18 June 2024
A New Constitutional Order in South Africa
The dominant party era in democratic South Africa is over. After winning absolute majorities in six consecutive national elections spanning thirty years, on 29 May 2024 the African National Congress (ANC) fell below 50% of the vote for the first time. The ANC remains the largest party. On the evening of 14 June, the National Assembly elected ANC leader Cyril Ramaphosa for a second term as the country’s president. But South Africa politics, and its constitutionalism, have changed fundamentally. Continue reading >>
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31 January 2024
South Africa v Israel: A Solomonic Decision as “Constructive Ambiguity”
In its wise Order of 26 January 2024, the ICJ managed to make a virtue out of a necessity: Israel was not prohibited from continuing its combat operations but was reminded of its strict compliance with international humanitarian law and its obligation to avoid genocide. At the same time, the ICJ reiterated the requirement to respect the most fundamental rights and the core of humanitarian law to all warring factions. Despite still essentially being a court for inter-state disputes – it put the individual, the human being, at the centre. Henceforth, the ICJ’s order of provisional measures is a Solomonic decision at its best and a further step towards the “humanization of international law”. Continue reading >>
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25 January 2024
Measuring with Double Legal Standards
Less than two hours after Israel had closed its pleadings, the German Government released a press statement, announcing its intent to intervene as a third party under Article 63 of the Statute of the ICJ (ICJ Statute). Therefore, it can be assumed that Germany did not take sufficient time to conduct a comprehensive assessment prior to its decision. At all costs, it sought to be perceived as being on Israel’s side. Germany’s decision may not appear startling given that it had previously intervened in both genocide proceedings against Russia (Ukraine v Russia case) and Myanmar (Rohingya case). However, in the latter case, Germany joined Gambia in upholding a purposive construction of Article II Genocide Convention, which would seem to present a serious obstacle to support Israel. Thus, this contribution investigates whether Germany, in its intervention in the "Genocide in the Gaza Strip case", would be able to abandon its previous submissions in the Rohingya case and instead adopt a more restrictive construction of the Article II Genocide Convention. Continue reading >>12 January 2024
Why Germany Should Join Sides with Israel before the ICJ in its Defense against South Africa’s Accusation of Genocide
Yesterday and today, the ICJ heard an application for provisional measures brought by South Africa, in which Israel is accused of the particularly serious crime of genocide against Palestinians in Gaza due to its reactions to the Hamas attacks of 7 October 2023. This participation in the proceedings, as well as other reasons to be explained below, speak in favor of also declaring an intervention in the proceedings between South Africa and Israel – in this case, however, with the aim of supporting Israel as defendant and countering the South African argumentation. Continue reading >>08 January 2024
The Body of the Judge and the Suffering of the Collective
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. Continue reading >>11 April 2020
COVID-19: State of Disaster in South Africa
As COVID-19 spread across the world, the first reported case in Africa was not until 27 February 2020 in Nigeria; six days later the South African National Institute of Communicable Diseases (NICD) confirmed the first case in South Africa. Since then, cases have increased steadily and the first death in South Africa was recorded on 27 March 2020. COVID-19 has shown its potential devastating impact elsewhere, but it is a particular cause for concern in South Africa. Continue reading >>30 March 2020