On Being Disappointed at Judge Julia Sebutinde’s Dissent

[Juliana Santos de Carvalho is an Isaac Newton Trust Academic Career Fellow in Gender Studies and Human, Social, and Political Sciences at the University of Cambridge Centre for Gender Studies]

To say that the decision on provisional measures held by the ICJ on the South Africa v. Israel case was highly anticipated is an understatement. As the horrors of the current war in Gaza are gruesomely broadcasted in real-time, South Africa’s submission has been lauded as a solidarity act of South-South resistance against the widely criticised disproportionate and sweeping Israeli response following Hamas’ massacre on 7 October. The submission has also brought about reflections on active allyship against the decades-old Israeli occupation of Palestine—something not to take lightly in the face of the longstanding call to have decolonisation as a concrete act rather than a metaphor or a mere workshop title. From what follows, the position of the Court on 26 January was particularly under scrutiny. Beyond a mere ‘international lawyerly’ issue, it seemed to represent a significant opportunity for the Court to demonstrate an international institution’s capabilities (and possible failures) to promptly act in the face of what appears to be a textbook case of gross international law violations.

The order delivered by the Court seems to have sparked mild hope among (some) international lawyers and disappointment in others. On the one hand, the recognition of the Court of the plausibility of South Africa’s case and the language used throughout the decision have been, to a great extent, powerful in themselves. On the other hand, the vagueness of the provisional measures ordered, including the rejection of South Africa’s request for a ceasefire, has reminded us of international institutions’ (political) limitations. Nevertheless, the near-unanimity by which the Court decided on the measures is also particularly noteworthy. Not only because it shows a broad consensus on the measures decided but also because, given the recognition of the plausibility of South Africa’s case, it may also generate ripple political effects in relation to companies and states currently supporting Israel.

This near unanimity also tugs at another direction: spotlighting those who have dissented from the majority. While Judge ad hoc Barak’s dissent may come to some as perhaps no surprise, Judge Julia Sebutinde’s dissent and voting pattern in the order hit differently. It hits differently not only because it has resurfaced the old (but undying) political/legal divide in international law, but also because it can meddle with our expectations of more diverse justice in the international judiciary. Let me explain.

Situating the Disappointment: Judge Sebutinde and the Hopes for Diversity in International Law

Judge Sebutinde is the first African woman to sit on the International Court of Justice. While this, in itself, is no small feat—especially given the elitism and Anglo/Eurocentrism in the profession—, this also comes with specific implications for our notions (and hopes) for feminist inclusion and justice in the international legal field. Recently, calls for more meaningful (gender) diversity in international legal institutions have animated warranted movement both in academia and practice. Notably, these calls have focused on the difficulties of women in accessing positions of power in international law despite being as (or even more) qualified than their white, male counterparts. These calls have also importantly noted how women can contribute to the normative potential of international legal institutions. More concretely, scholars have highlighted that women may have first-hand or closer proximity to experiences of gender structural injustices relevant to a case and, as such, be more empathetic to those experiences than their white, male, and wealthy colleagues (p. 42).

Against this background, Judge Sebutinde has often been used as an example to prove both of these points. Despite her stellar career and profile, she has endured disproportionate hurdles to access the (merited) top positions she achieved in the international judiciary. On this issue, Judge Sebutinde has been particularly outspoken on the importance of having gender equality on the international bench as a matter of justice, plain and simple (p. 40). Moreover, her empathetic treatment of sexual violence survivors during trial proceedings at the Special Tribunal for Sierra Leone (pp. 37–38), coupled with her separate opinion on ‘forced marriage’ during wartime, as well as her considerations on self-determination in the context colonialism in her dissent to the Chagos Advisory Opinion, have also contributed to anecdotal evidence of minority individuals rendering more empathetic judging in the international judiciary. 

Nevertheless, and as I have co-argued elsewhere, while these points are undeniably important, one must be cautious when placing feminist hope onto them. First, despite minority individuals being indeed better positioned to be more empathetic to the plights of other minorities, to expect them to ‘represent’ the standpoint of those in the margins is perhaps a very tall order. In this sense, just as we cannot expect judges to vote according to the foreign policy of their countries of origin, to expect minority judges to decide while ‘representing’ the view of a minority group runs dangerously close to an essentialist approach to the issue. Second, and perhaps most importantly, to expect this may also project a ‘model minority’ anxiety on these judges: it holds them to a higher standard, expecting them to adjudicate in a ‘fairer’ or more empathetic manner towards minorities—something that is (sadly) not too commonly expected from their more privileged counterparts. Indeed, this is what the very own Judge Sebutinde has warned us against: in her own words, women have ‘as much right to sit on [the ICJ] bench and to participate in the settlement of State disputes, without having to validate or justify [their] presence there with “value addition,” period’ (p. 40). 

Despite knowing and theorising about these caveats, I still caught myself disappointed at Judge Sebutinde’s dissent on the South Africa v Israel provisional measures decision. And it is precisely on this stubborn disappointment that I would like to exercise some feminist self-reflection.

On De-essentialising Feminist Hopes in International Judging

To say I came to this self-reflection alone would be dishonest at best. My first (and second, third, fourth) reaction to Judge Sebutinde’s dissent was that of cynicism. How could a judge, who has so brilliantly criticised the difficulties of women in international law, not mention the difficulties faced by Palestinian women in this Gaza war even once in her dissent? How could a judge, who once so acutely recognised the inalienable right to self-determination as a jus cogens norm, assert that Hamas governs the Gaza Strip and, with this, disregard the continuous Israeli occupation there? How could a judge, who has always been upfront as to the (socio-economic) challenges in her trajectory, vote against the order for Israel to enable the provision of urgent humanitarian relief for Palestinians in Gaza, currently facing extreme hunger as a result of the war?

However, and after running my disappointments and frustrations by more brilliant minds (see acknowledgement below), it became evident that they were nothing more than an unhelpful/unfair ‘you-should-have-known-better’ projection onto a judge who, as far as I am concerned, has not even claimed the label of ‘feminist’ for herself. Because, to be fair, I am the one that should have known better. As a woman of colour myself, I should have known better that we are constantly held to a higher standard throughout our careers. As such, my disappointment should have been better placed to the Court’s rendering of a quite vague and relatively weak decision—including by painting with a broad brush the gender issues at hand, despite having a much more famous feminist mind contributing to the majority decision. As a feminist researcher in international law, I should have known better that women’s subjectivity and feminisms come in great variety, some of which will not necessarily align with coalitional efforts between oppressed groups. Against this background, it is a (necessary) feminist exercise to recognise the complexity of women’s subjectivity and their visions of (gender) justice, as much as this might leave a bitter aftertaste. As someone from the Global South, I should have known better that, to expect Judge Sebutinde to adjudicate while aligned with the plights of an underprivileged group just because she comes from an underprivileged background in the Global South is, at best, naïve and at worst, essentialising. The Global South is not monolithic, and its subjects are not unidimensional characters of La Résistance. 

And where does that leave us, and our feminist hopes in international law? For one, it reminds us that placing our bets on liberal justice, including its ‘diverse’ renditions, has its limits. More specifically, while descriptive representation may have its merits, it only goes so far: to expect minority judges to ‘solve’ the injustices and limitations of those institutions and of global affairs more broadly is both essentialist and double standard-y. However, feminist hope is (fortunately) stubborn. Just because the panaceas of liberal international justice might fall short, this does not mean we lack inspiration and opportunities for crafting other (more solidarious) ways of doing justice. As explored by others before me, these more solidarious ways can take the form of centring the process of doing international justice on active listening and on valuing the experience of those most affected by structural violence and injustices worldwide (such as people’s tribunals, for example). Let us hope otherwise, then.  

The author thanks Keri van Douwen, Alonso Gurmendi, Emily Jones, and Gina Heathcote for clocking her essentialism and double standard in previous versions of this text.