Barrie Sander joins JiC for this four-part series on what the situation in Israel and Palestine tell us about how we understand, construct, and tell stories about international law. Barrie is Assistant Professor of International Justice at Leiden University – Faculty of Governance and Global Affairs. Click here for part one, here for part two, and here for part three.

Part Four – Disruption and Transformation

Over twenty years ago, Hilary Charlesworth famously characterised international law as a ‘discipline of crisis’, cautioning that a crisis-focused lens skews the discipline towards becoming ‘a source of justification for the status quo’. Reflecting on this trend, Dianne Otto more recently observed how crisis talk tends to be accompanied by certain ‘technologies of crisis governance’, including a heightened tolerance for executive law-making, the adoption of increasingly securitised and militarised responses to societal problems, the shutting down of democratic debate in the name of necessity, and recourse to quick-fix measures that ignore wider contexts of causation. 

Are such repressive technologies of governance inevitable in response to crisis situations? Striving to turn the opportunitiesafforded by moments of crisis towards more emancipatory outcomes, Otto argues for a ‘crisis of discipline’ amongst international lawyers, entailing ‘a radical rebellion against the cultural order of the discipline of international law, which has proved to be so well-suited to normalizing crisis governance and its attendant silencing of critical politics’. 

In this post, the final in my series exploring what stories international lawyers can usefully tell in response to situations of ongoing mass violence, I reflect on possibilities to construct international legal narratives of disruption that seek to transformthe status quo in favour of more emancipatory politics. I do so by focusing on South Africa’s case against Israel before the International Court of Justice (ICJ), which alleges that Israel’s conduct in Gaza is in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).  South Africa’s claim is not only that Israel is committing genocide against Palestinians in Gaza, but that it is also failing to prevent it. That includes the failure to hold Israeli officials and others to account for their direct and public incitement to genocide.

While caution is undoubtedly warranted about the emancipatory potential of international law in general, and international courts in particular, this post nonetheless seeks to identify three narrative dimensions of South Africa’s application and the ICJ’s recent indication of provisional measures that at the very least have the potential to be  disruptive – whether of violence, frames, or order – whilst seeking to remain cognisant of the risks and limits that the case presents.

Disrupting Violence

In a significant article, one that the Harvard Law Review controversially refused to publish, Rabea Eghbariah called legal academics to answer for their inertia in labelling the violence in Gaza as genocide. As Eghbariah observed: 

It is much easier to consider genocide in the past tense rather than contend with it in the present. Legal scholars tend to sharpen their pens after the smell of death has dissipated and moral clarity is no longer urgent. Some may claim that the invocation of genocide, especially in Gaza, is fraught. But does one have to wait for a genocide to be successfully completed to name it?

From this perspective, South Africa’s case against Israel may be understood as an attempt not only to hold Israel to account for its past actions but perhaps, more importantly, to construct a narrative capable of disrupting Israel’s ongoing campaign of violence in Gaza. As Rob Howse has emphasised, the Genocide Convention ‘is concerned above all with prevention, and thus should be applied long before a situation metastasizes into full-blown and possibly unstoppable annihilation’. In this vein, South Africa’s application to the ICJ may be viewed as embodying the imperative ‘enough!’ – calling on Israel to step backfrom its devastating campaign of destruction and to change course towards an approach premised on nurturing the conditions for sustainable peace in the region based on the right of the Palestinian people to self-determination. 

In its order, the ICJ had little difficulty concluding that the threshold for provisional measures had been met. This is unsurprising given that the threshold for provisional measures is relatively low, requiring: (1) that the violation of the rights for which protection is sought are ‘at least plausible’; 
(2) a sufficient link between those rights and the measures requested; (3) a risk of irreparable harm; and (4) urgency. This low threshold is significant as it reduces the legal hairsplitting that tends to accompany legal determinations of genocide. The focus on plausibility and risk ensures that a more preventative standard can be harnessed to influence Israel’s ongoing military operations in Gaza. 

At the same time, crossing the plausibility threshold in a genocide claim remains expressively significant. As Nico Krisch has remarked, ‘In the context of genocide… even a finding of a plausible claim is shocking and extraordinary… No state should even get close to the point at which an allegation of genocide becomes plausible’. This is all the more striking for a State such as Israel, which was created in the aftermath of World War Two, at least partially, to provide protection of those who had been subject to the Holocaust, generally considered to be the ‘paradigmatic instance’ of genocide within the legal imaginary.

The provisional measures indicated by the ICJ fell short of South Africa’s request that Israel should be called upon to ‘immediately suspend its military operations in and against Gaza’. Instead, the Court indicated a package of provisional measures which seem targeted towards reducing and reshaping Israel’s military campaign. These measures include calling on Israel to: ‘take all measures within its power to prevent the commission of all acts [of genocide]’; ‘ensure with immediate effect that its military does not commit [such] acts’; ‘take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip’; and ‘take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip’. 

Taken together, it is simply not possible for Israel to comply with these measures without significantly reducing and fundamentally revisiting its conduct of hostilities in Gaza. While broadly welcome, one risk, recently articulated by Itamar Mann, is that these types of provisional measures, which fall short of calling for an outright halt to hostilities, could become ‘a source of legitimacy for an extended war’ that enables Israeli Prime Minister Netanyahu ‘to pivot to a long-term and more “humane” campaign’ at a time when his political survival depends on endless war.

The risk of endless war should not be understated. However, together with the prospect that any provisional measures order may simply be ignored by Israel, such risks may be mitigated, at least to a certain extent, by the knock-on effects that may arise from the ICJ’s ruling. As David Kaye has argued, by finding plausible South Africa’s claim for the protection of the rights of Palestinians under the Genocide Convention, ‘[t]he court’s order is, despite its apparent moderation, damning…, placing a virtual sword of Damocles over not only Israel in its future conduct in Gaza, but also those, such as the United States, that have given it such strong support’. 

Israel is now ‘on notice’ that its military operations are plausibly genocidal and that its conduct will continue to be scrutinised by the Court as the case proceeds towards an eventual evaluation of South’s Africa’s claims on the merits. As such, any continued neglect to prevent and punish incitement to genocide, moves to permanently displace the Palestinian population, or failure to improve the effective provision of humanitarian aid to address the suffering in Gaza will now fall under ‘the watchful eye’ of the Court. 

In addition, the ICJ’s order is likely to trigger renewed challenges to the provision of military assistance to Israel by States such as the United States, the United Kingdom, and the Netherlands. It will also incentivize States more generally to steer Israel away from its current campaign of violence, and to ensure the fundamental humanitarian needs of the Palestinian population are met within Gaza, as part of meeting their own respective legal duties to prevent genocide under the Genocide Convention. Indeed, the ICJ’s order has already been invoked by UNRWA Commissioner General, Philippe Lazzarini, in an effort to urge States that recently suspended their funding of UNRWA to re-consider their decisions before the organisation is forced to suspend its humanitarian response in Gaza.

In these ways, while the risk of endless war cannot be eliminated, the ICJ’s decision provides an important ‘foothold’ that can be invoked by those seeking both greater civilian protection and ultimately an end to the violence in Gaza.

Disrupting Frames

South Africa’s application to the ICJ focuses on Israel’s obligations under the Genocide Convention because that is the only relevant applicable treaty over which the Court has jurisdiction in this context. Upon close inspection of the application, however, it soon becomes clear that South Africa was keen to disrupt any constraints that may have been imposed by the legal frame of genocide in order to tell a much broader story of violence in the region.

South Africa drew attention to the ‘close connection’ between acts of genocide and ‘other violations of international law sanctioned or perpetrated by the Israeli government and military in Gaza’. This framing enabled South Africa to use the occasion of calling Israel to answer for genocide as a means of surfacing a far wider range of violations of international law including war crimes and crimes against humanity.

South Africa also emphasised that acts of genocide ‘inevitably form part of a continuum’. This framing enabled South Africa to situate the current campaign of violence in Gaza within ‘the broader context of Israel’s conduct towards Palestinians during its 75-year-long apartheid, its 56-year-long belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza’. 

In the ICJ’s order, particularly notable is the way the Court centres the ongoing humanitarian catastrophe in Gaza, bringing the suffering of the Palestinian population to the fore by drawing heavily on statements and evidence from the UN and other humanitarian actors which have too often been dismissed or diminished by Israel and some of its most prominent supporters. The ICJ also saw fit to disrupt the legal frame of genocide within its order by emphasising that ‘all parties to the conflict in the Gaza Strip are bound by international humanitarian law’ and by calling for the ‘immediate and unconditional release’ of the hostages held by Hamas.

The ICJ declined, however, to follow South Africa’s lead in narrating the longer history of the region, instead confining itself to a consideration of the most recent forms of violence that arose on and since 7 October. This narrowing of the contextual frame within a court order is not unexpected. As Lawrence Douglas has observed with respect to international criminal trials, ‘history and memory do not simply enter a trial, as if offered an open ticket of admission’, but rather ‘filter into the trial through certain legal or juridical categories that shape its form and substance’. 

Nonetheless, what South Africa’s broader narration of history reveals is the value of the judicial process. Through the provisional measures process, South Africa was able to expand the substantive, geographical and temporal frames of its application in ways that exposed the wider-ranging forms of spectacular and slow violence to which Palestinians have been subjected not only in Gaza but also the West Bank for several decades. Beyond constituting an important act of bearing witness to these varied forms of violence, Chimène Keitner suggests that these expressive dimensions of the ICJ case ‘could play a constructive role if it educates the Israeli population about what is happening in Gaza and compels Israeli decision-makers to recognise the direct line from annexationist policies to the crime Raphael Lemkin named’.

Disrupting Order

The potential significance of South Africa’s application and the ICJ’s subsequent order also extends beyond the bounds of the individual case and may be situated within and have broader ramifications for the international legal order more generally.

On one level, the case may be situated within a recent line of applications before the ICJ in which States have sought to enforce erga omnes partes obligations within multilateral human rights treaties – including The Gambia v. Myanmar pursuant to the Genocide Convention and The Netherlands and Canada v. Syria pursuant to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Erga omnes partes obligations are those within multilateral treaties that a State party ‘owes in any given case to all the other State parties to the same treaty, in view of their common values and concern for compliance, so that a breach of that obligation enables all these States to take action’. While this line of cases presents a potentially promising avenue for human rights law enforcement, it remains to be seen whether the vindication of rights in such cases will be purely symbolic or whether a more concrete impact on State behaviour will emerge over time.

At a more fundamental level, South Africa’s application has also been pitched as initiating a process that ‘puts the ICJ and international law itself in the dock… for failing to deliver justice to the Palestinian people’ across several decades. This failure may itself be situated within international law’s longer history. For centuries, international law has helped legitimise various forms of exploitation and oppression, often along racialised, gendered, and class lines – initially through formal colonial conquest in the Global South and later through, amongst other forms, neocolonial economic subjugation. In this context, South Africa’s application has been characterised as ‘a litmus test’ for determining which communities are recognised as ‘human’ within human rights law and whether international law can ever be truly ‘decolonised’. 

Against this background, both South Africa’s application and the ICJ’s granting of provisional measures are symbolically significant – carving out, what Vidya Kumar has powerfully termed, ‘a new space for arguments which were (institutionally) unsayable, arguments when made by Palestinians, were legally unhearable, arguments which were/are repressed when made in universities and other institutions & workplaces, arguments – decrying the racialised dehumanisation of a part of humanity – which are no longer illegible’. Indeed, as Darryl Li recently observed, it would seem that by taking up the demand to stop genocide, Palestinians and their allies have begun a process of ‘democratising its power, extricating genocide from a desiccated legalism that serves the status quo and injecting it with an explicitly anticolonial politics instead’.

Conclusion: Towards a Politics of Listening

In this series, I reflected on the stories that international lawyers may usefully tell amidst ongoing campaigns of mass violence. In times of crisis, acts of speaking and narrating can seem both necessary and inadequate. Having discussed different dimensions of storytelling within the field of international law, I want to conclude by emphasising the importance of listening. 

Reflecting on her work within people’s tribunals, Dianne Otto argues for a ‘politics of listening’, one which ‘challenges us all to take responsibility for justice based on our interconnectedness as people, our shared political legal institutions and the knowledge that there is much more to justice than law’. As international lawyers mobilise to (counter-)narrate, frame, and disrupt the injustices of the situation in Israel-Palestine and beyond, Otto reminds us not to lose sight of the importance of listening and the collective responsibilities to which listening gives rise both within and beyond the law:

Listening to and archiving painful testimonies provides only an initial spark of solidarity. Those of us who have not suffered the direct consequences of armed conflict need to discover how to turn that spark of recognition into the fire of persistent protest. We need to do more than mobilise in protest at the failure of the existing legal and political institutions to hold powerful actors to account, although we must do that too. We need to recognise our collective responsibilities by acknowledging the benefits we may enjoy as a result of the present system, and look beyond the law to find ways to challenge the systemic injustices that remain unquestioned by formal law. 

When the ICJ spoke in its provisional measures order, it carried the stories of suffering from Gaza to the courtroom and transmitted them around the world, marking out claims of genocide as within the realm of plausibility. It now remains for social movements across the world to redouble their efforts to pressure States and their institutions – whether through legal or political avenues – to bring an end to the violence and to nurture the conditions necessary for a durable peace in the region.

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If you have enjoyed this article and want to read more of Barrie’s work, please remember you can also click here for part one, here for part two, and here for part three.