Seven Perspectives on International Law and Palestinian Liberation
This post is part of a symposium on movement lawyering in times of rising authoritarianism, run in collaboration with the Global Network of Movement Lawyers and Movement Law Lab). (Available also in Espanol and Português).
Written by:
Rabea Eghbariah (@RabeaEghbariah) is an SJD Candidate at Harvard Law School and a human rights attorney at Adalah, the Legal Center for Arab and Minority Rights in Israel.
Noura Erakat (@4noura) is a human rights attorney and an Associate Professor at Rutgers University, New Brunswick in the Department of Africana Studies and the Program in Criminal Justice.
Alaa Hajyahia (@AlaaHajyahia) is a Palestinian lawyer and a Yale Law School graduate, completing her doctoral studies in legal anthropology at Cambridge University.
Darryl Li (@dcli) is Associate Professor of Anthropology and Associate Member of the Law School at the University of Chicago.
Aslı Ü. Bâli is Professor of Law at Yale Law School.
Diala Shamas (@dialash) is a Senior Staff Attorney at the Center for Constitutional Rights
Maha Abdallah (@MahaAbdallah) is a PhD candidate at the University of Antwerp’s Faculty of Law.
Shahd Hammouri (@shahdhm) is a lecturer in law at Kent Law School.
In Culture and Imperialism, Edward Said posited that the remedy to a culture that preserves and advances imperialism is through the contrapuntal contributions of the “imperialized” — post-colonial or still-colonized people — who “bear their past within them—as scars of humiliating wounds, as instigation for different practices, as potentially revised visions of the past tending toward a new future, as urgently reinterpretable and redeployable experiences…[speaking and acting] on territory taken back from the empire.” Just so with international law, riddled with double-standards favoring the powerful, whose Western liberal roots accommodate ongoing colonialism and its legacies: as the international legal order crumbles under the weight of its inability to respond to brutal genocide and war, we must look to the ideas, narratives, and visions of those most crushed by its contradictions to chart a different path forward.
To help us in this endeavor, we asked eight international legal scholars, human rights attorneys, and experts on Palestine to share their reflections on the role of international law in the struggle for Palestinian liberation. How does international law currently hinder this cause? And how might it be used — or how must it transform — to contribute to it?
Rabea Eghbariah
Our current international legal frameworks have not only failed to change the material reality of Palestinians, but they have also discursively limited our ability to identify the root causes of this reality. International law is stuck in an outdated paradigm that takes the partition of Palestine and the brutality of the 1948 Nakba at face value, and the international community rarely questions the legal infrastructure that enabled the Nakba in the ruinous process of establishing the State of Israel.
As a result, legal discussions often obfuscate the totality and continuity of the Palestinian condition. We tend to discuss, for example, the genocide in Gaza in separation from the Israeli settlements in the West Bank, and the annexation of Jerusalem in separation from the Palestinian right of return. At best, we cluster some of these discussions under the umbrella concepts of illegal occupation or Israeli apartheid but still evade crucial legal questions about partition, self-determination, or the 1948 Nakba. Too often, the application of these frameworks also contributes to exceptionalizing the treatment of 1948 Palestinian refugees or Palestinian citizens of Israel from the overall condition of the Palestinian people. But we must understand that the illegal Israeli occupation of the 1967 territories, the unfolding genocide in Gaza, the denial of refugees’ right of return, and the Israeli practices of apartheid are manifestations of a deeper structure rooted in Zionist settler colonization of Palestine.
To move forward, international law must reckon with the foundational experience of Palestinian loss and call it by its name: Nakba. International law must also recognize that the Nakba never ended, but rather birthed a brutal system of Israeli domination: a “Nakba regime” that has practiced forcible transfer, conquest, annexation, occupation, apartheid, and genocide over different spatial and temporal intervals. Together, these crimes form a totality that is greater than the sum of its parts.
Nakba is therefore the appropriate name for the crimes against humanity committed against the Palestinian people. It is premised on the foundational violence of mass displacement, structured by a system of legal fragmentation, and orchestrated by an overarching purpose to deny Palestinian self-determination in historic Palestine. The road to justice in Palestine is long and tumultuous, but foregrounding, theorizing, and analyzing the Nakba in international law is a place to start.
Noura Erakat and Alaa Hajyahia
“It is an entire nation out there that is responsible,” declared Israeli President Isaac Herzog in the aftermath of the October 7 attack. Herzog’s attribution of collective responsibility to all of Gaza encapsulates the current iteration of Israel’s long-standing strategy to blur the lines between Palestinian civilians and combatants — a strategy that reflects Israel’s refusal to recognize wars of national liberation regulated by the 1977 Additional Protocols to the Geneva Conventions. These protocols recognize guerillas as combatants, define civilians in opposition to them, and require states to assume that persons are civilians when in doubt. Israel, like the US, has not ratified the Protocols, insisting that non-state militants are terrorists. This position allows Israel to engage in lawfare, wielding law as a weapon to achieve its colonial ambitions. As legal advocates and scholars, we must name this as a campaign to expand a settler colonial frontier and resist Israel’s deleterious lawfare.
In the early 2000s, when Palestinian armed resistance to Israel predominantly emerged from within the Palestinian Territories where Israel had effective control, as opposed to from bordering states, Israel’s military lawyers described it as an “armed conflict short of war.” The novel category sought to expand the state’s available use of force against a threat that was more than a popular riot but not tantamount to a national liberation war. Five years later, upon its unilateral withdrawal from Gaza, Israel once again resorted to the creation of novel legal categories: Israel recognized Gaza as neither independent nor occupied, but as a “hostile entity.” It then declared war on Gaza, whose people, Israel insisted, did not have the right to fight back nor the right to be sovereign.
In this context, Israel steadily narrowed who it considered a Palestinian civilian, what one of us (Noura Erakat) has previously described as the “shrinking civilian.” It did so through various means. For instance, it removed temporal limitations on how long one can be considered a direct participant in hostilities. In Public Committee Against Torture in Israel vs. the Government of Israel, Israel’s Supreme Court ruled that Palestinians who have at any point participated in an armed conflict maintain a “continuous combat function” and thus can be targeted at any time, even when idle and embedded within civilian populations.
Israel also reinterpreted the requirement of “force protection.” In the laws of war, the principle of proportionality balances civilian harm incurred against the enemy alongside the military advantage achieved, which includes force protection, i.e., the number of armed forces protected and saved. Israel’s revised military doctrine regarding force protection flipped this calculation so that the lives of enemy civilians — Palestinians — are worth less than the lives of Israeli soldiers. Israel defended this position by arguing that since Hamas forced Israel to fight in the first place, Hamas bears responsibility for all casualties. This perverse interpretation of the application of proportionality enables Israel to inflict higher civilian casualties while nominally adhering to international law.
Israel further blurred the distinction between civilians and combatants in 2018 during the Gaza March of Return, a mass popular protest against Israel’s blockade of Gaza and for Palestinian refugees’ right of return, featuring 20-30,000 protestors who gathered on a weekly basis for nearly eight weeks. When evaluating the military’s use of lethal force against the civilian protests (over 90 percent of casualties were shot above the waist when they posed no threat to Israeli civilians or military infrastructure), Israel’s Supreme Court explicitly characterized these demonstrations as a tool of Hamas and its attacks on Israel. The court claimed that the civilians involved in the protests were only exceptions, effectively recategorizing a primarily civilian event as a military operation and thus granting the Israeli army broad discretion to decide when to use lethal force against protesters. Similarly, in July 2023, Netanyahu justified an assault on the Jenin refugee camp, which killed 12 Palestinians and devastated civilian infrastructure, including roads, utilities, homes, and hospitals, by declaring the attack an act of self-defense against “people who would annihilate our country” — a framing that potentially implicates any Palestinian.
These practices demonstrate Israel’s lawfare strategy to shrink the category of Palestinian civilians, which we must understand in the context of its overarching settler-colonial project. Israel’s long-standing manipulation of the laws of war to legitimize violence aims to eliminate or permanently subjugate the native Palestinian population, acquire their land, and establish uncontested sovereignty. Israel’s indiscriminate assault on Gaza since October 2023 thus represents a culmination of its much-longer strategy to impose collective punishment as the cost of collective resistance.
Although international law has often proved an obstacle to resisting Israeli settler-colonialism and was shaped in the interests of dominant global powers, it remains a crucial battlefield for anti-colonial resistance. The legal fight exists within a geopolitical context where the US, a global superpower, shields its ally, Israel, from accountability. As legal advocates and scholars, we must expose these legal distortions, challenge legal positions that undermine fundamental protections, and isolate the states that advance them. Naming Palestinian resistance against Israel as a national liberation war within the meaning of the Additional Protocols, notwithstanding Israeli and US objections, is key here. Not only does it shatter Israel’s insistence that it has a right to create new law where none exists, but it also makes plain that Palestine is emblematic of colonized peoples’ struggles rather than exceptional to them. Such a vision may help create fissures in the imperialist alliance and open spaces for more emancipatory strategies within and beyond the law.
Darryl Li
Over the past year, Palestinian resistance and steadfastness have generated the conditions for a reactivation of solidarity around the world and shifted the terms of political contestation in the imperialist states that arm and protect Zionism. The duty of anticolonial lawyering in this moment is to help sharpen the contradictions of an international legal order that we know to be fundamentally unjust, to maneuver in hostile doctrinal and discursive terrains in ways that can provide succor and support to other fronts of struggle. The recent International Court of Justice (ICJ) advisory opinion confirming that Zionist rule in the territories occupied in 1967—those amputated geographies of Palestine known as “the West Bank” and “Gaza Strip”—violates the prohibition on apartheid could helpfully catalyze calls for sanctions and creative legal efforts to unseat Israel in the UN General Assembly or expel it from the UN altogether.
If pressed to name one concrete idea in this spirit of anticolonial lawyering, I would suggest organizing toward a UN General Assembly repeal of the infamous Resolution 181, which in 1947 endorsed the partition of Palestine between its indigenous Arab majority and a gerrymandered “Jewish state,” nearly half of whose population would consist of non-Jews forced to choose between permanent subjugation or exile. The Zionist movement cited Resolution 181 as a source of legitimacy for establishing the state of Israel and treated it as a territorial baseline for ethnic cleansing in the early stages of the 1948 Nakba, while casting aside its inconvenient aspects such as recognition of a compromised Palestinian statehood. This pattern of invoking (but never implementing) partition persists in the present, as the “two-state solution” has become the “thoughts and prayers” of international politics: an empty, cynical alibi for a murderous status quo.
Resolution 181 was the UN’s original sin toward the Palestinian people and its repeal, however unlikely in the short term, would help demystify Zionism’s core commitment to a racial ideology that privileges any person in the world it deems Jewish over the country’s own non-Jewish inhabitants. Advocating for such a goal would also help broaden the discussion of the ICJ advisory opinion beyond its narrow focus on discriminatory rule in the 1967 territories, making clear the need to recognize and dismantle colonialism across the whole territory between the Jordan river and the Mediterranean sea.
Aslı Bâli
International law provides both a normative framework and a set of tools for advancing decolonial projects, and it is an imperfect resource on both counts. As a normative framework, scholars in the tradition of Third World Approaches to International Law (TWAIL) have shown that “international law cannot be understood or analyzed apart from its mutually constitutive relationship with empire.” As a set of tools, scholars have shown that international law is profoundly limited both as an epistemic matter by its deep ties to Eurocentrism and in practice due to the vast asymmetries of power in the international order and the absence of political will to enforce existing rules equitably. No single change to international law doctrine is likely to alter this geopolitical reality.
And nowhere are these constraints more evident than in the case of Palestine, as Noura Erakat has powerfully argued. Yet international law can also be a weapon of the weak — a means of constraining the powerful by recourse to the norms they purport to respect. Against this backdrop, it remains an open question whether efforts to enforce existing international law through active cases before the International Court of Justice (ICJ) and the International Criminal Court (ICC) — and the Advisory Opinion issued by the ICJ this summer — can contribute to the protection of even the most basic rights of Palestinians, let alone the struggle for Palestinian liberation. In practice, Israeli violence and repression routinely denies Palestinians the right to life and all the other freedoms and protections they are owed as individuals. And underlying all of these denials lies the violation of Palestinians’ de jure collective right to self-determination. Despite decades of ostensible support for a “two state solution,” international law has offered little tangible protection for Palestinians’ recognized jus cogens rights.
International law doctrine generally discourages exercises of self-determination that would unilaterally alter territorial boundaries. And, of course, states rarely consent to withdrawing their de facto control over territory to facilitate others’ self-determining rights, even where legally required to do so. Since the partition of Mandate Palestine overseen by the United Nations, which established an Israeli state and equally recognized a Palestinian Arab state, Israel has consolidated coercive control over the whole of the territory and discriminatory dominion over its nearly seven million Palestinian inhabitants (constituting half of the population ruled by Israel). The recognition of Israel as a state by member states of the United Nations has had the constitutive effect of creating a Jewish Israeli state enjoying the privileges of sovereignty and subjecting Palestinians’ individual rights and collective liberation to a de facto Israeli veto.
If international law were to formally extend the privileges of sovereignty and collective self-defense to Palestinians, then the genocidal violence and widescale rights violations across the occupied Palestinian territories might be a presented as a remedial basis for overriding the UN Security Council’s refusal to admit Palestine as a recognized sovereign to the United Nations. Of course, a Palestinian state has been recognized by more than three quarters of all member states of the United Nations (146 of 193), but non-recognition by a critical subset of powerful states (with veto power in the Security Council, like the U.S.) has denied Palestine the full protections of the UN Charter. Israel’s current campaign against Lebanon demonstrates that these protections are not sufficient to preclude unlawful and disproportionate attacks where geopolitical license is provided. But even with U.S. support Israel is less able to define at its sole discretion the terms of its conduct on Lebanese territory.
Even territories without an internationally recognized right to self-determination, such as Kosovo, have arguably been afforded remedial rights to protection and unilateral alteration of territorial boundaries, albeit as a consequence of conducive geopolitical circumstances. Palestine is a unique case: a people with an internationally recognized right of self-determination facing a live-streamed genocide. Decades’ long violations of Palestinians’ jus cogens rights compounded by radically accelerated policies of ethnic cleansing should afford Palestinians the critical de jure protection Israel itself enjoys, but is committed to denying them: sovereignty.
Diala Shamas
When it comes to legal rights, Palestine has often been described as an “exception.” This past year, however, has shown the limits of this framework. Rather than function as a mere anomaly, which can be set aside without issue, Palestine has become the site upon which institutions—including the law—expose, unravel, or reconfigure themselves.
In November 2023, the organization where I work, the Center for Constitutional Rights, filed a lawsuit in U.S. Federal court on behalf of Palestinian plaintiffs suing President Biden and other U.S. officials for failure in their duty to prevent and complicity in Israel’s genocide. During one five-hour hearing, the plaintiffs powerfully and devastatingly testified to the many layers of harm that they and their families have experienced. One plaintiff even called in from Gaza—perhaps the first time in federal court history that a witness has testified directly from an on-going genocide. They urged the court to order the Administration to stop sending weapons and otherwise assisting Israel’s assault on Gaza. The judge was visibly moved.
But the decision came quickly: Although the judge reached the conclusion that the evidence was “uncontroverted,” he cited the political question doctrine as barring him from issuing any relief. His opinion nearly apologized for the powerlessness of the judicial system as he “implored” the political branches to act. He essentially accepted the government’s argument that, even if they were to commit a genocide, it would be beyond the purview of the court to stop them. On appeal, a three-judge panel affirmed.
The stunning abdication of judicial responsibility is worth interrogating. As news emerges that Blinken and multiple officials lied about Israel blocking the delivery of food and medicine in order to keep sending weapons to Israel, and as universities rewrite their speech and conduct guidelines, instructing faculty to not talk about Zionism or mention foreign affairs without touching on “both sides,” we are witnessing institutions contort or self-immolate rather than protect Palestinian life. The Biden administration is willing to sacrifice their own proclaimed values and checks and balances, as well as the international institutions that they have purported to protect, in service of a genocidal project.
What is it about Palestine, as Dr. Ghassan Abu Sitta has recently asked, that leads institutions, courts, and states to forsake their own interests? As this genocide continues to reshape our institutions in a fundamental and frightening ways—as casting doubt on Palestinian death tolls in Gaza has given way to not even mentioning them in Lebanon—answering this question could not be more urgent. Whether it is the precedent being set by the wanton violation of international law, the types of warfare and weaponry or death tolls being normalized, or the level of domestic repression being pursued on college campuses, what we are seeing is not Palestine exceptionalism. It is the forging of a new, terrifying world.
Maha Abdallah
International law acknowledges the Palestinian people’s right to self-determination, also as part of a broader commitment to equality, universality and decolonisation. This right has been reaffirmed over the decades by various international legal bodies, including the International Court of Justice (ICJ), the UN Security Council, General Assembly, and Human Rights Council. In 1974, the UN General Assembly resolution 3236 (XXIX) reaffirmed the inalienable right of the Palestinian people to self-determination, national independence, and sovereignty, as well as the right of the Palestinians to return to their homes and property as key components to realising self-determination.
More recently, in July 2024, the ICJ issued an Advisory Opinion that finally reaffirmed the illegality of Israel’s occupation, segregation, and apartheid, and emphasised their role in perpetuating the denial of Palestinian self-determination. The Opinion is significant not only for requiring that Israel’s unlawful occupation must come to an end “as rapidly as possible,” but also for making clear that states and private actors should not render aid or assistance in maintaining the illegal situation created by Israel.
There is, however, a clear dissonance between international legal affirmations and the reality imposed. Even leaving aside issues of enforcement, the ICJ’s Opinion leaves unanswered several important questions about ensuring the realization of self-determination for the Palestinian people in their entirety. For instance, what does it mean for the more than seven million Palestinians displaced into refugeehood, exile, and the diaspora since the 1940s, comprising more than half of the total Palestinian people’s population at home and in exile? How will this right be exercised by Palestinians living within the boundaries of what is today the Israeli state that affords the right to exercise self-determination solely for the Jewish people? How are Palestinians in the besieged and annihilated Gaza Strip and those forcibly placed into enclaves across the West Bank, including Jerusalem, supposed to exercise this right?
Moreover, the international community’s interpretation of the Palestinian right to self-determination has largely been state-centric, focused on an illusory state solution that has lingered for over three decades, thereby leading to the entrenchment of annexation and domination to the point of rapid elimination, as we have seen since October 2023. The reality that the Zionist-Israeli project imposes on the Palestinian people has been one of fragmentation, isolation, subjugation and extermination—exacerbated by the international community’s political, financial and material support for Israel, while shielding it from accountability. Such reality does not, in practice, align with the realisation of the right to self-determination. Instead, it feeds into the destruction process of the Palestinian population, in part and in whole, irrespective of its geographic location or legal status.
Furthermore, the inherent contradictions in international law enforcement are exacerbated by those who control its application—States that themselves represent the historical wrongs of colonialism, imperialism, exploitation, and oppression. The UN Security Council is a striking example. Meanwhile, instruments of international law have failed not only in realising Palestinians’ basic rights and protecting fundamental principles of humanity and dignity, but also in preventing and deterring crimes against humanity and acts of genocide. The International Criminal Court’s (ICC) proceedings on the Situation in Palestine, particularly in the past year, exemplify this failure, as a result of political interference and influence.
To date, much of the international community has either failed to compel the bodies and mechanisms of international law to acknowledge and address their own historical and ongoing wrongs toward the Palestinian people, or has actively worked to obstruct and delay such efforts. Yet, Palestinians continue to invoke international law and human rights standards. This is not because they are naïve enough to believe that even a reformed and revitalised international law would liberate Palestine (or other oppressed peoples). Palestinians very much recognise the limitations of international law and its role in perpetuating their ongoing Nakba. Nonetheless, like many others around the world, Palestinians, refuse to accept the “rule of the jungle” that colonial, imperialist, and capitalist powers resort to when law and order no longer serve their malicious geopolitical and economic endeavours.
Shahd Hammouri
When discussing Palestinian Liberation, there are unnegotiable keywords: resistance, reparations, and return. International law, however, remains dubious about the importance of these words. The underlying source of this doubt is the politics of international law, along with an enduring blindness to its own colonial undertones.
Take, for instance, the notion of international peace and security. The US and its allies adopt a fragmented and reductive reading of this notion, according to which anyone contesting western ‘democracies’ is necessarily a threat to international peace and security. In this context, the word democracy acts as a colonial trope: we are ‘democratic,’ hence we are more civilised than you and deserve to physically and economically dominate you. By adopting this narrow understanding of international peace and security, international law can then be used to assert contemporary colonial relations. Israel’s ‘right to defend’ itself, for example, is read in isolation of its status as an illegal occupier, its prolonged history of grave international legal violations, and its expressed intention of land annexation.
On the other hand, in the 1950s and ‘60s, states of the global south adopted a different interpretation of the notion ‘international peace and security.’ When we read resolutions from that period, we find consistent references to the end of colonisation, self-determination, equality, and economic rights as the preconditions of international peace and security. Let’s be honest, the best path to international peace and security is that guided by a compass that asserts the agency of those most vulnerable. Here, as elsewhere, international law should be interpreted with an eye to the politics of its making and practice.
Following that compass, it becomes clear that the Palestinian and Lebanese right of resistance take precedence over narrow interpretations of the doctrine of self-defence, and securitised interpretations of international law. Reparations take on a meaning that entails economic redistribution. The right of return is clearly asserted as the first step of transitional justice. Notions of asymmetry, economic coercion, domination, expansionism, and exploitation must become a solid part of the vocabulary of international law. Corporations, as primary agents of neocolonialism, must be recognised as international legal persons with obligations and limited rights.
In such days of bloodshed, scattered body parts, and the smell of death – the violence of power relations sustained by fragmented, narrow, and decontextualized readings of international law is laid bare. If this body of law is to retain any relevance, we must embrace an approach to international law that preserves, rather than perverts, the fundamental principles of our common humanity.
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