israel’s restricted and targeted attacks of legitimate military targets in Gaza; its mitigation of civilian harm by warning them through leaflets, radio messages and telephone calls of impending attacks; and its facilitation of humanitarian assistance.” 

The war ensued after Hamas' attack and was not “started” by Israel, she said. This nullified South Africa’s allegation Israel had intentions to commit genocide against Palestinians.

“The war was not started by Israel but rather by Hamas who attacked Israel on October 7 thereby sparking off the military operation in Israel’s defence and in a bid to rescue its hostages,” she said.

The court highlighted that military operations conducted by Israel had resulted in more 25,700 (not independently verified) Palestinians killed, thousands left injured, huge destruction of homes and left about 1.7 million people displaced.

In consideration of these factors and others, the court found some of South Africa’s claims that Palestinians needed protection were “plausible”.   

Sebutinde disagreed and said: “Since, the acts allegedly committed by Israel were not accompanied by a genocidal intent, the applicant has not demonstrated that the rights it asserts and for which it seeks protection through the indication of provisional measures are plausible under the Genocide Convention. The provisional measures indicated by the court in this order are not warranted.”

ICJ president judge Joan Donoghue on Friday put a spotlight on cutting of water supply and other basic needs in Gaza by reading some of the statements made by Israel leaders.

“On October 13 2023, Mr Israel Katz, then-minister of energy and infrastructure of Israel, stated on X (formerly Twitter): ‘We will fight the terrorist organisation Hamas and destroy it. All the civilian population in [G]aza is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world’,” Donoghue read.

Sebutinde said civilians in Gaza were affected by the war as Hamas lived among civilians.

“Unfortunately, the scale of suffering and death experienced in Gaza is worsened not by genocidal intent, but rather by several factors, including the tactics of the Hamas organisation itself which often entails its forces embedding among the civilian population and installations, rendering them vulnerable to legitimate military attack.”

Sebutinde “encouraged” South Africa to speak to Hamas, which Israel alleged South Africa had a “cordial relationship” with, about releasing the hostages.

“During the oral proceedings in the present case, it was brought to the attention of the court that South Africa, and in particular certain organs of government, have enjoyed and continue to enjoy a cordial relationship with the leadership of Hamas,” Sebutinde said.

“If that is the case, then one would encourage South Africa as a party to these proceedings and to the Genocide Convention, to use whatever influence they might wield to try to persuade Hamas to immediately and unconditionally release the remaining hostages as a goodwill gesture. I have no doubt that such a gesture of goodwill would go a very long way in defusing the current conflict in Gaza,” Sebutinde said.

Sebutinde in her judgment called for a “peaceful” solution to the war.

“In my respectful opinion the dispute between the state of Israel and the people of Palestine is essentially and historically a political one, calling for a diplomatic or negotiated settlement, and for the implementation in good faith of all relevant [UN] Security Council resolutions by all parties concerned, with a view to finding a permanent solution whereby the Israeli and Palestinian peoples can peacefully coexist.” 

Read Sebutinde's dissenting opinion here.

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