South Africa failed to present substantially new facts on the ground in Rafah, the International Court of Justice shouldn’t “micromanage” Israel’s military operations, the Jewish state has been increasing aid flow into Gaza and the United Nations high court hasn’t previously required a sovereign state to allow outside observers in during a war.
Those were several of the objects that Julia Sebutinde, vice president of the ICJ—the principal United Nations judicial arm located in The Hague—raised in her dissenting opinion on Friday.
“Israel’s ongoing military operations in Rafah are part of the broader conflict initiated by Hamas on Oct. 7, 2023, when Hamas attacked Israeli territory, killing citizens and abducting others,” wrote Sebutinde, of Uganda. “To maintain its judicial integrity, the court must avoid reacting to every shift in the conflict and refrain from micromanaging the hostilities in the Gaza Strip, including Rafah.”
Sebutinde noted that South Africa had “invited” the court to modify its rulings on Israel for the fourth time since December—on Dec. 29, Feb. 12, March 6 and May 10.
“Once again, South Africa has invited the court to micromanage the conduct of hostilities between Israel and Hamas. Such hostilities are exclusively governed by the laws of war (international humanitarian law) and international human rights law, areas where the court lacks jurisdiction in this case,” she wrote.
She also noted that the court invited misunderstandings when it ordered Israel on Friday to “halt its military offensive … in the Rafah governorate.”
That phrasing “is susceptible to ambiguity and could be misunderstood or misconstrued as ordering an indefinite, unilateral ceasefire, thereby exemplifying an untenable overreach on the part of the court,” the ICJ vice president wrote.
“In my understanding, the objective of the court is to order Israel to suspend its military offensive in Rafah only insofar as such suspension is necessary to prevent the bringing about of conditions of life that could bring about the destruction of the Palestinians in Gaza,” she added.
“This directive, which could be erroneously misunderstood as mandating a unilateral ceasefire in part of Gaza, amounts to micromanaging the hostilities in Gaza by restricting Israel’s ability to pursue its legitimate military objectives, while leaving its enemies, including Hamas, free to attack without Israel being able to respond,” Sebutinde wrote.
“This measure also implicitly orders Israel to disregard the safety and security of the over 100 hostages still held by Hamas, a terrorist organization that has refused to release them unconditionally,” she added.
“I firmly believe that Israel has the right to defend itself against its enemies, including Hamas, and to continue efforts to rescue its missing hostages,” she added. “These rights are not incompatible with its obligations under the Genocide Convention. Israel can continue pursuing its legitimate aims of combating Hamas and rescuing its hostages, provided it respects its obligations under the Genocide Convention and the provisional measures indicated by the court.”
Sebutinde also took South Africa to task for failing to mention—as context to Israel’s operations in Rafah—that Hamas, Hezbollah, Palestinian Islamic Jihad, the Al-Aqsa Martyrs Brigades and the Houthis have been regularly attacking the Jewish state, and that Iran launched a direct attack on Israel.
“These threats collectively pose a significant risk to the safety, security and welfare of Israel and its citizens,” she wrote. “While the international community is rightfully concerned about the safety and security of the displaced Palestinian civilians in Gaza, it is equally important to recognize that Israel’s ongoing conflict with Hamas and Hezbollah has resulted in the displacement of 60,000 Israelis from their homes in southern Israel and another 60,000 in northern Israel.”
Israel has increased aid, including medical care, in the Gaza Strip since the court’s order, according to Sebutinde, who noted that Israel also warns Gazan civilians to leave areas ahead of attacks.
“Such actions are inconsistent with the intent to destroy the group in question,” she wrote. “Israel has also acted to make infrastructure available at shelter sites and has facilitated the supply of shelter equipment into Gaza.”
“To be sure, the efforts taken by Israel thus far have not entirely alleviated the ongoing humanitarian crisis in the Gaza Strip,” she added. “War inevitably, and tragically, affects the lives of civilians. But this does not make Israel’s war against Hamas inherently illegitimate or unlawful and nor does it transform it into an act of genocide.”
Sebutinde noted that she voted against the court’s requirement that Israel “maintain open the Rafah crossing for unhindered provision at scale of urgently needed basic services and humanitarian assistance,” because the court had already stated sufficiently “robust” requirements in prior orders and since Egypt controls part of the crossing.
“There have also been reports that Egypt has prevented the movement of aid trucks from Egypt towards Kerem Shalom,” she wrote. “Without Egypt’s co-operation, Israel alone cannot ‘maintain open the Rafah crossing’ which would render the court’s current order, which is directed at Israel but not Egypt, impracticable.”
Sebutinde wrote that she dissented from the court’s requirement that Israel allow fact-finding missions to enter Gaza. There is no evidence that Israel is destroying evidence, she said.
“There may also be legitimate security reasons behind preventing the access of certain individuals into Gaza during an active conflict, given that their safety could not be guaranteed,” she wrote. “Furthermore, the court has never imposed an obligation upon a sovereign state to admit third-party observers onto its territory.”
She also voted against the ICJ requiring Israel to file “yet again one more report.”
“In view of the number of reports that the court has already ordered Israel to file, this measure could be seen as another effort by the court to enforce the implementation of its existing orders, which is a power it does not possess,” she wrote.
“Finally, I find it necessary to note my serious concerns regarding the manner in which South Africa’s request and incidental oral hearings were managed by the court, resulting in Israel not having sufficient time to file its written observations on the request,” she added.
“In my view, the court should have consented to Israel’s request to postpone the oral hearings to the following week to allow for Israel to have sufficient time to fully respond to South Africa’s request and engage counsel,” Sebutinde wrote. “Regrettably, as a result of the exceptionally abbreviated time-frame for the hearings, Israel could not be represented by its chosen counsel, who were unavailable on the dates scheduled by the court.”
“It is also regrettable that Israel was required to respond to a question posed by a member of the court over the Jewish Sabbath,” she added. “The court’s decisions in this respect bear upon the procedural equality between the parties and the good administration of justice by the court.”
