21 February 2024
The Legal Limits of Supporting Israel
On January 26, 2024, the International Court of Justice (‘ICJ’ or ‘the Court’) issued its provisional measures order on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel). This article provides an overview of the legal implications of the ICJ’s order for third-party states providing political, financial, or military support to Israel, including the US, Canada, the UK, Germany, and the Netherlands. I argue that the plausibility of genocide establishes the necessary evidentiary threshold to trigger state responsibility for third-party states on the international level as well as to initiate domestic legal proceedings. 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 >>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
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
‘Steadfast and Unreserved’
On 24 November 2023, the Barcelona City Council passed a resolution, suspending diplomatic ties with Israel, until a permanent ceasefire is established. While this may not reflect the stance of the Spanish government, it has nevertheless condemned ‘the indiscriminate killing of innocent civilians’. As more EU States (such as Belgium, France, and Ireland) have raised their concerns regarding Israel’s continuous military operations in Gaza, Germany has remained steadfast in its ‘unwavering’ and ‘unreserved’ support for Israel. To the extent that Israel has failed to comply with international humanitarian law (IHL), Germany’s position might amount to a breach of its obligation under common Article 1 (CA1) of the 1949 Geneva Conventions (GC) to ‘ensure respect’ for IHL. While this obligation is incumbent on all States parties to the GC, this post focuses on Germany due to its particularly affirmative position with respect to Israel’s conduct. Continue reading >>11 November 2023
Antisemitismus – eine Gefahr
Seit dem Terrorangriff der Hamas am 7. Oktober 2023 auf die israelische Zivilbevölkerung haben auch die antisemitischen Vorfälle in Deutschland enorm zugenommen. Der Bundesverband der Recherche- und Informationsstellen Antisemitismus e.V. (RIAS) geht in seinem Monitoring-Bericht für den Zeitraum vom 07.10.23 bis zum 15.10.23 von einem Anstieg von 240 % im Vergleich zum Vorjahreszeitraum aus – eine akute Bedrohungslage für Jüdinnen:Juden in Deutschland. Im Rahmen des Beitrags wird aufgezeigt, dass unter hohen Voraussetzungen auch (drohende) antisemitische Handlungen und Äußerungen Einschränkungen von Versammlungen durch Auflagen, Auflösungen oder gar Verbote rechtfertigen können. Dabei wird die grundsätzliche Notwendigkeit einer antisemitismuskritischen Gefahrenprognose ins Zentrum gestellt. Continue reading >>26 October 2023