Kerstin Bree Carlson joins JiC for this guest-post on the ICJ's interim decision in the South Africa case. Kerstin is associate professor at Roskilde University and The American University of Paris where she teaches topics in international law and sociology. Her current research examines terrorism trials in Denmark, France and Colombia.
(Photo: Patrick Post / AP)
Much has already been written about the historic interim ruling in South Africa v. Israel by the International Court of Justice (ICJ). All sides have claimed victory: South Africa, because their erga omnes claim under the Genocide Convention was not thrown out; Palestine, because the ICJ has recognized the devastating conditions in Gaza; Israel, because it was not ordered to cease its war effort. All sides have also noted disappointment: South Africa and Palestine because the ICJ declined to order a ceasefire; Israel, because the ICJ found that its war efforts could plausibly constitute genocide.
The one group that is especially excited by the ICJ's order is international lawyers; many have praised the Court's strong rhetoric and near unanimous decision. And the one group that is largely disillusioned are Gazans, who had hoped the ICJ might order immediate injunctive relief.
This post argues that those Gazans disappointed in the interim decision have it right because the ICJ's order purports to recognize a right but declines to order a remedy. Here remedy refers to the injunctive relief South Africa requested in the form of a ceasefire. The disconnect between recognized right and absence of meaningful injunctive relief – remedy – makes the ICJ's ruling conceptually problematic. This deprives the ruling of the rhetorical power that has been claimed for it.
The foundational idea of "no right without a remedy" is that if you bring a claim to a court (asserting a right) and the court doesn't have a concrete way to address your claim (providing a remedy), then that right does not in fact exist. The conclusion derives from U.S. constitutional lore, specifically the 1803 Marbury v. Madison case that established the powerful governance function for the U.S. Supreme Court.
Consider the rights asserted by South Africa and the actions taken by the ICJ. In December 2023 South Africa filed an "Application Instituting Proceedings" before the ICJ which characterized Israel's military campaign in Gaza as genocidal. It requested a series of injunctive provisional measures, centrally a ceasefire.
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