2025 Leiden Journal of International Law Lecture, The Hague, 27 November 2025
1. Introduction
I should like to begin by extending my heartfelt thanks to Joe Powderly, Surabhi Ranganathan, Giulia Pinzauti and their fellow Editors for extending this invitation to me to deliver the 2025 Leiden Journal of International Law Lecture. It isn’t every day such a high honour comes along. So it is with humility and a great sense of responsibility that I appear before you.
‘Permission to Narrate’Footnote 1 – that is the title of one of the most prescient essays ever written by the late Palestinian-American Edward Said.
Said was Professor of English and Comparative Literature at Columbia University where he spent the entirety of his storied career as one of the twentieth century’s greatest public intellectuals. He published his essay following Israel’s illegal invasion of Lebanon in the summer of 1982, during which it drove the Palestine Liberation Organization into deeper exile, killing tens of thousands along the way. Against the present-day events in occupied Palestine, the 1982 invasion pales in comparison. That says a lot, given Israel then killed upwards of 20,000 Palestinians and Lebanese in its carpet bombing, shelling, and occupation of the country, in addition to the butchering of thousands of defenseless women, children, and elderly men at the Sabra and Shatila Palestinian refugee camps in Beirut through its Lebanese Phalangist allies in what the UN General Assembly would later determine ‘was an act of genocide’.Footnote 2
But at the time Said wrote his essay, Israel’s debauchery in Lebanon was without precedent in the years that followed the 1967 war. One of the few public records of what took place in 1982 was provided by an international people’s commission chaired by Seán MacBride.Footnote 3 Among other things, the MacBride Commission found that Israel: committed aggression against Lebanon; used means and methods of war that violated international humanitarian law; failed to abide by the principles of distinction and proportionality in its conduct of hostilities, including through bombardment of hospitals and schools; systematically destroyed cities, towns, villages, and refugee camps, causing the dispersal and displacement of the civilian population; and was involved in the planning and preparation of the massacres at Sabra and Shatila, playing a facilitative role in the actual killings.Footnote 4
As I revisited Said’s commentary on 1982 in preparation for this evening, I must confess that I found it eerie – and eerily depressing – that his essay reads as though it could have been written only last week. Beyond his discussion of what Israel had done to Palestinians and their allies in Lebanon in material terms, what I found more disturbing was Said’s examination of the question of how and why it was allowed to happen in the first place. In his classic method, Said focused on how mainstream western media and policymakers helped set a master narrative to justify it all by ignoring or obfuscating the lived reality of those on the receiving end of the violence. In Said’s words, ‘the findings’ of the MacBride Commission ‘are horrifying – and almost as much because they are forgotten or routinely denied in press reports as because they occurred’.Footnote 5 He bemoaned how the West portrayed Israel as ‘a civilized, democratic country constitutively incapable of barbaric practices against Palestinians and other non-Jews’.Footnote 6 He further wondered how these ‘premises on which Western support for Israel is based are still maintained, even though the reality, the facts, cannot possibly bear these premises out?’Footnote 7
For Said, the matter of representation was key. His magnum opus – Orientalism – had by then become a classic, a searing indictment of western representations of the East, with their associated negative outcomes.Footnote 8 Western treatment of Israel’s 1982 invasion of Lebanon was no different. In all of the western reporting about Lebanon, he noted, rarely was it ever asked how and why the Palestinian refugees in the country actually got there and remained in exile to begin with.Footnote 9 Nor was the story of Israel’s ‘purity of arms’ ever questioned, as it indiscriminately flattened Beirut and its Palestinian refugee camps brick by brick.Footnote 10 ‘The basic line’, Said pointed out, was that in the West ‘analogies between Warsaw and Beirut are wrong, that any images showing Israeli troops engaged in bombing plainly civilian targets are anti-Semitic, that the millions of feet of newsreel’ actually detailing what was happening on the ground to Palestinian men, women, and children ‘are less trustworthy than the impressions of a supporter of Israel who spent a day in Lebanon touring the place as a guest of the Israeli Army’.Footnote 11
In Said, we were blessed with the voice of an angry, yet poised and poignant, representative of the marginalized. A partisan, yes. But just as much for the truth as for those subaltern masses being run into the ground by a nuclear power. Said reminded us of one of the most basic truths: that any honest conversation about a downtrodden people cannot possibly take place without allowing them a proverbial seat at the table, as it were, in order that they should not have to go through the double indignity of first being victimized and then having to seek permission to simply narrate what had happened to them.
In the years since 1982, it would appear that much has changed in the world of how things are represented. We now live in an age of social media and identity politics, where unedited content can be transmitted with the click of a button and the liberal west goes out of its way to be, and to be seen to be, accommodating, inclusive, accepting of others. Nevertheless, some industries and disciplines have been slower to evolve than others. And it is my submission that the discipline of international law has been among the most lagging of them, with results both predictable and bitterly unfair. This is especially so when it comes to knowledge production and the progressive development of the discipline from the standpoint of subaltern groups, those on the outside of power looking in.
2. Objectivity and knowledge production in international law
The politics of knowledge production is well-trodden in the literature.Footnote 12 It is directly connected to the idea of representation and the need for us to be mindful of alternative epistemological frames through which we determine truth. At the foundation of knowledge production is the question of who exactly is doing the producing, on what basis, when, where and for whom? Are all views equal? Whose views are or ought to be included? And with what implications? For international lawyers, these are questions with unique meaning. This is because our convention grants the writings of what are called ‘highly qualified publicists’ the status of subsidiary sources of the law.Footnote 13
As a young student of international law, I admit that I never quite appreciated the import of this, even though I was then familiar with the politics of representation, having poured over a great deal of Said in my free time while reading for an undergraduate in international relations and history. Perhaps it was just my desire to seek a world that was ordered justly, or at least capable of being so. Regardless, based on the western texts I was studying, it was easy to see positivist law as strictly normative, and unconnected to the power that creates and dispenses it. Until, of course, it wasn’t.
For instance, I shall never forget the shock I received when, in 1997 in Canada, while being introduced to the subject of the international law governing the League of Nations mandate system, the text we were using indicated that with the end of the Mandate system in 1946, all Class A mandated territories in the Middle East ‘such as Israel, Jordan, Lebanon, Syria and Iraq had or were on the point of independence’.Footnote 14 The Palestinian and the historian in me knew this not to be true, given Palestine had been forcibly dismembered and depopulated by Zionist paramilitaries and its independence remained in abeyance through the subsequent emergence of Israel over much of its territory. I of course complained to my British professor, who was himself the author, and he duly promised that the matter would be addressed in the next edition. Likewise, what of the countless classroom discussions on the use of force, and specifically the requirement of an ‘armed attack’ as a condition precedent to lawfully invoking the right of self-defence under Article 51 of the UN Charter? Imagine my surprise when my Canadian and American professors repeatedly affirmed the so-called right to use ‘preemptive’ force, regularly citing Israel’s attack on Egypt and Jordan in 1967 as though those claims were without public controversy.Footnote 15 I had studied those events, and I knew that although Israel claimed preemption, it only did so after its initial claim at the UN Security Council that it had been attacked first by Egypt was shown to be a lie.Footnote 16
All this to say that it did not take too long before I realized that certain political and ideological views were embedded within international law and that I needed to be aware of them if I was to arrive at a truer understanding of the discipline, its history, its promise. Why was it that all the highly qualified publicists were white European men? How come the leading publishing houses of international law were located at Cambridge and Oxford? Was it merely coincidence that the leading journals of international law were (and remain) American and European? In short, moves were being made. And I knew that I had to register my voice, otherwise people like me would continue to be represented for by others.
It was with this belief that when I became the Editor-in-Chief of the Palestine Yearbook of International Law in 2008, I took the decision to devote my first volume to Third World Approaches to International Law.Footnote 17 Emerging in the mid-1990s, TWAIL offered a critical reading of the history of international law and institutions. It revealed 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 the weak. 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’.Footnote 18
In my view, more than any single geopolitical issue, Palestine’s engagement with international law at the United Nations stands out as an obvious example of this phenomenon. As I cover in my recent book The UN and the Question of Palestine,Footnote 19 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 Territory 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. This has ultimately resulted in the UN perpetually conceiving of them and their putative membership in the system as subordinate and contingent; an object to be considered, discussed, debated and dismissed, rather than a full subject of the system with agency of its own.
3. Palestine as Object
Which brings me to the delicate matter of the publication by the Leiden Journal of International Law of an article entitled ‘Postwar Development of Offshore Energy Resources: Legal and Political Models for Developing the Gaza Marine Gas Field’, by Elai Rettig, Shani Friedman, and Benny Spanier.Footnote 20
I do not intend to re-litigate the issue of the process by which this dubious piece found its way to print. The Editors-in-Chief have addressed that in the pages of the Journal. But I would be remiss if I did not admit that upon learning of the article, I seriously considered pulling out of this lecture. My concern was allayed when the Editors-in-Chief admirably and unilaterally took full responsibility for its publication, followed by a series of mitigation efforts designed to set the record straight, as it were.Footnote 21 In a world in which it would have been much easier to tuck tail and run, as has become the way of far too many intellectuals on the issue of Palestine, the manner in which the Editors-in-Chief handled themselves is as rare as it is commendable.
Never one to miss a teaching moment, however, there is some utility in this rather sordid story. For it highlights the basic point that I have tried to develop here: namely the issue of representation of Palestine in international law as ‘object’, by people who, despite protestations to the contrary, are either, at best, incapable of admitting the most basic facts and applying the most rudimentary legal principles to those facts; or, at worst, engaged in apology for internationally wrongful acts of the highest order, including core international crimes.
In this case, the authors posit that four post-war scenarios ought to be considered that bear on the potential exploitation of the Gaza Marine gas fields: (i) political independence of Palestine; (ii) Israeli occupation of the Gaza Strip; (iii) an international transitional administration of the Gaza Strip; and (iv) Israeli annexation of the Gaza Strip.Footnote 22 In advancing their argument, all manner of spurious assertions and assumptions are made – some invented out of whole cloth – including: (i) that the status of the Gaza Strip is ‘complicated’;Footnote 23 (ii) that the Palestinian Authority – not the State of Palestine – acceded to the United Nations Convention on the Law of the Sea (UNCLOS);Footnote 24 (iii) that ‘postwar disputed territories may be fully or partially annexed by an external sovereign, often by military force’;Footnote 25 (iv) that, in such case, ‘the local population may either be expelled from the territory, remain as residents with limited rights, or be given citizenship under the new regime’;Footnote 26 (v) that ‘arguably, annexation could be lawful in cases where the international community tacitly accepts the annexation’;Footnote 27 and (vi) that ‘there is a question concerning the right of self-determination of the people of Gaza as a separate group’ from the rest of the Palestinian people.Footnote 28
For a thorough reply to these outlandish claims, I would invite you to read the judicious response written by Mutaz Qafisheh, Jinan Bastaki, and Victor Kattan.Footnote 29 Suffice to say, that for anyone even remotely familiar with the international law on the question of Palestine, it is axiomatic that the status of the Gaza Strip is not ‘complicated’ but rather part of the Occupied Palestinian Territory, as has been repeatedly affirmed by all relevant organs of the United Nations, including the ICJ;Footnote 30 that the State of Palestine acceded to UNCLOS on 2 January 2015, and declared its maritime zone, including over the Gaza Marine gas fields, by instruments filed with the UN Secretariat in 2015 and 2019;Footnote 31 that the acquisition of territory by force, including annexation by an occupying power of territory it occupies, is patently unlawful and legally incapable of being recognized as such given it would be a breach of a jus cogens norm of erga omnes character;Footnote 32 and that, juridically speaking, the Palestinian people are universally recognized as one people, with the right to self-determination, including in a State of their own in the whole of the Occupied Palestinian Territory.Footnote 33 Nor is it an acceptable excuse for the authors to have justified not taking account of the law affirmed by the ICJ in its July 2024 Advisory OpinionFootnote 34 in which many of these issues were authoritatively settled because, as they put it, their article ‘was written, reviewed, and revised before the release’ of the opinion.Footnote 35 It is impossible, of course, to account for an opinion which has yet to appear in the world. Nevertheless, how is it possible that the authors failed to cite even one of the many published articles and UN reports that treated the exact issues that were put to the Court in December 2022?Footnote 36 After all, as the authors assert, ‘research is conducted based on the available materials’.Footnote 37 Are we to take it that those materials were somehow out of reach for them?
All this to say, what the authors of the Gaza Marine article have presented as international law scholarship is not worth the paper it’s written on. Nor is it a matter of honest difference of opinion of either fact or law. What we have from them is, in effect, a case for why the Earth ought to be regarded as flat. Theirs is a world where the universally accepted rules concerning treaty accession, occupation, territorial conquest, and forcible transfer simply do not exist. Worse still, that this should be published at this particular time in history, while Israel and the United States are openly pursuing forms of possible post-war ‘models’ for Gaza similar to those advanced by these authors, namely international administration and/or annexation, beggars belief.Footnote 38
4. Palestine as Subject
Which leads me to the matter of how it is that Palestine can engage international law, not as Object, but rather as Subject.
Here tribute must be paid to the relatively small group of Palestinian international lawyers who came before me and on whose shoulders I and so many others now stand. I am thinking of Henry Cattan, Issa Nakhleh, Anis al-Qasim, Musa Mazzawi, Eugene Cotran, Anis F. Kassem and Camile Mansour, to name but a few. Because of people like them, the historical record is replete with examples of how reliance on the normative and institutional framework of international law has been vital in affirming Palestinian rights, to great effect. This includes universal 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 self-determination), and the occupied status of the Palestinian Territory, the self-determination unit of the Palestinian people, with attendant legal negation of Israeli claims to sovereignty there. As I have noted, these achievements are now considered axiomatic by the international community. 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.
This is not to say things have been perfect. Far from it. 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 approval 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 subaltern 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. As I often remind my students: unless you do international law, international law will do you.
It was in this spirit that I had the great privilege to serve as legal counsel to Palestine in the 2024 Advisory Opinion on Israel’s illegal presence in the Occupied Palestinian Territory.Footnote 39 It is no understatement to say that this opinion constitutes a seismic and structural change in the international law on the question of Palestine. Building on the 2004 Wall Opinion, the Court was asked to determine the legal status not only of certain discreet policies and practices of the occupying Power in the OPT, but of the very regime giving rise to those policies and practices. The Court determined that Israel is not sovereign in the OPT, and that its continued settlement of the territory among other policies and practices violates three peremptory norms of general international law, derogation from which is not permitted: namely, the prohibition on the acquisition of territory by force, the obligation to respect the right of peoples to self-determination, and the obligation to refrain from imposing regimes of racial segregation and apartheid. The Court accordingly determined that Israel’s presence in the OPT is in and of itself unlawful and that it is required to withdraw from the OPT ‘as rapidly as possible’, a threshold subsequently determined by the General Assembly to be no later than 18 September 2025.Footnote 40 The Court further determined that all states have an obligation to bring Israel’s presence in the OPT to an end, not to recognize Israel’s continued presence in the OPT as lawful, and not to aid or assist Israel in the maintenance of its unlawful presence and actions in the OPT.
In one fell swoop, the ICJ’s 2024 Advisory Opinion has shifted what was hitherto an almost exclusive focus of the international community on how Israel has administered its 58-year occupation of the OPT under international humanitarian law and international human rights law, to the requirement that Israel end its occupation of that territory unconditionally. This shift from what I have called the ‘managerial’ and ‘humanitarian’ approach of the United Nations on the OPT to one that is emancipatory in outlook is the single most important takeaway of the case.Footnote 41 Furthermore, it is now incontestable that Israel’s occupation is not merely unlawful, but – being an ongoing use of force – amounts to an aggression of a continuing character against the territorial integrity and political independence of the State of Palestine and a violation of the right of the Palestinian people to self-determination contrary to the UN Charter and general international law.Footnote 42 As jus cogens norms, and as noted by the Court, neither of these violations can be justified under any circumstance, including on grounds of purported ‘security’ or ‘self-defence’.
5. Palestine as litmus test for the international legal order
Despite the great pride we must take in the 2024 Advisory Opinion, caution is warranted. And this is because international law is not self-executing, but rather relies on states – and therefore political will – to comply with and enforce it. By all accounts, the situation in Palestine today demonstrates that states have utterly failed in meeting their obligations.
For multitudes, including me, events in occupied Palestine over the past two years signal that the international community is now at a crossroads, or at least ought to consider itself to be. Whether this results in fundamental changes to the international legal order in the nature of those so common to our discipline’s history is not yet clear. What is clear, however, is that how we respond to this moment will reverberate for years to come. As millions of ordinary people around the world demonstrate, the Palestine freedom struggle is now the socio-political cause of our time, an issue on which the measurement of our collective morality turns and with it, how we read, understand and apply international law.
Since the fateful events of 7 October 2023, during which over 1,200 Israelis were killed and 252 others taken captive,Footnote 43 Israel has unleashed a level of violence on occupied Palestine not seen anywhere this century. Conservative estimates indicate over 69,000 Palestinians in Gaza have been killed,Footnote 44 almost half of whom women and children.Footnote 45 Thousands of extended families have literally been erased from the civil registry,Footnote 46 with tens of thousands or more individuals presumed dead under the rubble. Based on Israeli intelligence data, the UN Commission of Inquiry on Palestine/Israel reports that as of May 2025 ‘83 percent of those killed in Gaza were civilians’.Footnote 47 Over 170,000 Palestinians have been injured,Footnote 48 many for life. Over 1.9 million Gazans have been forcibly transferred multiple times (that’s almost 90 percent of the population),Footnote 49 and all of them have been subjected to an unrelenting campaign of saturation bombing, scorched earth, and starvation as methods of war. According to the UN Satellite Centre, approximately 70 per cent of the total structures in Gaza have been destroyed or damaged, including residential, commercial, education, health, water, sanitation, energy, religious, and cultural infrastructure.Footnote 50 In other words, everything that sustains organized human existence.
All of this has been accompanied by a continuing stream of hundreds of open calls evincing genocidal intent on the part of the Israeli leadership and those under its command, not to mention mainstream Israeli popular and social media.Footnote 51 These include that there are ‘no uninvolved’ civilians in Gaza,Footnote 52 that they are ‘human animals’,Footnote 53 that the only ‘answer’ is the ‘total extermination of Gaza and all two-legged animals there’,Footnote 54 and that the Palestinians are modern day ‘Amalekites’, biblical enemies of the ancient Hebrews whose ‘seed’ God commanded be ‘wiped out’Footnote 55 (‘Now go, attack the Amalekites and totally destroy all that belongs to them. Do not spare them; put to death men and women, children and infants, cattle and sheep, camels and donkeys’: 1 Samuel 15:3).Footnote 56
In two years, the Israeli occupied Gaza Strip – among the most densely populated places on Earth almost half of whose population are children,Footnote 57 and which Israeli sociologist Baruch Kimmerling has called the ‘largest concentration camp ever to exist’Footnote 58– has been ground to dust by the occupying Power. Israel has done this with well over 70,000 tons of largely American-made bombs, amounting to more than was dropped on Dresden, Hamburg, and London combined during the Second World WarFootnote 59 (again, a conservative estimate).Footnote 60 In January 2024, the International Court of Justice (ICJ) determined, inter alia, that ‘the right of the Palestinians of Gaza to be protected from acts of genocide’ is plausible, and that there exists a ‘real and imminent risk’ of genocide against them.Footnote 61 And both before and since then, numerous other UN affiliated bodies,Footnote 62 international,Footnote 63 Palestinian,Footnote 64 and IsraeliFootnote 65 human rights organizations, and hundreds of international law and genocide specialistsFootnote 66 the world over have concluded that not only is the Gaza genocide plausible and at real and immanent risk of happening, but that that ominous threshold has long been passed.
Some will question my claim that the situation in Palestine constitutes (or ought to constitute) a paradigmatic moment in the history of the international legal order. They will rightly point to situations elsewhere in the world which engage violations of the same legal principles or similar and even worse levels of atrocity. The list is long, but one need to only recall Rwanda, Sudan, Ukraine, and Yemen to demonstrate the point. For the record, I share this general sentiment.
But what makes Palestine different in many respects is not what is happening there, horrific though it is, but rather who is perpetrating it, under what pretence, and the extent to which it uniquely belies the origin story of the post-Second World War western liberal international legal order. In essence, it is the positionality of Palestine’s tormentors that affords it a broader urgency, a situation that remains ‘absolutely exceptional’ when it comes to the universal application of international law, to quote the fellow who started it all, Lord Arthur Balfour himself.Footnote 67
When I speak of ‘tormentors’ I am referring not only to the illegal Israeli occupying power,Footnote 68 but also to the small number of western states, led by the United States, with their accompanying corporate, media, and intellectual elite, that have historically supported it as the so-called ‘only democracy in the Middle East’ and a partner with ‘shared values’.Footnote 69 Why this matters goes directly to the provenance of international law not only as a thing we teach and practice, but also as part of the organizing frame of the multilateral order since 1945. We are all intimately familiar with this origin story, so it can be restated simply: Following the ravages of the Axis powers during the Second World War, culminating in the Holocaust of six million European Jews, the victorious Allies magnanimously fashioned a new international legal order in their image. This order was based on liberal principles, including inter alia the general prohibition on the use of force in international affairs, with its corollary prohibiting territorial conquest, respect for human rights including self-determination of peoples, and the principle of sovereign equality of states. The year 1945 was a watershed, as the story goes, for the triumph of this western liberal order, as evinced in the proliferation of multilateral treaties that would ensure that ‘Never Again’ would humanity allow such ravages to occur. And underpinning it all, we have rightly been taught, is the experience of the Jews of Nazi-occupied Europe who were made to pay the ultimate price for simply being who they were.
For many in the post-war West, the Jews have come to represent the perennial victims, as epitomized, for example, in the person of celebrated Nobel Laureate Elie Wiesel who argued the Holocaust was somehow unique and different from genocide simpliciter.Footnote 70 As part of this powerful story of calamity and renewal, Israel – the self-designated Jewish State – has assumed the contours of a mythical phoenix arising out of the ashes of the War, a beacon of hope and morality,Footnote 71 a light unto the nations.Footnote 72 In this sense, the validity of the post-Second World War liberal international legal order has in many ways been indelibly connected to Israel, not only as a plucky State of survivors of European fascism, but also as both a project and idea that ought to prevail for the vindication and continued predominance of the Western liberal project itself.
In this context, it isn’t hard to see how, for the non-European Palestinians, being the victims of the West’s perennial victims has placed them in a uniquely disadvantageous position.Footnote 73 As I have elsewhere written, Israel’s 1948 ethnic cleansing of the indigenous Palestinians from what was their ancestral land, its wholesale dispossession and usurpation of their property, its mass-denationalization of that population and its denial of the right of those people to return and restitution constitute gross and systematic violations of relevant international law which continue to the present day.Footnote 74 For over almost eight decades they have been compounded by myriad actions of Israel – administrative, legislative, judicial, and military – all of which have been animated by what Israeli human rights organization B’Tselem has characterized as a regime of ‘Jewish supremacy’ between the Jordan river and the Mediterranean sea – an apartheid regime.Footnote 75
Taking only Gaza, long before 7 October 2023, Israel had shorn it of anything remotely capable of sustaining dignified life. How else to describe the then: 56 years of illegal Israeli military occupation, compounded by 16 years of unlawful Israeli blockade; multiple Israeli military assaults resulting in tens of thousands of casualties, including the killing and maiming of thousands of children; a multi-decade process of de-development and deindustrialization, resulting in a 45 per cent unemployment rate and a 60 per cent poverty rate, with 80 per cent of the population dependent on some form of international assistance; and a health care system on its last legs for having been suffocated by the illegal blockade.Footnote 76 I would be remiss were I not to recall that approximately 70 per cent of present-day Gazans are actually not from Gaza,Footnote 77 but are rather registered Palestine refugees or their descendants who hail from areas that are now within Israel and who have been barred by Israel from return and restitution for decades only because they are not Jewish. All this to say, and as noted by the Secretary General on 25 October 2023, the events of 7 October ‘did not happen in a vacuum’.Footnote 78
My point here is this: In having the temerity to resist their permanent dispossession, displacement, and erasure in favour of a people whose own persecution in Europe had nothing to do with them, there is little the Palestinian people (or their allies) have been able to do before running up against western hegemonic power in some form or another. Use of force? That’s dismissed as rank ‘terrorism’.Footnote 79 Diplomacy? ‘Diplomatic terrorism’.Footnote 80 Journalism? ‘Journalistic terrorism’.Footnote 81 Legal recourse? ‘Lawfare’.Footnote 82 The result is that when Palestinians have tried to seek redress, including through rights enshrined in international law, out come the double standards.
One of the most obvious of these is the position taken by Western States and intellectuals over Ukraine when compared with their position on Palestine.Footnote 83 In both cases, an occupying Power is illegally present in foreign territory in violation of Article 2(4) of the UN Charter. In both cases, the occupying Power has purported to annex all or portions of the occupied territory to itself in violation of the peremptory prohibition on territorial conquest and the obligation erga omnes to respect the principle of self-determination of peoples. Yet, while in Ukraine these western actors have rushed to support or impose all manner of forcible and non-forcible measures against the wrongdoing state, in Palestine they continue to actively support their commission to varying degrees while conjuring all manner of fanciful justifications for the same.Footnote 84 For instance, we are told that Palestine is not a state,Footnote 85 even though it is recognized as such by 159 other states and engages in actions on the international plane only open to states. Likewise, we are told that Israel’s actions in occupied Palestine comport with its purported ‘right’ of self defence,Footnote 86 even though the ICJ has determined that Israel may not rely on Article 51 of the UN Charter to use force in relation to attacks that emanate from within the OPT,Footnote 87 and that Israel’s very presence in occupied Palestine is unlawful for being in violation of Article 2(4) of the UN Charter.Footnote 88
Not surprisingly these double standards have not gone unnoticed by the vast majority of people and states. Who among us is not familiar with the resulting refusal of the global south to support the West’s push against Russia in Ukraine?Footnote 89 How can the West’s recognition and call for sanctions in respect of the SudanFootnote 90 and RohingyaFootnote 91 genocides not be viewed with cynicism, when it remains complicit in the Gaza genocide? So intent are western elites to cover up this hypocrisy that they are increasingly adopting measures to obstruct or render illegal free expression of their own citizens when it comes to advocating for Palestinian human rights, whether under the spurious guise of the fight against anti-SemitismFootnote 92 or the abuse of counter-terrorism legislation and the like.Footnote 93 The drive of the United States, in particular, to shield Israel from any form of accountability on the multilateral level – whether by pulling or threatening to pull vital funding and participation from the UN,Footnote 94 abuse of its veto in the Security Council,Footnote 95 or by imposing crippling sanctions on judges and personnel of the ICCFootnote 96 or UN expertsFootnote 97 – is especially demonstrative of the extent to which Palestine’s treatment by the west shines a bright light on the precarity of international law. The US’s strongarming of the passage of Security Council resolution 2803 (2025) of 17 November 2025 which, on its face, raises serious questions of legality for being in violation of jus cogens norms of erga omnes character, is but the latest example of this.Footnote 98
At bottom, and as many of us have repeatedly argued, Palestine remains the litmus test by which the integrity and sustainability of the international legal order is to be judged.
6. Conclusion
In conclusion, I think it is fair to say that in 2025 the question of Palestine appears to have metastasized to the point of bringing the western liberal international legal order as we know it to a critical breaking point. If the State acting in the name of the victims of untold atrocities in occupied Europe is capable of undertaking and justifying atrocity crimes being livestreamed to the world on a daily basis with full throttled Western support,Footnote 99 what does that say about the state of humanity as a whole? Will the tumult of this moment be enough to force a break with the past that has produced it, as so many other moments in the history of international law have done? Or are we doomed to continue on a path toward oblivion?
I do not know the answers to these questions. What I do know, however, is that if we have any hope in salvaging the promise of international law, the road begins with the subaltern classes for whom that promise remains out of reach. Above all, the road begins, dear friends, with the struggling people of Palestine who, despite still having to seek permission to narrate their story, embody the very essence of what it means to yearn for freedom and justice in a hard and cold world.
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