PART 1
It is apparent that many international legal norms are not simply or genuinely legal, but are rather reflective of political power relations or one party’s control over another. Yet it does not mean that legal normativity has to succumb to political reality all the time. It may often be the fact of life, but the former is not doomed to come under the spell of the latter.
But it is exactly where the intrigue of the Dissenting Opinion of Judge Sebutinde to the ICJ Advisory Opinion on 19 July 2024 lies: it exploits the magic of the positivistic power of the legal in order to immortalize the political, though it ostensibly asserted the opposite. It keeps demanding the Court to precisely apply lex lata, but those rules it chooses are arbitrary and selective, instead of being loyal to legal-positivistic methodology; and while it pretends to rely on legal rules and principles to induce a reasonable judgment, its ultimate guiding principle is a political one of “Israel’s security concern”, which may be just but ought to be counterbalanced by Palestinian people’s security concern. The Dissenting Opinion flatly dismisses this latter half. These backdrops are reason enough to be critical of that Dissenting Opinion for the sake of a well-tempered legal argument, as well as a constructive one opened for the future that can bail international law out of its present predicament, which I will elaborate on these as well as other points.
1. Ahistoricity or Selective Historicism
The Dissenting Opinion delves deep into the history of the Palestinian (or the author may rather call Israeli) region, but largely in a selective fashion. It starts with an ancient Kingdom of Israel 3,000 thousand years ago (para. 5) or 1,200 BCE for “a cohesive group” of the Jewish people or 1,000-586 BCE of Ancient Israel. And on account of the conquests and exile of Jewish “states” and people, the historiography almost jumps to 1882, when the Jewish people started to return to the “current Israel” (para. 8), as if to say that a certain Jewish state continued to exist without cognizable population, and as if to ignore the habitation of more than a sizeable mass of Arabs, whether you call them Palestinians or otherwise. And then the depiction jumps to the Balfour Declaration of 1917 and the start of the British Mandatory Palestine, with the emphasis that this latter was intended by the former to establish “a national home for the Jewish people”. Can a one-sided declaration be a determinant of international law, even if it contradicts the Britain’s own Hussain-McMahon Agreement of 1915?. And then the end of the British Mandate came in 1948, which according to the Dissenting Opinion determines the historical and territorial foundation of the history of that region.
It is admitted that about 3,000 years ago there were ancestors of Jews in the current Palestine region, if ever they were clearly separable from other Semites.[1] That historical fact should be paid respect, but it cannot entitle a “nation” of three thousand years ago to a “statehood” three thousand years later after interruptions or even absence. The notion of the so-called second limb of intertemporal law (as formulated by Max Huber in the Award for the Palmas Island Case, 1928) should be applied elastically in order to rectify historical injustices, such as the restitution of past enslavements or genocides, but it cannot be operated on the basis of legacies “from time immemorial” which can include three thousand years.
It is because of this theoretical impossibility (so the Dissenting Opinion seems to allege) that it fixes 1947 or 1948 as the baseline of the whole tragic history of the Palestine region, which the Dissenting Opinion would rather call the Israeli region. It is reasonable to choose a starting point of a conflict that is agreeable and fair to both sides, and can be either 1947 or 1948. But there exists no evidence that the Palestinian Arabs ever admitted the fairness of the British determination to establish a Jewish national home on a land slot where several Arabs including the current Palestinians had lived for three thousand years without substantive wars or conflicts with another Semite named Jews[2], or that the Arabs ever accepted the borders demarcated by the UNGA Resolution 181 (1947). It could have been nice if they had agreed to it, but there could not be reason to impose that solution in oblivion of the three thousand years’ living history on site of these indigenous Arabs.
This is why I find the Dissenting Opinion’s narrative a-historical, with its forgetfulness of the history of those opposed to Israel, including the tragedy of Nakba in 1948, which was nothing but a sudden unexpected tragedy for them. In this sense the Opinion’s historiography is highly selective, which renders its choice of the chronological baseline unreasonable and unfair.
2. Pseudo-legal positivism
The Dissenting Opinion keeps emphasizing lex lata (para.28), exemplifying inter alia Security Council Resolutions 242 (1967) and 338 (1973), Oslo Accords of 1993 and 1995, as well as Security Council Resolutions 1515 (2003) and 2334 (2016). The series of repetitive citation of these lex lata begins with the Balfour Declaration of 1917 and the Peel Commission recommendation for the British Government (the eligibility as a lex lata rule of both of them is dubious) and, slightly better, General Assembly Resolution 181 (1947) or the 1949 Armistice Line. The basso continuo of this body of lex lata is twofold: first, the partition plan, or the two-state formula between Jews and Arabs, is the unchangeable foundation for the solution of the conflict, and second, the direct negotiation between the parties is the only possible modus of solution. According to the Dissenting Opinion, the Arabs have incessantly rejected the plans (paras. 14 through 20), and frustrated the desired negotiations. To the contrary, “Israel was experiencing suicide bombings” throughout these periods of Arab non-cooperation (see para. 57).
It goes without saying that rules ought to be obeyed in international life, but the Dissenting Opinion’s loyalty to this norm appears to be unequilibrated in the sense that it always turns to the lex lata rules of its own choice in favor or defense of Israel. It is therefore arbitrary, and thus contradicts the basic principle of modern rule of law. This conceptual selectiveness ends up with a further contradiction with the emphasis on lex lata, yet the negation of legal status of some legal instruments generally determined as binding law: According to the Dissenting Opinion, even the Security Council Resolution 242 is a non-binding Resolution, to the surprise of many of us. So is General Assembly Resolution 194 (1948). The former affirmed that the withdrawal of Israel armed forces from the occupied territories be implemented, and the latter resolved that the (Palestinian) refugees should be permitted to return home, both of which are arguably detrimental to Israeli interests. The choice of lex lata rules should not be made in such an arbitrary way.
Furthermore, the argument of the Dissenting Opinion changes from the emphasis on the respect of lex lata to the prioritization of policy over law (paras. 65, 66). It is here that it discloses its most essential conviction, or even an obsession, that is, the “security concern” of Israel. The Opinion speaks over and over again about it, as if the Palestinians had no security concern: whatever lex lata rules may exist, Israel’s security concern should be given inalienable priority. The Dissenting Opinion’s adhesion to lex lata is upturned here, and the ostensible posture of legal positivism betrays itself to be pseudo-legal positivism.
It should be esteemed if the author of the Dissenting Opinion judiciously and correctly recognizes the limits of legal positivism in the resolution of disputes, for international law can never be free from politics. But if so, what lawyers ought to do is not to throw complicated situation into the capricious hands of politics by, for example, leaving everything to the direct “negotiation” of the parties concerned on the basis of rather unfairly selected lex lata rules, but to endeavor to find the best possible rules to allocate policy values or “security concerns” for both parties of conflict. If politics still dominates, as imagined by the Dissenting Opinion, then it may be more appropriate to ideate some lex ferenda rules to tame the haphazardness of politics, which is more wholesome and constructive than haphazard application of subjectively selected lex lata rules.
PART 2
3. Decontextuality
Since the Court was asked by the General Assembly to render a legal opinion about the legal consequences of the (illegally) prolonged occupation of Palestine, it may be arguably justifiable to be reticent about what has been going on in Palestine, especially Gaza, since 7 October 2023. It should be reminded that there were Hamas rocket bombs which lost the lives of Israelis and others, and many people were held hostages, both of which are clearly illegal. But since then, the main scenery is that Israel armed forces are mounting merciless attacks on Palestinians particularly in Gaza, causing innumerable human casualties among children and women above all, imposing famine and insanity, bombarding international-legally protected hospitals and schools, so on, so forth.
As the conducts bringing about this human misery is now the object of a contentious case in the Court, Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), the current situation could be regarded a separate matter. But only formally and procedurally. Its subject matter of illegal occupation is inextricably intertwined with the current brutal attacks on human life in Gaza. The acts may be juridically determined genocide or at least serious violations of international humanitarian law in the end, at the basis of which is the long-standing occupation, which is close to annexation. The pretext of “self-defense” might no longer be invocable before long. This is the context within which we international lawyers are expected to ascertain our legal judgment.
The Dissenting Opinion is quite lengthy, although the political affiliation of its author is evident from the outset. It begins, after a rather imaginary narrative of 3,000 years ago, with 1967, which the author determines as “the use of aggressive force by foreign states …. against the Jewish people and the territorial integrity of the sovereign state of Israel”. History in between is erased, as if to say that Palestine had been a terra nullius, and the year 1967 is suddenly made the beginning of history (para. 76). Arabs (including Palestinians) became aggressors, and thus everything happening afterwards is justified in Israel’s favor, like “Israel is not a colonizer” (para.62).
The Dissenting Opinion tends to ignore the fact that many related things have continued like a chain since Nakba, with mass killings from time to time, constant “settlements” which in fact is the dispossession of land.
By quoting a passage from the judgment on the Frontier Dispute (Burkina Faso/Republic of Mali), the Dissenting Opinion opined that “(t)he principle of uti possidetis [juris] freezes the territorial title; it stops the clock.”, in order to say that the 1948 administrative boundaries of the Mandate for Palestine will remain valid once and for all. But the boundaries were not free from disagreements, and the uncritical admonition of the Britain-promulgated boundaries on the “principle” of uti possidetis is an acceptance of colonialism at best. It is this Dissenting Opinion that is making strenuous efforts to stop the clock, and decontextualize the whole situation.
The decontextualization of the Palestine context is boiled down to oversimplifying the picture by depicting the Israelis as victims. Of course, a fair and endurable political solution has to be realized, such as the two-state plan. But such a political solution can never be politically realistic if the plan is put forward on the basis of selective and unfair application of lex lata rules and if the search for this solution is simplistically relegated to the negotiation between the parties whose political and military powers are despairingly imbalanced. The decontextuality serves no good, and seems to the present author to be an unsound methodology of international law.
4. Judiciary Nihilism The Dissenting Opinion repeatedly propounds that this conflict is not apt for judicial settlement (paras. 28, 35, 43 etc.), which sounds even judiciary nihilism by an international court judge. People have good reasons to be suspicious about the current international law mechanism, including international judiciary, in view of the chronic ineffectivity of international law. But because of this ineffectivity deriving from the uncertainty of international law, the responsibility of international lawyers, in particular judges, becomes much heavier to bring conflicts to peaceful solutions, by clarifying what law is, or even what law should be. International law is yet historically underequipped to solve all the international problems, so it is the duty of lawyers to try to find the best legal solutions that are fair to all the parties instead of leaving them up to the direct negotiations where naked power relations prevail. And if necessary, lawyers have to investigate into the domain of lex ferenda and try to squeeze out the most suitable and necessary rules to be crystallized at a later date, if not applied immediately. It may be plausible to assert that the Court or lawyers in general have to stick to lex lata, but it is tantamount to say nothing if there is too much lacunae in the existing lex lata system. Lawyers are not allowed to expel human misery into an empty toolbox. Particularly judges, who are professionally obliged to be free from judiciary nihilism.
Author
Prof. Dr. Toshiki MOGAMI is a Visiting Professor at the Europainstitut, University of Basel; Professor Emeritus at International Christian University, Tokyo; Also at ICU, Director of the Peace Research Institute for twenty years, as well Director of the Rotary Peace Center until retirement; Professor Emeritus at Waseda University, Tokyo; President of the Japan Chapter of the Asian Society of International Law, 2017-2019; President of the Peace Studies Association of Japan, 1999-2001.
