Judge Julia Sebutinde, a Christian Zionist, was the sole dissenting vote on the ICJ ruling on Israel’s illegal occupation and the only one to vote against all six ‘provisional measures’ for Gaza.
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On July 19, 2024, Judge Julia Sebutinde of Uganda shocked the legal world by casting the sole dissenting vote to the International Court of Justice’s (ICJ) finding that Israel was “under an obligation to cease immediately all new settlement activities, and to evacuate all settlers from the Occupied Palestinian Territory.” Her finding came despite that for decades – until a recent Trump-led U-turn – the notion that Israeli colonial settlements in the occupied West Bank were illegal under international law had been a largely unanimous, undisputed fact, even among Israel’s staunchest allies. The academic community had been baffled by her determination, unable to explain such an unusual vote. But according to recent revelations, Sebutinde, who was also the only judge to vote against all six provisional measures the ICJ issued in South Africa’s genocide case against Israel, has admitted she did it because “the Lord” was counting on her “to stand on the side of Israel.”
To Sebutinde, like many Christian Zionists, what is happening in the Middle East is a sign that the “End Times” are here. “I have a very strong conviction that we are in the End Times,” she said, according to the independent Ugandan newspaper, the Daily Monitor. “I want to be on the right side of history. I am convinced that time is running out…I am humbled that God has allowed me to be part of the last days.” The legal world is now shocked all over again. What happens when a judge at one of the highest judicial offices in the world admits she has a religious duty to side with one of the parties in a dispute? Can you imagine if a Muslim judge on the Court had said Allah told him to side with Palestine?
Her Legal Justification Is No Justification
Before turning to divine command, Sebutinde had justified her dissenting vote on the principle of uti possidetis juris. According to uti possidetis, newly independent states continue to possess (or “uti possidetis” in Latin) the territory they controlled while under colonial domination. The principle emerged to legitimize territorial control by the newly independent Latin American republics of the 19th century. For instance, Mexico inherited the territory of the Spanish colony of New Spain, and Argentina inherited the territory of the Spanish colony of the River Plate. Thus, Sebutinde argued, Israel inherited the territory of the British-controlled Mandate of Palestine – spanning from the River Jordan to the Mediterranean Sea. “Israel,” she argued, “has territorial sovereignty over all the disputed areas of Jerusalem, the West Bank, and Gaza.” In other words, the settlements would not be illegal because they would not be built on occupied land.
While the principle of uti possidetis itself is a well-established tenet of modern international law, it is widely seen as inapplicable in the context of the Israeli-Palestinian conflict. Malcolm Shaw, Israel’s current counsel in its case against South Africa at the ICJ and often described by former Israeli spokesperson Eylon Levy as the man who “literally wrote the book on international law,” wrote an article in 1996 using the creation of Israel as an example of a situation where uti possidetis did not apply. Simply put, when the Jewish communities in Palestine declared Israel’s independence, they did not do so in the name of Palestine and its people, but from Palestine, and could therefore not inherit its borders “from the River to the Sea.”
The principle’s application to Israel-Palestine is seen in expert circles as a fringe position. It was originally advanced by George Mason professor and West Bank settler, Eugene Kontorovich, as recently as 2016, in a co-authored article with Israeli professor Abraham Bell. Since then, it remained in the dustbin of academia, only to be dusted off by self-described “Israel advocate,” Natasha Hausdorff, who repackaged it for the dumb podcast age, where no fact-checking is needed and anyone is an expert, ahead of the ICJ’s Advisory Opinion. The argument was then taken up by Sebutinde.
We know that Sebutinde allegedly got the uti possidetis argument from Kontorovich and Bell’s article because she appears to have plagiarized entire paragraphs from it. We also know Sebutinde was, to say the least, very careless with her sourcing. Researcher Zachary Foster, in fact, identified several instances where Sebutinde appears to have plagiarized text from unreliable and non-academic sources like the Jewish Virtual Library and Prager U.
Plagiarism is a serious ethical offense, but not technically one that affects a judge’s independence and impartiality. Sebutinde’s recent admission that she embraced Kontorovich’s uti possidetis claim out of a sense of divine command to ensure Israel’s victory does.
“God said, ‘You Coward’”
ICJ judges are entitled to have private views, even about the parties before them. Before joining the ICJ, Nawaf Salam, the Court’s former president and current prime minister of Lebanon, was openly critical of Israeli policies (a fact anti-Palestinian actors jumped on ahead of the Court’s Opinion). Judges also serve in the Court in their individual capacity, not as representatives of their states. Judges Georg Nolte (Germany) and Sarah Cleveland (USA) do not have a conflict of interest in cases involving Israel just because their governments fund Israel’s genocide of Palestinians. Similarly, Sebutinde, being a devout Christian and Zionist, would not normally be a problem, even if she privately feels religiously close to Israel. ICJ judges, as professionals at the top of their careers and holding one of the highest and most competitive judicial offices in the world, are expected to be able to put these personal feelings aside and rule based on law. Sebutinde’s latest admission shows she is not really willing to do this.
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To become an ICJ Judge, Sebutinde had to “solemnly declare” that she would perform her duties and exercise her powers as a judge “honourably, faithfully, impartially and conscientiously.” Under the ICJ’s Statute, the president of the Court, Judge Iwasawa Yuji of Japan, is authorized to notify another judge that he believes there are “special reasons” that would prevent them from sitting in a particular case. That Sebutinde has declared that she is under a religious duty to stand with one of the parties in South Africa v. Israel would arguably be one such special reason. Sebutinde would then have the right to disagree and bring her case before the full Court. The ICJ’s Statute also allows, in more serious cases, for the dismissal of a judge if, in the unanimous opinion of the Court, they no longer fulfill the required conditions to sit as a judge.
Sebutinde is now the Court’s vice president – a position she also credits God for. “I was feeling sick from worry and media coverage,” she said, according to the Daily Monitor, “so I decided to stay in bed. But God said, ‘You coward, wake up.’ I got out of bed and went to work.” As vice president, it is unlikely that Sebutinde’s colleagues will remove her from the bench entirely. But it is equally unlikely that South Africa will not complain about Sebutinde’s recanting of her judicial oath. If pressure continues to mount, it might be increasingly difficult for Sebutinde to continue to possess the authority to adjudge whether Israel is committing genocide or not. She could (and should), of course, recuse herself proprio motu, but it is unclear if her Lord will let her.
Alonso Gurmendi is an academic researching issues of international law and international relations, from a postcolonial perspective. He works as a Fellow in Human Rights at the London School of Economics and Political Science (LSE).
