On 10 August this year, a shocking incident took place when Judge Julia Sebutinde of Uganda, Vice-President of the World Court, in an address at Watoto Church in Kampala reportedly declared that “the Lord is counting on [her] to stand on the side of Israel”; that the Israel–Gaza situation was a sign of “End Times”; and that she wanted to be “on the right side of history”.
The statement was shocking because it violated the solemn oath (Article 20 of the ICJ Statute) that all judges take in open court before assuming office, in which they declare that they will perform their duties impartially and conscientiously. It also violated Article 2 of the United Nations Basic Principles on the Independence of the Judiciary, which obliges judges to decide matters before them “impartially, on the basis of facts and in accordance with the law, without… any improper influences… from any quarter and for any reason”. It also transgressed the principle declared on the ICJ website that “once elected, a member of the Court is a delegate neither of the government of his own country nor that of another state”.
Judge Sebutinde’s statement, though shocking, threw light on why she had in 2024 twice voted in favour of Israel in the two Gaza cases decided by the ICJ. She did so the first time in January, in the case that South Africa brought against Israel for committing genocide in Gaza. The Court issued provisional measures, including an injunction to Israel to prevent genocidal acts and to take measures to ease the humanitarian crisis. Fifteen of the seventeen judges voted in favour of all six measures. Even Israel’s judge ad hoc, Aharon Barak, voted in favour of two, whereas Judge Sebutinde was the only one to vote against all six, on the ground that the conflict was political and not legal in nature and that South Africa had failed to establish “genocidal intent” on the part of Israel.
Some thirty persons created Watoto Church some three decades ago and Judge Sebutinde was one of the founding members. This was the reason why she chose it to deliver her pro-Israel address
She did so the second time in July, when the Court, in an advisory opinion on the legal consequences of the occupation of Palestine, ruled that Israel’s occupation was unlawful; that Israel must dismantle the existing settlements and cease building new ones; and reiterated that the dispute was political in nature and hence non-justiciable. Again, she was the lone dissenter.
Here the question arises: what drove Judge Sebutinde to take Israel’s side on the Gaza issue? The answer is that Judge Sebutinde believes in Christian Zionism, which is a political and religious movement. According to it, per the Old Testament, Jews are God’s chosen people and have a divine right to the Holy Land because the Lord granted it to them in perpetuity. Consequently, its adherents hold that they are under a religious obligation to support the return of Jews to the land of their ancestors, because the Second Coming of Jesus is contingent on the fulfilment of this condition. According to them, their return will herald the End of Times and their conversion to Christianity. No wonder they, including Judge Sebutinde, are great supporters of the modern State of Israel. They support it politically, financially, and by all other means possible.
It is to be noted that some thirty persons created Watoto Church some three decades ago and Judge Sebutinde was one of the founding members. This was the reason why she chose it to deliver her pro-Israel address. Following her address at Watoto Church, there were calls from several global organisations to take action against her on account of her judicial impropriety. For example, the International Commission of Jurists sent a formal request to the President of the ICJ, Yuji Iwasawa, to investigate the matter against her for having transgressed Article 2 of the UN Basic Principles on the Independence of Judges referred to above, and for her immediate removal from participating in the ongoing proceedings in the Gaza genocide case. Similarly, the Council on American–Islamic Relations (CAIR) requested the Court to remove her from office for deciding according to the “word of God” rather than law, which she was obligated to do, and for failing to be impartial in violation of her oath of office.
The present case is fit for Judge Sebutinde’s removal rather than recusal for its sui generis character
How should the situation be dealt with? Article 24 of the Statute is relevant here. According to it, a judge can, on his or her own initiative, recuse himself or herself from the case citing “some special reason”. Similarly, if the President feels that a particular judge should not sit in a case “for some special reason”, he can inform him or her accordingly. In case of disagreement between the President and the judge, it is the full Court that decides the matter. There are reportedly at least three dozen cases where judges have recused themselves. Among the recent ones are those of Rosalyn Higgins of Great Britain in the Application of the Genocide Convention and Christopher Weeramantry of Sri Lanka in the Phosphate Lands in Nauru cases, who sat out for having been previously involved with them.
Will Judge Sebutinde show grace by stepping down from further participation in the ongoing proceedings on Gaza? It appears highly unlikely, because motivated individuals like Judge Sebutinde normally tend to give more weight to their religious beliefs over anything else. As to the second method, namely the President taking initiative to seek the settlement of the issue through full Court voting, to the best of our knowledge there is no such example on record. Will President Yuji Iwasawa resort to it? It is highly unlikely, for the reason of the spirit of collegiality of fellow judges at the Court.
However, there is one case which shows the way out of this predicament. That case relates to our own Sir Zafrulla Khan, who was a member of the World Court for a decade and a half. Before his election to the ICJ, he had, as Pakistan’s Foreign Minister, made speeches against South Africa at the UN for its racial policies. In the South West Africa case, President Sir Percy Spender of Australia, instead of taking the issue to the full Court for a formal vote, privately asked him to desist from participating in the case, which the latter did. According to unpublished papers of Sir Percy, he thought that Sir Zafrulla’s absence from the Court would tilt the balance of the vote in favour of the West, which did happen in the second phase in 1966 by the casting vote of Sir Percy.
There is a third way out of this imbroglio also. Article 18 of the Statute provides that if all judges except the judge in question unanimously agree that the latter no longer fulfils the required conditions of his or her office, then he or she has to go. This too is not likely to happen because here again the Court is totally disinclined to opt for such a drastic measure because of its strong tradition of collegiality.
In our view, the present case is fit for Judge Sebutinde’s removal rather than recusal for its sui generis character. This is so because in the previous cases judges recused themselves for their “sin” of past association with the case in hand or for having expressed an opinion in the matter. If asked how they would decide the case in hand, they would have most probably replied that, rising above their previous “sin”, they would do it objectively and impartially.
As opposed to this, Judge Sebutinde is taking an entirely different line. She is contending that she has previously decided cases involving the Jewish state with a bias and that she will continue to do so in the future because “the Lord is counting on [her] to stand on the side of Israel” and that she intends to stand “on the right side of history”. In other words, unlike those who recuse, she is totally unrepentant. Honestly speaking, her mere presence at the Court will be a black spot on the institution.