Abstract
The Zionist settler colonization of Palestine was, alongside apartheid in South Africa, one of the paradigmatic global issues that animated discussions among Global South anti-colonial scholars and leaders in the Bandung–Tricontinental era of the 1950s–1970s. While processes of formal decolonization have since played out across most of the Global South—notwithstanding the inequalities and violence of the postcolonial state and the neocolonial order—Palestine remains a quintessential site of ongoing settler colonialism and apartheid. This roundtable brings together scholars of Palestine and international law in discussion about the place of Palestine in Third World Approaches to International Law (TWAIL) scholarship. Among other queries, it asks: Where and how is Palestine present and absent in TWAIL scholarship? How has international law been complicit in histories and legacies of settler colonization? What role has the UN played in perpetuating the settler colonization of Palestine?
Introduction
Noura Erakat and John Reynolds: Within the field of international law, the legacies and ideas of Third World anti-imperial movements are carried forward in Third World Approaches to International Law (TWAIL) scholarship. TWAIL is a loose and deliberately decentralized network and movement of international law scholars oriented to the Global South and informed by Third World liberation thinking and praxis, past and present.Footnote1 TWAIL crystallized as such in the mid-1990s, while also retroactively associating itself with the work of Third World intellectuals, lawyers, and diplomats of the decolonization era of the 1950s–1970s.Footnote2
The formative TWAIL scholarship was focused primarily on international law’s role in the colonial encounter, and the production of global systems of hierarchy and oppression, and in that context, on necessarily challenging long-standing mainstream narratives about international law as a progressive and egalitarian force. TWAIL has subsequently evolved to offer more robust critiques of the postcolonial state and the form and material failures of decolonization. It has, at least to a certain degree, confronted the dynamics of political economy/capitalism and gender/patriarchy. It is a deliberately broad church, for better or worse, such that under the general banner of exposing and challenging international law’s imperialism, it “incorporates perspectives from across the fields of Third Worldist, Marxist and feminist thought, postcolonialism and decoloniality, Indigenous studies and critical race theory, and more.”Footnote3
International law in its past and present is deeply implicated in the settler colonization of Palestine and the subordination of Palestinians. Yet, attention to Palestine and Palestinians within the overall canon of TWAIL scholarship has been more sporadic than sustained. Palestine generally was not featured in the foundational TWAIL critiques of imperialism, militarism, and capitalism through the 1990s and early 2000s. In 2009, the Palestine Yearbook of International Law published a special issue on TWAIL and the persistence of the question of Palestine.Footnote4 Since then, crucial and cutting-edge work that can be characterized broadly as Third World approaches to Palestine and international law has come primarily from a small but growing group of Palestinian critical scholars.
Such scholarship, for example, has shed light on the place of Palestine in the Third World Movement from the time of the 1955 Bandung Conference.Footnote5 Among other contributions, this body of work has explored the subjection of the Palestinians to a position of “international legal subalternity”;Footnote6 the limits of sovereignty as a statehood project; international law as a site of complicity and contestation;Footnote7 the depoliticization, paradoxes, and ambiguities of human rights;Footnote8 the role of the laws of war and human rights in facilitating systemic economic harm;Footnote9 and the exclusionary edges of settler-colonial constitutionalism.Footnote10 It has also helped to advance critiques of the pursuit of accountability at the International Criminal Court (ICC), highlighting how the imbrication of international law with geopolitical structures and the racial biases of international criminal law shape the limits and potential of such an endeavor.Footnote11 Moreover, scholarship on Palestine and TWAIL has extended broader discussions on the roles of race, colonialism, and empire in the development of international law—precisely through the specific illuminations that come from Palestine.Footnote12 This has helped to advance a nascent field of settler colonialism into the more robust site of study it has become today.
With all of that in mind, we asked a number of scholars and colleagues who work along the arcs of intersection between TWAIL and Palestine studies to engage with us in this roundtable. We are very grateful to Samera Esmeir, Richard Falk, Ardi Imseis, Usha Natarajan, Vasuki Nesiah, Munir Nuseibah, and Diala Shamas for joining us through the spring of 2023 in this collective process of reflection.
Where and how is Palestine present and absent in TWAIL scholarship? Does the general absence of Palestine from TWAIL scholarship further entrench the exceptionality of Palestine, rendering it ineligible for comparative analysis?
Richard Falk: Palestine is a puzzle for TWAIL scholars in relation to international law. On one side, the ordeal of Palestine epitomizes the oppression of a people resulting from the legitimation of a settler-colonial project. Palestinian suffering was further reinforced following the end of World War II when decolonization and independent statehood were being achieved elsewhere throughout the Global South. Despite this, the Zionist movement was able to take advantage of international law and institutions to gain support for ethnoreligious claims of territorial sovereignty in a predominantly non-Jewish society. The UN lent its stamp of approval by endorsing a partition plan that divided historic Palestine.Footnote13 Beyond this, Israel has enjoyed the near unconditional protection of the leading global geopolitical actor—the US—as well as the fully “legal” protection of the latter’s veto power that has precluded the UN Security Council from implementing the UN Charter whenever Israel contravenes its provisions. Israel’s impunity with respect to its violations of international law and international criminal law shields it from accountability and perpetuates the prolonged mass suffering of the Palestinian people.
Despite the inability of international law to uphold the basic rights of the Palestinian people, it plays an important role in defining and strengthening overall opposition to Israel’s defiant behavior. This was apparent in 2021, when Israel expended considerable energy and resources denouncing allegations of unlawful acts after the ICC decided to investigate whether indictments should be issued in response to allegations that Israeli political and military leaders have committed war crimes in occupied Palestine since 2014. The Israeli reaction was to dismiss the ICC’s valid decision as “pure anti-Semitism.”Footnote14 Revealingly, the current ICC prosecutor, Karim Khan, perhaps succumbing to backchannel pressures, has so far failed to launch the investigation, reflecting a recurring pattern of Israel’s evading its lawful obligations by claiming institutional bias and smearing those that report on its criminality on behalf of the UN. Indeed, Israel consistently denounces UN special rapporteurs on Palestine, appointed by the Human Rights Council; it even denounced the International Court of Justice (ICJ) when the court declared in 2004 that Israel’s separation wall on occupied Palestinian territory was unlawful.Footnote15
In this way, TWAIL faces a complex challenge when it comes to Palestine. Its critical stance is to undermine the authority of international law when it is used as an instrument of North/South hegemonic control. Yet, the Palestinians often invoke the norms of traditional international law for counter-hegemonic purposes. This has also had the effect of influencing public opinion and strengthening the will of civil society activists throughout the world to support the Palestinian struggle for liberation from Israeli settler colonialization.
Vasuki Nesiah: In her discussion of the life of Palestine in Third World struggles, Nahed Samour argues that Palestine has been simultaneously central and marginal.Footnote16 I believe that may well be a way of telling the story of Palestine in TWAIL scholarship as well. TWAIL emerged in the mid-1990s during a moment that was characterized by disillusionment with the nation-state on the one hand, and by the challenges of grappling with new forms of imperial intervention in the era of the “responsibility to protect”Footnote17 and the Washington Consensus on the other. There is a parallel here with the story of the 1993 Oslo Accords and the ways in which they opened the door for entrenching Israeli settler colonialism in Palestine.
In this light, Palestine can be read as a haunting presence in that formative moment of TWAIL—a specter that owes its existence to the role that the Palestine solidarity movement played in placing the Global South on the world stage. That “presence” of Palestine in TWAIL, ghostly or not, is significant: the situation of Palestine offers insight into TWAIL’s preoccupation with the dismantling of empire and colonialism, and, concomitantly, into the inadequacy of the statist vocabularies of resistance that we inherited from the first phase of anti-colonial struggle.
Samera Esmeir: I wonder if the general absence of Palestine from TWAIL scholarship points to the larger problem of legal historicization. TWAIL’s critical preoccupation with the postcolonial state rendered Palestine’s continued colonization a less relevant object of inquiry or site of alternative horizons. This is paradoxical given that the postcolonial critique, including by TWAIL scholars, points to the persistence of the colonial in the postcolonial. And yet, the existence of a contemporary settler colony has incited less curiosity. Meanwhile, some of the decolonization-era diplomats and jurists, with whom TWAIL scholars associate, actively engaged the question of Palestine. Key among them were Georges Abi-Saab and Mohammed Bedjaoui.Footnote18
How, then, are we to understand the subsequent fading of the question of Palestine from TWAIL scholarship in the 1990s and 2000s? I suspect that the centrality of the postcolonial grammar to scholarship on the Global South, including TWAIL, has rendered the ongoing colonization of Palestine, and settler colonialism by extension, less legible. I also suspect that the move to “decolonization,” as the new grammar of postcolonial scholarship, will engender a similar fading—unless decolonization is understood as intertwined with anti-colonial struggle. In our contemporary moment, this relationship is much more difficult to articulate than in the middle of the twentieth century, when decolonization was unfolding in real time and in the most concrete and material of ways. For Palestine to be more central to TWAIL scholarship, decolonization must be decentered from the postcolonial telos, and the settler-colonial condition—as well as the anti-colonial struggle against it—must be incorporated into the prism.
How can TWAIL enable an understanding of Palestine as a settler-colonial site within the broader arc of colonial histories and imperial legacies—and of international law’s complicity in those histories and legacies?
Ardi Imseis: International law is not only a series of rules upon which the international state system is based in the classical positivist sense; it is also a legal narrative organically connected to the European colonial and imperial setting in which it was constituted and then replicated, to varying degrees, in the international institutions created in the first half of the twentieth century.Footnote19 Critically understanding this pedigree and evolution of modern international law allows us to shed light on the role of international law in Palestine, most particularly in the defining period immediately following World War II.
TWAIL approaches are central to this. A critical reading of the history of international law and institutions reveals that the mechanisms, doctrines, and technologies created as a means of achieving a liberal, rights-based global order have at times shown themselves to be the very tools through which that order has been frustrated or undermined to the detriment of subaltern populations.Footnote20 As leading TWAIL scholar Antony Anghie notes, this is “inherently problematic because it is sometimes precisely the international system and institutions that exacerbate, if not create, the problem they ostensibly seek to resolve.”Footnote21
In my view, more than any single geopolitical issue, Palestine’s engagement with international law at the UN stands out as an obvious example of this phenomenon. Through the acts of some of its principal and subsidiary organs, the UN has presided over both the unmaking of Palestine (i.e., its attempted partition, military conquest, depopulation, and political effacement between 1947 and 1967) and its qualified reemergence over time, at least in a truncated, fragmented, and subjugated form (i.e., in the occupied Palestinian territories post-1967). Throughout this prolonged episode, the failure of the UN to abide by the full range of prevailing international legal norms in its management of the question of Palestine has been demonstrative of a larger failure to take Palestine and its people seriously—particularly in relation to their experience with settler colonialism. This has ultimately resulted in the UN perpetually conceiving of them and their putative membership in the system as subordinate and contingent.
Usha Natarajan: I was introduced to TWAIL when researching the 2003 US invasion of Iraq. I wanted more from international law than futile protestations of illegality because, notwithstanding the outrage in the wake of the invasion, international laws and institutions have been intimately shaping the profound suffering of the Iraqi people through more than a century of intervention and, indeed, continue to do so to this day. Since international law is a discipline designed to obfuscate its own role in structuring violence across the Global South, TWAIL helped me better understand the nature and depth of our predicament as peoples across the Global South, and what an international lawyer can do to help. I revisited the disciplinary basics: who made international laws, and when and why? TWAIL revealed not only Eurocentric origins, but a discipline created and continually evolving in reaction to the colonial encounter, thus explaining the persistence of Western bias despite Third World efforts to reform international law itself and the international economic order.
As with Iraq, TWAIL provides a nuanced understanding of the pitfalls and potentialities of international law when it comes to the question of Palestine: it is not that international laws and institutions are useless, but rather, that they enable the longstanding occupation of Palestine and oppression of Palestinians. This role needs to be understood so that it can be neutralized and harnessed for liberation purposes through strategic disciplinary engagement. Effective engagement of this sort requires transnational solidarity, and TWAIL is a growing global movement of scholars and practitioners committed to decolonization. Our purpose is to create a better discipline that can serve as a vehicle for global collaborative change. Crucially, TWAIL analyses of “postcolonial” societies such as Iraq show those struggling for liberation in Palestine and elsewhere that freedom from alien rule is an imperative first step, but true independence and self-determination entail creating a postcolonial society that does not endlessly reproduce the violence of the colonizer.
Vasuki Nesiah: The interventions of TWAIL in the first decade of its existence from the 1990s have been pivotal to my own understanding of Palestine within the broader arc of colonial histories and imperial legacies. I am thinking here of TWAIL interventions across the map—from the historical work deconstructing the genealogy of sovereignty, to the critique of the imperial face of human rights and humanitarianism in the contemporary moment. All of this has been important in understanding Israel’s occupation and the technologies of governance it has mobilized against the Palestinian people; but it has also been important in understanding the dominant laws and norms of the international system that have contributed to oppressing the Palestinians.
In turn, I would say Palestinian scholars have been essential to the trajectory of TWAIL over the last decade. If the early phase of TWAIL was shaped by a postcolonial critique of the dominant world order, the work on Palestine as an ongoing site of settler colonization has pushed us toward a decolonial critique of our received political imagination—be it in equating the right to self-determination with the nation-state form, or in an understanding of colonization that travels through questions of epistemic injustice and the climate crisis.
Munir Nuseibah: Through my work as a scholar and practitioner, I have witnessed the limited role that international law has played in Palestine, though this may be attributed, in part, to the way scholars and practitioners have been analyzing international law. Over the past few decades, together with the fragmentation of Palestine and the start of a “peace process” that purportedly aimed at anchoring a two-state solution, scholars and relevant human rights organizations have focused their international legal literature on Israel’s specific human rights abuses. The frameworks used to do so were either international humanitarian law, if the violation took place in the territories Israel has occupied since 1967, or human rights law, if the discussion involved the areas Israel occupied in 1948.
These frameworks once limited the ability of scholars and human rights organizations to discuss colonialism, decolonization, or apartheid in the context of Palestine. For example, some used to claim that the apartheid framework was not appropriate for Palestine because it disrupted the goal of Palestinian statehood that has been a topic of negotiation since the so-called peace process started. In other words, they argued that it threatened the two-state solution—a line of thinking that effectively supported the deep fragmentation of the Palestinian people. For this reason, Palestinians holding Israeli citizenship have been considered an internal Israeli issue in which the representatives of the Palestinian people are not supposed to intervene.
But this is fortunately changing thanks to TWAIL, which has helped advance productive analysis of structural issues regarding Palestine. Indeed, the growing recognition of the applicability of the frameworks of apartheid and settler colonialism in the case of Palestine can certainly be attributed to TWAIL. Now we have gone back to talking about the Palestinian people as one, regardless of their geographic location or legal status. We have also upgraded our expectations: dismantling Israel’s apartheid regime and restoring justice.
How has Palestinian practitioners’ and legal scholars’ historical reliance on international law as a site of unfulfilled promise complicated engagement with critical legal approaches like TWAIL?
Samera Esmeir: The historical resort to international law among Palestinians is diverse; its itineraries range from the purely instrumental relation to law (reliance on it to effect concrete ends) to the constitutive relation (modeling the liberation struggle on international legal paths). If the instrumental reliance on international law posits it as a set of external tools to be called and relied upon, in the constitutive relation, international juridical grammars inhabit the struggle itself, and offer it vocabularies, means, projects, sensibilities, and a telos. Internally metabolized, these grammars provide orientation and destination.
The shift, in the case of Palestine, from the instrumental to the constitutive, from reliance on to orientation toward and destination in, is not straightforward. We know that in the 1970s, the Palestine Liberation Organization (PLO) began to orient its struggle toward the international community and its forms of legal ordering. This orientation was not uniquely Palestinian. In the second half of the twentieth century, many other anti-colonial revolutionaries gravitated toward the international community and its juridical institutions. This orientation to international legalities, however, was always both instrumental and constitutive. Consider, for example, Yasser Arafat’s 1974 historic address to the UN General Assembly. While the speech conveyed the centrality of some juridical grammars, such as the right to self-determination and the law of the sea,Footnote22 it did not allow other international juridical grammars to settle in the narration of the question of Palestine. Significantly, the speech also refused an approach to international issues that entailed “a slavish obedience to the fait accompli.”Footnote23
But there is something else that is significant about the international juridical paths that the PLO pursued in the 1970s. These paths offered Palestinians the promise of international presence. If the Nakba absented Palestine, and if this repeatedly enacted absence has come to mark the Palestinian condition, as the poetry of Mahmoud Darwish attests, presence could finally be found in international juridical institutions. If Palestine did not exist on the world map, it could exist in the world’s international legal order. For much of the latter half of the twentieth century, this international presence was meant to preserve the Palestinian people and their liberation struggle in the absence of a state. Today, however, this will for international presence has gained a new itinerary, one that wills an enclosed Palestinian state into existence while positing it as synonymous with liberation.
This contemporary will for a state and membership in the international community proceeds by setting aside the powers of the settler-colonial condition and the absence it has engendered. Anything that reminds of the ongoing setter-colonial efforts at disappearing Palestine, and that therefore ignites Palestinian struggle, must be violently repressed. The Palestinian Authority’s attack on Palestinian fighters and activists should be understood in this light. Perhaps, then, the project of willing an enclosed Palestinian state into presence and of becoming a member in the international juridical order has finally acquired a third and destructive itinerary—perhaps even a world devastating one.
Usha Natarajan: Palestinian reliance on international law corresponds with that of many societies across the Global South that believed they could transform international law from within once they joined the club of nations. TWAIL analyzes the failure of such endeavors, as well as their unintended consequences, and adjusts legal strategies accordingly when negotiating contemporary challenges. For instance, movements across the Global South in the 1960s and 1970s prioritized strengthening the sovereign equality of postcolonial states and the principle of nonintervention as a means of overturning the imperial international order. Ultimately, such movements only served to strengthen the power of Southern ruling elites, including unrepresentative authoritarians. As the uprisings across the Arab world evidenced over the last decade, strong sovereigns do not necessarily provide their people freedom from imperialism and may instead serve as effective vehicles for it. Such critique may be useful to Palestinian activists deciding whether and how to harness international laws to their ends.
For a society fighting for its freedom from military occupation, it may be galling to listen to complaints about the postcolonial condition. For this reason, TWAIL’s critique should directly confront colonial violence not just as historical legacy, but as contemporary reality, by centering decolonization and self-determination struggles in Palestine, as well as among Indigenous and Tribal peoples across the Global South and North. Otherwise, we strengthen those disciplinary powers that made colonialism possible in the first place and reproduce colonial violence.
TWAIL’s raison d’être is to resist colonialism and imperialism, making freedom for Palestine a priority. While every TWAIL scholar need not become a Palestine expert, when speaking of colonialism and imperialism as we regularly do, we should do so in solidarity with those denied self-determination so that our critique remains accurate and useful to contemporary struggles.
Diala Shamas: The skepticism about international law and international legal mechanisms that critical legal scholars hold is not incompatible with efforts to invoke or deploy those same imperfect mechanisms to build power and pursue liberation. Rather, the measure of the value or potential of that invocation rests entirely on the how, why, when, and by and for whom.
For Palestinian practitioners, a critical approach means rethinking, among other things: who we put forward as clients; which NGOs or institutions we partner with and center; whether we situate ourselves within formations that bring in more people into the movement; whether our legal strategies and tactics aim to overcome Palestinian fragmentation; and whether we are creating space for political movement(s) through our legal strategies or whether we are distracting from them. The sites for answering these questions are many, and they could include The Hague, US federal and state courts, European national courts, or the UN. And how we answer them will determine whether our invocation of certain rules and norms is critical, whether it is in service of a broader political project, or whether it falls into the trap of endlessly seeking an unfulfilled promise. Asking these questions—particularly at a time when the Palestinian liberation movement faces a crisis in leadership and vision—and articulating our answers to these questions, is of paramount importance.
Ardi Imseis: I do not think the Palestinians’ historical reliance on international law as a site of unfulfilled promise complicates engagement with critical legal approaches, including TWAIL. Quite the opposite, I find that Palestinian engagement with international law—as subject and object—both animates and vindicates the TWAIL narrative of international law as being, at once, a site of continual attempts to subjugate the Global South, as well as a principal means through which the liberation of the Global South may be sought.
As subject, the historical record is replete with examples of Palestinians and their allies relying on the normative and institutional framework of international law to great effect. This includes reliance on the international recognition of the Palestinian people as a juridical people as such, the associated recognition of the human rights of the Palestinian people (foremost of which, the right to external self-determination), and the occupied status of the Palestinian territories, with attendant legal negation of Israeli claims to sovereignty there. These achievements are now considered axiomatic by the international community where they were once questioned. That their eventual realization in material terms remains outstanding does not mean they lack normative and discursive force, including in political terms. It only means that Palestinians must continue their engagement with international law and institutions, among other available tools, to bring them to complete fruition. Indeed, Palestine’s creative resort to international law is very much a work in progress.
As object, Palestinian gains through the international legal and institutional order have come at a considerable cost. This is because lurking beneath them is a number of grave structural injustices that the Palestinians have never had a chance to shape on their own terms, and which continue to frame their political life in the world. Foremost among these was the adoption of the British Mandate for Palestine by the Council of the League of Nations in 1922, effectively giving international legal force to the 1917 Balfour Declaration. Another was the partition framework imposed by the UN General Assembly in 1947 in violation of international law. This was subsequently consolidated with the emergence of Israel with attendant rights and obligations under international law, including as a member of the UN.
Because international law is the product of force and statecraft, “weaker” subjects, including non-self-governing peoples, must often acquiesce to—or at least informally and temporarily accept—certain structural inequities of the system as a price to be paid for access to that system, and for theoretically having the standing to drive change from within. Had the framework of international relations operated according to different, more just rules, where “weaker” peoples could deliver themselves from bondage with the simple wave of a magical wand, Palestine’s engagement with international law would not be the existential requirement that it has become. But as I am often reminded in my work: unless you do international law, international law will do you.
How can TWAIL approaches help to contextualize the UN’s engagement with the question of Palestine and respond to contemporary critiques that it is a site of disproportionate attention?
Richard Falk: The UN inherited a special responsibility toward the people of historic Palestine. But rather than fulfill this responsibility that its British predecessors failed to do, it accepted the settler-colonial idea that both Jews and Palestinians had a right to statehood in Palestine. The UN thus substantially undermined and eroded the inalienable Palestinian right to self-determination in the 1947 partition plan, which functioned as its formula for peace, earning General Assembly approval despite the fact that the majority Arab population of Palestine was never given the opportunity to vote for or against it. The resolution was opposed by all of Palestine’s Arab neighbors.
A TWAIL contribution would give prominence to the work of Ardi Imseis who critically depicts the UN’s role in the settler-colonial occupation of Palestine, which included an unchallenged acceptance of the Balfour Declaration and the substantial erasure of any entitlement belonging to the Palestinian people. The UN was widely congratulated in the West for the support it gave to Jewish state-building exploits—interpreted as a humanitarian undertaking establishing a national sanctuary for Jews in the aftermath of their recent genocidal victimization in Europe. It was all but forgotten, and clearly ignored, that this sanctuary came into being at the expense of Palestinians innocent of Nazi crimes. For Palestinians, this event celebrated in the West was a national catastrophe. It involved the destruction of hundreds of Palestinian villages and the expulsion of more than 750,000 Palestinians, reinforced by Israel’s unlawful denial of their right of return.
TWAIL could use this sequence of events comprising the Nakba as a metaphor for double standards. In other words, Israel is defended by reference to international law when it engages in uses of force, however excessive, as supposedly legally permitted acts of self-defense, while Palestinian rights, even when validated by UN action, are ignored—suggesting both the geopolitical manipulation of international law and double standards when it comes to implementation. The UN response to Russia’s attack on Ukraine is one side of the equation, while its inability to address Palestinian grievances is the other.
Ardi Imseis: In general terms, I believe that TWAIL approaches can help us better understand the UN’s engagement with the question of Palestine. To that end, a book I just completed examines the UN’s management of the question of Palestine building on TWAIL scholarship.Footnote24 The main claim is that key legal texts and moments in the UN record—from partition, to the protection gap Palestinian refugees face, to Israel’s illegal occupation, and to membership of the State of Palestine in the UN—demonstrate that Palestine and its people have historically suffered the effects of a long-range condition that I call international legal subalternity (ILS).
The principal attribute of the ILS condition is that those disenfranchised by it are continually presented with the promise of a more just and equitable future through the application of international law, bolstered by the unrivaled political legitimacy of the UN. Yet, despite the lengths to which these legal subalterns go in reliance on this promise, its realization is perpetually kept out of reach in one form or another through the actions of the very same UN which either does not pay sufficient heed to the full array of international law’s precepts, or completely overlooks them in practice.
What brings the ILS condition into sharp relief is the evident clash one can trace over time between the international rule of law with what can be called the international rule by law. On the one hand, the international rule of law is ostensibly based on the universal application of international law without regard to the power or station of those subject to it. On the other hand, the international rule by law is rooted in a cynical use, abuse, or selective application of international legal norms by hegemonic actors under a claim of democratic rights-based liberalism, but with the effect of perpetuating inequity between them and their subaltern opposites. By juxtaposing the international rule of law against the international rule by law, one is able to better understand the nature of the ILS condition as a fixed feature of the international legal order, despite the varied configurations it may assume. And, in my view, it is Palestine’s engagement with the organized international community, principally at the UN, that furnishes us with the most unique embodiment of the ILS condition across time.
In recent years, the UN has been critiqued for giving “disproportionate” attention to the question of Palestine and for unfairly singling out Israel for approbation—the latter even being a manifestation of anti-Semitism.Footnote25 Some Western states, including the US, UK, Canada, and others, have adopted elements of this line of argument, resulting either in their withdrawal from key UN bodiesFootnote26 or in their unwillingness to engage the merits of any UN action to address Israel’s widespread and systematic abuses of Palestinian rights—for instance, at the Human Rights Council (HRC). To the extent that this critique mirrors a pattern of behavior evincing a failure by Western member states to take Palestine seriously at the UN, TWAIL can help us map and make sense of this. But a response to the argument is also located in basic empirical facts, as it were.
In short, the attention the UN gives to Palestine is unbalanced insofar as it varies depending on the political dynamics of the relevant UN organ engaged, with vastly different results in consequence. For example, owing to the US veto, the Security Council remains largely silent and unable to take concrete action, and is therefore considered to be disproportionately biased against the Palestinians. As a result, the General Assembly and HRC have been compelled to pass annual nonbinding resolutions supportive of Palestinian rights—resolutions that are facilitated through their Third World-majority membership.
Regardless of the level of attention given to Palestine at the UN, it can reasonably be explained and justified as the logical result of the unique role the latter played in helping create the Palestine problem in 1947 in the first place, and its subsequent inability to take effective measures to resolve it in line with its obligations under the UN Charter of Human Rights. This is why the General Assembly has affirmed the UN’s “permanent responsibility” for the question of Palestine “until the question is resolved in all its aspects in accordance with international law,” a responsibility Western states have long forgotten and must be regularly reminded of through sustained Palestinian engagement at the UN.Footnote27
What does it look like to teach international law through Palestine, and/or to teach Palestine as part of TWAIL?
Usha Natarajan: Most of my teaching in the Middle East is to a global student body, and I teach international law topics ranging from migration to economy, environment to conflict, and asylum to development. Palestine comes up daily for students as the paradigmatic case. They ask: Why was there an exception to uti possidetis juris (the doctrine that colonial borders must be maintained) for the mandated territory of Palestine? How can long-standing occupation and settler colonialism be tolerated within a legal system based on the prohibition of acquiring territory through force? Why are displaced Palestinians not offered the same protections as other asylum seekers? How is an apartheid regime compatible with international human rights law? How can the doctrine of permanent sovereignty over natural resources be reconciled with Palestinians’ lack of control over their water, food, energy, medicines, and other life necessities? How do international economic and development organizations operate within Palestine despite occupation being incompatible with sustainable development? TWAIL provides answers to these questions and more, in Palestine and beyond, by tracing how Third World sovereignty was never intended to function like Western sovereignty.
Crucially, teaching is an opportunity to help students realize their power as agents for change within such an international system. The predominant liberal legal discourse allows people to talk in one way while walking in another. But the classroom can be a space to cut through doublespeak and take responsibility for our parts in perpetuating or resisting systemic violence. Trauma can be inherited and violence replicated in the classroom just as it is in the international system, and putting an end to oppressive practices in political spheres requires also putting an end to them in personal spheres. Having Palestinian voices in the classroom—through professors and students, or through written texts and multimedia—ensures deeper knowledge of the operations of international law and our role therein.
What does the litigation of Palestine in domestic and international tribunals illuminate in terms of the limits and potential of international criminal law, international human rights law, and the laws of armed conflict?
Diala Shamas: Observers of the domestic legal landscape in the US have lamented that the Palestine movement’s already-limited legal resources must, out of necessity, be mobilized toward the defense of the movement itself. While legal efforts in prior decades sought accountability through domestic litigation of international law and human rights claims (albeit with limited success), protecting individuals and the movement infrastructure from government and private attacks has become a priority. The growth and successes of the movement for Palestinian rights—largely outside of the courts—has resulted in this dramatic increase in efforts to repress it, whether through the proliferation of anti-BDS measures, or accusations of anti-Semitism or support for terrorism.
At first look, this may be taken to illustrate the increasing irrelevance of international law in the current moment. This shift to defensive work further carries the risk of confining the movement to the opposition’s framing, and distracting from the very issues that those being silenced are seeking to highlight. The questions facing practitioners in this moment become: How do we use these moments of necessary defense to turn the tables and recenter Palestinian rights? What are the litigation strategies that flip the paradigm on its head? Can we take advantage of the opposition’s overstep?
An example from my recent practice illustrates the potential to reframe and refocus even within a defensive posture: when Israeli settlers sued Airbnb for removing their listings from its website, claiming discrimination, Palestinians who actually owned the land those settlers lived on filed a motion to intervene, and countersued the settlers for war crimes and crimes against humanity. Those claims ultimately were not litigated because Airbnb caved to political pressure, and the whole case became moot. Yet, regardless of whether international law claims would have ultimately prevailed, their power-shifting potential was located in the insertion of the Palestinian narrative where it was previously entirely absent.
Richard Falk: The litigation of Palestinian issues in judicial tribunals represents recourse to pragmatic tactics deemed helpful for carrying forward the national quest for basic rights. It tends to take international law as it finds it, seeking to rely on established legal frameworks to achieve vindication of fundamental grievances. In a certain jurisprudential sense, such uncritical recourse to international law departs from TWAIL’s emphasis on a critical approach that highlights how the norms, procedures, and institutions are themselves tainted by their overall subservience to settler-colonial interests, and how they even actively support exploitative and discriminatory aspects of specific colonial regimes (as with property and investment rights). To a large extent, the invalidation of colonialism and the contrary incorporation of the right to self-determination has disentangled the application of international law in ways that are explicitly biased against adjudicating salient grievances of the Global South, although the process is uneven and often unenforceable.
The Palestinian case is unique from these perspectives in a number of critical respects. First, the Zionist quest for a Jewish state was legitimated by the UN, reflecting a consensus among Western states in the context of World War II despite being an overt settler-colonial undertaking. Second, this settler-colonial character of Israel was masked beneath Jewish claims of religious connection to Palestine since biblical times. Third, Israel’s own subsidized capabilities and the unconditional geopolitical protection it receives from the US, accompanied by the ideological legitimation and misperception of Israel as being “the only democracy in the Middle East,” have placed obstacles in the way of Palestinian liberation via the right to self-determination.
Against this background, TWAIL’s critical approach is particularly important, but it needs to show respect for Palestinian efforts to cope pragmatically. The benefits of recourse to litigation in formal tribunals is to achieve symbolic victories, as in the ICJ and ICC, even if no substantive changes are forthcoming.Footnote28 The history of the past seventy-five years has demonstrated that symbolic victories are vital components of winning legitimacy wars, which, since 1945, have eventually controlled the outcome of most anti-colonial wars.
Additional information
Notes on contributors
Noura Erakat
Noura Erakat is an associate professor in the Department of Africana Studies and the Program in Criminal Justice at Rutgers University, New Jersey.
John Reynolds
John Reynolds is an associate professor in the School of Law and Criminology, Maynooth University, Ireland.
Samera Esmeir
Samera Esmeir is an associate professor at the Department of Rhetoric, University of California, Berkeley.
Richard Falk
Richard Falk is an emeritus professor of international law at Princeton University, New Jersey, and chair of Global Law and codirector of the Centre for Climate Crime and Climate Justice, Queen Mary University of London.
Ardi Imseis
Ardi Imseis is an assistant professor in the Faculty of Law, Queen’s University, Canada.
Usha Natarajan
Usha Natarajan is a faculty fellow in law and political economy at Yale Law School.
Vasuki Nesiah
Vasuki Nesiah is professor of practice at the Gallatin School, New York University.
Munir Nuseibah
Munir Nuseibah is an assistant professor at Al-Quds University Faculty of Law, Jerusalem, Palestine.
Diala Shamas
Diala Shamas is a senior staff attorney at the Center for Constitutional Rights, New York.
Notes
1 For more on TWAIL’s origins, core ideas and tendencies, see, for example, Karin Mickelson, “Rhetoric and Rage: Third World Voices in International Legal Discourse,” Wisconsin International Law Journal 16, no. 2 (1998): 360, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1856767; Makau Mutua and Antony Anghie, “What Is TWAIL?,” American Society of International Law Proceedings of the Annual Meeting 94 (April 5–8, 2000): 31, 39, https://www.jstor.org/stable/25659346; Vasuki Nesiah, “Placing International Law: White Spaces on a Map,” Leiden Journal of International Law 16, no. 1 (March 2003): 1–35, https://doi.org/10.1017/S0922156503001006; B. S. Chimni, “Third World Approaches to International Law: A Manifesto,” International Community Law Review 8, no. 1 (2006): 3, https://doi.org/10.1163/187197306779173220; Obiora Chinedu Okafor, “Critical Third World Approaches to International Law (TWAIL): Theory, Methodology, or Both?,” International Community Law Review 10, no. 4 (2008): 371, https://doi.org/10.1163/187197308X366614; James Thuo Gathii, “TWAIL: A Brief History of Its Origins, Its Decentralized Network, and a Tentative Bibliography,” Trade, Law and Development 3, no. 1 (2011): 26, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1933766; Usha Natarajan et al., “Introduction: TWAIL-On Praxis and the Intellectual,” Third World Quarterly 37, no. 11 (2016) 1946–56, https://doi.org/10.1080/01436597.2016.1209971; Luis Eslava, “TWAIL Coordinates,” Critical Legal Thinking, April 2, 2019, https://criticallegalthinking.com/2019/04/02/twail-coordinates/.
2 The term Third World is used in its positive emancipatory sense by TWAIL scholars—both to reappropriate it from pejorative usages in imperial rhetoric and also in keeping with the idea of the Third World as a (anti-imperial) project more than a geographic place. For further discussion, see, for example, Sundhya Pahuja “Appendix One: A Note on the Use of ‘Third World,’” in Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (Cambridge: Cambridge University Press, 2011), 261–62.
3 Laura Betancur-Restrepo et al., “Introducing the TWAIL Review (TWAILR),” Third World Approaches to International Law Review, August 30, 2019, https://twailr.com/introducing-the-twail-review-twailr/.
4 Ardi Imseis, ed., The Palestine Yearbook of International Law, vol. 15 (Leiden, The Netherlands: Brill|Nijhoff, 2010).
5 Nahed Samour, “Palestine at Bandung: The Longwinded Start of a Reimagined International Law,” in Bandung, Global History, and International Law: Critical Pasts and Pending Futures, ed., Luis Eslava, Michael Fakhri, and Vasuki Nesiah (Cambridge: Cambridge University Press, 2017), 595–615.
6 Ardi Imseis, “United Nations Plan of Partition for Palestine Revisited: On the Origins of Palestine’s International Legal Subalternity,” Stanford Journal of International Law 57, no. 1 (Winter 2021): 1–54, https://law.stanford.edu/publications/the-united-nations-plan-of-partition-for-palestine-revisited-on-the-origins-of-palestines-international-legal-subalternity/.
7 Noura Erakat, Justice for Some: Law and the Question of Palestine (Stanford, CA: Stanford University Press, 2019).
8 Nimer Sultany, “The Question of Palestine as a Litmus Test: On Human Rights and Root Causes,” Palestine Yearbook of International Law Online 23, no. 1 (2022): 1–49, https://doi.org/10.1163/22116141_023010_002 and Emilio Dabed, “Palestinian Legal Activism, between Liberation and the ‘Desire’ for Statehood,’” The Nakba Files, February 23, 2017, https://nakbafiles.org/2017/02/23/palestinian-legal-activism-between-liberation-and-the-desire-of-statehood/.
9 Shahd Hammouri, “Systemic Economic Harm in Occupied Palestine and the Social Connections Model,’” Palestine Yearbook of International Law Online 22, no. 1 (2021): 112–40, https://doi.org/10.1163/22116141_022010_004.
10 Mazen Masri, The Dynamics of Exclusionary Constitutionalism: Israel as a Jewish and Democratic State (London: Bloomsbury Publishing, 2017); Mazen Masri, “Colonial Imprints: Settler-Colonialism as a Fundamental Feature of Israeli Constitutional Law,” International Journal of Law in Context 13, no. 3 (2017): 388–407, https://doi.org/10.1017/S1744552316000409.
11 Souheir Edelbi, “Making Race Speakable in International Criminal Law: Review of Lingaas’ the Concept of Race in International Criminal Law,’” Third World Approaches to International Law Review, Reflections 16 (2020): 1–8, https://twailr.com/wp-content/uploads/2020/04/Edelbi-Making-Race-Speakable-in-International-Criminal-Law-Review-of-Lingaas%E2%80%99-The-Concept-of-Race-in-International-Criminal-Law-.pdf; Noura Erakat and John Reynolds, “We Charge Apartheid? Palestine and the International Criminal Court,” Third World Approaches to International Law Review, Reflections 33 (2021): 1–11, https://twailr.com/we-charge-apartheid-palestine-and-the-international-criminal-court/.
12 Noura Erakat, Darryl Li, and John Reynolds, “Race, Palestine, and International Law,” American Journal of International Law Unbound 177 (2023): 77–81, https://doi.org/10.1017/aju.2023.9; Noura Erakat, “Beyond Discrimination: Apartheid Is a Colonial Project and Zionism Is a Form of Racism,” EJIL: Talk! (blog), European Journal of International Law, July 5, 2021, https://www.ejiltalk.org/beyond-discrimination-apartheid-is-a-colonial-project-and-zionism-is-a-form-of-racism/.
13 UN General Assembly, Resolution 181, A/RES/181(II), (1947), https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/038/88/PDF/NR003888.pdf?OpenElement.
14 Mark Armstrong, “Israel: Netanyahu Denounces ICC War Crimes Move as ‘Pure Anti-Semitism,’” EuroNews, February 6, 2021, https://www.euronews.com/2021/02/06/israel-netanyahu-denounces-icc-war-crimes-move-as-pure-anti-semitism.
15 International Court of Justice (ICJ), Advisory Opinion of the International Court of Justice on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, no. 131, July 9, 2004, https://www.un.org/unispal/document/auto-insert-178825/.
16 Samour, “Palestine at Bandung.”
17 For a basic background and materials, see the webpage of the UN Office on Genocide and the Responsibility to Protect, https://www.un.org/en/genocideprevention/about-responsibility-to-protect.shtml.
18 See, for example, Georges Abi-Saab, The International Legal System in Quest of Equity and Universality (Leiden, The Netherlands: Brill|Nijhoff, 2001); Mohammed Bedjaoui, Law and the Algerian Revolution (Brussels: International Association of Democratic Lawyers, 1961). Abi-Saab represented the PLO in the consultative proceedings before the ICJ on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory advisory opinion case. Bedjaoui was, among other positions, a judge at the ICJ from 1982 to 2001.
19 Ardi Imseis, “Introduction,” in The Palestine Yearbook of International Law, vol. 15, ed. Ardi Imseis (Leiden, The Netherlands: Brill|Nijhoff, 2010), 1. For general information, see, Michel Chossudovsky, The Globalisation of Poverty: Impacts of the IMF and World Bank Reforms (London: Zed Books, 1997) and Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2007).
20 Nadim Bawalsa, Transnational Palestine: Migration and the Right of Return before 1948 (Stanford, CA: Stanford University Press, 2022).
21 Anghie, Imperialism, Sovereignty, 192.
22 The law of the sea is the system of international customs and treaties by which states govern their relations at sea and their rights and duties in maritime environments. This includes rules on navigation, trade, jurisdiction and sovereignty over territorial waters, exclusive economic zones, fisheries, seabed mining, mineral exploitation, marine environment protection, and more. Arafat referred in his speech to the efforts of Third World states at the time to institute a more rational and egalitarian world economic order, including through UN forums governing raw materials, food systems, and the law of the sea.
23 “PLO Chairman Yasser Arafat, Address to the UN General Assembly, New York, 13 November 1974,” in Documents on Palestine, Volume III (1974–1983), 38 (emphasis in original), http://passia.org/media/filer_public/d6/15/d6158193-90e3-4eb6-bc67-d6d5da5b5505/cd_vol3.pdf.
24 Ardi Imseis, The United Nations and the Question of Palestine: Rule by Law and the Structure of International Legal Subalternity (Cambridge: Cambridge University Press, 2023).
25 For an early articulation of this, see Alan Dershowitz, “Israel: The Jew among Nations,” in Israel among the Nations: International and Comparative Law Perspectives on Israeli’s 50th Anniversary, ed. Alfred E. Kellerman, Kurt Siehr, and Talia Einhorn (The Hague: Kluwer Law International, 1998), 129.
26 The US followed Israel in withdrawing from UNESCO in 2018 citing anti-Israel bias. See Thomas Adamson, “U.S. and Israel Officially Withdraw from UNESCO,” PBS, January 1, 2019, https://www.pbs.org/newshour/politics/u-s-and-israel-officially-withdraw-from-unesco.
27 See, for example, UN General Assembly, Resolution 71/23, A/RES/71/23 (November 30, 2016), https://documents-dds-ny.un.org/doc/UNDOC/GEN/N16/408/50/PDF/N1640850.pdf?OpenElement.
28 Pearce Clancy and Richard Falk, “The ICC and Palestine: Breakthrough and End of the Road?,” JPS 50, no. 3 (2021): 56–68, https://doi.org/10.1080/0377919X.2021.1947108.