Open letter to Judge Julia Sebutinde

Vukile Theo Phanyaphanya

Vukile Theo Phanyaphanya

Published Jan 29, 2024


Honourable Judge Julia Sebutinde,

I have read your 12-page justification in the matter between South Africa and the state of Israel as a participant judge in the International Court of Justice (ICJ).

I do not know what you call your response to the outrageous and controversial dissension you gave against South Africa, against the lives of the people of Palestine and against all odds, but I am sure you will also agree that it is nothing more than an embellished with some legal jargon, nomenclature, and irrelevant case law.

The case law you use to justify your dissent is a clear example of the old cliché of the unfair comparison between apples and oranges. The wars you are citing in Africa are nothing closer to occupation, genocide, or illegal removal of a group from its indigenous homeland as is the case of Israel and Palestine. The only similarity, which you deliberately avoid to mention, is the fact that both violent acts are sponsored by the bully blue-eyed boy in the Security Council.

I am no legal expect but had to respond to your obvious violation of, not only the international law but also the violation of the rights of other human beings to life– which by, you refuse to recognise. I shall deal with each matter you raise but first I want to deal with the cognitive human being in you and not the legal academic you are because clearly that part of you has left heavy scars on your womanhood, humanity and thinking capabilities.

Second, this is by no means any intention conduct an assassination of your character or level any blame on you for your decision;, it is rather a brotherly intervention on the natural and cognitive deviation of a sister, particularly of an African descent, an error which any human being is capable of since we all know that to err is human. The only horrible thing one can do is to arrogantly refuse to acknowledge the error.

Last, I would like to address the issue of your country distancing itself from your unfortunate dissenting judgment at the ICJ.

This, on its own, is an embarrassment that says a lot about the so-called Independence of the judiciary. Not only that, the reaction of the Ugandan authorities is an indication of shame, but most of all, your conduct has given the world a window through which to see the kind of a judicial system you come from.

1. Let me commence by stating my disappointment at your very opening remark that the matter between, as you call it, the state of Israel and the people of Palestine needs a political settlement and not a judicial one. Well, for me and any other reasonable person, this view should have been communicated by you to the court in writing before the court could even think of entertaining the application by the Republic of South Africa, the applicant.

This includes your ill-informed view that the ICJ has no jurisdiction over the matter. It only takes common sense plus Grade 1 for any person to realise that the killing of an innocent group as a result of occupation and the quest by the occupants to have total control over indigenous group is an act of witted violence driven by greed, hate and desperation for survival in some one else’s land.

This on its own is enough to prove a prima facie case of genocidal intent, a point that places the current matter at the very jurisdictional doorstep of the ICJ. I am also convinced by your conduct that had it been Israel who had brought a case against Hamas or Palestine, you wouldn’t have hesitate to make a determination against Palestine.

In your preamble you display two things that should have either prompted you to recuse yourself from the case or to advise the court of your already compromised mentality. One, you are clear on your attitude towards what you call the state of Israel and the people of Palestine thereby showing the world that you entered the court with a predetermined outcome because of your personal recognition of the controversial state of Israel as against your non-recognition of the state of Palestine which existed long before the Zionist movement of Theodore Herdz.

In this regard, you refer to the Jewish state as the state of Israel on the one hand while you refer to the state of Palestine in Gaza as the people of Palestine on the other.

Second, you are premising your justification by stating a controversial opinion that the conflict does not need an adjudication by a court of law but a political settlement which you paint with your wishful thinking of good faith. This you do knowing very well that that good faith had long failed in the UN Security Council.

You do that knowing fully well that both the applicant and the respondent are members of that Security Council. By your own admission you know when parties fail to resolve issues of a political nature, they run to the courts to seek recourse. You do this while you are fully aware that Israel has refused to be signatory to the Roman Statute and you deliberately make no reference to this in your justification.

2. It is highly questionable that you personally know that the acts of Israel, which you also refer to as alleged acts, had no genocidal intent and that you are basing your argument only on the submission by the respondent and obviously ignoring the submission by the applicant. It is your controversial assertion that the respondent has no intention of annihilating the people of Palestine while you are also very clear in your mind that Hamas’ intention is to annihilate the state of Israel, even though this is no evidence given by Hamas themselves.

Also questionable is your assertion that the provisional measures ordered by the court which, by the way defeated you by 99% majority, are not warranted and you are sighting your Context A in which you controversially and arrogantly expect the applicant to prove, beyond reasonable doubt, the genocidal intent.

With the same breath you have already presented Hamas’ intent of annihilation and genocide. Well I am no lawyer to educate you on the common law principle of audi alteram partem which should inform you as an experienced judge that Hamas also has a right to be heard before such conclusions could be reached.

In your desperate move to defend your skewed judgment, you allege that: In particular, 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.

The very clear role you are playing is to become the devil’s advocate. How else could the applicant prove the intent over and above the evidence led that in70 years the legalised crime of Israeli occupation of Palestine has literally wiped-out millions of Palestinians from their land.

How else could genocidal intent be proven on prima facie basis even beyond the bombing of innocent patients in hospitals and children in schools and the wiping off of people’s homes.

3. It seems to me that you have assumed the most unfortunate role to swim against the tide, not only of the court but also of the entire world population and chose to be counted with the minority. You make the following unfortunate statement by premising it to your belief that the global interest in the Gaza conflict is unprecedented and under public scrutiny, in an undertone suggesting an over-exaggerated interest in the case; Well, your behaviour is quite unprecedented:

Limited scope of the provisional measures Order 1. Given the unprecedented global interest and public scrutiny in this case, as can be gathered from, inter alia, media reports and global demonstrations, the reader of the present order must be cautious not to assume or conclude that, by indicating provisional measures, the court has already made a determination that the state of Israel has actually violated its obligations under the Genocide Convention.

You further suggest that by these provisional measure by the court people are already excited and think that the court has made a finding against the genocidal behaviour of the respondent. Why is it in your interest to state in your justification that people must not make the mistake of thinking that the court has already found Israel guilty of genocide?

Is this an indication of your wishful thinking on the outcome of the court judgment? I am sure you will agree that there is a very thin line between genocide and the extreme crimes of humanitarian law. When you make a statement like the following, how are you really expected to be eligible in adjudicating a case of genocide: “The court’s jurisdiction is limited to the Genocide Convention and does not extend to grave breaches of international humanitarian law.”

This means that as far as you are concerned the killing of civilians as a result of war crimes or war-related conflicts is not genocide and therefore does not fall in the prescripts of the Genocide Convention? In this regard you also deliberately avoid citing the example of the Ukraine-Russian war in which a claim of genocide has been made. This raises a pertinent question, how were the judges of the ICJ selected and what kind of vetting was done on them?

4. You seem to rely in your argument justifying why you mis-voted, on the points raised by the court, way after you had voted. This means that prior to the court pronouncement of the provisional measures you were blank and could only reason after, using the points in the court judgment to justify your uNineveh v Tal Ashish direction which was not informed by any legal wisdom, no wonder why your own country was taken aback and has since distanced itself from your legal blindness and historical naivety.

You also seem to be balancing your argument on the fact that Hamas was not in court to be told to also cease fire if Israel was to be ordered the same. For me this is not a legal argument and I would be ashamed as a legal practitioner to be dragging the general views of the general public to strive desperately to convert them into legal arguments.

Here you really sound like a belligerent sibling who says I will not stop fighting because he is also not stopping. Your slippery of the Cinderella glass analogy is a jurisdictional excuse that you should have raised with the court before the seating. Why would a competent judge hide behind jurisdiction in giving judgment in a matter that she participated fully aware of lack of the alleged jurisdiction.

The Ugandan government distanced itself from your unfortunate dissension.

It is true that governments are preaching judicial Independence in the public arena, which means that judges cannot be told or influenced into which direction to sway a particular case.

However, we cannot shy away from the fact that in a matter like this one where the has to adjudicate between humanitarian or genocidal conflicts, it is territorial and sovereignty embarrassment to have a judge ruling against the protection of human rights. It is even worse if that judge then resorts to political excuses in her failure to protect such rights.

Judges are supposed to be the custodians of the law and the bases of that law is statutes such as the Constitution, the conventions, the treaties, the charters like the International Human Rights Charter and the International Charter for the Rights of Children, the Genocide Convention, and the Roman Statute. Now if a judge can make an excuse such as belligerent groups must not come to court, instead, they must turn to treaties to resolve their conflicts, then we are doomed. I do not blame your government for having distanced itself from your international embarrassment.

Vukile Theo Phanyaphanya is a retired teacher and an active author.

The Star