Suchergebnisse

On Monday, 25 March, the UN Security Council adopted a resolution demanding a ceasefire in Gaza and the immediate release of hostages, as well as emphasizing the need to increase the provision and distribution of humanitarian aid. The Resolution was adopted 14-0, with the United States the only member to abstain. As the Security Council website announces, this Resolution ended a "months-long deadlock". The recent Resolution is not perceived by Israeli actors as binding. And yet, I argue that the fact that the US and Russia are now essentially voting together on the need to end this war could lead to significant further ramifications that may shape the region and beyond.

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.

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.

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.

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.

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.

AbstractRecent scholarship in law and society has engaged in novel ways with maritime spaces, articulating how they inform legal theory more broadly. This essay builds on such scholarship, and on a broad-brushed survey of maritime history, to make two basic arguments. First, a look at political and legal processes regarding maritime spaces reveals that law is transnational 'all the way down'. Legal theorists often assume that transnational legal processes are an added layer beyond domestic and international law. But the maritime perspective reveals that transnationalism comes first, both analytically and historically, as a constant negotiation of the relationship between what is 'inside' and what is 'outside' a polity. Second, the maritime space begins, at least in dominant legal traditions, as an absolute exteriority – imagined as outside or beyond polities and jurisdictions. But with the climate crisis and the emergence of the Anthropocene we may observe an inversion, the sea now appears as a record of harmful human activity; a mirror showing a troublesome collective portrait of humanity. The inversion from a maritime exteriority to the intimacy of ubiquitous environmental harm defines the parameters of law and politics today. The essay concludes with reflections on how the maritime perspective may best be engaged today in responding to that image through political action. It conceptualizes what I call the 'commonist lifeboat' – a model of bottom-up universalism for tumultuous times.

Abstract
Contemporary Palestinian asylum seekers raise fundamental questions regarding the relationship between the institution of asylum and struggles for national liberation. Underlying the legal framework that applies to them is an assumption of inverse correlation: the more Palestinians obtain access to individual asylum claims, the less secure are the fundamental Palestinian claims of self-determination and return. But is this trade-off acceptable today? Comparable dilemmas animate other large-scale displacements, but scholars seldom discuss their full implications for international legal theory. Rather than providing a definite answer to the question, this article maps out four major aspects of how individual protection and self-determination are interrelated, or, indeed, bifurcated, in international law. The new Palestinian refugees are important to consider not only because their continued displacement is foreseeable but also because their exceptional plight invites a reconsideration of the political foundations of refugee law. How can policy makers and legal interpreters uphold principles of both individual and collective protection, preventing the two from cutting against each other?

Abstract
A great work of literature does more for international criminal justice than providing evidence. By couching the evidence in conceptual categories, literature can offer insights on how law should be interpreted. This review essay seeks to demonstrate this argument about legal interpretation through a reading of Behrouz Boochani's much-acclaimed No Friend but the Mountains. In doing so, it seeks to offer a reflection on the significance of literary evidence authored by those subjected to atrocity. Boochani is far from being the first author whose work has enormous value both as literature and as testimony (an overlap that has been widely studied in the humanities and social sciences). Yet the relationship between the two is still seldom appreciated by lawyers and seldom appreciated for its value to legal theory. The essay aims to contribute to the latter discussion, specifically as it pertains to contemporary abuses against asylum seekers.