When Vusimuzi Madonsela, the South African ambassador to the Netherlands, introduced his country’s case against Israel at the International Court of Justice last January, he began by evoking the events of the year 1948. It was in 1948 that Zionist militias carried out the Nakba, violently displacing some 750,000 Palestinians from their native land. It was in 1948 that the all-white government of South Africa instituted its regime of apartheid; 1948 when the U.N. adopted the Universal Declaration of Human Rights as well as the Genocide Convention, the treaty that Madonsela, on behalf of South Africa, was charging Israel with violating; 1948, the year that the last British troops departed Palestine and a newly partitioned India, signaling the beginning of the end of empire. It was the year international law, as we know it today, came into being.
For a brief moment, the trial held the attention of the world. Footage of South Africa’s lawyers detailing the scale of the killing in Gaza shot across the internet. The governments of Canada, the Netherlands, Japan, Spain, and Belgium announced they would halt certain arms shipments to Israel. Legal experts widely considered South Africa v. Israel to be the most significant case that the International Court of Justice (ICJ) had taken on since its founding at the end of the Second World War, its reach extending beyond the ongoing aggression in Gaza and forming a litmus test for the legitimacy of legal institutions charged with upholding the shared values of humanity. “International law itself is on trial today,” read one viral tweet.
The attention didn’t last long. The court did not demand the most urgent aspect of South Africa’s request — an immediate and permanent ceasefire — instead finding “plausibility” in the case and ordering Israel to “take all measures within its power” to prevent genocide. For many tuned into conditions on the ground in Gaza, where the Israeli military had all but obliterated the medical system and where famine was tightening its grip on the besieged population, the ruling fell flat, its legal vernacular hard to parse. An online debate about its significance ensued. The Palestinian American legal scholar Noura Erakat uploaded a video to social media describing her initial reaction.
“I’m relieved,” she said into her phone camera, her face framed by a black umbrella. She had “mixed feelings” about the decision due to the lack of a ceasefire measure, but the judges had taken South Africa’s allegations of genocide seriously, and the case would press on. It was now in the hands of the movement for Palestinian liberation to “take this ruling and to agitate globally, to continue to isolate Israel and the United States politically, to continue to demand an imposition of weapons sanctions.”
But in the weeks that followed, it seemed the gulf between the international legal sphere and the movement for Palestinian liberation, narrower after South Africa first presented its case to the ICJ, had widened again. The language of the judges’ preliminary decision and the lack of a ceasefire call proved too feeble to agitate around. South Africa’s subsequent visits to the court to request additional emergency measures — the halt of the invasion of Rafah, the prevention of a full-scale famine — hardly made an appearance in the news or on social media. On the ground in Gaza, the proceedings meant little. Israel’s regime of bombing, displacement, and hunger continued.
RECLAIM OR ABANDON
Jewish polish lawyer Raphael Lemkin coined the term genocide during the Nazi Holocaust, a neologism of the Greek genos (race, tribe) and the Latin cide (killing). It was first introduced in his book, Axis Rule in Occupied Europe, an account of Nazi atrocities written after he fled to the U.S. in 1942. Lemkin spent the following decade trying to popularize the term, first in the indictment of German leadership during the Nuremberg Trials, where he served on a team of American lawyers, and later at the United Nations, where he campaigned for its encoding in international law.
Lemkin, who lost scores of family members in the Holocaust, was an ardent Zionist, and the European nations to which he appealed to ratify the Genocide Convention were colonial powers, architects of the mandate system that had carved up the Arab world and signed Palestine away to Israeli statehood. Lemkin’s “conception of humanity as comprising distinct nationalities did not originate in the liberal cosmopolitanism he postulated upon arriving in the U.S., but in a lifelong Zionist commitment to Jewish statehood in Palestine,” wrote A. Dirk Moses in The Problems of Genocide, an authoritative account of how the concept of genocide came to exclude many forms of mass killing. Western governments were keen to develop a legal definition of the crime that absolved them of their own violent acts, such as the system of lynching and Jim Crow laws in the southern United States and the suppression of colonial rebellions in South Asia, Moses argued. The result was a law that exceptionalized genocide, affixing its threshold of transgression to the events of the Holocaust.
“As long as they can point to any other discernible goal — to subjugate, dispossess, or enslave, or even to lash out and take revenge — states have a potential alibi against the charge of genocide,” wrote the legal scholar Darryl Li in Dissent in January, citing Moses. “Apologists for mass violence have long seized upon these infirmities in the legal definition to derail allegations.” Other instruments of international law have the same foundational contingencies. The Geneva Conventions established rules for wartime, but when they were written, the proceedings were riddled with anxieties over what Western powers might be held accountable for down the line.
“The Americans, for their part, tried to protect their interests as hegemon and occupiers, while the British tried to prevent human rights from overlapping with humanitarian law to protect their colonial interests,” Boyd van Dijk wrote in his book Preparing for War. His research included a memo from the U.K. foreign office stating “all the great Powers intend to bomb civilian centers of populations if it suits them.”
The Geneva Conventions fall under the umbrella of international humanitarian law, a set of rules developed after the Second World War to govern military conduct in wartime. While international humanitarian law is litigated through domestic courts and international treaties like the Geneva Conventions, it functions primarily as a discourse, one that transcends the halls of legal institutions and offers a framework for states justifying modern wars and journalists reporting on them. One of its key principles is “proportionality,” or the idea that the strategic advantage of a military action must be balanced against the potential loss of civilian life. The Israeli military, which has a legal division and a media wing, often appeals to this principle to defend its targeting of civilian infrastructure like schools and hospitals.
To engage within any of these post-war international legal frameworks is to tread slippery terrain. The terms of the debates they engender legitimize the law’s colonial roots, confining argumentation to definitions set down by Western powers 75 years ago. Nonetheless, South Africa’s case and subsequent rulings on Palestine at the ICJ and the International Criminal Court (ICC) have pitched international law into the floodlights, legitimizing the Palestine movement’s claims of genocide in the geopolitical arena and provoking global condemnation of Israel’s war. Could international law, despite its limitations, play a role in the advancement of Palestinian liberation, or are international lawyers simply, as the law professor Shahd Hammouri put it, “merchants of phantoms,” pedaling the promise of freedom but unable to offer anything past the vagaries of morally cloudy legal doctrine?
I presented these ideas to Erakat on a hot evening in Philadelphia in mid-July, at a trendy resto-bar on the city’s north end. Best known for her appearances on cable news, where she skillfully lays out Israel’s violations of international law, Erakat now spends most of her time immersed in legal scholarship. Much of her written work, including her first book, Justice For Some, explores the history of international law as a vehicle of Palestinian dispossession. She greeted me warmly, and moments after sitting down, started to talk about a particular research question animating her at the moment, one that connected to my question about the utility of the law: Why is a racial and colonial analysis of Zionism necessary for a decolonization project, and how should that politics shape the approach to international law?
Erakat spoke expressively, mixing Arabic and English and occasionally brushing her long hair out of her face. She and the legal scholar John Reynolds had begun exploring this question in a 2022 article in Jewish Currents, and it formed the foundation of a book they were writing together. Human rights groups had, over the past several years, released long-awaited reports accusing Israel of instituting an apartheid regime across Palestine. Such findings would have been inconceivable a decade ago, but the consolidated nature of the reports from groups like Amnesty International and Human Rights Watch gave them an air of legitimacy in policy circles, and politicians like Representatives Rashida Tlaib and Cori Bush began citing them in Congress.
While Erakat welcomed the findings of the reports, she saw a fundamental problem in their approach. The human rights groups situated the system whereby Palestinians are constricted in movement, heckled at checkpoints, and denied access to their own land and natural resources as developing after the 1967 Naksa, in which Israel seized control of the Syrian Golan Heights and the West Bank. According to this narrative, Erakat and Reynolds wrote, Israel was an “imperfect democracy” prior to 1967, thereafter adopting policies aimed at dividing the population along religious lines. This understanding “naturalizes the most formative event in the Palestinian national consciousness,” the 1948 Nakba, and fails to recognize Israeli apartheid as a tool of Zionist settler colonialism.
“We are not criticizing the fact that there is a Jewish state,” said Amnesty Secretary General Agnès Callamard after the publication of her organization’s report. “What we are calling for is on the Jewish state to recognize the rights of all people living under their control and on their territories.”
Statements like this mark a departure from the radical critiques of Israeli apartheid that developed in the aftermath of the Naksa. In their article, Erakat and Reynolds wrote of Palestinian intellectuals such as Fayez Sayegh, the founder of the Palestine Liberation Organization’s (PLO) research center in Beirut, who, in the 1960s, identified racism not as an “accidental, passing feature” of the Israeli state but as inherent to its foundational logic. Sayegh and his contemporaries saw an opportunity to advance this analysis at the international level in the 1960s when third-world countries became the majority bloc in the U.N. The 1973 Apartheid Convention “bore the imprint of the South African and Palestinian intellectual traditions,” Erakat and Reynolds wrote, and Palestinian efforts in the body culminated in the adoption of General Assembly Resolution 3379, which declared Zionism to be “a form of racism and racial discrimination.”
Their success would be short-lived. The signing of the Oslo Accords in the early 1990s saw the withdrawal of Resolution 3379, a concession that the PLO granted the Israelis on the condition that Palestinians would, on some undefined future date, have their own sovereign state. Today, Oslo is widely considered among Palestinians to have been a betrayal, a green light for Israel to expand its settlement-building project and a justification of the liberal critique of Israel that places the roots of Palestinian unfreedom in 1967. Had the resolution not been repealed, “perhaps it would feel more possible to move the goalposts of the discourse beyond naming the persistence of racial discrimination toward a critique of enduring colonial control,” Erakat and Reynolds wrote.
At the restaurant, Erakat told me she’d long lost interest in working within international law’s liberal framework to advance courtroom victories. Over her two-decade career, conditions on the ground in Palestine have only deteriorated, with international law unable to offer a means of ending settlement expansion in the occupied West Bank or the Israeli blockade on Gaza. Now, her interest lies in scholarship that tackles the ideology of Zionism head-on, whether or not it leads to a desired legal outcome.
“I understand that our approach doesn’t guarantee anything,” she told me, leaning in to emphasize her point. “We might lose, but that’s the argument we should be forwarding.”
Erakat was gesturing toward the law’s discursive power, its role in shaping the terms of the international discourse around Palestine, and the ability of both legal scholars and movements to intervene and change the terms of that debate. On a phone call in June, Erakat had laid out two different approaches for thinking about international law with respect to Palestine. Some ascribe to the law a liberatory potential it does not have, assuming that legal institutions are not implicated in the economic, military, and political systems that entangle Palestinian reality. Others take up a nihilistic position, arguing that the law is simply a tool used by imperialist forces to justify or cover up war crimes. This logic, she said, fails to contend with the power of movements and coalitions, a diffuse and dynamic power that can push the law forward.
Taking a sip of her water, Erakat built on this connection between the law and political mobilization using the recent ICJ trial. Had the world been silent after October 7, South Africa may have never brought its case against Israel; the court may not have found plausibility in the case, a decision that led multiple countries to suspend arms shipments to Israel. But after October 7, people across the globe took to the streets in the millions, sounding the alarm for genocide before the term ever entered the international political arena.
“And so, by the time South Africa brought the case, they were riding the coattails of a movement.”
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NOTES ON STRATEGY
Palestinians have a term for what they’ve endured over the past 75 years, one that captures the daily violence of occupation, the fragmentation of land, and the desolation of protracted exile. Al-Nakba al-mustamirra, the ongoing catastrophe, recognizes the Nakba not as a single event but as a structure that continues to shape Palestinian reality, forming what the Palestinian Marxist historian Maher Charif calls an “open, bleeding wound.”
After the most recent Israeli aggression on Gaza began, Palestinian lawyer and doctoral candidate Rabea Eghbarieh became interested in incorporating this concept, which emerged organically among Palestinians, into legal scholarship. Like Erakat and Reynolds, he identified a failure in international law to reckon with the events of the Nakba, and by extension, the ideology driving the Israeli occupation and the Gaza genocide. The Apartheid Convention, for instance, might be useful in articulating the ID system that Israel implemented to splinter Palestinians into different legal, geographic, and political domains, but it fails to engage with the history of Palestinian expulsion and displacement.
His article, “Toward Nakba as a Legal Concept,” faced fierce backlash before its publication in the Columbia Law Review in June, with the university taking down the journal’s website hours before its publication. The paper identifies Zionism as the Nakba’s ideological counterpart and positions “displacement as the Nakba’s foundational violence, fragmentation as its structure, and the denial of self-determination as its purpose.”
Eghbarieh’s text was rooted in personal experience. Before beginning his PhD at Harvard, he practiced law at the Palestine-based legal center Adalah, where he took on the case of Attiya Nabaheen, a 15-year-old boy in Gaza who, during a ceasefire in 2014, was shot in the neck by an Israeli sniper while walking home from school, leaving him paralyzed. The Israeli Supreme Court dismissed the case in 2022 and rejected an appeal the following year, foreclosing any chance of Nabaheen receiving compensation for a life of hefty medical bills. In the end, it wouldn’t matter. On October 8, 2023, Eghbarieh got a call from Gaza: Nabaheen had been killed in an Israeli airstrike on the family’s apartment building.
The death of his client compelled Eghbarieh to look beyond the confines of the existing legal system in his pursuit of justice. He was inspired by native South Africans’ coining the term apartheid, a reappropriation of an Afrikaans word meaning to separate, and he wondered if the Nakba might also someday become part of the global lexicon.
“Everything is made up in international law, anyways. So what, Europeans made [the law] in the nineteenth century, and that’s the universal truth and Palestinians have to fit in that category?” he asked. “Sorry, no. I reject that.”
There is a name for lawyers who, like Erakat and Eghbarieh, begin from a common understanding — that international law legitimizes the West’s plunder of the third world and that, as law professor Makua Matua put it, it is a “regime and discourse of domination and subordination, not resistance and liberation.” The Lawyers of the Third World Approaches to International Law (TWAIL) tradition use scholarship and politics to deconstruct the colonial and racialized roots of international legal norms and develop alternatives. I asked a group of TWAIL-ers about how they were perceiving international law amid the ongoing aggression on Gaza. While the public has largely moved on from the ICJ hearing, this group of lawyers has spent months steeped in vigorous debate about its merits — and the merits of other potential legal interventions.
Speaking over a Zoom call, Darryl Li, an anthropologist and attorney at the University of Chicago, argued that the law should be judged by its material effects, like anything else, and that those effects don’t always track with courtroom decisions. He used the example of the ICJ’s 2004 advisory opinion declaring Israel’s 30-foot concrete wall around the occupied West Bank a violation of international law — a legal victory, and one that led Israel to make some changes to the wall’s route. But the court’s opinion was based on the argument that the wall was illegal because of where it was placed — “a more limited, technical narrative” reducing the structure to the outcome of a real estate dispute rather than a symptom of colonialism or apartheid. The decision came down during the Second Intifada, a period of heightened violence and disillusionment in which thousands of Palestinians were killed while protesting in the streets, and its argument was not connected to the political mobilization on the ground.
That’s a very different circumstance to South Africa’s case at the ICJ, Li said. Now there is a global movement against Israel’s genocide that is pushing the Overton window on the debate, creating a feedback loop into the politics. A number of states decided to intervene in the case, possibly laying the groundwork for sanctions down the line. In addition to the countries that announced they would be suspending arms sales to Israel, other nations pledged to stop purchasing Israeli weapons. The fact that the court’s decision had a significant impact on public discourse — should that be considered material or symbolic? he asked me. “It created a process by which Israel had to keep coming back to the court to make itself look better,” he said. “I think it’s non-trivial in its importance. I will be the first to say that it was made possible by resistance of all kinds.”
Like Li, legal scholar Ntina Tzouvala sees merit in South Africa’s case at the ICJ. Speaking from her home in Canberra, Australia, she explained that the power of South Africa’s case lies not in its devastating descriptions of life in Gaza but in its construction of genocidal intent, which details how Israel’s 17-year blockade on the Strip limited Palestinians’ access to food and clean water long before the recent military aggression. The Genocide Convention, she said, while flawed in many respects, offers space for a material critique of Israeli military policy that doesn’t exist under international humanitarian law — which might litigate, for example, the bombing of an aid convoy but not the reasons why that aid was needed in the first place.
If someone implemented a blockade on Australia, Tzouvala mused, people wouldn’t be going hungry in a month. But in Gaza, starvation experts had “never seen a civilian population made to go so hungry so quickly and so completely,” said U.N. Special Rapporteur on the right to food Michael Fakhri in February. The Convention defines genocide as any of five “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group,” one of them being the imposition of living conditions intended to destroy the group. By focusing on this act of the Convention, South Africa’s case supplants the account of Israel’s war as a response to Hamas’ attack on October 7, instead constructing it as an aggression between an occupying power and a blockaded population. Unlike the usual abstractive tendencies of the law, the decision situated the conditions in Gaza within the political-economic reality of a decades-long siege.
“The left can think about which fields [of law] offer better opportunities for struggle,” Tzouvala said. “All fields are biased against colonized peoples, but they’re not all equally biased, and they don’t all give us the same breadth or opportunity to argue.”
Rob Knox, an editor at the London Review of International Law, rejected the notion that an international trial could advance a liberatory objective. In a recent essay titled “Hypocrisy, Race, and International Law,” he explains why describing Israel as behaving “above the law,” while tempting, should be resisted. Such a framing equalizes settlers and colonized subjects, obscuring the role of Zionism in shaping international law and ascribing it a justice-forwarding potential. He used the example of recent arrest warrants from the ICC, in which more Hamas officials were indicted for potential crimes than Israeli officials. This was the result, he said, of international humanitarian law’s “internalization of a racialized division between civilized and uncivilized forms of violence, in which imperial powers are granted significant room for maneuver.”
Speaking from his bedroom during a Covid quarantine (in which he was remarkably energetic), Knox explained that law is central to capitalism, so we are always engaging with it. The question is how to engage in legal arguments while maintaining an awareness of their structural flaws. He offered several examples from the Algerian revolution to describe how law might be deployed strategically to advance a liberatory project. Lawyers for the resistance were themselves revolutionaries and used their positions to clandestinely pass letters between political prisoners, transforming the prison into an active front in their liberation struggle. When a revolutionary was tried for treason in a French court, Algerian lawyers would fill the courtroom and sing nationalistic songs, publicly refusing to participate in what they saw as a sham trial.
I asked Knox how, then, should people respond to high-profile cases like South Africa v. Israel. If South Africa wins its case, Knox said, the outcome could be used to sustain the Palestine movement. Individuals tried in court for occupying a weapons manufacturing facility might be able to use the decision to forgo jail time, arguing that their actions were an attempt to deter a genocide. Rank-and-file employees might appeal to the decision to explain why they are withholding their labor.
Knox’s suggested interventions imagine the law as a site of narrative-making, a space to push the debate on Palestine toward a discourse of decolonization. This narrative-making could happen in the courts, as Li and Tzouvala suggested, by setting down in the legal record a case for Palestinian liberation from a structure of oppression extending back to 1948. It could also develop through the subversion of international legal instruments, as Knox proposed, by rejecting outright the false equivalencies that have long confined and thwarted Palestinians’ national liberation struggle.
THE NEXT FRONT
All these uses of the law, however effective in their deployment, will do little on their own, the lawyers I spoke with agreed. Improving material conditions on the ground in Palestine is a long fight that will rely on a constellation of intersecting factors, among them political mobilization, economic interventions, and geopolitics.
Nasreen Abd Elal, a member of the Palestinian Youth Movement in New York City, asked with the soberness and practicality of a seasoned organizer what international law could offer their national liberation struggle. South Africa’s case, she said, should be examined through different durational perspectives. There is an argument to be made that the trial actually worsened conditions in Gaza in the short term, with the Israeli military escalating its aggression in response to states’ withdrawals of arms shipments. Simultaneously, it helped bring people across the world into the streets at a moment when mass mobilization was the movement’s dominant strategy for stopping the genocide.
In the coming years, she said, international law could facilitate the continued withdrawal of state support for the Zionist project, leaving Israel a global pariah. She referenced the ICJ’s July decision declaring Israel’s activities in the occupied West Bank, East Jerusalem, and the Gaza Strip apartheid, and placing responsibility on all states to stop supporting the discriminatory system — effectively making the Palestinian boycott movement a global legal imperative. That court opinion could help to further isolate Israel politically.
“International law can be useful for making the demands of the movement more appealing to a wider audience,” she said. When the war eventually ends, the movement’s broader support base will lose stamina. But Palestinians will keep dying. A recent study from the medical journal The Lancet projected that the death toll in the months and years following the war could exceed 186,000 due to a lack of medical care and access to basic necessities. Indeed, organizers and Palestine experts agree: The rebuilding of Gaza constitutes a next site of their struggle since Israel’s constriction of humanitarian aid and blocking of the U.N. Relief and Works Agency for Palestinian Refugees — policies that created famine in northern Gaza — are likely to continue.
“A key question for our movement going forward will be: What role can law play in retaining people’s political commitment after the bombs stop dropping?” Abd Elal said. The work will not end with a ceasefire since the conditions created by the war will persist long into the future. “We have to ask ourselves now how law can be used to fight for and secure Gaza’s capacity to rebuild.”
The rebuilding is hard to fathom. Gaza lies in ruin, its hospitals, universities, and mosques reduced to heaps of crumbled stone. The U.N. estimates that 80 percent of the Strip’s buildings have been destroyed; it will take 15 years to clear the rubble, a century to restore them all. At the time of writing, the Israeli military is escalating its bombing campaign of Deir al-Balah, where over a million displaced Palestinians are crowded into an area with a pre-war population of 80,000. Polio and pollution-borne skin diseases are spreading. Famine continues to grip the North.
In the face of such devastation, it is hard to conceive of anything within the realm of discourse or non-binding legal decisions as particularly meaningful. And yet, over the course of my research and interviews, I found myself pulled in different directions by the arguments I encountered. I was compelled by the moral clarity articulated by Knox — the refusal to engage within the terms of a fundamentally colonial and racist international legal system — but I could see why someone like Erakat, despite her deep knowledge of the law’s deficiencies, would express relief at the ICJ’s initial ruling on South Africa’s case. Everyone I spoke with identified with the TWAIL tradition, and in keeping with its premise, warned against putting too much stock in the law as a conduit for achieving liberatory justice. But I also understood Eghbarieh’s desire to carve out a space in this hamstrung system for the Palestinian experience, singular in its subjection to a colonial project born at the dawn of a postcolonial world.
There is, it seems, no way to engage with international law in the context of Palestine and not stumble over various contradictions and emerge feeling dissatisfied. But as legal experts insisted in our conversations, disengaging is not an option. And so, the law becomes a lane, just one in myriad thoroughfares — some new, some not yet emergent, some older than the Nakba itself — that will crisscross and converge on the path to a free Palestine.
Lylla Younes is an investigative journalist and writer based in Brooklyn.