09 Jan At World’s End: Palestine, the ICJ, and a New Dawn in International Law
What can I do? Many of us have repeatedly asked this question in the past months. We predicted the revolution would not be televised; we did not anticipate the genocide would.
Scholars of anti-colonialism were well versed in Europe’s history of horrors. We knew of the German annihilation of the Herero and the Nama; we wrote about the Indigenous peoples the French filled with gunpowder and blew up and of the ones the British tossed into the ocean—while alive—to lighten the cargo (and thereafter submitted an insurance claim for the loss of ‘chattel’). We taught the Nuremberg trials as an example of international law’s selective accountability, activated when Europeans brutalised other Europeans. We even watched videos of Israeli soldiers boasting of raping children during the Nakba, the pride and glee still palpable decades later.
Yet, despite our knowledge of history, we were ill-prepared for the reality of rows of lifeless infants, smashed like porcelain dolls. We could not fathom hundreds of children undergoing amputations without anaesthesia—I still can’t knowing I would succumb to the pain or be psychologically mutilated going forward. Most of all, we could only gawk as Biden and Trudeau, Sunak and Macron, Borrell and van der Leyen, and the near totality of the Euroamerican journalistic class marshalled pretences to excuse the barbarism ‘the most moral army in the world’® was committing with their help. Their statements echoed grimly with the rationalisations uttered by their ancestors, verifying that today’s politicos are much like yesterday’s, regretting nothing about the racialised violence they visit upon others.
What can I do?
In his revolutionary fervour, Aimé Césaire pondered this question, articulating it as verse in Notebook of a Return to the Native Land. The passage is familiar to many, and resonates with our current dilemma.
What can I do?
One must begin somewhere.
The only thing in the world worth beginning:
The end of the world of course.
Césaire’s words reflected his desire to dismantle the colonial structures from which modernity drew breath. Because of the material and epistemological embedding of these structures, the end of the world was the only way to overcome them.
Israel’s world ended on 7 October 2023. Close to twelve hundred Israeli soldiers and civilians lost their lives, a tragedy we rightfully mourn. But what also ended was the false premise upon which Israel was built: that the ongoing dispossession, expulsion, confinement, brutalisation, and genocide of an Indigenous population could ever provide a sanctuary for a settler one.
The zionist movement was always irreconcilable, wrought by moral, logical, and historical contradictions. Led by Jewish Europeans mesmerised by the triumphs of Christian European colonialism, zionists believed they could replicate what the British, French, Portuguese, and Spanish achieved in the Americas; they would corral—or wipe off the map—the Indigenous population and revel in a secure future bolstered by a dubious interpretation of God’s will. Christian Europeans were delighted at the prospect of their Jewish compatriots championing their own exile. Anti-semites locked arms with zionists, an antithetical relationship held together by a morbid mutuality: a wholehearted agreement that Europeans should pursue one final settlement in non-European lands.
From the outset, the Indigenous population struggled against Israeli settler-colonialism, an assortment of strategies proliferating and evolving from 1948 onward. Likewise, the antinomies of zionism—Jewish democracy in a multi-faith land, security in occupation, freedom in “concentration camps”—also evolved, with new depravities and laws adopted to keep the Frankenstein alive. Alas, the plague of domination contaminated Israel from the state’s birth and it could only ever survive through endless acts of dispossession and devastation. This is hardly the first time Israel has laid waste to Gaza, each war upping the degree of violence in the hope Palestinians finally yield. As Patrick Wolfe asserted, “the role that colonialism has assigned to Indigenous people is to disappear.”
Palestinians did not disappear, rather, they struck back, forming youth movements and NGOs, launching protest marches and BDS, and sometimes engaging in armed rebellion. Despite their efforts, much of the Western world was content with two million people slowly suffocating, with even regional governments such as Egypt and Saudi Arabia anxious to nail their collective coffin. That narrative is over. A group of guerrillas collapsed years of normalisation efforts; exposed the impossibility of settler security when conditioned on Indigenous oppression; and demolished the carefully crafted twin myths of Israeli invincibility juxtaposed alongside a putative omnipresent existential threat. Israel will never be thought of as before, not by Palestinians, Israelis, or anyone else.
Césaire was enraged when he penned his poem, angling for the collapse of the colonial logics that ordered the world. As James Baldwin observed, “to be relatively conscious is to be in a state of rage almost all of the time.” Césaire dreamed of life after domination. With time, his utopian dream morphed into a realist’s nightmare, mindful of the suffering the end of the world would occasion. And suffer Palestinians have, in the most brutal ways the zionist state could fathom: under hellfire and rubble, torn apart by shrapnel, decaying from starvation and dehydration, with crumbs scattered by the international community to mollify our guilt rather than assuage their suffering.
Deploying endless stocks of Made in Euroamerica weaponry, Israel has devastated Gaza, leading the UN to declare this small sliver of land as uninhabitable, repurposed as a graveyard for children. Each new statistic proves more gut-wrenching than the last. Alongside thousands of dead children, the population must now contend with scores of obliterated schools and hospitals, the decimation of arable land and waterways, the contamination of soil, air, and consciousness, the spread of cholera and other diseases, and, perhaps most of all, the annihilation of families and communities, of love and dreams. Oppressors end worlds, too.
Recalling Wolfe, a settler society has much motivation to make an Indigenous population vanish. Their survival forever calls into question the legitimacy of a state whose existence is contingent on the destruction of its native inhabitants. Since that pivotal day, Israel has accelerated the genocide of the Palestinians, compelling some academics and politicians to deliberate ethnic cleansing as a charitable outcome, deploying the truly ghoulish language of ‘voluntary’ or ‘humanitarian’ emigration to sugarcoat the crime against humanity they wish to perpetrate.
No matter what happens at the ICJ, regardless if the ICC prosecutes the butchers of Gaza, or if Starbucks, McDonalds, and the Israeli economy collapse under the collective action of BDS, we must recognise that 7 October 2023 is also the day Palestine’s world ended.
The Palestinian struggle against Israeli settler-colonialism produced a final casualty: international law. Like other legal systems, international law’s core feature is ‘sanctioned regularity.’ Although international lawyers aspire to instil in the framework ideals such as freedom, justice, fairness, and humanity (sic), order is the driving force. A sense of regularity and predictability fosters confidence and compliance, the organised consent Antonio Gramsci theorised. What order did states commit to through international law?
All violence as a means is either lawmaking or law preserving.
Walter Benjamin’s quip highlights the symbiotic and problematic relationship between international law and violence. TWAIL scholars, including myself, have posited that the fundamentals of international law were fashioned to lend credibility to the genocidal acts Europe pursued globally. European states conspired around a form of outer-state law, treating non-European lands not only as terra nullius but also as nullius legis. Acknowledging a shared objective in subjugating non-Europeans, the peace of Westphalia provided an opportunity for Europe to wage war elsewhere. A new legal regime would facilitate the collective plunder of lands beyond Europe, moderating an orderly division of the spoils between rival imperial powers, and sanctioning what Vincent Lloyd termed the primal scene of domination on which settler-colonialism is grounded.
By 1948, European domination was enshrined in international law, not merely as a rhetorical device or pragmatic strategy (or trope) but as a guiding philosophy that would shape the global order. The UN Partition Plan perfectly encapsulated how much Europe overrated itself and underrated everyone else. Benjamin’s quip was thus incomplete: violence is deployed as a means of legitimising the domination that violence begets.
For settler-colonialists, violence against Indigenous populations was the only way: they wanted the land that other people lived on. Those who were surprised by the West’s doubling-down on Israel’s dispossession and dehumanisation of the Palestinians simply ignored history. Today’s framework of international law was never intended to address its primal scene of domination; bar the UK in Chagos Islands, no settler-colonial state has ever been legally obligated to confront its past. Even the reparations Germany begrudgingly accepted for its genocide of the Herero and the Nama (and voluntarily offered to the Israeli state) were not legally mandated, nor are the reparations France owes to Haiti and much of Western Africa or England owes to Caribbean states and much of Eastern and Southern Africa capable of being achieved through international law. The regime possesses no language to deal with its settler-colonial foundations. Instead, it is structured specifically to normalise colonialism’s afterlives, including contemporary aberrations such as the zionist state. International law’s primal scene of domination cannot be rectified through mere reforms. Rather, it would require a complete restructuring of the foundation upon which the modern system was built; it demands the end of the world.
Multilateral institutions have historically been hostile spaces for conversations about historical and structural domination. Neither the ICC nor the ICJ will ever be permitted to examine the UN Partition Plan or the Balfour Declaration, their state-imposed jurisdictional boundaries requiring the bodies to treat the colonial treaties as presumptively legitimate. They can not tackle Israel’s conquest in 1948, placing themselves in the awkward position of upholding the legitimacy of the plan’s 55:45 split alongside Israel’s conquest of 23% more of historic Palestine in violation of the prohibition on acquisition of territory by force (remember Russia?). International law was always ineffective when confronting settler-colonialism, for the system was never intended to challenge the West and its satellites. This is about to change.
Israel’s preposterous response has stepped so far over the line it has obliterated the sanctioned regularity the system depends upon. While most states were willing to tolerate an orderly and (mostly) concealed suffocation of the Palestinians, they could not turn a blind eye to actions that celebrate cruelty and double standards. This threatens the organised consent that keeps international law ticking; Yemen, you can be sure, fired only the first salvo.
Israel backed itself into a corner by chest-thumping in full daylight its violations of the Genocide Convention, the Geneva Conventions, and the most basic tenets of IHL, leaving the ICJ with no option but to accept South Africa’s robust intervention. None of Israel’s allies could do anything to prevent it, and, irrespective of the outcome, international law will never be the same. Talk of Shaw and Dershowitz, of faux decision-makers and Article 51, of Israeli state endorsed jurists and blog posts (not this one) can have no bearing on the outcome without sacrificing the international legal system at the altar of zionism. The ICJ faces a stark choice: find in favour of South Africa and indicate provisional measures or damn international law into oblivion.
While Chagos Islands was represented as a victory for anti-colonial resistance, South Africa v Israel will achieve what no anti-colonial movement ever could: a reckoning between international law and settler-colonialism, starting with Euroamerica’s darling in the Levant. For Euroamerica and Israel, the fallout is potentially catastrophic.
In the first instance, a positive outcome will force Karim Khan’s hand. Were he to issue arrest warrants for Netanyahu, Gallant, et al., he would curb their freedom of movement in much the same way as Putin is pinned in the Kremlin. It will impact upon the weapons sales Israel and the Dow Jones rely upon, with even a preliminary finding of genocide by the ICJ triggering greater—albeit insufficient—scrutiny. Last, just as the ICJ’s previous Advisory Opinion on the illegality of the Apartheid Wall will guide its analysis of its Advisory Opinion on (the illegality of) Permanent Occupation, so too will South Africa v Israel loom largely over its analysis. As the cables confirm, the fear of the Israeli political class is potent.
Césaire’s poem continues:
So much blood in my memory! In my memory are lagoons.
They are covered with death’s-heads. They are not covered with water lilies.
In my memory are lagoons.
No women’s loin-cloths spread out on their shores.
My memory is encircled with blood. My memory has a belt of corpses!
And machine gun fire of rum barrels brilliantly sprinkling our ignominious revolts, amorous glances swooning from having swigged too much ferocious freedom.
In 1947, Euroamerica ended the Palestinians’ world. Prior to and since, they have done the same to countless other populations, leaving humanitarian devastation in their wake. In 2023, guerrillas launched an ignominious revolt and ended the settler-colonial world as we knew it.
What has happened before will happen again and, from the embers of despair, the world will be born again. Whether this new world leads to Palestinian self-determination or an international law worthy of the name is anyone’s guess. What we do know is that the future of Palestine is no longer in Israeli hands, just as the future of international law is no longer in Euroamerican ones either.
The end and the beginning, indeed.