ISRAEL AT WAR - DAY 142

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Uganda disowns its dissenting judge in court ruling on Israel genocide claim

Kampala says position taken by Justice Julia Sebutinde opposing International Court of Justice findings on war with Hamas are her own, don’t reflect government

Ugandan Judge Julia Sebutinde makes her solemn declaration as a new member of the ICJ in the Great Hall of Justice of the Peace Palace in The Hague, March 12, 2012. (ICJ)
Ugandan Judge Julia Sebutinde makes her solemn declaration as a new member of the ICJ in the Great Hall of Justice of the Peace Palace in The Hague, March 12, 2012. (ICJ)

Uganda has distanced itself from an opinion written by a Ugandan judge on the International Court of Justice (ICJ) dissenting from the panel’s ruling in South Africa’s genocide case against Israel and said the remarks do not reflect Uganda’s position.

Julia Sebutinde was the only judge on the 17-member ICJ panel to vote against all six measures adopted by the court in a ruling ordering Israel to take action to prevent acts of genocide as it fights Hamas terrorists in the Gaza Strip.

She was also one of only two judges to oppose the court’s assertion that some Israeli actions in the war against Hamas may violate the Genocide Convention. The other was Israeli Justice Aharon Barak.

“The position taken by Judge Sebutinde is her own individual and independent opinion and does not in any way reflect the position of the government of the Republic of Uganda,” the government said in a statement issued late on Saturday.

It added that the East African country supported the position of the Non-Aligned Movement on the conflict that was adopted at its summit in the Ugandan capital this month.

That NAM position, contained in a document issued at the end of the summit, condemned Israel’s military campaign and killing of civilians and also called for an immediate ceasefire and unimpeded humanitarian access.

The movement was formed officially in 1961 by countries opposed to joining either of the two major Cold War-era military and political blocs. Many of the countries were newly independent of their colonial rulers.

South African, left, and Israel’s delegation, right, stand during session at the International Court of Justice, or World Court, in The Hague, Netherlands, January 26, 2024. (AP Photo/Patrick Post)

The war erupted when Palestinian terror group Hamas attacked Israel on October 7 in an assault that killed 1,200 people, mostly civilians. Hamas-led terrorists who burst into southern Israel from the Gaza Strip rampaged through the area, slaughtering those they found, gang-raping women, and torturing victims. They also abducted 253 people who were taken as hostages to Gaza, where more than half remain captive.

Israel responded to the attack with a military campaign to destroy Hamas, remove it from power in Gaza, and release the hostages.

The Hamas-run health ministry in Gaza, which does not differentiate between combatants and civilians, says the war has killed at least 26,000 Palestinians. The figures are unverified and are believed to include close to 10,000 Hamas operatives Israel said it has killed during fighting in the Strip. Over 200 Israeli soldiers have been killed in the Gaza fighting.

The ICJ decision, made 15-2 on Friday, said there was “plausibility” to South Africa’s claims that Palestinians require protection from genocide. It said numerous and highly inflammatory comments made by some senior Israeli officials, which could be interpreted as an endorsement of deliberately harming civilians, gave plausibility to South Africa’s allegations that Israel has genocidal intent against Palestinians in Gaza in the current conflict.

However, the court did not take the action most desired by South Africa and feared by Israel — that of ordering an immediate, unilateral ceasefire, which would have stymied the war effort and indicated that the court believes genocide is actively taking place.

Israeli soldiers operating in the Gaza Strip in an undated photo released by the military on January 28, 2024 (Israel Defense Forces)

Judge Sebutinde, in her dissent, argued that “South Africa has not demonstrated, even on a prima facie basis, that the acts allegedly committed by Israel and of which the Applicant complains, 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 added that “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.”

Sebutinde said the failure of states to reach a political solution to conflicts “may sometimes lead them to resort to a pretextual invocation of treaties like the Genocide Convention, in a desperate bid to force a case into the context of such a treaty, in order to foster its judicial settlement… In my view, the present case falls in this category.”

She said a careful review of Israel’s war policy “demonstrates the absence of a genocidal intent,” though she stressed that Israel is bound by international law in its conduct of the war.

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

Retired Supreme Court President Aharon Barak sworn in as Israel’s appointee to the bench at the International Court of Justice in The Hague, January 11, 2024 (ICJ)

As for the statements of Israeli officials who used inflammatory language, or made comments seen as minimizing the need to protect civilians, Sebutinde argued that taken in context, “the vast majority of the statements referred to the destruction of Hamas and not the Palestinian people as such;” that “certain renegade statements by officials who are not charged with prosecuting Israel’s military operations were subsequently highly criticized by the Israeli government itself; and that “more importantly, the official war policy of the Israeli government, as presented to the court, contains no indicators of a genocidal intent.”

In his separate opinion, Barak criticized South Africa for focusing on Israel instead of Hamas for carrying out the October 7 terror onslaught that sparked the war in Gaza, saying it “wrongly sought to impute the crime of Cain to Abel.”

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