After recent comments, should Julia Sebutinde still serve on Israel cases at ICJ?

Legal experts say that impartiality of World Court's vice president may come under question after she said God was 'counting on' her to stand with Israel

Julia Sebutinde, a Ugandan judge, is the vice president of the International Court of Justice (Screengrab/Youtube)

Julia Sebutinde, a Ugandan judge, is the vice president of the International Court of Justice (Screengrab/Youtube)

Off

Over the past 18 months, Julia Sebutinde has been clear on her view of the legality of Israeli actions in Gaza and the occupied West Bank.

The Ugandan judge, who is the vice president of the International Court of Justice (ICJ), stated her legal opinion on two occasions last year.

In January 2024, when a 17-member ICJ panel ruled it was “plausible” that Israel was committing genocide in Gaza, Sebutinde was the only judge to vote against all six provisional measures adopted by the court.

Six months later, she was the only dissenting voice when a 15-judge panel found that Israel's decades-long occupation of the Palestinian territories was "unlawful".

She has faced criticism over her positions, including from her own government.

Sebutinde spoke publicly on the issue for the first time a few days ago, during an event at Watoto Church in Kampala.

“There are now about 30 countries against Israel,” she told the congregation. “The Lord is counting on me to stand on the side of Israel. The whole world was against Israel, including my country.”

She went on to say that she had a strong conviction that “we are in the end times”, and that the situation in the Middle East were among the signs.

“I want to be on the right side of history. I am convinced that time is running out,” she added.

The unusual step to speak publicly about her support for Israel has come under the spotlight, particularly from legal experts.

“It is never a good idea for an ICJ judge to share their own views on a pending case in a public forum,” Michael Becker, a professor of law and former associate legal officer at the ICJ, told MEE.

“It is worse to suggest that your position is to be ‘on the side’ of a specific party to the case.”

When sworn in, all ICJ judges take an oath committing to exercising their powers “impartially and conscientiously”.

Becker noted that strong religious convictions are not the problem.

He said that a judge’s sense of morality or justice, which could be driven by religion, can sometimes inform the proper exercise of judicial discretion.

“But law creates guardrails and requires judges to justify decisions within the terms of the law, drawing upon recognised sources of law,” Becker said. “Article 38 of the ICJ Statute, which sets out the relevant sources of international law, most certainly does not encompass the word of God.”

Sergev Vasiliev, an international law scholar, said it was both unusual, and “objectionable”, that Sebutinde spoke about the cases outside the arena of official concurring or dissenting opinions.

“Such interventions risk creating an impression of (or showing) bias and raise inevitable questions about their ability to adjudicate impartially,” he told MEE.

Vasiliev added that not only must a judge act impartially, but they must appear to do so in the eyes of a “reasonable observer”.

“However ‘conscientious’ her decisions may have been, Judge Sebutinde’s statement that it is her divine duty to stand with Israel - a respondent state in pending contentious proceedings - calls her impartiality into question,” he said.

“It is hard to see how a reasonable observer could conclude otherwise.”

Plagiarism allegations

Sebutinde’s dissenting opinion on Israel’s occupation of Palestine already came under severe criticism earlier this year over plagiarism allegations.

A 15-judge panel found that Israel's decades-long occupation of the Palestinian territories was "unlawful" and that its "near-complete separation" of people in the occupied West Bank breached international laws concerning "racial segregation" and "apartheid".

While most judges agreed with the advisory opinion, Sebutinde rejected the findings.

ICJ president’s plagiarism in Israel opinion ‘reflects poorly’, experts say

She was later accused of directly lifting sentences almost word for word in her dissenting opinion written on 19 July 2024, including from pro-Israeli sources, a column written by a former US official, as well as from Wikipedia and the BBC.

A study seen by MEE by a Palestinian researcher for an upcoming book by American scholar Norman Finkelstein alleged that “at least 32 percent of Sebutinde’s dissent was plagiarised”.

“In light of the plagiarism accusations, Judge Sebutinde’s reported comments will add to the perception that she is determined to reach certain outcomes, regardless of the law or the factual evidence before the Court,” said Becker.

Vasiliev noted that Sebutinde’s views, when expressed within her judgement, had already sparked controversy “because of credible allegations of plagiarism and reliance on sources of questionable quality and admissibility”.

“Her remarks at Watoto Church place the dissents in a broader ideological frame, reinforcing perceptions of bias,” he added.

Will there be consequences?

Juliette McIntyre, a lecturer in law at the University of South Australia, noted that pre-deciding which party to favour potentially violated the oath taken pursuant to Article 20 of the ICJ’s statute.

“It is possible that the Court will pursue measures for her recusal, pursuant to Article 24,” McIntyre, whose doctoral research focuses on ICJ rules and procedures, told MEE.

She added that the ICJ’s president, currently Yuji Iwasawa, could ask for a member of the court not to sit on a particular case if it was deemed necessary for some special reason.

'Such interventions risk creating an impression of bias and raise inevitable questions about their ability to adjudicate impartially'

- Sergev Vasiliev, international law scholar

If that judge refuses to step aside, the matter can be settled by a decision made by the court.

“Judges may also excuse themselves from a case because of a potential conflict of interest or lack of impartiality,” said McIntyre.

She added that Article 48 empowers the court to make orders for the conduct of the case, which can include complaints made by one party regarding the participation of a specific judge.

“This happened in the Namibia Advisory Opinion, where South Africa sought the removal of Judge Zafrulla Khan for allegedly being ‘biased’ against South Africa. They were not successful.” she said.

Kenneth Roth, an American attorney who was executive director of Human Rights Watch for nearly three decades, said Sebutinde’s comments suggest “she does not have the dispassionate attitude in the case of Israel that judges are supposed to have”.

“Sebutinde’s comments suggest that her own beliefs may make her incapable of objectively assessing Israel’s conduct in Gaza, in which case she should recuse herself from the proceedings,” he told MEE.

Becker noted that the ICJ already had critics who see the court as ineffectual and politicised.

“The ICJ is understandably very reluctant to force a judge not to sit in a particular case, in part because of the Court’s strong tradition of collegiality,” he said.

He said that while judges recused themselves from cases regularly, he was not aware of any case where the recusal was as a result of pressure from the ICJ president or a party to a case.

“Despite the fact that Judge Sebutinde’s comments appear to have been deeply inappropriate, the best course for the Court in this case may be to do nothing,” Becker said. “Rather than opening itself up to the bad faith accusations of bias that might then be directed against other judges.”

Vasiliev said that Sebutinde’s comments may not cause formal consequences, but will instead cause reputational damage - both to the weight of the Ugandan judge’s contributions in the relevant cases, as well as to the ICJ as a whole.

“This is not the kind of attention that the Court (or any other international bench) needs,” he said. “This is unfortunate and, to my knowledge, unprecedented at the ICJ.”

Israel ICJ case

News

Post Date Override

0

Update Date

Mon, 05/04/2020 - 21:19

Update Date Override

0

unfortunate

Why Tony Blair and Jared Kushner were at the White House to discuss Gaza

Why Tony Blair and Jared Kushner were at the White House to discuss Gaza

After recent comments, should Julia Sebutinde still serve on Israel cases at ICJ?

After recent comments, should Julia Sebutinde still serve on Israel cases at ICJ?