Rethinking International Law After Gaza Symposium: The Palestinian Genocide and the Colonial Core of International Law

[José Manuel Barreto works on decolonizing human rights and international law based on TWAIL and Decolonial Theory. He teaches law at the Javeriana University in Bogotá and will publish ‘Decolonial Theory and the History of Human Rights’ in 2025.]

The Palestinian genocide has unveiled the deep colonial structure of the international legal order. The so-called Westphalian system has been inveterately depicted and legally defined in the UN Charter as one of ‘equal’ ‘sovereign’ ‘states.’ Against the black letter of positive international law, the Palestinian Genocide has made evident the material reality of the formally liberal (based on the sovereign liberty of states) and democratic (obeying the equal value of the will of each state) international legal order: this is not an order of equals, neither of sovereigns nor states. Rather, as the images of decapitated boys and girls and remains of bodies show up again and again for twelve months on the screens of mobile phones, computers, and televisions, the international legal system has revealed its true core: a colonial order before our very eyes —an order of unequal subjects; sovereigns and colonized; and of states, empires, settlers, and colonies. 

The places, moments, and decisions in which the colonial reality of international law has been revealed are, first, the times in which the United States has exercised the veto to block proposals put before the UN Security Council ordering Israel to stop the genocide in Gaza and withdraw. The right to veto is not only a privilege of the victors in WW2; it is an advantage given to themselves by the same vanquishers that simultaneously happened to be at the time former and new empires: the British, French, US, and Russian/Soviet empires. 

The great powers have two personalities or act in two different capacities: legally as states and materially as empires. The veto of a single permanent member of the Security Council is first a ‘right’ that trumps the votes of all the other permanent and transitory members, i.e. a naturalized shutdown of the democratic principle of majority. This prerogative allows the vote of one to be valued more than the vote of all other sovereigns. As a result, they are not equal sovereigns as the rest of the members of the Security Council and the United Nations. In an Orwellian fashion, these five states -including the US- are more sovereign than all other sovereigns and, therefore, truthful empires -even after all the sovereign subjects of international law were formally declared states according to international law in Westphalia in 1648 and San Francisco in 1945. 

The veto also has a second qualitative advantage allowing the holders to rise above international law. The principle of sovereignty of states was transformed by the human rights system, allowing the UN and the international community to inspect the human rights situation in every sovereign state and to hold it responsible for its violations. Such a permeability of sovereignty disappeared every time the US vetoed the proposals ordering Israel to stop the genocide. The will of an empire shielded the sovereignty of the state of Israel -a settler colonial state- allowing it to continue perpetrating not only a common or even grave violation of human rights but the campaign of destruction that has led to the most vile and egregious of all: genocide. 

International Law Reform to Hold Back Genocide

The Palestinian Genocide has urged prompt international law and United Nations reform. Although such a move surely would not have consequences for the current genocide, it can have effects on future instantiations. Beyond the ideal elimination of the veto, a more feasible reform is needed. To diminish the imperial powers of the permanent members and the colonial character of the Security Council, as well as to avoid the Security Council being paralyzed in front of genocide -and the whole UN discredited as good-for-nothing as it is today for many in the world- a key reform of the veto powers would put the suffering of entire peoples before imperial capacities: It should be out of use in the case of genocide.

The previous decision about the existence of genocide cannot be left in the hands of a political body but of the International Court of Justice, which has been charged since 1948 with the guardianship of the Genocide Convention. In this context, the Court should act fast enough according to the gravity and urgency of ending genocide in a special and speedy procedure, not as it can in pursuit of establishing state responsibility years after everything is finished, and tens or hundreds of thousands of human beings, children and adults, have been maimed, killed and torn to pieces. The Court has given proof of being able to comply soon enough with such a task when responding to the request of South Africa ordered a month later provisional measures and afterward found there was an ‘imminent risk’ of genocide, or ‘plausible’, likely or probable the claim by South Africa about the existence of genocide.

Turning to the examination of individual responsibility in the Palestinian Genocide, it has transparent how the International Criminal Court has been subjected to menaces like that of the Mossad, and to overt pressures like that of a bipartisan group of members of the US Congress generously supported by the AIPAC. Such intimidations have resulted in the Court being refrained from adopting a decision about the application by the Prosecutor for arrest warrants for Israel’s Prime Minister Netanyahu and Defense Minister Gallant. Such activities are usually typified in national jurisdictions as the crime of contempt of court. A new international crime should be introduced in the Rome Statute to prosecute those responsible, including the agents of imperial or colonial interference in judicial proceedings.

The Palestinian Genocide and the History of Colonial Genocide

The Palestinian Genocide also brings to light the five hundred years of history and the concept of colonial genocide. The common idea of genocide is Eurocentric. Coined by Raphael Lemkin in the context of the Nazi atrocities, the term was later enshrined in the 1948 Genocide Convention quoting the Holocaust as antecedent. This became the first and universal legal definition of genocide as both an international crime and a human rights violation. The creation of the word and the legal recognition responded to a dreadful crime committed within Europe’s geography. This crime still occupies a central place in the history of Europe and the world. Critically, the victims were Europeans, the European Jews, in most of the cases. The Genocide Convention mentions the territory of a state as the place in which genocide can be accomplished. The Nazi totalitarian state was the death machine behind the horrendous crime of the Holocaust, and the victim was characterized as an ethnic and religious group, and a minority: the Jews. Dirk Moses has written that the Holocaust has become the legal paradigm of genocide, and for an event ‘to be genocide needs to resemble the Holocaust’. In this cultural landscape, the Eurocentric history of genocide is composed of one single event, at the same time the first and the last one of its kind: the Holocaust.

Nevertheless, if we recontextualize genocide in the history of modern colonialism we can see that genocide is not only a XX Century and quintessentially European phenomenon, and that there is also a modern history of colonial genocide from the XV and XVI centuries.  This history was inaugurated by the Conquest of America and the extermination of hundreds of American indigenous peoples and millions of human beings, and extended until today throughout the history of modern colonialism. We can mention among them the Congo and the Namibian genocides.

The Congo genocide was carried out at the end of the XIX Century by a Belgian private businessman who happened to be King Leopold II -the only stakeholder and single owner of the International Society of Congo, a colonial company. To plunder the rubber and ivory of this huge African region, the company appropriated most of the land, enslaved and mutilated part of the population including children and was responsible for the genocide of between 10 and 20 million people.  

The same moral, legal, and political recognition and condemnation given to the genocide of the European Jews was not applied to a genocide committed just a few years earlier, by the very same criminal state, Germany. However, the material authors were not the SS, but troops of the German Empire occupying the colony of German West Africa, which were commanded not by Hitler but by General Lothar Von Trotha. The genocide was outside Europe, in Africa, in today´s Namibia. And the victims were not Europeans but the colonized Nama and Herero indigenous peoples. 

Colonial genocides have been committed in the global geography of the colonized world. Colonial genocides are not the make of states against minorities. By contrast, empires, colonial companies, and occupying states or settler colonial states have perpetrated colonial genocides against indigenous peoples. We can count among them the colonial genocide in Palestine.  

As it has happened for the past five centuries, the Palestinian Genocide shows that European settler colonialism continues to perform one of its historical tasks: genocide. Empires and former empires like the US, the UK, and France continue to be authors and accomplices of genocide by enabling the genocidal aggression of a people.  The settlers are mainly European and US citizens. They were the survivors of the Holocaust, or the descendants of the victims of the Holocaust. They are part of the Jewry dispersed all over the world that goes back to a land purportedly promised more than 2000 years ago by their God, as it is written in sacred texts (though contested by many Jews and scholars of the Judaic tradition). The settler state or the occupying state of Israel is at the same time the instrument and the product of the colonial dynamic of occupation and appropriation of the land. The empires providing the planes and the bombs to carpet bomb Gaza are the US and the old European empires, including Germany, which thinks it is dispensed of responsibility for a genocide being the accomplice of another genocide. Israel is an extension of the colonial use of violence by the US and European empires. 

Re-defining International Law

What can be the consequences of the recurrence of colonial genocide throughout five centuries of modern colonialism for the very definition of international law? In the Westphalian and Eurocentric tradition international law is characterized as a path to peace and international cooperation. This is in accordance with the hegemonic historiography composed mainly of European peace conferences and treaties, among them Westphalia, Utrecht, Vienna, The Hague, Versailles, and San Francisco, which usually ended wars between European sovereign states. This is only the provincial European narrative of the political and legal hallmarks of modern international law as a corpus of norms created by sovereign states and, in turn, regulating the relationships between them, as well as securing peace and protecting humanity and freedom. 

By contrast, in the context of modern colonial history international law has been a master of extreme violence, and a source of legitimacy of colonial domination and genocide over centuries and the geography of all continents in the times of the global world. In the terms of Wilhelm Grewe, across the epochs of international law, ius gentium has lent a hand to the so lethal advance of the Portuguese, Spanish, Dutch, French, British, Belgian, German, US and Soviet empires over the territories and countless lives of colonized peoples.

We should deem as partial, ideological and merely positivist definitions of international law constructed around states as only sovereigns, and as norms guided by the teleology of peace and humanity. Such a conceptualization should be put in tension and supplemented by a more comprehensive and decolonial understanding that portrays International law also as a tool for the destruction of the lives and bodies of millions of human beings inhabiting the colonies -as a discourse of justification and legitimation of genocides enacted by empires and colonial companies.

To conclude, the Palestinian Genocide testifies to the fact that the coloniality of military, political, and economic power structure that characterizes the contemporary world system is the material condition for genocide to be perpetrated again. For the last five hundred years and still today when we approach the first quarter of the 21st Century, the international legal system is organized around a structure of imperial powers, including empires (or empire-states, empires disguised as states, and former empires), and colonial and transnational companies, on the one hand. On the other, colonized peoples, former colonies, neo-colonies or Third World peoples. The neo-colonial contemporary world structure of power pursues the immanent objective and long historical logic of the appropriation of land and colonial accumulation of capital enabling genocides to be committed in the Third World, including the Palestinian genocide.