15 January 2024

Managed Violence

Provisional Measures in South Africa’s Genocide Application

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. According to the Israeli newspaper Ha’aretz, Israeli experts are now expecting that the ICJ may indeed issue a provisional measure, albeit one that falls short of a ceasefire. In an analysis published by the Los Angeles Times, Rob Howse offered an idea of “suspended” provisional measures, “delaying their binding effect for a reasonable period of time.” As he explains, this will reduce the chance of Israeli non-compliance and protect the “credibility” of the Court. While his suggestion seems unlikely to me, it aligns with many assessments – including my own – that a measure imposing an end to the hostilities is not really in the cards.

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.

Provisional Measures Short of a Ceasefire

Let’s assume that commentators predicting provisional measures short of a ceasefire will be proven right. What alternative provisional measures might the ICJ issue?

One example could be a measure that would seek to ensure and somehow oversee the sufficient entry of humanitarian aid, including food, medicine, and fuel, into Gaza. At the ICJ, Israel presented evidence of allowing humanitarian aid to enter Gaza and highlighted the establishment of “humanitarian corridors”. This has reportedly been a point of contention between Jerusalem and Washington, with Washington seemingly gaining some ground recently. Israel’s lawyers have even taken pride in a “floating hospital” off the coast of Gaza, presumably referring to a French vessel that has been nearby since November. However, by all accounts except Israel’s, these provisions are still lacking, to say the least. Hunger and disease are spreading in Gaza, and by some accounts, Israel is currently starving civilians.

Another conceivable option is that the Court requires Israel to investigate suspects for incitement to genocide. In such a situation, it will be particularly interesting to see how the Israeli Judge Aharon Barak will decide. Could he join a provisional measure ordered against Israel that stops short of a ceasefire?

On the one hand, it is easy to understand why he would be very cautious about such an outcome. Even a limited provisional measure against Israel, shoehorned to the idea of genocide, will have significant symbolic implications for Israel. While such a measure wouldn’t constitute a finding of ongoing genocide, it would be difficult to completely separate it from the broader genocide framework. And it is likely that the Israeli judge will hesitate to order even a limited measure if there is zero chance of compliance.

Even if the operative implications are limited, any injunction within the genocide framework would create an additional significant blow to Israel’s reputation. An injunction limited to requiring an investigation into incitement by Israelis – something that Judge Barak may otherwise be able to support – would be difficult for him to allow within a genocide judgment. Not to mention the political ramifications that could ensue domestically. Judge Barak has been the most maligned enemy of the populist Israeli right, with many figures within this political faction often inciting against him. One can only imagine their jubilation if he decides to go along with an order from The Hague against Israel for incitement to genocide.

On the other hand, a limited order may be seen as one that does not significantly change the situation on the ground at this stage of the war. The Israeli military has recently announced that it has entered the “third stage” of the war, in which full-blown land incursion is replaced by more discrete military operations. Moreover, one may argue that a provisional measure imposing a duty to supply humanitarian aid and to investigate suspicions of incitement to genocide is an order that Israel has an interest in complying with. For one thing, there is now an urgent moral duty to do so.

Perhaps most importantly from its own perspective, a limited provisional measure from the Court could provide Israel with legal ammunition for continuing the low-intensity conflict — for a long time. Judge Barak’s critics have argued that his jurisprudence has provided legitimacy to the Israeli settlements and the military rule over Palestinians under indefinite occupation. Back in 2011, Omer Shatz and I made such an argument with regard to Barak’s famous torture decision. Granting legal legitimacy might catch Barak’s fancy now as well, drawing him to agree to a provisional measure that does not fundamentally change the patterns of IDF’s activity at this “third stage”. On the professional level, Israel could even comply with such a measure. The advantage would be that compliance would make it difficult to level new legal accusations against Israel’s actions in Gaza.

Counter-Genocidal Governance

Transforming the genocide application into a source of legitimacy for an extended war, even if in a different form, would be a remarkable development. On Saturday evening, Prime Minister Binyamin Netanyahu declared that “no one will stop us – not even The Hague”. Could it be that he is right, but not in the strongman sense he wants to convey to his local base? The intuition here is that under the ICJ’s supervision, Netanyahu will be able to pivot to a long-term and more “humane” campaign. The Hague will thus not stop the IDF but simply slow it down, at a moment when it has already decided, for its own reasons and those of Biden, to step on the brake. As Samuel Moyn has argued in a much-discussed book, a “humane” war is easier to maintain endlessly. And as many have observed, endless war is precisely what Netanyahu requires for his political survival.

This is the possibility of counter-genocidal governance. It is one in which the aim of ending Israeli violence is thwarted, and a goal of containing Israeli violence emerges to quell the eruption since the October 7th attack. As we have tried to show in our 2011 article, Barak invoked an absolute prohibition under law – that of torture – precisely to form a managerial orientation to security in which “torture lite” was still accepted. The erga omnes prohibition of torture has arguably been eroded since then. But the absolute erga omnes prohibition of genocide, it seems, is still alive and kicking. Imagine that this prohibition too will end up providing a managerial framework that tolerates “genocide lite”.

Such an outcome could promote new aspects of international bureaucratic oversight and reporting mechanisms. These might be dismissed in Israeli propaganda, yet at the same time flourish under the radar, to help manage a judicial process that may still take a long time.  Indeed, even if the court does not decide to issue provisional measures, it is likely that there will be some aspect of counter-genocidal governance until the entire ICJ case is over. The professional and bureaucratic class will internalize the Court’s ongoing oversight, and at least partially reshape their actions. I don’t want to say too much about whether this is ultimately good or bad. If counter-genocidal governance can ensure that the displaced Palestinians return to rebuilt homes in Northern Gaza, then probably it is good. Because right now, such an outcome is far from guaranteed.

Ultimately, I find it difficult to imagine Barak joining an order against Israel in a proceeding related to genocide. If the Court decides to issue such a measure, it still seems to me more likely that he would prefer to write a minority opinion. But this is just a guess. If Barak chooses to distance himself from a majority issuing a provisional measure against Israel and write a minority opinion, he will likely lose influence on the content of such a measure. The result could be a majority decision with a harder line towards Israel, though still falling short of a ceasefire.


SUGGESTED CITATION  Mann, Itamar: Managed Violence: Provisional Measures in South Africa’s Genocide Application, VerfBlog, 2024/1/15, https://verfassungsblog.de/managed-violence/, DOI: 10.59704/2c92943131b316c1.

One Comment

  1. Gábor Spuller Relíscon Dr Spuller & Dr Spuller., lawyer Saxony-Anhalt Thu 18 Jan 2024 at 23:12 - Reply

    The assumptions show that the statute and the procedural regulation of the ICJ are very general, uncertain indeed. Even if you look at the regulation regarding the decision making in the merits, they are very poor in comparison to the EUCJ Procedural law or to the BVerfGG. It is not just a formal question, because the rule of law calls for certainty. To conclude the UN Court system is not a perfect model.

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