Good piece. FWIW, many take the view that "principles of international law derived from ... the principles of humanity and from the dictates of public conscience" refers to general principles of law, rather than to customary international law. 1/
From the ILC SR's Second Report (which is absolutely fascinating and deserves much more attention than it's received): documents-dds-ny.un.org/doc/UNDOC/GEN/… 2/
7. All of this invites the question: what are the general principles of law recognized by States via the Martens clause, and what are their contents? Stay tuned.
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And we're off. Gilad Noam striking a more combative different tone than in January.
Objects to the short timeline. Says the rest of the legal team was unavailable today. Asked to reschedule, was denied. Notes that SA changed its first request.
Opens by reframing facts. Israel is fighting a war of self-defense, rocket fire ongoing. Rafah is a Hamas stronghold. 120 rockets fired last two weeks, hostages likely held. Says Palestinians will be "liberated" only if Hamas is defeated in Rafah.
Invokes self-defense, says civilians and hostages are human shields. Says there has not been a major assault on Rafah, only targeted operations.
2. The Court found "plausible" the rights claimed by South Africa.
For some judges, that just means it's plausible that the rights exist under international law (obvi).
For other judges, that also means it's plausible that the rights have been violated.
3. In other words, some judges think provisional measures are all about preventing harm and preserving rights, and shouldn't even touch the merits of the case.
Other judges think the Court shouldn't grant interim relief if a case is obviously baseless.
1. The Court mentions self-defense twice, when it summarizes Israel's arguments (a) that the Court lacks prima facie jurisdiction and (b) that the rights claimed by South Africa are not plausible.
The Court rejected both arguments.
2. When the Court turns to South Africa's request that it order Israel to suspend military operations, the Court does not mention Israel's argument that this order would impair its right of self-defense.
It only mentions Israel's argument that this order would reverse precedent.
3. Israel invoked the Bosnia case for the proposition that, when genocidal acts allegedly occur in the context of an armed conflict, the Court should order the prevention and punishment of the genocidal acts but not the suspension of all military operations.
2. The same UNGA resolution, as well as the Dec. 22 UNSC resolution, affirm that IHL requires both parties to allow and facilitate humanitarian relief.
3. This is significant because Israel has argued that it is taking advantage of an exception to its legal obligation, reflected in GC IV art. 23.
1. All States have a legal obligation to cooperate to bring to an end through lawful means any serious breach by a State of an obligation arising under a peremptory norm of general international law (jus cogens).