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.
(Photo: LA Times)
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.
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