@ElliotMalin: Here we go again: The dissent ...

Here we go again: The dissent by Judge Sebutinde is incredible and eviscerates the @CIJ_ICJ as applying standards never applied to any other states party. I'm going to highlight a few parts because they are quite notable.

Notable, she again calls out the ICJ for hypocrisy.
🧵

View Tweet

Judge Sebutinde notes that the @CIJ_ICJ advisory opinion lacks balance and impartiality (not surprising since the President of the Court is the former Lebanese ambassador who bashed Israel every day).

Without balance, the court cannot render an effective opinion. It's lacking.

She then goes on and notes that the request by the General Assembly ("GA") lacks any objectivity itself, and effectively predetermines what the ICJ was to find. The ICJ mimics those findings.

Notably, she mentions how history is lacking and important. This is where it gets fun!

Judge Sebutinde establishes in her dissent that it is undisputed that Jews have existed CONTINUOUSLY in what is today Israel for at least 3,000 years.

Effectively, Sebutinde recognizes that Jews are indigenous to the land because the historical and archaelogical record says so.

She then rips the court for limiting her timeframe to attach an individual opinion not with the majority. Meaning, again, destroying the ICJ for blatant bias against a member state (Israel).

She notes that the only path forward is through direct negotiations as required under Oslo. Which is what the Security Council has determined and is the appropriate body to do so, not the GA.

Further, re-establishing Jewish connection to the entirety of the land.

Important that she notes precisely where "Palestine" as a term comes from: Syria Palaestina, given to the land by the Romans AFTER suppressing the Jews. Again, this is undisputed historical fact.

Judge Sebutinde also notes that the establishment of borders between what is today Iraq and Jordan was done when Jordan became a sovereign state: but also, the historical record was that Jordan was to be the Arab state including for Palestinians who then identified as only Arab.

Next, Sebutinde details that today's Palestinians were offered a state, multiple times, and it is they who rejected it, not the Jews/Israel.

Important in the context of occupation.

She notes the first two rejections of an Arab state, including where the Jews accepted it, and the Arabs attacked the Jews.

Here she goes over the third, fourth, and fifth rejections. Again, noting that the obstacle is the very existence of Jews and a Jewish state in the place Jews are indigenous to.

Finally, Sebutinde gets trhough the sixth and SEVENTH rejection of an independent sovereign Palestinian state by the Palestinians. Not by the Israelis. But for the Palestinians rejecting a state, there would be a Palestine today, is what she is effectively saying.

Judge Sebutinde notes that the Oslo Accords are binding agreements between both the Israelis and Palestinians, and such bilateral framework not only establishes a legal responsibility in the West Bank until such time a Palestinian state exists.

Further, she notes that the Advisory Opinion written by the majority undermines the legal framework of the binding agreement between the Israelis and Palestinians. Condemning the imposition of the court into that as ineffective and hostile to the law.

Again, she notes that the ICJ's position is to defer to the parties to negotiate (in good faith).

Here she is reiterating that position even more forcefully.

Notably, she mentions that the request for this Advisory Opinion was not done by a majority of the members of the GA. Also noting that the ICJ is not supposed to be a political body, but here it is being abused as one.

Judge Sebutinde states that the ICJ, while having authority, should not have exercised the authority as it reeks of impropriety and places the court into a place acts without sufficient information or evidence - relying purely on hostile parties to Israel.

Moreover, the Advisory Opinion rests on the presumptions of "a one-sided narrative that fails to take account of the complexity of the conflicgt and that misrepresents its legal, cultural, historical, and political context."

Further, noting that this was brougth by hostile states to Israel that reject the right of Israel, a fullmember of the UN, to even exist!

She also notes that this is a bilateral dispute between a state and a people, which lacks any input from a party to the conflict.

It also allowed the ICJ to establish this opinion absent consent of a party to it which is not the normal practice of the court.

She attacks the request for the Advisory Opinion itself for not relying on the LAW of occupation or to a groups rights to self-determination, further she eviscerates this as an underhanded attempt to undermine historical facts to replace it with fiction.

Moreover, she then attacks the majority for willingly accepting the legal presmises and presumptions of the questions presented instead of objective fact finding, further delegitimizing the court.

She notes that the Court is challenged in answer its own questions because of the bias it has established pre-opinion.

Further, Judge Sebutinde notes explicitly that Israel does not dispute that Palestinians have a right to self-determination, but that this is for the parties to negotiate because real issues persist - such as legitimate security concerns post Oct. 7.

Better yet, she notes that the timeline presented is impracticable and doesn't actually work for the reality on the ground.

Moreover, this is contrary to a bilateral agreement between the parties which supercedes the Court.

She notes that the Court defers to parties requirements under bilateral agreements that they must also negotiate *in good faith* which the Palestinians have refused to do (note above where they rejected a state seven times).

This is an important section of the dissent: The Advisory Opinion IGNORES legitimate security concerns arising from conduct by the Palestinians and history of being attacked. Further, she correctly places the blame on the Intifada for the collapse of Oslo.

States have a right to defensible borders. Israel has a right to those, as does every other state.

She attacks the Court's Advisory Opinion for not considering the facts of the security situation and the results of unilateral withdrawal from Gaza (re: Oct. 7).

Overlooking those concerns is contrary to international law.

She further notes that the ICJ is looking at the wrong question and should be asking for an objective review. But, she also notes that legal title to the land is lacking for the Palestinians. She's correct on the face of the law and the incorporation of pre-48 agreements.

Interesting thing is she attacks the idea that the Advisory Opinion (non-binding) demands reparations for Palestinians when that is normally a byproduct of colonization, but you cannot colonize a land you are indigenous to, something she effectively notes.

The Court also absolves the Palestinians of any culpability and agency.

Here she is explicitly stating based on historical fact and archaelogical record already established: Israel is NOT a colonizer under the law.

She further attacks the Advisory Opinion's approach as "fundamentally flawed" and lacking important legal propositions within IHL. This is important because it's also Israel's position, due to the complex and extremely unique nature of this conflict.

This exists no where else.

Almost there, I promise, here she notes that IHL is meant to be objective and utilized uniformly, but that the Court and the state parties that brought this forward, are not utilizing it in such a way (this is lawfare) and that the ICJ just willingly played along.

Also, UN resolutions are not always binding, which is true.

She again attacks the Advisory Opinion for lacking consent, and for making an Advisory Opinion WITHOUT ANY ARGUMENTS OR EVIDENCE PRESENTED BY THE ACCUSED PARTY.

Judge Sebutinde notes that the Court never gets clarification on claims by both parties and makes a determination absent context. Remember: Israel's borders have moved due to negotiation because of armistice lines.

She also notes that Jews lived in the West Bank pre-1948.

Further, Sebutinde states that borders are not expected to effectively be mirror-images of the "photograph" (when independence is declared) because of conflict.

She attacks the Advisory Opinion further for being a unique application of IHL solely against Israel (the ICJ should read IHRA). Noting also that Arab leaders have resoundingly rejected the opportunity for peace, which is why we are where we are today. But for that, Palestine would exist.

Again, she notes that armistice lines were never meant to be international borders. She also notes that Egypt created and propped up a Palestinian government that never truly existed.

Interesting that she attacks the border with Lebanon when the President of the ICJ is Lebanese.

Judge Sebutinde affirmatively attacks the proposition of Israel being required to unilateraly withdraw because it would signal that a war of aggression to acquire territory would be okshe's looking back in time to Jordan's attack).

She also reminds everyone Jordan violated IHL.

Fascinating paragraph here because she makes the argument that the ICJ is prejudicial and lacks legal context to Jordan/Egyptian attacks on Israel creating this mess in the first place.

Also, again, she notes that Jews have always lived in what's considered occupied Palestine.

Notably: She correctly states that self-determination is not actually allowed to conflict with sovereign rights of existing sovereign states (Israel exists as a sovereign power, Palestine has never existed as a sovereign state, ever).

Moreover, a true Advisory Opinion would require an assessment of ALL legal rights and obligations. Not just the legal rights and obligations of Israel, but those of the Palestinians and third-party Arab states who have contributed substantially to this problem.

She attacks the Advisory Opinion for a lack of objectivity and balance, noting what has transpired since October 7 and how Israel does have legitimate security concerns that must be taken into account.

Important to note that the body with real authority to do something (UNSC) does not have any historical precedent to give the Advisory Opinion that the ICJ gave today.

Also, those that all requested this were not democracies or bastions of human rights.

In the same breath she also attacks the conclusion as inconsistent with traditional practice of international law which has operated since 1967 as not coming to this conclusion.

She further states that the norm or modus operandi transfers a legal occupation to one that is illegal. That has never happened before. Israel obtained title to the land defensively because of Jordanian aggression. That's not an illegal acquisition of title under IHL.

Very important, she notes that IHL prohibits the FORCED transfer of ones citizens from sovereign territory to that of another. That is not happening here. This is land that Jews HAD lived prior to being ethnically cleansed by Jordan in 1948.

3,000 years of history on it.

Finally, she notes, and incredibly important: Israel is not the sole culpable party here. It is not the one that has started all of these wars, rather it was the one defending itself.

Rendering such an opinion on a defensive party absent adjudication of all parties is wrong.

Final thoughts: Judge Sebutinde seems to be the only one taking her position on the ICJ seriously. As @HillelNeuer noted yesterday: The President of the ICJ is the former UN ambassador for Lebanon who used his position to attack Israel.

The @CIJ_ICJ has become a tool of lawfare.

@HillelNeuer @CIJ_ICJ This Advisory Opinion flies in the face of norms and precedent. It also underhandedly tries to accuse and establish Israel of crimes not before the Court absent the facts necessary or case/controversy before it.

It is an extremely dangerous weaponization of IHL.

@HillelNeuer @CIJ_ICJ You will see people talk as authority on the ICJ and IHL, take them with a grain of salt, they have been guilty of degrading the law for their own personal ideoligical positions that necessitates a double-standard.

This is not how the law is supposed to work.

@HillelNeuer @CIJ_ICJ Stay tuned for an upcoming law review/journal article on the destruction of IHL based on this very topic.

To wrap it up: Thanks for reading along, send your thanks for objective truth and fairness to the Vice President of the ICJ, Judge Sebutinde.

@HillelNeuer @CIJ_ICJ Oh forget to mention, and this is for my friend @academic_la: Effectively this is the reason why The Hague Convention, while the most applicable legal apparatus to the situation, itself doesn't work.

Occupation has requirements, but this very unique situation doesn't meet.

@HillelNeuer @CIJ_ICJ @academic_la Nothing within IHL really encapsulates the present problem for the Palestinians and should necessitate a reworking of The Hague Convention to help solve.

But this is also effectively why the Palestinians must also have agency for their actions, because that's how we get peace.

Want to also attach this semi-dissent which stipulates that the ICJ INCORRECTLY establishes as conclusive law that Gaza pre-Oct. 7 was occupied territory under The Hague Convention.

"Indeed, for the first time, the Court does not only declare that Israel’s practices in the territories it occupies are unlawful, in light of the obligations incumbent upon it as an occupying Power, but it also asserts that Israel’s very presence in the territories is unlawful and that it must therefore withdraw from them without any prior guarantee, particularly regarding its security, even though the respect of Israel’s right to security is one of the essential elements to consider in order to achieve a lasting peace.

We are of the view that, by doing so, the Court has embarked on a legally wrong path and reached conclusions that are not legally correct."
icj-cij.org/sites/default/…

@HillelNeuer @CIJ_ICJ @academic_la This dissent (in-part) further notes:

"The Israeli-Palestinian conflict is of a different nature. It must be approached in a balanced, nuanced and comprehensive manner that is entirely absent from the Opinion rendered."

@HillelNeuer @CIJ_ICJ @academic_la Judge Nolte also contends flaws in the Advisory Opinion (on an issue not actually before the Court). Judge Nolte is correct on the face of the accusation. This is a sham and witch hunt. It also further delegitimizes the ICJ. icj-cij.org/sites/default/…

@HillelNeuer @CIJ_ICJ @academic_la Further, Judge Nolte attacks the inclusion of an accusation ABSENT ANY SUBSTANTIVE EVIDENCE for the Court to observe. Again, apartheid, like genocide, requires a special intent (dolus specialis) which means you must prove that apartheid is the intended outcome.

And this from Judge Cleveland is notable, too, stipulating that the very nature of this as a means to attack Israel effectuates lawfare against a party that has been aggrieved.

A plethora of majority opinion judges are attacking the Advisory Opinion proceedings.
icj-cij.org/sites/default/…