What Will Gaza Become After Genocide? Law and the Regime of Managed Suffering (Part 2)

This post is a continuation of What Will Gaza Become After Genocide? Using the Counterfactual Method to Evaluate Three Post-Genocidal Futures (24 July 2025). You may access Part 1 here, where I argued that the genocide Israel is perpetrating against the Palestinians is central to the zionist ethos which, like other settler-colonial movements, seeks to remove the native from coveted lands. While many in the West wish to scapegoat Netanyahu for the current episode of barbarism, as Israeli actions from 1947 until today verify, the annihilation of Palestinians has always been zionism’s constitutive aim.

2. A legal folk tale

Many law students—though fewer with each passing year—believe that law is a useful instrument in the pursuit of liberation, or at least the lightening of oppression. While some governments speak the language of pure force, legal professionals counter this, their conscience merging with their craft to produce principles and safeguards that seek to restrain power and redress injustice. Some lawyers believe that law can contain violence, disciplining its harbingers and, sometimes, holding them to account for the harm they occasion.

My second counterfactual is thus guided by a simple question: what would happen if international law were fully implemented—namely by Europe—one of its chief recalcitrants? If treaties were enforced, resolutions complied with, and advisory opinions acted upon, would Palestinians be free or, at a minimum, safe from zionism?

Combined, the 1947 UN Partition Plan, a plethora of General Assembly and Security Council resolutions, two ICJ advisory opinions, and international law tout court categorically affirm the right of Palestinians to self-determination and prohibit the acquisition of territory by force, meaning they confirm the illegality of Israel’s permanent occupation, its settlements, and its recent bill to annex the West Bank. In fact, the ICJ did not mince words: Israel’s wall, its siege, and even its very presence in the Occupied Palestinian Territories are all unlawful, creating both negative and positive obligations on third states. According to the ICJ, third states are obliged to neither recognise the illegal situation nor render aid or assistance in its maintenance. The 1970 Declaration on Principles of International Law Concerning Friendly Relations goes further, imposing upon third states a duty to help colonised peoples repel colonial aggression.

Ironically, it is the very clarity of the law that poses a conundrum for the West. Palestine is under attack not because the law is ambiguous, but because Western states object to its application in this instance. They may condemn Israeli aggression, occasionally, but they obstruct the law’s implementation in Palestine consistently, preferring that Palestinian liberation come via negotiations with their oppressor rather than via legality. The ongoing pantomime playing out in Europe—‘should we, Europe!, join the 140 other UN member-states in recognising Palestinian statehood’—perfectly encapsulates European duplicity (just as Ireland’s posturing against Israel should be read alongside its lucrative trade with the same state).

The qualified, hesitant, and conditional recognition tentatively offered by Macron and deliberated by Starmer is motivated not by any genuine concern for Palestinians. Rather, as (Western) populations awaken to zionism’s true ambition—“The government is racing ahead for Gaza to be wiped out” honestly declared an Israeli minister—European leaders are seeking to placate their electorates by raising the prospect of Palestinian statehood. Not only is this the height of racialised hubris—as if recognition by almost all of the world is irrelevant until endorsed by Europe—this is also designed to rescue the zionist project from itself by keeping the prospect of a “two-state solution” alive. As happened in the 1960s, Europe’s goal is to manage the type of decolonisation colonised peoples may pursue, settling on the anaemic Norwegian version of Palestine as their preferred outcome.

Still, duplicity aside, this counterfactual is designed to consider a scenario where Europe actually complied with international law. Again, would Palestinians be safe from Israel and zionism?

It began with a declaration. In the grand chamber of Strasbourg, Marc Botenga was elected President of the European Parliament, making history as its first ever (and likely last) leftist leader. In characteristically spirited tones, as his first act, he made a fiery announcement:

“Europe will no longer treat international law as an optional framework. From today, recognising the State of Palestine within its 1967 borders will be mandatory for all EU members. Trade and military agreements with Israel will be suspended pending full compliance with ICJ pronouncements, including the end of the occupation, the dismantling of settlements, and Israeli recognition of Palestine’s right to exist as well as Palestinians right to life. I can’t believe it has to be said but here we are. Moving forward, Europe will act on law and morality, not on convenience nor economic interest.”

Strasbourg, like every committee in Brussels, fell silent. The move was abrupt and incendiary, with many MEPs wondering what full compliance with international law meant for the future (and past) of the EU. France and Germany were especially mortified, dreading the immediate cessation of weapons sales, not to mention the reversal of the prohibition on pro-Palestinian marches, songs, and organisations (Starmer rang Farage and thanked him profusely for Brexit). Aleksander Ceferin, an invited guest for this session, was seen wryly smiling. Having already tested alternate UEFA brackets without Israeli teams, he had determined that their exclusion would enhance the quality of the football (and his plans for a lucrative Saudi-Israel friendship tournament just got a boost). Here, at last, was a Europe that intended to apply to itself the legal standards it had long bludgeoned others with.

But then, the familiar headlines erupted: “European anti-semitism at fever pitch!”; “Hamas has taken over Strasbourg”; “Europestan turns green!” Israel accelerated its bombing campaign, striking Gaza and the West Bank as well as Lebanon, Syria, and Iran. Aid convoys were not just halted but bombed to shreds. European broadcasters pounced, replaying familiar tropes: beheaded babies, human shields, Hamas anything. France and Germany threatened Frexit and Gerxit unless Botenga resigned. Herr Merz proudly intoned: “for Europe, killing always came before law; Israel must be afforded the same privilege.” Legal Gaza may be alive in Strasbourg—for now—but Tel Aviv, Frankfurt, and Paris were conspiring to euthanise it.

Botenga was undeterred. Instead of resigning, he doubled down, convening an emergency summit of EU justice ministers, tabling a resolution to initiate proceedings at the ICC against Israeli officials and European arms dealers for crimes against humanity. For Hungary and Poland, this was a step too far, prompting a joint walkout, and threats of domestic withdrawal referenda. Botenga wished them well. Italy was more strategic, whispering they needed time to “consult Washington.”

For the Chief Prosecutor, Botenga’s announcement was another headache, but it was also opportunity to build a respectable legacy. He would consider the evidence against additional Israeli officials, but also against European arms executives and intelligence officers who had enabled the genocide and siege. Botenga, scanning the frenzy gripping the chamber, was reminded of the words of Ernest Hemingway: gradually and then suddenly. International law was no longer a spectacle for Europe; it would now be a litmus test.

For Palestinians, however, Europe’s existential crisis provided little succour. Even in this moment of supposed legal assertiveness, they remained trapped in international law’s theatre of managed suffering. Israel still controlled the ports, crossings, and airspace, deciding what and who enters and exits. Israeli drones continued their patrols, more quietly, at least until their armaments scorched another hospital. Bureaucratic checkpoints were replaced by biometric screening, courteousy of the new EU-Israel-UN taskforce. You might say that the occupation was being sanitised as the legal order that had birthed and sustained zionism had reverted to restraining it—but neither disassembling nor proscribing it—allowing it to live to commit another genocide. Botenga, Palestinians remarked, had said nothing about return, despite the resolutions demanding it. Europe was committed to international law and Palestinian statehood, sort of. Liberation was a matter the European Parliament would debate at a later session. Any day now.

Legal Gaza is seductive. It offers the appearance of order, with a sprinkle of justice. But the underlying dynamics remain unchanged. Palestinians would still be at risk for, in the eyes of Israel and Europe, Palestinians remain passive subjects in Israel’s preferred arrangement rather than active agents in Palestinian liberation. Israel, of course, is no ordinary state. It does not govern through law; like settler-colonies have always done, it rules through violence and impunity, which it directs against its Palestinian population as well as its neighbours. In the past year alone, it has attacked Palestine, Syria, Lebanon, Yemen, and Iran. It has violated every crime listed in the Rome Statute not to mention dozens of protections under the Geneva Conventions. Israel behaves less like a state and more like a gangster—recognising no authority but its own, claiming to have God’s ear, at least when God apparently urges the massacring of Palestinians. And it has done all of this with the endless support of (most of) Europe. Essentially for this counterfactual, it has also done so with the support of international law.

We may demand more treaties, more rights, more resolutions, more ICJ advisory opinions, and more law, but none of this will constrain a regime that refuses to be constrained and that is inoculated against legal consequences by its allies. We might term this the limit of the legal imaginary. In practice, law depends not just on codification but on recognition, respect, and enforcement—qualities that are neither universal nor guaranteed. Borders, for example, are not defined by moats or walls but by mutual recognition. Israel may recognise Syrian sovereignty, but it does not respect it, much as the USA treated Iranian sovereignty with contempt, an act the former Dutch PM Mark Rutte, now head of NATO, endorsed, asserting that even the bombing of another state does not breach international law, at least when conducted by a NATO member. Whether the EU recognises Palestine, places an arms embargo on Israel, or terminates its cooperation agreement, Palestinians know with certainty that European policy is pursued not as solidarity, but as institutional self-preservation, a form of damage control. Even after years of double standards, it is rather remarkable that Europe remains wilfully ignorant to its own hollowed out normative authority.

For those who still cling to legal hope, it’s worth asking: when has Europe ever insisted (with consequence) that Israel comply with international law—let alone refrain from violence against Palestinians? Was it during the Nakba? After the 1967 occupation? In the wake of Sabra and Shatila? Across the five bombing campaigns that flattened Gaza? What about the assassinations, the mass imprisonments, the targeting of hospitals, schools, and food supplies? The sexual torture? Even now—amid a genocide—when the American president himself admits that Israel is starving Palestinians, Europe still won’t act. It cannot bring itself to comply with the law it claims to uphold, choosing instead to sacrifice its moral standing at the altar of zionism. As Nesrine Malik so bitingly observed:

The only question now is, how is it that the world cannot get Israel to allow a morsel of food into a starving civilian’s mouth? How is this a government still not decisively cut off, sanctioned and embargoed? How is this a government, still, that David Lammy thinks he can “urge” to do the right thing? The European Commission president, Ursula von der Leyen, calling the images from Gaza “unbearable”, and called for more aid to be let in and for Israel to “deliver on its pledges”. This, and other EU social media statements, was described by an Oxfam official as “hollow” and “baffling”.

And so, like the first counterfactual, Legal Gaza ends not in liberation but in a precarious form of survival. At best, it offers no freedom—only a threatening status quo. In its more likely iteration, it formalises a form of legal gaslighting: affirming rights without enforcing them, recognising violations without remedying them. When it comes to Israeli criminality, law is reduced to performance—elegant but dead-eyed. European officials speak pretty words while subsidising the structures of domination they claim to oppose. As Fanon remarked, colonial frameworks like international law, including its chief principles of objectivity and universality, “are always directed against the native.”

3. The Freedom Dream

For the third counterfactual, violence and legality took a backseat to aspiration and freedom dreaming. By this I mean I let the Palestinians speak for themselves. I’ve called this one Freedom Gaza—an imaginary inspired by resistance and return. I drew on materials directly produced by Palestinians including statements from refugees in Syria, Lebanon, and Gaza; political declarations from disparate resistance groups like Fatah and Hamas; and interventions by civil society organisations. Each one of these insists on imagining a future beyond genocide that does not begin or end with their annihilation.

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Due to the length of the text, I’ve split it into three posts. Part 1 is available here and Part 3 will appear on 31 July 2025.