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 II of this post can be read here. 

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.

Read more about this and related topics in the Asian Journal of International Law.

[1] Daniel Barenboim, a Jew, correctly elucidates in a dialogue with Edward Said, a Palestinian, that the present Jews and present Palestinians are both Semites by origin. Barenboim and Said, Parallels and Paradoxes, Vintage Books 2004, p.97.

[2] Edward Said states that before 1948 a Jewish state historically existed only for sixty years. Said, The Question of Palestine, Vintage Books, 1992, p.58.