25 March 2024
Why Today’s UN Security Council Resolution Demanding an Immediate Ceasefire Is Legally Binding
Today, the Security Council adopted a resolution calling for an immediate ceasefire in Gaza during Ramadan as a first step to a “lasting sustainable ceasefire”. This comes after a months-long impasse and a total of five vetoes on the matter. The resolution is – despite statements to the contrary – legally binding and creates a legally binding request for an immediate ceasefire during Ramadan and a legally binding request to immediately release all hostages. Continue reading >>
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23 February 2024
Taking War to Court
A surprise attack launched by Hamas on October 7 ignited yet another period of violence in Israel and Gaza. In response, Israel launched an unprecedented invasion of the Gaza Strip, which resulted in the deaths of over 25,000 Gazans, most of them civilians. While the war does not seem to come close to an end, Israel has meanwhile encountered a different kind of problem; following the October 7 attack, Israel captured hundreds of Hamas fighters. Immediately following the start of the war, voices in Israel urged the government to launch criminal prosecutions of these attackers, with some arguing that Israel should impose the death penalty on the perpetrators. Continue reading >>
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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 >>09 February 2024
UNRWA as Sui Generis
Since UNRWA preemptively disclosed Israel’s claim to have evidence that 12 UNRWA employees participated in the 7 October 2023 attacks, at least 16 donor states and the European Union, which collectively supply the vast majority of the Agency’s budget, have suspended their contributions. This poses an existential threat to UNRWA, the largest provider of humanitarian assistance in Gaza. This post explains how the current episode displays the unsatisfactory sui generis status of UNRWA’s Palestinian staff, and forms part of an ongoing and largely successful attempt to position UNRWA as a compromised, sui generis UN organisation which constitutes an outlier in the law and practice of the United Nations. Continue reading >>30 January 2024
Intervention auf Irrwegen
Am 29.12.2023 reichte Südafrika Klage vor dem Internationalen Gerichtshof (IGH) gegen Israel wegen Verstößen gegen die Völkermordkonvention im Gazastreifen ein. Zusätzlich zum Hauptsacheantrag begehrte Südafrika im einstweiligen Rechtsschutz den Erlass von vorsorglichen Maßnahmen („Provisional Measures“), auf die sich auch die zweitägige Anhörung der Parteien bezog. Am zweiten Tag der Anhörungen verkündete Deutschland, zugunsten Israels zu intervenieren, mit der Begründung, der Vorwurf des Völkermords entbehre jeder Grundlage. Neben einer Zusammenfassung der Parteivorträge und der Eilrechtsschutzentscheidung des IGH vom 26.1.2024 beleuchtet der Beitrag die deutsche Rolle im Hauptsacheverfahren. Vor dem Hintergrund der aktuellen Entscheidung wie auch der Pluralität deutscher historischer Verantwortung droht die geplante Intervention der Glaubwürdigkeit Deutschlands im multilateralen System weiter zu schaden und die Universalität des Völkerrechts auszuhöhlen. 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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24 January 2024
Free Speech in the Shadow of the Israel-Gaza War
Since Hamas’ attack on October 7, and the war between Israel and Gaza that ensued, constraints on speech have become more widespread in Israel, both on the formal and informal level. Restrictions on anti-war demonstrations, police violence toward protestors, investigations and indictments for “incitement to terrorism” or “identifying with a terrorist organization” and other speech-restricting measures, have become the norm. At the much less discussed, informal level, Israeli media has largely embraced a non-critical position, failing to provide audiences with information as to the situation in Gaza, and providing almost all the analysis from an internal Israeli perspective. While this cannot be construed as a formal restriction on speech, it nevertheless speaks to the informal mechanisms that render criticism unpalatable during times of war. 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 >>11 January 2024
The Missing Party
South Africa’s argument today was historic and extremely important. If you missed it, I recommend that you go back and look for the recording. For the Israeli viewer, at least, the South African argument was a real service because at last, we could connect to a very dominant narrative in world politics, which is completely concealed by Israeli media. However, the hearing also exposed a problem in South Africa's argument, which was also apparent in the written application. The South African case brought before the International Court of Justice (ICJ) is highly selective. Prof. John Dugard, in an impressive performance, described how observers watched the events of October 7th “with horror”. But people reading the documents and listening to the oral arguments, without otherwise following the events, might think that before and after October 7, Palestinian forces did not shoot a single bullet. Continue reading >>28 November 2023