10 Oct Reimagining Palestine in TWAIL Scholarship
If you’re not careful, [international lawyers] will have you hating the people who are being oppressed, and loving the people who are doing the oppressing.Malcolm X
The Power of Mythmaking
Origin stories are always more fiction than fact, more myth than reality. At times, origin stories serve to redeem a dubious past, while at others they enable us to justify an unwelcoming present; sometimes, they do both. Mythology possesses symbolic and material power, shaping how we see the world and, crucially, how we teach others to see it. Throughout, we fix our gaze on the future, relying on mythology to guide our course along preferred paths.
The set of myths that metamorphosed into international law became fashionable from the 17th century onward. Europe gradually claimed omnipotence: having identified essential truths necessary to order their existence, they were duty-bound to share these with the world, whether the world wanted them to or not. Westphalian sovereignty, white liberalism, and pacta sunt servanda came to corral the new order. Since the colonial era, European states have fought to preserve this myth, reaffirming and rationalising internationally the future Europe imagined for itself. In the early days, the self-proclaimed supremacy of European civilisation justified their assault upon the worldviews, bodies, and lands of others; in more recent times, it was to protect civilians, women’s rights, liberal values, or values of the human spirit, whichever happens to be en vogue.
The mythology of international law was always compelling propaganda, allowing European publicists to see their creation as better than it was, fashioned in the sugary image they had of themselves and the bitter one they held of everyone else. Law professors scattered across the world have taught versions of this myth—many still do—demonstrating a remarkable capacity to make contradictions and inconsistencies appear coherent and justifiable. Carefully refined by scholars through the generations, this curated narrative has exerted a profound influence on our understanding of international law, consolidating the power structures favoured by the harbingers of essential truths. This was the case until Third World Approaches to International Law (TWAIL) came along.
TWAIL’s intervention exposed this hagiographical narrative as a self-serving myth, crafting a fresh origin story to account for those brutalised by the regime. It is not a pretty picture, and I doubt Stephen King could have conjured up the sacrifices Europeans were willing to make at the altar of international law. “Their masters poured burning wax on their arms and hands and shoulders, emptied the boiling cane sugar over their heads, burned them alive, roasted them on slow fires, filled them with gunpowder and blew them up with a match.” As CLR James uncovered when investigating French expeditions in Hispaniola, la mission civilisatrice was always vacuous, devoid of the very logic it purported to champion. James continues:
[Europeans] buried [enslaved Africans] up to the neck and smeared their heads with sugar that the flies might devour them; fastened them near to nests of ants or wasps; made them eat their excrement, drink their urine, and lick the saliva of other slaves.CLR James, The Black Jacobins: Toussaint L’Ouverture and the San Domingo Revolution (1938)
These acts represent a single paragraph in a sweeping chronicle about the savagery of the conquistadors, acts they carried out with putative European legal supremacy in tow. What kind of ghoulish legality would sanction roasting humans over slow fires or feeding them to insects? Which arguments are sufficiently convincing to rehabilitate European international law in light of the civilisational catastrophes it sanctioned? Without the cognitive dissonance made possible by mythmaking, this legal regime and their cheerleaders would appear sociopathic.
Operating as critical consciousness, TWAIL has revealed the myth. Indeed, no teaching of international law would be complete without rigorous engagement with the body of scholarship produced by Third World scholars. It is thus with some surprise that we find TWAIL adopting a more circumspect approach to Palestine, disregarding the myths that dominate the debate on Israeli settler-colonialism in international legal circles.
Palestine’s Elusive Place in TWAIL Thought*
Some of TWAIL’s early interlocutors were beholden to Eurocentric international law, submitting to the core ideas that distorted the trajectory of the Third World. There was nothing treacherous in the scholars’ behaviour; this was no comprador class. Rather, as Bedjaoui and Anand proclaimed in the heyday of the decolonisation era, theirs was a material anti-colonialism, one that compelled the eviction of colonial powers from the daily lives of native populations. Epistemic renewal would have to wait.
When the dust of decolonisation settled, however, colonial logic and culture—including the foundations of international legality—stood firm and tall. To illustrate, it took only two decades for international financial institutions to return with a vengeance. They trumpeted the superiority of the structural adjustment programmes of international economic law in ordering Third World societies over the imagination of liberated peoples, codifying the very neo-colonialism Nkrumah had forewarned; crucially, it took only two decades for Third World states to welcome them. For some critical scholars, this was a step too far, precipitating a second intifada in international legal scholarship.
Born in the 90s, the movement we now know as TWAIL took up the mantle of anti-colonial resistance in the academy. Or so the story goes. While I reflect on TWAIL with a sense of pride and purpose, I occasionally question whether the movement was anti-colonial by design or force, or even at all. TWAIL strives not only to exist but to belong, and the longing for validation from academic powerhouses is undeniably influential, stifling its counterinsurgent imagination. Throughout TWAIL scholarship, we detect a subtext that betrays organic liberal commitments, suggesting even critical scholars are susceptible to the hypnotic powers of mythology. Du Bois cautioned us about this tendency, even forgiving it because of the double-consciousness that plagues the anti-colonial thinker.
Du Bois’ double-consciousness is significant when exploring TWAIL’s mixed relationship with Palestine. Aside from a handful of scholars, it would be fair—albeit vexing—to say that TWAIL has not taken up the Palestinian struggle. Looking through my TWAIL database, I find only a few relevant works which, ironically, are proximate in number to AJIL’s engagement with race. Yet, both Palestine and Israel are as much legal constructs as they are political doctrines, chimaeras of the legal imaginary steeped in colonial and racialised violence perpetrated by European settlers against indigenous inhabitants. Palestinian suffering is a haunting reminder that modern Europe is much like old Europe, sanguine about waving away its own legal framework when its interests run counter to its essential truths. [Notice, for example, the speed at which the European political class rushed to offer Israel carte blanche for the collective punishment it is currently inflicting on Palestinians, including devastating residential neighbourhoods and starving Palestinians of food and water because they are “human animals” according to the responsible Israeli minister. History repeats itself in ghastly ways as the colonised are made to drink their urine to survive.]
The Third World is aware of Europe’s vintage double-standards and it was their majority at the UNGA that forced through the ICJ’s advisory opinions on Israeli settler-colonialism, first on the Apartheid Wall and forthcoming on permanent occupation. One hundred and forty states across the Third World have recognised Palestinian statehood, even as Euro-America leverages some carrots and many sticks to scupper support for an indigenous sovereignty movement and the juridification of an ongoing anti-colonial struggle. In short, the number of legal pathways into Al Quds are multiplying at a much faster rate than the corresponding scholarship in TWAIL. Why the cold shoulder?
Indigenous scholars, such as Nick Estes, provide a candid assessment. The hesitation of academics to confront tangible aspects of settler-colonialism is consistent with their worldview, he explains. Doctrinal and critical scholars alike unite in the near beatification of the Westphalian tradition, a system that relies on the negation of indigenous and non-state sovereignty. In this context, even calls for Palestinian self-determination appear timid, contingent on colouring within the lines of Israeli administrative zones.
As I’ve argued elsewhere, this leads TWAIL scholars to an intellectual and ethical cul-de-sac. We admit the profane origins and practices of international law—from a TWAIL perspective, how could the Balfour Declaration or Partition Plan or Oslo Accords ever possess any legitimacy—but remain wedded to them or, worse, enamoured by them. We are cognisant of international law’s Eurocentric and racist tendencies, but liberalism’s halo shines too brightly, blinding even its critics. To champion the cause of Palestine thus demands recognition of international law’s predatory past, present, and, barring a radical re-imagination, future. If that becomes our settled starting point, what is TWAIL even advocating for? The call for international law to be better is fantastical, leading us away from history and into the contingent embrace of myth.
Engaging with Du Bois’ double-consciousness offers an incisive lens to scrutinise TWAIL’s nuanced relationship with Palestine. “It is a peculiar sensation, this double-consciousness,” Du Bois asserted, “this sense of always looking at one’s self through the eyes of others, of measuring one’s soul by the tape of a world that looks on in amused contempt and pity.” For the colonised, to be often translates to being in direct conflict with the world as it is. For TWAIL, this clash is evident when juxtaposed alongside the insights shared by Noura Erakat in a forthcoming episode of Fresh Squeezed! The Opinio Juris Podcast. Erakat’s exploration into the dynamics between Palestine and international law provides a contextual backdrop to the ambivalence TWAIL struggles against.
Encouraging TWAIL to Freedom Dream
In “Justice for Some, Law and the Question of Palestine,” Erakat delineates how international law, rather than acting as an impartial arbiter, has bolstered Israeli settler-colonialism. Her experiences as a human rights lawyer, grappling with legal systems that seemed to offer hope while stifling justice for Palestinians, echo the broader challenges critical international legal scholars face. As she points out, the perceived neutrality of international law is an illusion, deeply influenced by global power dynamics, which complicate Palestine’s quest for justice.
Albeit rhetorically, Erakat hints at possible rationales for Palestine’s underrepresentation in TWAIL scholarship. Is it because the international legal system, reflecting inherent biases, disproportionately advances Israeli interests over Palestinian ones and TWAIL scholars are weary of backing a seemingly lost cause? Or is it rooted in a more profound intellectual toil where scholars wrestle with their commitment to a system that is contingent on the perpetuation of colonial legacies? When balancing contrary allegiances to Palestinian emancipation and international law, is the only option for TWAIL scholars to stay silent or to speak out of both sides of their mouths? Or, as Brendan Ciaran Browne suggests, it may be simpler albeit more visceral. Browne makes a separate argument about the professional costs associated with opposition to Israeli settler-colonialism: in legal academia, at least in Euro-America, “being labelled a troublemaker [on Israeli apartheid] has implications for job security.” Are TWAIL scholars, myself included, guilty of playing it safe?
Erakat and Browne’s insights resonate with those of Estes, highlighting a broader issue: the international legal academy’s reluctance to directly confront the structural and epistemic implications of anti-colonial liberation for international law. Therein lies the crux of the dilemma. While advocating for Palestine forces a clash with international law’s predatory nature, it simultaneously poses an existential question for critical scholars: how does TWAIL’s vision for international law disrupt the status quo? This scholarly underrepresentation not only limits our understanding of Palestine’s unique challenges but also raises crucial questions about TWAIL’s grey areas. Palestine underscores the need for a more holistic, introspective, and transformative approach to international legal scholarship—one that truly grapples with international law’s contradictions and begins to imagine alternative futures. I am happy to say that Erakat does just that.
While some blogs defend their promotion of the oppressor’s myth—though it is important to recognise that some editors disagreed with the publication of the symposium—I am delighted to have co-hosted an episode of Fresh Squeezed OJ (with Omar Kamel) where a Palestinian scholar sought to provoke reimaginings of the relationship between justice, international law, and anti-colonial struggle. Erakat’s reflections on the sovereignty trap and a future beyond Westphalia, among others, herald a new approach to international legal scholarship. Those who listen to the podcast or read the transcript—available in a multitude of languages—will learn of Erakat’s freedom dream:
My freedom dream for Palestinians is a freedom dream for all people, which is to be able to live without fear and with infinite possibility; that you are not bound by geography or geographic determinism, or status determinism, where you were born, how you were born. It is the freedom that we can live without fear and with infinite potential.Noura Erakat
Erakat’s freedom dream is a poignant reminder that the pursuit of justice isn’t just about challenging oppressive systems, but also about establishing a world unburdened by the dehumanising legacies of European ethno-chauvinism, a world where non-Europeans are seen and respected as equals, not as animals to be sequestered and slaughtered. This necessarily involves cleaning up the mess(es) occasioned by European international law and rethinking how we mediate international relations.
While humans share a fundamental aspiration to be free, to live without fear, and with infinite potential, some humans believe their freedom should come at any cost, including the oppression, occupation, and incarceration of others. I cannot endorse that view and I do not believe my TWAIL comrades can either. With this in mind, perhaps it is time we put our scholarship where our mouths are and, to quote Edward Said, may the personal costs be damned.
Addendum**: The interview Kamel and I carried out with Erakat took place prior to the latest conflagration. Tragically, these developments have only underscored the pertinence of our conversation. Many have noted that a fair few international lawyers approach decolonisation more as a theoretical exercise than as a tangible practice, and even less so as praxis. As Fanon insightfully quipped, “decolonisation is always a violent phenomenon” for the coloniser “does not give up their loot easily”, Sukarno added.
The past few days triggered memories of my participation in the 2022 European Society of International Law conference. At one point, an international lawyer was serenaded with deafening applause for lauding “the courage of [European] international lawyers in standing against Russia.” I couldn’t help but ponder: would the response have been as enthusiastic had he encouraged attendees to oppose Israeli violations of international law? After the deluge of bombs on Gaza, will European academic institutions and funding bodies initiate fellowships aimed at Palestinian researchers to help them escape the open-air prison they find themselves in? Will these same institutions issue declarations backing Palestinian resistance as they did with Ukraine, demanding Israel be held accountable for the occupation, apartheid, indiscriminate bombings, enforced population starvation, and other perverse violations of international humanitarian law? Will colleagues organise panels questioning the implications of Israel’s countless violations for the soul of international law? Or will they toe the line set by figures like von der Leyen and, with no small irony, Zelensky?
European international law has always sided with oppression, dehumanising scores of Third World peoples along the way. Palestinians are acutely aware of this bias, a sentiment echoed by numerous Third World nations. “Western civilization seems willing to stand by while [Palestinians] are exterminated. They, on the other hand, are rising up against the colonizers.” As Palestinians resist their subjugation, the pressing question then becomes: in the context of the Palestinians’ rejection of the Israeli Finance Minister’s ultimatum to “leave, submit, or die,” where will TWAIL position itself? More importantly, where will you?
* I originally presented some of these reflections at the Palestine & TWAIL workshop, organised by the Promise Institute of Human Rights at UCLA in 2022. Many thanks to the organisers and participants for helping me refine my thinking on the topic.
** While Fresh Squeezed OJ is a collective endeavour, the identification of the interviewees, the questions asked, and the write-up that follows are at the discretion of the individual blogger. Accordingly, the views expressed in this blog post should be attributed not to Opinio Juris but to me alone. Frankly, that would be sensible for all the material I produce.