I think this order is in line with what most of us were expecting. The Court could have done more? Yes. The Court could have done less? Yes. Is this a "win" for South Africa? Yes. Is it the best win of the century? No.
First the big stuff: There is a risk of irreparable harm for Palestinians under the genocide convention. That is huge. The ICJ was clear that Palestinians are a protected national group. Think of this next time someone tells you "there is no such thing as Palestinians"
Then the not-so-good: many will be disappointed that there was no order for a ceasefire, but remember: we were not really expecting that, given the big and complicated debate about self-defence in occupied territory.
Could the ICJ have done more? Yes. As @AdHaque110 said, it could have told SA to try and get Hamas to sit in a negotiation table and told Israel that if this happens, it has an obligation to negotiate in good faith towards a ceasefire.
It is also not ideal that, from what was read, the order is not too detailed as to how Israel is meant to comply with its obligations not to commit genocide. But it does need to report to the Court and presumably the Court can say it is not doing enough.
But to finish on a positive, remember: Israel's claim that it is not doing anything wrong and it can continue to act as it is doing now, has been disproven. They LEGALLY need to change course. What this new course looks like is to be seen, yes. But this is still a good thing
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This by Judge Nolte (Germany) should be read widely, both to help folks not get carried away with today's Order and to explain the legal connundrum Israel finds itself in in this case. In short Judge Nolte did not vote in favour of PMs for the reasons you think 🧵
Judge Nolte is not convinced that South Africa has shown genocidal intent by Israel. The reason why he voted in favour of provisional measures was because he felt Israel was not doing enough to punish incitement of genocide uttered by its high-ranking officials and soldiers
Unless SA manages to convince Judge Nolte in the merits phase, he'd likely conclude that Israel is not committing genocide, but that it is failing to punish isolated genocidal acts by its forces or incitement of genocide by its officials. In essence, win one, but lose the others
In order to keep things more organised, I will be pasting reactions to the ICJ's Order here, in a different thread from the one for reactions to South Africa's application to the ICJ
If you're looking for the thread with reactions *to the application* you can find it here:
This is where I’ll be tweeting my impressions on the ICJ’s Order on South Africa v. Israel. I don’t expect to live tweet as much as share my thoughts and point out anything noteworthy. I am centralising this here for ease of access
Experts you should be following today:
ICJ procedure: @juliettemm
IHL: @AdHaque110
Genocide: @DrMelOB
Crime of Starvation: @tomdannenbaum
Court starts by noting that on Oct 7 "Hamas and other armed groups carried out an attack in Israel". Following the attack, Court says Israel launched a military operation that displaced the majority of the population of Gaza. No mention to "self-defence" here
One of the key assumptions of anticolonial theory is that decolonisation did not end coloniality in the postcolonial world. The very idea of “minorities” operates within the Westphalian nation-state paradigm (1 state for 1 people), that is essential to Zionism /1
Claiming that Zionism is anticolonial because it allowed a “minority” to create a “nation-state” for said group, to the exclusion of other groups who now themselves become “minorities” is completely misrepresenting anticolonial thought /2
Take eg Peru. We “decolonised” in 1821. But the white/mestizo Peruvian “nation” continued to hold indigenous Quechua “minorities” in colonial relations of oppression. Thus, as Aníbal Quijano argues, the coloniality of power endures even after decolonisation /3
I think it's important to situate the Genocide Convention and South Africa's case within socio-legal context in which they operate. I think it will help explain the dissonance between people's excitement at South Africa's arguments and my more cautious view🧵
For starters, we talk about how difficult it is to prove "intent". This is not "natural". It is the result of political processes that made genocide difficult to prove. I've said before: genocide is common; findings of genocide are not. That's not "good"
Genocide is how the world order was (is) created. Most national foundational myths involve genocide. US's "Wild West", Argentina's "Conquest of the Dessert", European "mission civilisatrice" - all genocide. (And all would be hard to prove under the Genocide Convention)
5 Key points of Israel's presentation: 1) Israel placed a lot of importance on procedural issues - specifically, that the ICJ has no jurisdiction because there is no dispute, as South Africa did not wait for Israel to fully engage with it. This was it's weakest argument imo
2) Israel is emphasising its right to Self-Defence. This is interesting as the ICJ noted in 2004 that Israel has no such right in occupied territory. This will certainly impact the wording of Provisional Measures, which, I anticipate, will not take the form of a blanket ceasefire
3) Israel was very thorough in noting everything it does to protect civilians in order to show lack of genocidal intent. At the same time, it did not directly address whether this is sufficient to remedy the grave humanitarian disaster it has caused, described by SA as genocidal