Unseating the Israeli Government from the UN General Assembly in case of non-compliance with the Advisory Opinion of 19 July 2024
This post analyses the possibility of unseating the Israeli Government from the UN General Assembly in case of non-compliance with the Advisory Opinion of 19 July 2024. The Advisory Opinion provides a particularly strong legal basis – grounded primarily in the right to self-determination – to unseat Israel’s government from the General Assembly until it complies with the Opinion – as the Assembly did with South Africa fifty years ago.
Continue reading >>
The Obligation of Non-recognition, Occupation and the OPT Advisory Opinion
In the OPT Advisory Opinion, the ICJ considered that Israel’s abuse of its position as an Occupying Power, through de jure and de facto annexation of the Occupied Palestinian Territory (OPT) and continued frustration of the right of the Palestinian people to self-determination, renders Israel’s presence in the OPT unlawful. In determining the legal consequences of this illegal presence, the Court held by a vote of 12:3, that all States are under an obligation “not to recognize as legal the situation arising from the unlawful presence of the State Israel in the Occupied Palestinian Territory”. This holding was not accompanied by any concretization in either the Advisory Opinion or any of the many declarations and separate opinions attached to it.
Continue reading >>
Giving Covenants Swords
The classical Hobbesian critique of international law famously asserts that “covenants, without the sword, are but words.” Accordingly, given Israel’s persistent non-compliance with the ICJ’s provisional measures in South Africa v. Israel, on 29 May 2024, South Africa requested “the Security Council to give effect to the Court’s judgments” under Article 41 of the ICJ Statute. This post shows why the discussions on whether the Council lacks the statutory authority to supervise and enforce the Court’s provisional measures under the ICJ Statute overlook the broader point. Namely, the Order on provisional measures is the perfect legal evidence for the Council to trigger its powers under Chapter VII and thus end the humanitarian calamity in Gaza.
Continue reading >>
Third Provisional Measures in South Africa v Israel
On March 28, 2024, the ICJ issued its third provisional measures order in South Africa v Israel. The Court ordered further, more pointed, measures towards Israel to ensure the provision of humanitarian aid throughout Gaza. In this blog post, I consider that the right to be heard in the course of this third order has not been fully guaranteed since the ICJ based its ruling on the international reports which were not provided, known, and considered by either of the parties. Moreover, I argue that the ICJ underscored its decision on humanitarian law rather than obligations to prevent genocide.
Continue reading >>South Africa v Israel: A Solomonic Decision as “Constructive Ambiguity”
In its wise Order of 26 January 2024, the ICJ managed to make a virtue out of a necessity: Israel was not prohibited from continuing its combat operations but was reminded of its strict compliance with international humanitarian law and its obligation to avoid genocide. At the same time, the ICJ reiterated the requirement to respect the most fundamental rights and the core of humanitarian law to all warring factions. Despite still essentially being a court for inter-state disputes – it put the individual, the human being, at the centre. Henceforth, the ICJ’s order of provisional measures is a Solomonic decision at its best and a further step towards the “humanization of international law”.
Continue reading >>
Measuring with Double Legal Standards
Less than two hours after Israel had closed its pleadings, the German Government released a press statement, announcing its intent to intervene as a third party under Article 63 of the Statute of the ICJ (ICJ Statute). Therefore, it can be assumed that Germany did not take sufficient time to conduct a comprehensive assessment prior to its decision. At all costs, it sought to be perceived as being on Israel’s side. Germany’s decision may not appear startling given that it had previously intervened in both genocide proceedings against Russia (Ukraine v Russia case) and Myanmar (Rohingya case). However, in the latter case, Germany joined Gambia in upholding a purposive construction of Article II Genocide Convention, which would seem to present a serious obstacle to support Israel. Thus, this contribution investigates whether Germany, in its intervention in the "Genocide in the Gaza Strip case", would be able to abandon its previous submissions in the Rohingya case and instead adopt a more restrictive construction of the Article II Genocide Convention.
Continue reading >>Managed Violence
In its application to the International Court of Justice (ICJ), South Africa seeks a ceasefire as a provisional measure. However, after the oral arguments, it seems rather unlikely that the entire scope of the provisional measures will be granted. This post seeks to offer some preliminary reflections on what a “softer” provisional measure would mean for the law and politics of the “genocide” category. Initially, such measures would slightly complicate predictions on whether and how Israel will comply, and how it will manage ramifications for its reputation. More importantly, I suggest that such provisional measures would almost inevitably position the Court, for the duration of the proceedings, in a position of quasi-bureaucratic governance. I call this counter-genocidal governance. As shown in other national security contexts, such judicial governance is a double-edged sword. While moderating certain aspects of state violence, it may legitimate others.
Continue reading >>