Find part one of this post here.

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.

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.