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Charging Israel with Genocide
Duration
0:00 / 38:59
Published
February 1, 2024

On January 26th, the International Court of Justice (ICJ) issued an interim ruling on South Africa’s charge that Israel is committing genocide in Gaza. The ICJ found South Africa’s argument to be “plausible”—meaning it will allow the case to go forward and will fully examine the merits of South Africa’s case. While the court’s final ruling may take years, it ordered a series of immediate provisional measures, including that Israel must prevent violations of the Genocide Convention and punish incitement to genocide, though it stopped short of ordering a ceasefire.

On this episode of On the Nose, associate editor Mari Cohen speaks to human rights attorney and scholar Noura Erakat, legal scholar Darryl Li, and journalist Tony Karon about the meaning of the ICJ’s ruling.

Thanks to Jesse Brenneman for producing and to Nathan Salsburg for the use of his song “VIII (All That Were Calculated Have Passed).”

Further Reading and Resources:

The Charge of Genocide,” Darryl Li, Dissent

South Africa’s ICJ Case Against Israel Is a Call to Break Free From the Imperial West,” Tony Karon, The Nation

South Africa’s Genocide Case Is a Devastating Indictment of Israel’s War on Gaza,” Noura Erakat and John Reynolds, Jacobin

Quick thoughts on ICJ decision,” Noura Erakat, Instagram


Transcript

Mari Cohen: Hello and welcome to On the Nose, the Jewish Currents podcast. I’m Mari Cohen, associate editor at Jewish Currents. On January 26, the International Court of Justice, the court that settles disputes over international law between UN member states, issued a highly anticipated interim ruling on South Africa’s charge that Israel is committing genocide in Gaza. The court did not order a ceasefire as South Africa wanted and did not rule on whether, in fact, Israel is violating the 1948 Genocide Convention. Such a ruling won’t be issued for years. However, the court did find that South Africa’s argument--that Israel is committing the crime of genocide--is plausible enough to move forward and also ordered a series of provisional measures. The court ruled that Israel must prevent violations of the Genocide Convention, as well as punish incitement to genocide, preserve evidence related to the case, and report back in a month on its compliance with the provisional orders.

This ruling has led to a swirl of commentary around international law, the ICJ’s role, the significance of South Africa bringing the case, and the crime of genocide. To dig into what the ICJ’s ruling means, we’re speaking to three guests: Noura Erakat, a human rights attorney and associate professor of Africana Studies in the program of Criminal Justice at Rutgers University; Darryl Li, an anthropologist and lawyer teaching at the University of Chicago; and Tony Karon, editorial lead of Al Jazeera’s AJ+, a former senior editor at Time Magazine, and an activist in the anti-apartheid liberation movement in South Africa, where he was born. Welcome to On the Nose. Thank you all so much for being here.

Noura Erakat: Thank you.

Darryl Li: Thanks. It’s great to be with you.

Tony Karon: It’s a pleasure and an honor.

MC: I think we’ll start with the big question on everyone’s minds, which is that South Africa wanted the court to order a ceasefire, and as I’ve noted, the ICJ did not do so, instead ordering Israel to take all measures within its power to prevent a number of acts outlined in the Genocide Convention such as killing Palestinians, causing them serious bodily or mental harm, or deliberately inflicting conditions of life calculated to bring about the physical destruction, in whole or in part, of Palestinians. And some Israel advocates celebrated the fact that the court didn’t order a ceasefire and require Israel to stop its military activities in Gaza. So I’m wondering if you all have thoughts on why the court didn’t choose to make a ceasefire call, and then what that means. Does it matter that the court didn’t say a ceasefire must happen? Noura, maybe we can start with you.

NE: Sure. I want to emphasize, rather than beginning in this place of deficit of what the court didn’t do, what, in fact, it did do, and why it’s so significant. Firstly and foremostly, it rejected the argument that it didn’t have jurisdiction and established that it did have prima facie jurisdiction. Secondly, it didn’t take seriously at all Israel’s arguments about self-defense but mentioned them in passing twice. Thirdly, and most significantly, it affirmed the South African argument that the statements of genocidal intent made at the top level of military and political echelons, together with the specific acts targeting civilians with an intent to destroy them, in whole or in part, together created a condition and a risk of irreparable injury to the Palestinians, should this genocide continue. This is really what was at the heart of the case: This finding that this isn’t warfare, that it is plausible enough, that the purpose of this campaign is to destroy the Palestinian people in Gaza.

And so, as to the remedies themselves, there were nine remedies requested. The greatest of them was the request to cease military hostilities (which was a long shot to begin with), but the other requests, including the cessation of all military activity that perpetuated genocide--so that includes aerial bombardment on residential areas. That includes the deprivation of water, of food. That includes the firing of safe zones, humanitarian corridors, the gutting of hospitals, the deprivation of medical access. It basically includes the entire spectrum of Israel’s military operations, minus the things that we don’t hear about in the form of its ground operations. So I lift up what the South African legal team said at the conclusion of this, which is that this was a ceasefire in everything but name,

TK: What Noura has just said is: Effectively complying with the court’s finding requires that Israel halt what it’s doing, which is the genocidal military campaign. I don’t think anybody who’s fought the liberation struggle anywhere in the world imagines at the end of the day, lawyers and judges are going to free us. But lawyers and judges do potentially create spaces into which struggles can be waged, struggles can push. And the moral legitimacy and authority of the Western powers claiming that there’s something going on that has somehow justified violence has obviously been completely discredited in the eyes of the world. And I think that’s incredibly important. It will be up to the citizenry of the world, of all of the countries engaged in some way in struggle, to push their governments to act. But it’s definitely created an environment and a space in which that now becomes a matter of: They have to answer the genocide charge rather than us having to make the genocide charge.

DL: So we all know that, for decades in public discourse in the West, the idea of genocide as the crime of all crimes, the worst form of mass atrocity eclipsing all others, has played a really important part of the ideological underpinnings for both the State of Israel in justifying the dispossession of Palestinians, and also for the United States of America as providing one moral rationale for its exercise of global power (through agendas, humanitarian intervention, and so on). So this gatekeeping of genocide, it’s partially about the legal debate, but it’s also in many ways about a broader political debate that effectively says: The normative power and justification that comes with the so-called G word is almost like a rhetorical weapon of mass destruction. It’s so important that we have to control it, and anyone else who wants to make genocide accusations in ways that don’t collate with our agendas, or that are directed against us? Those people are not only wrong, but they have to be effectively canceled and delegitimized. So if you are in academia, in journalism, in the arts—in a place like the United States—you’re taught sort of indirectly that talking about genocide, in relation to Israel in particular, is a red line, right? It’s one of the many red lines one learns to recognize in dancing around the politics of the issue.

So what this ruling does is, in my opinion, it upends, very fundamentally, this whole structure of permission in terms of who gets to talk about genocide and who doesn’t. And I really want to salute the South African legal team for taking this on, because now, we are in a new reality in terms of public discourse. Like talking about genocide in relation to Israel is no longer easily dismissible as an automatically fringe or antisemitic position. Of course, people will still make those accusations, but their plausibility and their traction has, I think, been irreparably compromised. So that’s a really significant political achievement, beyond the fact that, as Noura was saying, of all of the core legal claims South Africa won. And not only won, but it did so with an overwhelming majority of the judges on the court voting in favor, including the judges of the imperialist powers, most specially, the United States.

In terms of the remedies that were ordered by the court, I think there’s a glass-half-full interpretation. I agree with Noura and Tony that a good faith adherence to these provisional measures would mean a ceasefire. I don’t think there’s any way Israel can continue to pursue its military campaign on the Gaza Strip without effectively violating the Genocide Convention, because this is basically a genocidal project. At the same time, the fact that we’re saying a good-faith interpretation of these orders would be XYZ runs into a problem, which is that we all know that the State of Israel is not a good-faith actor when it comes to international law. And the way that the order is written kind of kicks the can down the road in terms of interpretation. You can say that Israel is in the driver’s seat in terms of interpreting these orders. You can also say that Israel is still in the dock because it has to come back in a month and file a report, because there will be more hearings and more debates, that it maintains some kind of pressure and some kind of scrutiny. But it also shifts the debate into whether or not they’re properly complying with this aspect or that aspect of the court’s orders. So there is a danger there of some derailing and of getting bogged down in some details. But like I said, there’s an optimistic way of framing it, which is that it creates a legal reason to keep having this conversation and to keep scrutinizing Israel’s actions.

In terms of why the court didn’t order a ceasefire, I’m going to speculate that, unlike in some of the other genocide cases before the court, where you’ve got two states that are involved in conflict, like say Russia and Ukraine, that a ceasefire, in this case, would be problematic because Hamas is not a state and is not before the ICJ. So there would be a concern that a ceasefire would kind of apply only to Israel; it would be a one-sided thing. Now, I don’t find that argument very convincing. Hamas, of course, announced that if the court did order a ceasefire, it would respect that. But also, more importantly, I think there are ways of structuring the ceasefire order that some scholars have proposed that I think would address some of those concerns. So, again, it’s very much a black box in terms of why they did or did not make these orders. But I think by avoiding the ceasefire issue, they preserved a very high level of unanimity between the judges.

NE: Obviously, Israel is going to celebrate this. I mean, they’re going to emphasize how they didn’t lose in order to save face. That also speaks to what Tony was indicating about this court: The law in and of itself is not immune from the political environment that it exists in. Even had they ordered not just ceasefire but a complete condemnation of Israel and Zionism in this moment, because the court doesn’t have coercive authority, it only lends itself to being a political tool. So then, it remains within the purview of the masses—and the millions of people who have echoed the condemnation of Israel’s operation as genocide—to further agitate, to use this within their respective countries, to agitate for those countries to sever diplomatic ties, to end weapons transfers, to try Israeli individuals under universal jurisdiction in their national courts, and so on and so forth. So whether it included it or didn’t, it remains susceptible to be used as a political tool. And as a political tool, it lends itself to continuing that work, and prominently, to continue to isolate Israel and the United States politically.

MC: Noura and Darryl: I’m wondering if you can give us some background on how this ruling and the provisional measures relate to previous ICJ rulings concerning violations of the Genocide Convention.

NE: I was looking at the cases of Ukraine v. Russia. I think a more appropriate comparison would be to The Gambia v. Myanmar. In that case, the provisional order and the remedies that were ordered are almost identical to what we see in South Africa v. Israel. There is consistency in not calling for a ceasefire but in calling for not continuing to pursue any of those acts which are genocidal in nature—which is what we see here exactly. So for all those who are saying it’s a double standard—yes, vis a vis perhaps Russia, though we can see that the facts might differ, but not if we look at The Gambia v. Myanmar.

DL: Absolutely. So in that case, Myanmar—erstwhile Burma—is basically oppressing the ethnic Rohingya minority; Gambia brings the case under the Genocide Convention; the court orders provisional measures; and the final ruling on that case still hasn’t come down. So in many ways this case is following in those tracks, and it’s important to note that a significant number of Western powers have made interventions in the Gambia case and have made all sorts of arguments about the law of genocide that they completely do not want to embrace and are actively running away from in the South Africa case.

NE: But I think it’s big here to emphasize that in The Gambia v. Myanmar, look at all this western support, and yet the court even there refrained from ordering a ceasefire, which at least should indicate to us that we need not feel trampled. I think that there’s been a lot of sentiment that the absence of a call for a ceasefire somehow was a betrayal on the ICJ’s part. But look, the court is not going to save us, and in fact, I was just worried that they were going to make the situation worse. I think we should really leverage this as a victory, especially for continuing that political work forward.

DL: You’re raising the really important issue of expectation management and how lawyers relate to movements. We have to be real: There’s a lot of people who greeted the opinion with bitter disappointment and anger, and that’s completely understandable. So it’s not that we should be talking down to people and saying: Well, this was never gonna happen anyway but it is a difficult process to really play a useful role to movements and to understand and make space for those feelings while also having an analysis of what we think the actual leverage points might be.

TK: The role of lawyers and courts in relation to social movements and social justice (particularly in the US context) is something that needs a lot more attention. I mean, as someone who came here from South Africa, I was a little bit perturbed by the extent to which progressives rely on the courts and almost put the courts on a pedestal and—not so much progressive, but certainly liberals, like the liberal mainstream in the US has been venerating the courts as if they’ve somehow above the fray, et cetera, and paying a terrible price for that. But putting that aside for a moment, I think there’s a lot of other dimensions or players in the space that are important in this conversation besides Israel and the US and the courts.

If you think about what South Africa is doing, it’s challenging the very idea of the global order in which we’ve had to live since the end of the Cold War (and probably in a broader sense since the end of World War II). This liberal global order whose origins we don’t talk much about—nobody really wants to talk about the fact that the liberal world order is essentially a product of centuries of colonial violence and pillage. All of the wealth of the West is created by pillage that’s then codified in legal terms, in market relations, in property relations. You know, you win your political independence, but guess what: You don’t really have control over the resources because we’ve now codified the theft of your resources as legal market relations. In a recent piece, I was amazed to find this quote from Samuel Huntington of the clash of civilizations, saying words to the effect of: It wasn’t any superior morality, superior knowhow, scientificity, entrepreneurial status, or religious virtue or anything that created the West’s dominance. The West’s dominance is created by its ability to marshal overwhelming, brutal force against Indigenous peoples everywhere. And Huntington writes: Westerners tend to forget this; non-Westerners never do.

I think South Africa is saying to all of the world (and particularly the global South): We can no longer tolerate living in a world in which the US’s veto power at the Security Council is the last word. We cannot accept that the victors of World War II—many of whom were colonial powers and the imperial powers at the time—have the last word in all of these murders. I mean, I love Namibia standing up when Germany intervenes at Israel’s behalf and saying: Excuse me, you have no moral authority to tell Africans about genocide because we have not forgotten what you did to the Herero and the Nama. And perhaps I’m being overly optimistic, but there’s this real sense of settling of accounts. And also to show other powerful actors who could have done this, like Brazil, for example: It’s okay, you can act, you can step up, you can make our voices—the collective global south’s voices—heard and make them count. And I think this is hopefully going to have consequences that go way beyond this particular moment.

NE: Absolutely. I wanted to lift up this idea of social movement. I want to remind people of their power. In my opinion, I don’t even think that the South African Republic would have brought this case but for this massive movement that made this undeniable, that created these conditions to bring this case at all, and to do it so forcefully. As to the idea of: What does this mean on the global scale, and more to the point about Israel specifically, the challenge to the Gaza, Nakba 2023/2024 is not merely a challenge to what they’re doing right now, but it’s a challenge to the Nakba of 1948 and how the state itself is established. So if we’re challenging Israel’s methods today, so too do we have the opportunity to challenge the modus operandi upon which it establishes itself through Nakba and maintains its supremacy through the forced exile and dispossession of Palestinians. So all of it is now on the table, right? And sometimes I wonder: Is that why this repression is so acute? Because it opens up a can of worms. If we’re going to talk about what’s happening in Nakba, we’re going to talk about Zionism, and so they’re repressing it so much at this point in order to avoid that conversation and this broader conversation about genocide as being central to the creation of Western civilization.

TK: Can I jump in with one point? There’s an international legal concept that was created during the Oslo period, which is the two-state solution. If we need a political solution as well, you find a new—let’s put it bluntly—neocolonial structure to run Gaza. Basically, you retool the Palestinian Authority under US and Arab tutelage in order to take charge and to essentially lock Palestine back into what the Oslo framework had imagined, i.e., another neocolonial state in the region that doesn’t challenge Western hegemony in the region, doesn’t challenge Israel, and doesn’t challenge Arab autocracy. You can see that a lot of people who wish the Palestinians well, want to see a just outcome for the Palestinians, have been trained in a way by Western media not to see anything beyond the Oslo formulations.

DL: Yeah, absolutely right. I mean, the two-state solution is like the thoughts and prayers of the question of Palestine; it’s a phrase masquerading in the place of thought and the place of politics. It’s a completely bizarre placeholder. And you see this in all of the palace stenography that comes out of the New York Times and Axios these days about all of the so-called day-after plans. I mean, the deja vu is so overwhelming, right? Like: Oh, we have to have a reformed Palestinian Authority. They are pushing the President, Mahmoud Abbas, to cede some of this power to a technocratic prime ‚minister. I mean, you can go back to news stories from 2003 to 2004, 2005—copy/paste, it’s the same nonsense. It’s the same garbage, and these people, these elites—especially in the United States—live in a fantasy. I mean, the gap between their bubble and the facts on the ground as the United States just slides deeper and deeper into fighting war to protect Israel’s genocide in Gaza is really quite astounding.

MC: I do want to take us back a little bit to some of the specifics around this ICJ ruling and its significance. First, Tony, I want to follow up with you, specifically about what it means that it was South Africa. I’m kind of interested in what led to this moment, of South Africa being able to take that step. What in South African society and its relationship with Palestine caused this, and sort of what that means.

TK: Sure. So when the hearing came down, I was driving out of Cape Town. I was listening to light FM essentially—there’s like local, Black, South African DJs playing pop music—and it was unbelievable. They were just yelling about how proud they were of South Africa at this particular moment, and shouting old slogans, like radio DJs, saying, like “Phambili nomzabalazo!” which is like “Forward with the Struggle—[often] meaning the armed struggle, by the way, back in the day—people were really inspired. When those judges flew back to the airport, they were greeted like a World Cup winning team. But I think there’s a very, very strong civil society dimension to this, as Noura is saying. South Africa’s government is definitely responding to what’s happening in its own civil society, which is reflecting what Palestinians on the ground are doing and the fight they’re waging. There’s a very, very powerful identification, always has been, since the apartheid days. Israel was apartheid South Africa’s closest ally. Israel was helping South Africa develop all manner of weapons, including nuclear weapons.

There was a real sense that these were two settler-colonial projects defending white, western civilization against barbarism, blah, blah, blah—and that’s never been forgotten. Mandela comes out of prison, and says “We will never be free until the Palestinian people are free.” That’s a heartfelt statement. That’s a recognition of that sense of being in a common struggle, a common project. And as Huntington says, the global south hasn’t forgotten. And so there’s been this really powerful movement. Also, as Francesca Albanese said on Twitter: Just look at what’s happening here, the spectacle of who is standing up, who is speaking for South Africa. This is what a decolonized society looks like. There are people among those judges, English-speaking white person, Afrikaans-speaking white person, people of Muslim, Indian—what in South Africa gets called “colored backgrounds—and African men and women are standing up in front of the world and saying: This is who we are, and you have to stop this. The message is not simply in their words, but also in the fact of: Look at who we are, look at what we did. We unraveled, we unpacked, we destroyed a settler-colonial apparatus and built something different. It can be done.

MC: I think another important aspect of this case, and the fact that South Africa brought this action, is that Israel then did feel the need to come to the ICJ and defend itself against these charges—which is significant, because Israel often just kind of ignores UN proceedings and attempts to hold them accountable, and often accuses the UN of being antisemitic or singling them out. I’m wondering if you could talk about why did Israel feel the need that it had to defend itself against the ICJ specifically? What’s different about this?

NE: You know, I want to start by saying that they went to defend themselves, but, before there was even a decision issued, Netanyahu insisted that they wouldn’t listen to The Hague or anyone else. [He] described the whole process as blood libel in comparison to its accusations that the ICC as antisemitic and then went on to describe the entirety of the United Nations as a source of antisemitism in an ongoing bid, basically, to bully the international population, states and society alike, into creating an absolute path, that the history of Jewish Holocaust and the suffering immunized it and gave it a pass to continue forging a future however they determined necessary. That doesn’t fit at all in an international community. So why, then, would Israel, in this moment, bother, as opposed to just casting it aside? In this case, I feel that they couldn’t have avoided it, that the accusation was so grand that they couldn’t let it stand.

Now, that said, their legal argumentation was quite weak, even though obviously it gets much more airplay than the South African oral testimony, which isn’t covered almost at all, and it gets livestreamed. The Israeli legal argument is a lot of state propaganda that’s sprinkled with legal analysis. So they showed up, but they certainly were not ready. They certainly continued to marshal their propaganda talking points and a lot of ad hominem attacks that have continued to frame South Africa as not even defending the Palestinian people, or a cause, or anticolonialism, but instead being a lawyer for Hamas. I think that the broader calculation, as we’ve seen, is that Israel plans on winning this politically, even if they might have lost the belief, so that the fact that Western media streams everything that Israel is saying, but then obscures the South African argument—only those that were watching Al Jazeera or watching directly on the live stream may have seen it or gotten any coverage of it—together with the fact that they’ve already leveraged pieces of it to advance their cause and deflect and obscure from the ICJ in their accusation of UNRWA on the same day that the ICJ decision was made. I think that their calculation was a very political one, in that if they didn’t show up, they might not have had all these other opportunities in the way that they’re leveraging now.

DL: I largely agree with Noura. I think there’s a legal technical reason for them showing up, which is that the type of dispute this is—a dispute between states before the ICJ, which has compulsory jurisdiction because the Genocide Convention has an article that says: If there’s a dispute here, you can take it to the ICJ. But politically, I think it’s not only that the charge of genocide is so serious, I think they feel the need to defend their shared monopoly on how the term gets used—a monopoly that they share with the United States.

I also want to put on the radar screen of your listeners another case that’s happening in the ICJ. This is an advisory opinion. So an advisory opinion is not an active dispute between two states. It’s the—in this case, the UN General Assembly asking the ICJ: Hey, can you clarify and help us understand some legal issues that relate to the status of the occupation and annexation of the 1967 territories? So that hearing is coming up on February 19, and Israel is not participating. It doesn’t have as much legal teeth, because as the word implies, it’s advisory, right? It’s not an active case in which Israel was involved. But its legal analysis is actually going to be broader than the genocide case. The genocide case is really just: Hey, is Israel violating or not violating this one treaty, the Genocide Convention? The advisory opinion is going to really ask a question about the nature of Israel’s control over the 1967 territories. It’s going to ask questions like: Hey, this occupation has been going on for a very long time. There’s been a ton of colonization and demographic transformation of these territories, specifically in the West Bank; how does that affect all sorts of questions about the legal categories and legal status of this place? Is there annexation going on? Annexation being taking land in a way that’s illegal and permanent under international law (as opposed to occupation, which is supposed to be not necessarily illegal, but also temporary). But of course, we know that talking about the occupation as temporary after 50-plus years strains credulity more and more.

And there’s another case, which is also relevant, before the UN Committee on the Elimination of All Forms of Racial Discriminations, which is not a court per se, It’s kind of like an expert panel, but their job is to assess how states may or may not be obeying this other UN treaty on the Elimination of All Forms of Racial Discrimination. And there, the state of Palestine has filed a complaint alleging (among other things) that Israel is committing the crime of apartheid. And to my knowledge, there has not yet been a court ruling in any international court for an apartheid case, anywhere. This case was filed a few years ago, and it will probably take few more years before it gets resolved. But if it results in a legal finding that Israel is committing apartheid, I think that will also be very significant in some of these debates moving forward.

MC: Maybe we want to talk a little bit about what’s next coming out of this ICJ ruling on these provisional measures. What might we be looking at here, in terms of what’s going to happen? Is there a possibility that the US might veto this measure if a resolution comes forward, which is a power that it has? And if so, what does that mean for this ICJ and its legitimacy?

DL: I think, if there is a Security Council resolution that the US threatens to veto, it will only further expose the absurdity of the US position. I mean, there already have been several UN Security Council resolutions, and failed resolutions, and vetoed resolutions, and resolutions that were watered down to the point of meaninglessness that the United States still could not bring itself to support. So a decision like this that doesn’t use the magic words ceasefire but that basically tells Israel, “Hey, you should stop doing genocide,” is one that makes the rhetorical corner in which the United States Government painted itself even smaller and even harder to occupy. The other thing, of course, is that the court ordered Israel to submit a report within—I believe it was 30 days—that will be coming up in a few weeks. And again, we’ll just see more interpretive tussles, more pressure, more opportunities to keep the conversation going.

NE: Part of the utility of the ICJ decision was precisely to further expose the absurdity of the US position and its isolation on this matter, in ways that weaken the United States’ and the Israeli position in the long term. I think that’s evident in terms of how the younger generation is evaluating this as a moral question. Not merely a political question, not merely a legal question, but really a moral question in the world in which they live, where all of the mechanisms that might be available, that have created a legal order that was meant to avert war and to encourage diplomatic resolution, are crumbling in the face of such intransigence, which bodes well for the future and generational shifts that we’re witnessing, but really hard, I think, for any of us to affirm and lift up in the face of atrocities on the ground in Gaza, which, frankly, since the issuance of the ICJ decision, just keep getting worse and more horrific. So I say that trying to hold that tension in balance.

MC: Maybe just to finish up, I think we should talk about what this means in terms of the place of international law in our movement and the movements for justice in Palestine and elsewhere. I think we got to this a little bit beforehand, but it is just a big shadow hanging over this, which is the fact that oftentimes, international law has proved to be very insufficient for actually ensuring justice in places like Palestine. In fact, some of its structures have actually protected aggressors or colonizers in certain situations. On the other hand, we still often turn to the language of international law to make our arguments because it is a tool that we have available when violations are happening. And so, I’m interested in what this ICJ decision—what does that mean in terms of how we can think about international law as a tool? And I’m also wondering if it’s changed any of your thinking or opinions on it.

TK: If international law was not a useful tool for us, then the Americans and Israelis would not routinely ignore it. It clearly creates some space, some potential in international law that is very important and helpful and that we should insist on. At the same time, clearly we need to reconsider the international institutions and processes that we’ve inherited. Israel is recognized by the UN in 1948. Palestine is partitioned (at least in concept) by the UN in 1947. Now, that is a complete apartheid partition; it’s telling the majority of people who live on land that they are not ever going to be sovereign in that land, their right to self-determination is never going to be recognized, and that a state of settlers is going to replace it.

What I think a lot of people don’t realize is that the United Nations in 1947-48 had about 58 Member States, very few of them from Africa, very few of them from Asia. Most of the world was still colonized at the point that the UN did these things. Most of the world didn’t have a vote in making those decisions. So ultimately, we need to use international law as a defensive mechanism to restrain imperial powers and restrain violent colonizers as much as we can, but also, holding the thought that in the long term, we need a different international order. We need a different body of regulation, a system of regulation that’s more democratic. We should start by asking Palestinians who they want and how they want to be run. That should be such an obvious principle, and yet, this idea of colonial stewardship is still very, very rooted in the international systems of the day. So I think we have to hold both of those thoughts and work with them as appropriate.

DL: I think it’s pretty clear that there was a moment in the history of the Palestinian struggle where international law was a site where positive achievements were accumulated—especially thinking about the 1970s, the UN General Assembly Resolution talking about Zionism as a form of racism—and then there becomes a moment where international law looks more like an empty form of ritual. Sure, certain Palestinian rights get reaffirmed in the UN every year, this lopsided vote against Israel, but is that a substitute for doing anything more substantive?

I think it is pretty clear that this moment is the first time in a long time where it has felt like international law is being used for something more than that. It may not be the first time ever, but I think it’s certainly more active than any other time that I’ve been involved in things over the past few decades. And the reasons for that are exactly what I said earlier: This is a symptom and not a cause of a broader mobilization, of a broader moment of political urgency. First and foremost, Palestinian steadfastness from Beit Hanoun to Rafah, on either end of the Gaza strip, in the West Bank or central Palestine, as we should say, in the refugee camps, and among allies around the world, from Johannesburg, to New York, to London, to Sanaa. That’s the decisive factor. I mean, it’s a very obvious thing to say, but I don’t think it can be repeated often enough: That energy, that steadfastness, that popular resistance reshapes the terrain of possibility, not just for legal struggle but for all other domains of contestation.

NE: Hell, yeah. Look, I’m gonna add something, maybe as a pedagogical tool, just an example, to underscore what both Tony and Darryl said about the rule of law. You know, it’s a double-edged sword and meaning, its relationship to power and what people do. One of the things that we know full well is that the law is not going to be a panacea. Insofar as it’s been invoked, it’s to further what people are doing and the strength of movement. So in this moment, for example, I participated in filing a petition to the ICC—even though I have the worst things to say about the ICC, its politicized nature, and, in fact, published, in 2015, an article where I laid out all the arguments why the ICC wasn’t going to do anything for Palestinians, and if the prosecutor did open an investigation, it would be to prosecute Hamas first—and boom, lo and behold, that’s precisely what the prosecutor Karim Khan does in the aftermath. [He] doesn’t meet with any Palestinians since the investigations opened in 2021 but is already visiting Israeli families at their request and invitation in the aftermath of October 7 and saying to them: I think that I have enough to say that there were war crimes here.

Why, then, file the petition? Precisely because we were trying to marshal an argument that this was a genocidal campaign, and it was lifting up what was happening in the streets to say: At the legal level as well, we can make a legal argument. At the very least we were going to have a controversy. We were going to talk about it in the media, and Israel would have to defend against this charge. So it was used in a strategic way without any deference to its utility, or its potential so to speak.

And historically speaking, I think that we can look at the same thing. The apartheid convention is drafted in 1973 to condemn apartheid; not once is anyone tried for that crime. And yet, apartheid crumbles ideologically and also as a form of governance. It’s not to say that that legislation was useless and there was no reason to bring it, but to the contrary: It was another way of mobilizing power. It was another way of really shifting the argument, that this is not just a legal argument but this is a battle over the narrative and over moral authority. That’s what these interventions also have the capacity to do. So I think that the future that we’re embarking on is one where those of us in this moment are really anticipating that this is a turning point, and the worst thing that can happen is to approach a turning point where we don’t turn. So to really continue to push, to lay down ourselves as bridges, so that there is the turn that we need—not only in Palestine but across colonial geographies where colonialism continues to serve as a central principle of governance.

MC: Thank you so much. I think that’s a really useful note on which we can end. Thank you all so much for being here. This is a really generative conversation. Thank you to our listeners. I hope that you all will follow the amazing writing that’s being done right now by Tony, Noura, and Darryl, and also that if you liked this episode, you could subscribe, leave us a review, and subscribe to Jewish Currents at JewishCurrents.org. Thank you so much, and we will see you next time on On the Nose.

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