Multi-Temporalities in International Litigation: Coinciding Times Before the International Court of Justice in Recent Genocide Cases
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Multi-Temporalities in International Litigation: Coinciding Times Before the International Court of Justice in Recent Genocide Cases
German Yearbook of International Law, Online First : pp. 1–30
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Dr. Paula Rhein-Fischer, University of Cologne, Faculty of Law, Academy for European Human Rights Protection University of Cologne Academy for European Human Rights Protection Kerpener Str. 30 50937 Cologne, Germany
- Postdoctoral researcher (Akademische Rätin a. Z.)
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Abstract
Abstract: The four genocide cases pending before the International Court of Justice – The Gambia/Myanmar, Ukraine/Russia, South Africa/Israel and Nicaragua/Germany – are strongly shaped by invocations of national memory by the applicants, defendants, and intervening States. This includes, for example South Africa’s remembrance of its apartheid regime, the Holocaust as Germany’s historical reference point, Ukraine’s experience of Nazi and Soviet occupation. This contribution argues that these invocations can be conceptualised as ‘performative memory’ in the sense of Judith Butler’s theory of performativity. It investigates what legal and non-legal functions these memory performances serve for the relevant proceeding. Drawing on Reinhart Koselleck’s theory of historical times, the article asserts that the various performative memories result in multiple temporalities that coincide before the Court. This creates challenges for the court system rooted in the inherent contradiction between particularist perspectives on memory and universal international law that the Court is mandated to interpret and apply.
Time is on the rise amongst international scholars. After decades where international law was centred mainly around the dimension of space and territory, the discipline has increasingly turned to the matter of time.1 With this, it follows a general trend in legal scholarship,2 which tries to catch up with other disciplines that have already turned their attention to time.3 An area where this turn to time resurfaces is the strong reliance on history before the International Court of Justice (ICJ or Court) in four recent genocide cases that have reached the Court since 2019: The Gambia/Myanmar, Ukraine/Russia, South Africa/Israel and Nicaragua/Germany. History is invoked in different ways, including to justify the institution of proceedings, third State interventions in the proceedings, or the alleged unfoundedness of the claim of genocide (and its assistance or non-prevention). Although many of these arguments are primarily phrased in political terms, they are thus closely connected to some legal specificities of these cases: namely the fact that three proceedings have been instituted by States non-party to the relevant conflict, alleging breaches of the Genocide Convention as
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Paula Rhein-Fischer\nMulti-Temporalities in International Litigation: Coinciding Times Before the International Court of Justice in Recent Genocide Cases | 1 | ||
| I. The Concept of Performative Memory | 3 | ||
| II. Identifying Traces of Performative Memory in International Court of Justice Genocide Cases | 7 | ||
| A. Overview of the Cases | 7 | ||
| B. Traces of Performative Memory | 9 | ||
| III. Translation Into Temporal Concepts: Multiple Times Coinciding Before the ICJ | 17 | ||
| IV. The Dilemma of Performative Memory Litigation | 22 | ||
| A. Clash between Particularist Temporal Registers and Universal International Law | 22 | ||
| B. Risk of Instrumentalisation | 27 | ||
| V. Conclusion | 29 |