Gaza, the ICJ, and Expertise in International Law: Who Can ‘Speak the Law’?

[Moritz Koenig is a research fellow at the International Institute of Social Studies (ISS) in The Hague. His research focusses on the history and theory of international law and anti-colonial movements.]

It has become a well-established argument that international law is plagued by several indeterminacies. Scholars such as David Kennedy and Martti Koskenniemi have long argued that this indeterminacy is part of international law’s own internal structure which creates its own reality through a particular argumentative style. Moreover, Sundhya Pahuja has demonstrated that a ‘critical instability’ at the heart of international law pits political promises against positive law. Only those who are well-versed in the peculiar argumentative style of international law can claim the exclusive right to making definitive pronouncements on the validity of legal arguments. Pahuja shows how this tension between political promises and positive law has historically led to Western claims to hegemonic interpretations of international law. It currently also plays out in arguments about the Gazan genocide case brought to the International Court of Justice (ICJ) by South Africa.

Since the end of formal colonialism in the 1950s, powerful actors in international law have learned to mediate and mitigate indeterminacies and instabilities in international law. Pahuja has demonstrated that an ideological-institutional split between the ‘political’ and ‘economic’ spheres of international law have allowed for legal issues to be defined and redefined, cast and recast as one or the other by powerful actors. By moving an issue from the political to the economic sphere, for example, a transcendental, overriding imperative of development and economic growth couched in seemingly objective technical language could be created in the post-War years that deradicalized anti-colonial and independence movements and their demands for equality. The epistemic stabilization of such arguments allowed Western states to maintain certain advantages gained during colonialism, such as unequal trade treaties and the protection of international investment. Authority over the form and content of international law was, thus, tied to mastery of a seemingly apolitical language of technical expertise, ostensibly a prerogative claimed by Western actors. 

Kennedy has equally demonstrated how the indeterminacy of law he discovered in an earlier period can be represented to an unsuspecting public as something that can only be brought to order by a technocratic managerial elite. These managerial elites, wielding the sword of ‘expertise’ are then able to represent deeply political struggles as something that needs to be tamed by objective, politically neutral technical skills. What such calls for expertise hide is that they are primarily designed to deradicalize struggle and create unequal conditions to be able to ‘speak the law’. Pronouncing what international law is or should be requires, as a result, adherence to a narrowly defined set of technical vocabularies and the cultural etiquette that goes hand in hand with international law. In popular contexts, such ability to ‘speak the law’ based on purportedly level-headed expertise has also been referred to as ‘being the adult in the room’ and denouncing more struggles calling for the promises of human rights to be extended to victims of Western violence as ‘radicals’. As a result, a perniciously circumscribed, meaning apolitical, conception of international legal expertise becomes the basis of claiming authority over international law and dismissing legal arguments that do not conform with contrived Western notions of competency.

The current situation in Gaza, the case under the Genocide Convention brought by South Africa to the ICJ, and recent student encampments have brought such considerations about the ability to authoritatively speak about international law into sharp relief. Hillary Clinton has accused student protestors calling for an end to genocide in Gaza of ‘ignorance’, dismissing their ability to speak about the crime of genocide based on their lack of knowledge of the Middle East. Expertise, in this case, works as a rhetorical device that sets apart purportedly uninformed ‘radicals’ from seasoned career diplomats who, according to Clinton, possess the cultural etiquette and professional decorum to pronounce which international legal arguments are valid and which ones are not. Universities have also told their students that they must remain ‘neutral’ to be able to speak about the conflict. Moreover, Western governments and Israel have repeatedly dismissed South Africa’s case to the ICJ as its legal team has, in their view, presented ‘biased and false claims.’ Officials have called on the ICJ to dismiss the case referred to it as an ‘abuse’ of the court. Equally, German officials have called Nicaragua’s legal challenge ‘grossly biased’ and German media has portrayed the supporters of Palestinian liberation as petulant children who misunderstand law and politics. In parallel, Western nations have virulently dismissed the application of the Genocide Convention as an ill-guided attempt to ‘play politics’. Accusations of bias and gross misunderstandings of international law work to paint lawyers from the Global South and social justice movements for liberation as irrational actors who do not comprehend the intricate details of international law. An extremely circumscribed version of international legal expertise thus distributes entitlements to make international legal arguments while serving to infantilize non-Western legal arguments and extending W.E.B. DuBois’ color line to contemporary debates.

Accusations of petulancy, ignorance of international legal standards, and a supposed lack of cultural competency have a long history of being invoked by powerful actors in international law to reject the wider involvement of the Global South in the making of international law. For example, Western media and political elites widely denounced participants to the Bandung Conference of 1955 as infantile and incompetent who failed to understand the complex institutional terrain of international law (see Kevin Crow’s chapter). Such arguments have historically served as claims to stabilize the hegemony of Western conceptions of international law and the concomitant advantages such interpretations bring. As such, invocations of apolitical technical expertise and neutrality have become a civilizational language that elevates the language of Western actors. Participants to the Bandung Conference, the South African legal team in the ICJ case, and student protestors clearly have technical expertise and expert knowledge in abundance. However, their pairing of such expertise with overtly political claims fosters accusations of ‘playing politics’ which can, as a result, be dismissed as irrational and biased. 

However, the ICJ genocide case has recently helped erode such exclusive claims to expertise with technical hegemony slipping away from powerful Western actors. I argue that it was the transformation of the traditionally well-guarded domain of international law into a public spectacle by vernacular actors which has contributed the most to disintegration of Western claims to argumentative hegemony in international law. Live broadcasts, communal public screenings, and heated debates on social media have elevated the vaunted halls of international justice into popular consciousness. In a recent piece for Opinion Juris, I argued that we have reached a new stage in international legal debates where vernacular accounts of international law fiercely challenge theoretical orthodoxy. And indeed, powerful vernacular conceptions of international law were and are on full display in the context of South Africa’s case, helping redefine expertise and legal knowledge. 

In a public screening in front of the ICJ in The Hague, a sizeable crowd gathered across all trial days and the day the ICJ announced its judgement. Never before was international law on such prominent display to a broad audience that was deeply engaged with its complex arguments and questions of jurisdiction. South Africa’s legal arguments were met by frantic cheers and its lawyers were celebrated with applause and chanting. Their ability to ‘speak the law’ was elevated audibly by crowds of ‘vernacular lawyers’ who equally reclaimed their expertise and ability to pronounce what international law is and should be. As such, the universal promises of justice made by international law were reclaimed and the mechanisms Western states devised post-World War II to banish political demands for independence to the realm of Western apolitical expertise were, at least partially, eroded. 

In my view, two conclusions follow from this. First, lawyers and movements from the Global South have very publicly broken the Western stranglehold over technical expert knowledge and reversed complaints about petulance to the actors who keep accusing supporters of Palestine of ‘bias’ and irrationality. Second, the case has opened new opportunities to redefine what expert knowledge can be. Having shown that the transcendental plane of ‘objective’ managerial interventions, as detailed by Pahuja and Kennedy, is in fact motivated by a distinct political economy, South African lawyers and transnational activists have paved the way for an international legal expertise that is not grounded in seemingly apolitical conceptions of international law, but in morally driven legal activism. Therefore, new avenues for more overtly political, justice-driven claims to expert knowledge and technical expertise in international law have been opened.

As a result, not only do those mobilizing for Gaza carry forward the legacy of previous generations of international legal activists. The recent popular spectacle of international law, the elevation of complex international legal arguments into the public arena, and the casting of its actors as figureheads of a popular movement have also shown us how to reckon with the apolitical nature of expert knowledge that has for years dominated the exclusionary practice of international law.