14 February 2024
Desperate Times, Desperate (Provisional) Measures
On 12 February 2024, South Africa requested the International Court of Justice (ICJ) to consider exercising its power under Article 75(1) of the Rules of Court to indicate provisional measures proprio motu against Israel. This is an extraordinary request by South Africa, coming less than three weeks after the Court indicated provisional measures against Israel on 26 January 2023. It is also very rare for the Court to act proprio motu, whether prompted by a state’s request or otherwise. South Africa’s latest request is a response to Israeli Prime Minister Benjamin Netanyahu’s statement on 9 February that Israel is preparing a ground invasion of Rafah in the south of Gaza. How will the ICJ respond to South Africa’s request? In this regard, the method by which South Africa seeks the Court’s intervention merits attention. Continue reading >>
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11 February 2024
Why Nicaragua’s Article 62 Intervention in South Africa v. Israel is Potentially Unhelpful
On 23 January 2024, Nicaragua applied for permission to intervene in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel). Nicaragua's application will drag proceedings out one way or another. Potentially it means the Court must hear and decide upon a third version of events, clouding South Africa’s original case. If this case is really about addressing what the Court described as a ‘human tragedy’ in Gaza and not just about political point-scoring, Nicaragua, by trying to help, may just have made things worse. Continue reading >>31 January 2024
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 >>
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29 January 2024
Provisional Measures as Tools of American Empire
One could feel the weight of history on her shoulders, as Judge Joan Donoghue, President of the International Court of Justice, read the provisional measures order in South Africa v Israel. Her hand reached several times for the glass of water. Carefully, and with an occasional sip of water, she walked her viewers on the ICJ’s streaming service from one provisional measure to the next. By first zeroing in on the role of the American judge, this post describes how the provisional measures decided upon, ultimately correspond to a larger project of global American governance. As I will argue the US Executive Branch is likely to take a lead role in interpreting the provisional measures, further cementing their place as tools of empire. Continue reading >>
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25 January 2024
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 >>25 January 2024
Counter-Genocidal Governance
The International Court of Justice’s decision regarding South Africa’s request for provisional measures in its genocide case against Israel is expected tomorrow. Whatever the Court decides, it is worthwhile noting that the impact of the process is already evident. And any provisional measures that may be given, will shape a years-long and likely tense dialog between Israel and the Court, as well as third countries. Everything that will happen for the duration of the proceedings, over the next two or three years at least, will continue to build evidence until, finally, the owl of Minerva will spread its wings. My purpose in this post is to provide some provisional reflections on how that may work. In doing so, I will expand a bit on a notion I’ve tried to develop in a previous post, that of counter-genocidal governance. Continue reading >>
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15 January 2024
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 >>12 January 2024
Why Germany Should Join Sides with Israel before the ICJ in its Defense against South Africa’s Accusation of Genocide
Yesterday and today, the ICJ heard an application for provisional measures brought by South Africa, in which Israel is accused of the particularly serious crime of genocide against Palestinians in Gaza due to its reactions to the Hamas attacks of 7 October 2023. This participation in the proceedings, as well as other reasons to be explained below, speak in favor of also declaring an intervention in the proceedings between South Africa and Israel – in this case, however, with the aim of supporting Israel as defendant and countering the South African argumentation. Continue reading >>11 January 2024
Warum Deutschland vor dem IGH dem von Südafrika gegen Israel erhobenen Vorwurf des Völkermords entgegentreten sollte
Heute und morgen verhandelt der IGH im Verfahren des einstweiligen Rechtsschutzes über eine Klage Südafrikas, in der gegen Israel aufgrund seiner Reaktionen auf die Anschläge der Hamas vom 7. Oktober 2023 der besonders schwere Vorwurf des Völkermords an Palästinenserinnen und Palästinensern erhoben wird. Die prozessuale Beteiligung der Bundesregierung an zwei weiteren Verfahren wegen Völkermords sowie weitere, nachfolgend zu erläuternde Gründe sprechen dafür, für das Hauptsacheverfahren zwischen Südafrika und Israel ebenfalls eine Nebenintervention zu erklären – hier allerdings mit dem Ziel, Israel beizustehen und der südafrikanischen Argumentation entgegenzutreten. Continue reading >>11 January 2024