Gaza and International Law: Critical Reflections on the Conjuncture

[Tor Krever is University Assistant Professor in International Law at the University of Cambridge, a Fellow at the Lauterpacht Centre for International Law, Official Fellow in Law at Girton College, and co-General Editor of the London Review of International Law]

The International Court of Justice’s advisory opinion on Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem has once more drawn international attention to The Hague and its legal institutions. Since the attentats of October 2023, popular interest in the ICJ and ICC has reached a level perhaps never seen before, a global chorus appealing to these institutions to bring an end to the horrors inflicted by Israel on Gaza. If The Hague has emerged as a cynosure for those protesting Israel’s assault, this mirrors a more general investment in international law and the language of legality as the dominant frame of popular and political discourse. Few commentators speak of Gaza or Palestine today without invoking the language of il/legality.

This is, of course, not entirely unfamiliar. In 2003, opposition to the US and British invasion of Iraq was also articulated in the language of legal argument, the war condemned as an illegal use of force, the work of war criminals who should be tried in The Hague. Reflecting on their appeal to international law to oppose the invasion, one group of critical scholars entertained the possibility it had carried unintended, even lamentable, consequences. Others were less enigmatic in their warnings. Two decades later, these stand Cassandra-like, frequently cited but seldom heeded. Even critical legal scholars reveal an impressive lability, rehearsing paeans to the promise of international law, critiques of indeterminacy giving way to trite formalism. They pen and sign open letters in the name of legal expertise in an epistolary deluge. They demand the ICC issue Karim Khan’s arrest warrants, and that he request more of them, espousing a faith in the institution—but for its Prosecutor’s bias or caution; but for its jurisdictional hurdles—entirely incongruous with its concrete record.

What are we to make of this groundswell of interest in and resort to international law? How should we think about the clamorous championing of The Hague and its institutions as the harbingers of justice? Much will no doubt be written in the coming months and years, but some initial reflections can be found in the next issue of the London Review of International Law. 

We have published a collection of 47 short interventions—an advance access version is available here and, for those without institutional access, a ‘preprint’ version here. They reflect a wide range of views and vary markedly in style, from the poetic—Marina Veličković, for example, powerfully juxtaposing memories of a Sarajevo childhood with the present—to more familiar scholarly expositions. They vary too in register, from speculative contemplations to trenchant philippics. 

The collection takes in a range of themes. The role of international law in, and as a response to, Gaza/Palestine is of course a central concern. Frédéric Mégret interrogates demands that Palestinians negotiate their statehood rather than invest in the law. Karen Engle and Fionnuala Ní Aoláin look at the mobilisation of claims of systematic and widespread sexual violence and the use of forum shopping to shape conflict narratives. Robert Knox considers the now familiar charge of hypocrisy and its relationship with the racism of international law. Shahd Hammouri asks what it means to be a (Palestinian) international lawyer in a time of genocide. 

Some contributors, while acknowledging its limits, remain optimistic about international law’s progressive potential. John Quigley sees in the present conjuncture the prospect of an international law mobilised for the cause for world peace, while Ruti Teitel suggests the ICJ and ICC’s current manoeuvres may restore a sense of legitimacy to the international legal order. Bill Bowring, if more agnostic, also emphasises the ‘deep political and moral significance’ of recent legal interventions. Others share the scepticism implicit in my opening remarks above and repeated in my own contribution asking what is lost when we scurry time and again to The Hague. Nora Jaber, for instance, argues that international law will be of little use unless mobilised in the service of a broader anti-imperialist struggle against the material structures of the ongoing Nakba.

Several contributors offer narrower critiques of international law’s particular blind spots or the myopic focus of its mobilisation. Responding to demands for ICC intervention, Sophie Rigney asks how we can build accountability without relying on a carceral system of international criminal law. Outi Korhonen similarly warns against attempts to address injustice through criminalisation, noting the media’s tendency to focus only on injustice when construed as a crime. Sara Kendall and Clare da Silva ask whether redress for injustice might be found away from the ICJ and ICC: might international law tackle, for instance, the (arms) supply chain that provisions, supports, and profits from armed conflict? Christine Schwöbel-Patel, Nahed Samour and Michelle Burgis-Kasthala advocate for a new international legal category of settler colonialism so that its practices might be deemed illegal.

A further set of contributions look at public discourse and the place and work of international law in that discourse. Lori Allen looks at the tensions in the growing recourse to international law over Gaza, while David Chandler sees in its emergences as the dominant frame of analysis an exhaustion of international politics. Vasuki Nesiah reads the spectacle of The Hague through the biblical story of Abraham and Isaac. The clash we see there between ‘global power politics’ and ‘global public opinion’, Ilan Pappé suggests, poses a significant challenge to the contemporary international system. Michael Fakhri too sees in the present moment developments of world-historical significance, a ‘reconfiguration of alliances, friendships, and networks in international law that will never be the same’. Other contributions focus on specific aspects of popular discourse—the role of temporality in contested narratives of Palestine, in the case of Zinaida Miller, and that of genocide, in the cases of Mark Drumbl, Hani Sayed, and Zeina Jallad and Arnulf Becker Lorca. 

Where some contributors voice concern about the privileging of international law as the language of condemnation, others celebrate its centrality in contemporary discourse. Ntina Tzouvala sees in recent popular invocations of international law a fundamental break from the Iraq-war era. Those invocations, Daniel Joyce suggests, reflect the importance of international law as a framework through which publics seek information and protest injustice. Costas Douzinas also warns against the wholesale rejection of international law, with its potential to stop or humanise war. Souheir Edelbi, keenly aware of its limitations, likewise insists international law can be powerfully leveraged to focus attention on violence against Palestinians. Florian Hoffmann takes up the relationship between law and justice within the broader constellation of meaning and contestation signified by ‘Gaza’ and ‘international law’.

If international law features prominently in popular discourse around Gaza, to what extent has interest in legal argument and processes been even across geographical, political and intellectual communities? Does one’s vantage point matter? Alaa Hajyahia and Reshard Kolabhai reflect on legal appeals to the ICJ in light of the specificity of South African and Palestinian history and aspirations. Teresa Almeida Cravo traces the contours of opinion in Portugal and the pretence of ‘balance’ found in its media. Madelaine Chiam turns to Australia and the work of legal argument in popular discourse there. Francisco-José Quintana looks at Argentina in the wake of Javier Milei’s election, while Laura Betancur-Restrepo and Fabia Fernandes Carvalho compare Lula’s Brazil and Petro’s Colombia. Lys Kulamadayil considers the state of political and intellectual discourse in Germany. Returning to the relationship between politics and international law, Darryl Li considers the implications of political shifts from his vantage point in the US. John Reynolds focuses on the prominence of civilisational language in contemporary discourse, and Abdelghany Sayed and Luis Eslava look closely at the nature and makeup of Palestine solidarity.

Another set of contributions places current developments in their historical context. Jessica Whyte looks at recent appeals to human rights and invocations of a supposed ‘1948 rules-based order’. Martin Clark reveals affinities between James Lorimer and Theodor Herzl. Balfour, and a recent attack on his portrait in Trinity College, Cambridge, is the focus of Richard Clements’ poem. Christopher Gevers draws on the insights of Amílcar Cabral to trace an arc from the ICJ’s 1966 South West Africa decision to the present. Nahed Samour suggests the prominence of international law today signals a paradigm shift from the humanitarian to the diplomatic to the juridical.

Finally, several contributions turn our attention to the academy. Ihab Shalbak reflects of the struggles of (critical) scholars in grappling once more with the tensions—and slippages—between a tactical and constitutive investment in international law. For Justina Uriburu, the present is a ‘moment of reckoning’ as we are forced to consider questions of professional responsibility and ethical practice and our ‘roles as teachers, researchers, and colleagues’. Umut Özsu asks what critical scholars, in particular, are to make of international law and its aesthetics, while Gleider Hernández reflects on the tensions in teaching international law and the choices involved ‘between resistance and conformity, between ideals and action’. Closing the collection, a poem by Immi Tallgren offers a pointed comment on legal academia.

My attempt to categorise them here notwithstanding, most of the reflections touch on several of the above themes and the collection is organised only loosely. As is perhaps clear, it takes in a wide span of positions mirroring the heterogeneity of the critical legal community. Sharp differences abound. Some contributors maintain a faith in international law’s ability to set the world to right. Others are deeply sceptical. Some see in South Africa’s ANC, leading the rush to The Hague, the vanguard of a new Third World movement. Others, myself included, are more cautious about laundering the internationalist credentials of domestic reaction. But importantly, at a time when many in the academic community have bowed to the prevailing political mood, few here retreat to equivocation or the contorted pretence of ‘balance’. The catastrophe in Gaza confronts us with difficult questions and we should not shy away from a ruthless critique—one that, as Marx once put it, is not afraid of its own conclusions, nor of conflict with the powers that be. I hope this collection can be a small, if necessarily provisional, contribution.