12 October 2024
The ICJ’s Treatment of Questions of Occupation in Gaza
The ICJ’s treatment of the state of occupation in Gaza is questionable. While it rightly accepted the functional approach to occupation, I doubt whether Israel was indeed capable of exercising its authority in Gaza sufficiently for its occupation to be found as having continued post-2005. The Court should have relied on Israel’s continued exercise of administrative authority vis-a-vis Gaza residents to find the existence of a state of occupation. Continue reading >>
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12 October 2024
The Functional Approach as Lex Lata
The ICJ has de facto adopted the functional approach to occupation with regard to Gaza. The Opinion is thus a critical point in the development of the law of occupation, in that it transcends a binary approach to the question of the existence of occupation, in favour of a more nuanced approach that enables holding that a territory is occupied, but not in an “all or nothing” way. More generally, the Opinion as rejects a more restrictive approach to the question of whether occupation exists in a territory or not in favour of a more flexible approach. Continue reading >>
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03 May 2024
From Gaza to Manhattan and Back
The real protectors of the universities. Continue reading >>
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03 May 2024
Von Gaza nach Manhattan und zurück
Die wahren Beschützer der Universitäten. Continue reading >>15 March 2024
Judging Nicaragua’s Public Interest Litigation in The Hague
The judicialisation of Israel’s war in Gaza has taken a significant turn, with Nicaragua boldly entering the scene and executing two distinct actions. This post contributes to understanding Nicaragua’s two moves before the ICJ by analysing three dimensions. First, the country’s rich relationship with the Court. Second, the prioritisation of political impact and visibility over adjudicative success. Finally, the normative assessments concerning Nicaragua’s moral standing and intentions. Continue reading >>13 March 2024
Conspicuously Absent
Nicaragua alleges that Germany violates the Genocide Convention and international humanitarian law by assisting Israel and also by failing to prevent violations of these bodies of law. It requests the International Court of Justice to indicate provisional measures, which would oblige Germany inter alia to stop assisting Israel. While the Court may be barred from exercising its jurisdiction over Nicaragua’s claims relating to the Genocide Convention it may be able to hear the claims regarding Germany’s duties under IHL. Continue reading >>
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08 January 2024
The Body of the Judge and the Suffering of the Collective
The widespread prediction among experts right now is that Israel’s chances of prevailing at the ICJ in its response to South Africa’s genocide application are slim. Let’s assume, for a moment, that the prediction is accurate. As has been reported, Israeli authorities, too, have acknowledged that there’s a real risk of an ICJ decision against Israel. What does this mean for Israel’s legal strategy? When a party is preparing to lose in a proceeding, one relevant question is what the minority opinion will look like. Aharon Barak’s appointment as an ad-hoc judge for the ICJ proceedings may reveal some of the outlines Israel is preparing for this minority opinion: even if we lose, we may still try to convince the world that the issue at hand is none other than the memory of the Holocaust. But this is a morally and politically risky choice to make. Continue reading >>04 December 2023
Perils and Pitfalls of Israel´s New ´War on Terror´
Over the last weeks, we were forced to realize that the way our – i.e. German – public opinion (and politicians) react to the ruthless assault of Hamas on 7 October differs markedly from the intuitions of the broad public in the Islamic world (and large parts of the ´Global South´ in general). Whereas our media (and speeches of politicians) are full of references to Israel´s right to self-defence, the sentiments voiced on the streets in the Middle East (and publicly stated by politicians such as Turkish President Erdogan) go in the opposite direction, stress the legitimate cause of the Palestinians and term the Hamas as a movement of national liberation. Clearly there is a legitimate cause in the fight of Palestinians against endless occupation. But do ends really justify means, at all price, as the praise for Hamas seems to suggest? A closer look to the normative underpinnings of current international law confirms the intuition that this is more than doubtful, as a thorough analysis of the (intensely debated) provisions on the status of movements of national liberation in IHL tells us. Continue reading >>25 October 2023
Trapped in Gaza
Thousands of Palestinians are amassed at the Rafah border crossing into Egypt – the only land border point from Gaza that is not controlled by Israel. Periodically opened by Egypt to allow at least some aid convoys to enter Gaza, it has been firmly closed to Palestinians seeking to leave Gaza since October 10. Both international refugee and human rights law that bind Egypt make clear that its closure of the Rafah border crossing to all Palestinians – including to those at grave and imminent risk – is an illegal act of refoulement. In this case, it has proved to be an illegal act with truly deadly consequences and must be condemned as such. Continue reading >>20 October 2023