Israel-Hamas war cannot be solved by courts, says dissenting ICJ judge
Thank heavens that at least one member of the International Court of Justice has her feet on the ground.
Friday’s one-sided rulings by the ICJ against Israel will do nothing to resolve the terrible suffering of the Gazan people, nor end a dilemma that has been festering for 75 years.
The current Israel-Hamas war cannot be resolved in a court of law or by judges, no matter how well-intentioned.
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As Judge Julia Sebutinde, the lone member of the ICJ who dissented against all the rulings of the court, said, “In my respectful dissenting opinion the dispute between the State of Israel and the people of Palestine is essentially and historically a political one, calling for a diplomatic or negotiated settlement.”
She added, “It is not a legal dispute susceptible of judicial settlement by the Court.”
One of the major reasons for the court’s rulings being ineffective is that they do not account for Hamas, the terrorist organization that started the war on Oct. 7 and the one organization in this conflict that has explicitly called for the destruction of another state and its people, namely Israel.
The court mentioned that it was the attacks by Hamas that started the conflict and in one paragraph said it was “gravely concerned about the fate of the hostages” abducted by the group, calling for “their immediate and unconditional release.”
But that was it. There were only a few other mentions of Hamas in the rulings, and that was only when the court was evaluating the evidence before it.
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It could be argued that the case before the court was about Israel’s role and whether it was committing genocide, so Hamas and its intentions and actions were irrelevant. But in a war, how can you evaluate the conduct of one side without also examining the role of the other?
As Judge Sebutinde noted, “This case is complicated by the fact that in the context of an ongoing war with Hamas, which is not a party to these proceedings, it would be unrealistic to put limitations upon one of the belligerent parties but not the other.”
Bringing Hamas to heel is going to be difficult. This is the de facto government of Gaza that uses its own civilians as human shields and has done so since 2007 according to a report by Stratcom, a NATO-accredited organization.
An organization like Hamas is not going to listen to the likes of the ICJ or the United Nations or be swayed by world opinion. How do you have a conversation with Hamas leaders who live in luxury but are proud of the Palestinian “martyrs” dying in Gaza and who pledge to commit Oct. 7 “over and over”?
And so pressure is brought to bear on Israel.
Israel must prevent any genocidal acts against Palestinians, says the ICJ, but doesn’t accuse Israel of genocide. Israel must also take “immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.”
It’s a pity that the court didn’t hear from the old woman in Khan Yunis who told the Al Jazeera news service that Hamas was stealing the aid that Israel was allowing into Gaza.
“All the aid goes (to the tunnels) underground. It does not reach everyone,” she said in an interview.
When the reporter interrupted to say that aid was arriving and being distributed, she waved her finger at him and smiled ruefully. “Hamas takes everything to their homes,” she said.
On Friday, the ICJ did not order a ceasefire but was clearly signalling that Israel must rein in its assault on Gaza.
The court, rightly, said that what was happening in Gaza was tragic. The Hamas-run health ministry says more than 26,000 people have been killed in Gaza. The Israel Defense Forces says it has killed more than 9,000 Hamas terrorists.
“The Court is acutely aware of the extent of the human tragedy that is unfolding in the region and is deeply concerned about the continuing loss of life and human suffering,” said the ruling.
What the court did not address was how to stop the war.
One very quick way to stop the suffering would be for Hamas to release the more than 100 hostages it still holds.
It was left to Judge Sebutinde, again, to address the practicalities.
If the court wanted the “immediate and unconditional release” of hostages, she said, couldn’t South Africa, which brought the case against Israel, help?
“It was brought to the attention of the Court that South Africa, and in particular certain organs of government, have enjoyed and continue to enjoy a cordial relationship with the leadership of Hamas. If that is the case, then one would encourage South Africa as a party to these proceedings and to the Genocide Convention, to use whatever influence they might wield, to try and persuade Hamas to immediately and unconditionally release the remaining hostages, as a goodwill gesture,” she wrote.
“I have no doubt that such a gesture of goodwill would go a very long way in defusing the current conflict in Gaza.”
South Africa’s case before the court highlighted how governments have failed to resolve the long-standing Israel-Palestinian conflict through the necessary means of politics and diplomacy, the judge said.
“Unfortunately, the failure, reluctance or inability of states to resolve political controversies such as this one through effective diplomacy or negotiations 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.”
It was left to the pragmatism of Sebutinde to also spell out a path to peace.
“It is clear that a permanent solution to the Israeli-Palestinian conflict can only result from good-faith negotiations between Israeli and Palestinian representatives working towards the achievement of a just and sustainable two-state solution. A solution cannot be imposed from outside, much less through judicial settlement,” she said.
The ICJ has spoken, but it is Judge Sebutinde, the lone voice in the wilderness, that should be heard.
National Post
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