Rethinking International Law after Gaza: A Symposium and a Call to Action

JUSTICE, 14 Oct 2024

Mohsen al Attar | Opinio Juris - TRANSCEND Media Service

7 Oct 2024 – Israel’s latest bombardment of Gaza—a fifth since its false disengagement in 2006—has once again exposed the catastrophic failures of international law in protecting the world’s most vulnerable from militarism and settler-colonialism. While purportedly targeting resistance, a dubious goal in its own right, Israel has intentionally and systematically destroyed the bulk of Gaza’s civilian infrastructure: hospitals, universities, water treatment plants, bakeries, kindergartens, farms, and just about anything else they could set their crosshairs on. This devastation has produced mammoth quantities of rubble that will require over 15 years to clear. What is worse, underneath this rubble are scores of children (for those with the stomach for it, you can access details here, including data on the children who died from precision headshots).

Consider that, in just four months, Israel killed more children than all of the wars across the world achieved in four years, combined, or the equivalent of 25x more children than those who died in Ukraine. Eight months have passed since the zionist state reached that grim milestone, prompting the UN Secretary-General to describe Israel’s assault as a war on children (and to be banned from Israel for this and other accurate observations). He is not alone. The head of Médecins Sans Frontières, Avril Benoît, offers a gut-wrenching account:

“In Gaza, we are not simply treating children with war wounds, but wounded children who are dehydrated and under-nourished; children who have lost everything they ever knew of safety. Children who are so psychologically traumatized by displacement and loss that some plead with our medics to just let them die.”

Dehydrated, starved, and orphaned, these children are testament to international law’s inadequacies, to lethal effect.

There is no doubt about the scale of the savagery Israel has deliberately inflicted on civilians. Even the World Bank recognises this. Reporting in January 2024, it declared that three months of carpet bombing has caused severe damage “in every sector of the economy, the housing sector and population centers have sustained the majority of damages.” The housing sector and population centres are zombie terms, banker-speak designed to conceal the levelling of homes, communities, and families. Still, I commend the bankers for being more direct in their accounting of Israeli violence than Biden and Starmer, UCL and Harvard, ESIL and ASIL, an indictment that reveals just how one-dimensional the interlocutors of liberal internationalism happen to be when an ally declares their genocidal intent and validates this by starving children, attacking aid convoys, and restricting medical supplies.

An urgent question arises from this carnage: what value does a legal system hold when it repeatedly fails to deliver justice for vulnerable peoples? Will international law ever operate to safeguard the occupied and oppressed or is its predatory episteme structurally determinative? These questions and many more have reverberated across Opinio Juris over the past year, and were front and centre at a recent conference hosted by Boğaziçi University’s Faculty of Law: Rethinking International Law After Gaza.

Academics in attendance and some virtually—including Palestinian colleagues whose travels ended at Israeli checkpoints—presented a range of perspectives where a familiar polarisation emerged. Many retained a critical faith in international law’s capacity to, eventually, protect Palestinians. Others were sceptical, doubting whether international law could ever evolve sufficiently to grant Palestinians the same rights as those who oppress them. Sadly, since the conference, their doubts have been validated: as the ICC’s pre-trial chamber drags its feet, as Harris outpaces Biden and Trump in expressing sympathy for zionist violence, and as Germany and the UK litigate to maintain the flow of weapons, we are left to ponder whether persistence with international law is a danse macabre, buying time for Israel to pursue what Lydia Wazir provocatively describes as its ‘own final solution’.

The richness of viewpoints at the conference led the organisers and me to carry the conversation forward via this symposium, ensuring allies who were unable to attend could still engage with the insights. Alongside the demonstrations taking place around the world in condemnation of a year of grotesque violence, over the next five days, we will publish perspectives on varied aspects of the occupation, apartheid, genocide, zionism, and, of course, resistance, all through the lens of international law. Just like the conference, this symposium is not just an academic exercise—it is part of a global movement to rethink, reframe, and ultimately reshape international law to serve those it continues to fail.

I have the honour of drafting this introduction, a task I approach with the urgency of the moment. As we will see in the coming days, solidarity may involve agitating at universities, revisiting aspects of the Genocide Convention, or petitioning Third World states to align their rhetorical support with stronger participation in boycott campaigns. For example, Behesti Aydogan and Ömer Erkut Bulut argue for states to approach trade from a principled stance, using international economic law to deter the commission of atrocities. Indeed, it was the intersection of legal scholarship and activism that defined the Boğaziçi event, where students, professors, and activists deliberated on concrete ways to displace the Eurocentric centre of international law and usher in a more just global order. This symposium thus also doubles as a call to action, urging readers not only to engage intellectually with these vital issues but to act in solidarity with those fighting for justice in Palestine.

In the following essay, I offer brief remarks on the value of legal scholarship and conferences in challenging established power structures, the necessity of anti-zionist—by which I mean anti-racist—activism in the struggle to liberate Palestine, and the implications of an incontrovertible consensus beyond the West. Throughout, I draw on the symposium’s texts, which I had the pleasure of editing, and observations from the conference, which I was honoured to speak at.

Activism and Critical Legal Scholarship

International law has a Jekyll and Hyde character about it. Like Jekyll, the regime presents itself as a benevolent force, claiming to mediate the relations between states and to promote peace. Hyde, however, lurks within, enabling imperialist exploitation and legitimising racialised violence. Much like Utterson, we critical scholars are both moral and naïve, navigating these contradictions by exposing international law’s sinister side as a vehicle for oppression, while clinging to the hope of redemption through its—our—emancipation.

Utterson’s optimism is also evident in the praxis of generations of critical international legal scholars, whether in the works of Abi-Saab and Bassiouni, or Anghie and Gathii. In an interview with Omar Kamel and me, Abi-Saab explained that, despite international law’s palpable shortcomings, he was committed to reforming it from within. The same is true of Anghie, Gathii, and many TWAIL scholars who speak of the importance of populating international legal spaces with heterodox scholarship that counters the progressive narrative of standard textbooks. José-Manuel Barreto’s contribution is of that variety. As he argues, colonial genocides and land appropriation are common in European history, and provide the inspiration behind Israeli behaviour, aspects of the current moment that orthodox legal academia consistently ignores.

On Palestine, however, even critical scholars have often fared poorly, exposing a little of Hyde within. Many critical legal studies, critical race theorists, and TWAIL scholars have been weak or silent on Palestine (sometimes complicit), reflecting academia’s worst careerist impulses. This was true historically and remains true today, as Bana Abu Zuluf explores. By contrast, many others have proven principled. Balakrishnan Rajagopal, Richard Falk, and Muthucumaraswamy Sornarajah, keynote speakers at Boğaziçi, have a history of bucking the trend. Indeed, even in the face of the violence of academic institutions and networks that Brendan Ciarán Browne describes, a growing number of critical scholars prefer to subvert oppressive orthodoxy, refusing to comply with the careerism or herd mentality so common in the ivory tower.

Utterson was in attendance at Boğaziçi and is present in this symposium as well. Many were eager to find salvation in international law, with one colleague declaring that international law was “80-90% good.” In this vein, Saul Takahashi calls on the UN General Assembly to demonstrate some of this good by expelling Israel from its halls, as the UN Charter insists it must do. He even provides a blueprint for bypassing inevitable sabotage by the usual suspects in the Security Council. Takahashi’s critique is sharply contrasted by Abu Zuluf, who is less convinced of international law’s potential. As she points out, despite the UNSC resolutions and ICJ advisory opinions condemning Israel’s violations of the UN Charter, Israel, backed by Euro-American powers, has ignored them all. George Bisharat makes a similar point, noting that Israel ranks second only to the U.S. in violating the Charter. Given this, Abu Zuluf prefers to focus on other forms of activism, doubting whether UN advocacy will ever overcome its performative tendencies. Jinan Bastaki and Harun Halilovic fall somewhere in the middle. They rightly chide the ICJ for adopting standards that make it near-impossible for a charge of genocide to ever stick, while pointing the court toward the more reasonable standard at play in case law from the ICTY and ICTR, though these, too, have their shortcomings.

Ultimately, as Souheir Edilbi argued, Palestine is not just another case study; it is the litmus test for the contradictions and failures of international law. I believe it is also the barometer by which we will come to measure the value of critical legal scholarship. At Boğaziçi, the weight of this responsibility was evident to all, despite differing views on strategy. This symposium aims to amplify the voices of those scholars fighting for Palestinian liberation, whether they work within or outside established frameworks.

The Role of Conferences in Challenging Power

Conferences like Rethinking International Law After Gaza are essential for confronting the dominance of established power structures, particularly in how international law is framed and debated. Unlike academic gatherings in Europe and North America, which often reinforce a hegemonic orthodoxy even when talking about race or double-standards, this symposium invited radical critique of international law and its antinomies. Hasan Basri Bülbül and Hüseyin Dişli, for example, celebrate UNRWA for providing an essential lifeline to Palestinians and under unbearable conditions. However, they do not shy away from reflecting on UNRWA’s disempowering dynamic, designed “to ensure that Palestinians remain passive victims.” Indeed, this conference provided a platform for marginalised voices from the Third World, whose experiences of colonialism and resistance are often treated as peripheral to mainstream legal discourse, and whose insights can drive the struggle in pioneering directions.

Most remarkable about the conference was its location in the Global South, where space for critical, anti-colonial conversations persists. In contrast, at European and North American universities, the International Holocaust Remembrance Alliance (IHRA) definition of anti-Semitism has corrupted their deliberative climate. Zionist lobby groups such as UK Lawyers for Israel have weaponised the definition to suppress legitimate critique of Israel and zionism, enlisting institutions to punish their faculty and students for commenting on Israeli settler-colonialism and Palestinian liberation. In his contribution, Victor Kattan conducts a thought experiment, hypothesising whether the Boğaziçi conference would have taken place at a British university. His account vividly describes the challenges and suppression a UK-based academic would face in promoting academic discussion on Palestine. It gets worse. As witnessed at the University of Amsterdam, UCLA, and NYU, among others, administrators are even willing to use formidable violence against their students to prevent debate on zionism’s role in the oppression of Palestinians.

The conference and this symposium stand defiantly as a counter-example of the possibilities of Third World solidarity. Despite some opposition to the conference, even among ostensibly critical scholars, Boğaziçi provided a vital space for open engagement with the realities of colonial violence. Its location just beyond the influence of Western powers allowed this to go ahead, and underscores the value of freeing international law (and the self) from traditional, mainstream confines. To some academics, these conversations may be little more than niche scholarship, a means of advancing tenure and promotion, but not liberation. Yet, as we’ve seen with Israel’s Dresden-like destruction of the tertiary education system in Gaza—scholasticide—for Palestinian colleagues and students, their lives hang in the balance. Participants in the conference and contributors to the symposium are aware of the stakes and, as Abu Zuluf explains, the risks we bear are miniscule in comparison.

Ultimately, such conferences are vital because they disrupt the West’s seeming monopoly over debates on international law. However, as Bisharat warns, even international law is at risk as many in the West are stealthily substituting international law with the rules-based-order, a liberal-cum-legal variation of the Washington Consensus. As he explains, Western powers have no qualms collapsing international law to prevent Third World states making use of it. Reminiscent of the US states that shut swimming pools rather than allow Black children to swim in them, the Atlantic coalition will incinerate its own institutions (and universities, their students) before permitting freedom of expression in defence of the oppressed.

By bringing together critical legal scholars, activists, and practitioners, Boğaziçi upended the normative assumptions that dominate Euro-American academic discourse. Moreover, with a strong contingent of Palestinian scholars, this conference also affirmed the centrality of the experiences of Palestinians and other colonised peoples in the conversation. Returning to Browne, academic networks such as the transitional justice industrial complex often normalise anti-Palestinian racism, holding events about Palestinian futures without Palestinians. In stark contrast, Boğaziçi ensured Palestinian scholars had the podium.

The Global Consensus Beyond the West

Alongside life and death, the history of humanity offers one additional certainty: the law of unintended consequences. Netanyahu recently declared that Israel is “winning,” demonstrating a fundamental misunderstanding of the world around him. Born and raised in the U.S., Netanyahu reflects the same insular thinking that grips much of the American legal academy. Where some American legal scholars believe international legal scholarship begins and ends with AJIL, Netanyahu prospers on the idea that the White House’s perspective is all that matters, failing to recognise the global shifts occurring beyond the West. What the global consensus affirms is that, by razing Gaza, Israel has also laid waste to itself.

With the dark days of the 80s and 90s well behind us, the Third World is once again flexing its muscles. At the ICJ, the number of states supporting Palestine and South Africa has multiplied. Several Asian and African states are disrupting trade flows with Israel, forcing the USA to bankroll a genocide its own population disavows. Bar Argentina, Latin America has collectively turned away from Israeli normalisation. Perhaps most dramatically, Israel has alienated much of Asia with China repeatedly condemning Israel’s behaviour in the strongest terms and championing the Palestinian right to armed resistance. While Israel has found a new ally in India, a state in the throngs of its own ethno-chauvinist moment, the Indian state is also transactional in its support, insisting on visas in exchange for allyship. Athletes are refusing to compete alongside Israelis, universities are shelving partnership agreements, and businesses are withdrawing from the Israeli economy. To say that Israel has lost the youth is a euphemism as social media channels verify that future generations of politicians, journalists, and CEOs will approach Israel as the pariah it has made itself. And, as we witnessed in the global demonstrations this past weekend, the groundswell is building.

Central to this shift is recognition of the racism embedded in zionism. Zionism, as a political ideology, not only sought to establish a Jewish homeland but to do so through the violent dispossession of the indigenous population. This logic of ethnic cleansing, rooted in notions of racial supremacy, is central to the enduring apartheid conditions in Palestine today including, as Falk observes, this year’s attempt to forcibly expel “as many Palestinians as possible.” Israelis racialise Palestinians as inferior and subject them to systems of control that mirror other colonial enterprises where indigenous peoples were deemed subhuman and denied rights under law, hence the rabid support Australia and Canada provide: the defence of Israel is also a way redeeming their own shameful histories.

Yet, global recognition of zionism as racism is not new. In 1975, the UNGA passed Resolution 3379, declaring zionism as “a form of racism and racial discrimination” and “a threat to world peace and security” while calling on “all countries to oppose this racist and imperialist ideology.” This was a landmark moment in recognising the racism that drives zionists to celebrate Palestinian suffering, again and again. Sadly, Western powers made the revocation of the resolution a precondition to the Oslo negotiations. Since then, Third World states have revisited the issue at subsequent World Conferences Against Racism, which the West boycotts, underscoring the extent to which they wish to disappear the racialised discourse of zionism from public view. Yet, despite their best efforts at censorship, one of the unintended consequences of the Palestinian Genocide is widespread acknowledgement of zionism as vintage white supremacy. Like Abu Zuluf, Lena Salaymeh exemplifies this shift in tone, providing an unapologetic condemnation of zionism in her critique of the Genocide Convention.

While the Euro-American coalition has historically dominated international legal discourse, a broader global consensus has emerged that centres Israel’s violations of international law and affirms the justice of the Palestinian cause. Outside the narrow corridors of Western legal academia, scholars and activists see Palestine not as an exception but as a paradigm for the broader struggle against colonialism and imperialism. The Boğaziçi conference and this symposium channel that consensus, reminding us that the struggle for Palestinian liberation is part of a larger, global movement for justice. It challenges the Eurocentric framework of international law, highlighting how scholars and activists from the Global South are leading the charge to rethink the legal order. I thus end this (lengthy) introduction with a call to action.

A Call to Action

As this symposium unfolds, we call on readers to not only engage with the ideas presented but to take action. One year on, and the Palestinian people are facing cascading catastrophes that demand more than academic reflection—it behoves solidarity and tangible support. It is evident that we must champion a ceasefire and accountability today, and a long-term resolution premised on a complete Israeli withdrawal from the Occupied Palestinian Territories of Gaza, West Bank, and East Jerusalem. For any international legal scholar worth their salt, the self-determination of the Palestinian people, the end of occupation and apartheid, the right of return, and accountability for the perpetrators of this genocidal assault are fundamental imperatives of justice and the legitimacy of the international legal order.

We urge you to circulate these pieces widely and to bring these ideas and language into your lecture theatres to help educate students and colleagues about the role of international law in perpetuating injustice. Indeed, the contributions in this symposium are part of a larger project to mobilise legal scholarship in service of justice, but they must be accompanied by collective action. The fight for justice in Palestine is not just a regional issue; it is a global one that speaks to the heart of what international law should stand for. Together, we can push back against the forces of imperialism, colonialism, and racism and build a legal order that serves the oppressed while advancing the Palestinian struggle for liberation.

As Ghassan Kanafani remarked:

“Everything in this world can be robbed and stolen, except one thing; this one thing is the love that emanates from a human being towards a solid commitment to a conviction or cause.”

A free Palestine and a just international law are convictions I willingly stake my career on.

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Mohsen al Attar is Associate Dean of Learning & Teaching at Xi’an Jiaotong-Liverpool University as well as a Contributing Editor to Opinio Juris.

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