In these nine months of genocidal war in Gaza, it has become clear that the application of international law is irrelevant. "Israel" has repeatedly snubbed calls for a permanent ceasefire, despite insisting appeals of a seemingly peremptory nature or even moral persuasion. Yet the Zionist army and leaders pursue bloodthirsty and destructive goals of colonial aggression. 

The international courts and the United Nations have intervened only to prove themselves totally inadequate to stop the extermination of Palestinians in the occupied Palestinian territories. 

It is clear that these institutions, which are supposed to regulate and establish the boundaries of political and geopolitical action in the world, are in reality a kind of à la carte menu of a series of options available only to powerful Western states. 

Despite its weak normative function, the consensus of public opinion that the discourse on international law's positive role generates appears substantial and robust. Many of its advocates glorify its implementation when in fact the results of the law's decisions have been arguably less than nothing.

In short, this structure is not the product of the enlightened culture and fairness it claims to be. It only seems to function when it acts in line with imperialist and unipolar interests: its role appears to be to protect the interests of advantaged states at the expense of disadvantaged ones.

Palestine and Gaza are the most obvious examples, over decades, of the failure of this pachydermic and ineffective international legal system, to the point of suffering severe and irreparable consequences. Much of the evils of genocide feed on the ineptitude and partiality of an asymmetrical and obsolete system that should guarantee justice and not its exact opposite. 

We spoke about this with Bana Abu Zuluf, a Palestinian PhD candidate in International Law at the University of Maynooth, Ireland, and a member of the Good Shepherd Collective: 

Dr. Bana Abu Zuluf, first of all, could you explain to us what rights are protected for a resistance force in a situation of occupation? Can the attack of October 7th, which is surgically extracted in the mainstream narrative as an event unrelated to a century of oppression, be considered as an act of resistance under international law?

The right to resist, the right to self-determination, and the entitlement to prisoner of war status: none of these are protected in the context of Palestine. All armed groups in Palestine are defined as terrorist and unlawful, and memberships to these groups are condemned. UN General Assembly Resolution 37/43 established the right of resistance and self-determination for Palestinians "by all means necessary." The problem is that "all means necessary" in international law still implies that the principles of proportionality, imminence, and necessity must be observed. These are vague concepts open to interpretation. In the case of Palestine, it is easy to see that colonisation or 'occupation', as defined by international law, provides grounds for fulfilling the three principles above. 

In other words, if I understand correctly, are you arguing that coloniser and colonised are subject to the same criteria for international law?

This is where international law is reactionary. What is there to protect in the settler colony? The settlers who violently replace the natives? The liberal Zionists who hold on to their delusions of reformed Zionism? The militarised society that rejoices in Palestinian deaths? We cannot talk about October 7th in isolation from the 76 years of ethnic cleansing and forced displacement of Palestinians. But we also cannot look at the narratives of October 7th without highlighting the refusal to hear the strategy, intention, and calculation of the Resistance forces for the operation. They explicitly mentioned this in their public statement.

This is, of course, crucial because it helps to demystify the operation and ground it in a vision of liberation. The dispute is in the context of alleged “indiscriminate targeting of civilians”, considered a war crime under international law: where has this been confirmed, apart from the testimony of settlers themselves?

Many reports, including those in Haaretz, show that the Hannibal Doctrine was applied, whereby Israeli civilians were killed by Israeli forces to prevent the taking of hostages. Therefore, unverifiable allegations cannot be exported as factual findings by international institutions. How do international law practitioners feel about this testimonial injustice for Palestinians? Should an oppressed people living under brutal genocidal settler colonisation for 76 years regulate their resistance to adhere to absurd limits of respect for international law that denies their testimony?

If international law cannot be emancipatory for Palestinians, and Palestinians desire emancipation, then international law cannot be the lens through which they frame their decolonisation. Do Palestinians emerging from the rubble owe the world anything at all? For Palestinians, none of this matters. Our moral compass is guided by the idea of a free, liberated Palestine, the dismantling of Zionism and its structures, and the right of return to our land.

These were the guiding principles of the October 7th resistance. The spreading of disinformation about October 7th, even when debunked, has helped to reinforce Islamophobic and racist rhetoric against Palestinians as inherently violent. As the chant rightly says: Resistance is an obligation in the face of occupation. Put simply, decolonisation for Palestinians means not only the territorial and metaphorical re-organisation of Palestine, but also the re-organisation of the world, including international law.  

For parallel reasons, could the Israeli response to Al-Aqsa flood - which did not respect the principles of proportionality and distinction - be defined as an act of self-defence under international law? Indeed, all the Western powers immediately described the Israeli action as legitimate. Was this not already a context of blatant illegality?

"Israel" does not have the right to self-defence as an occupying power under international law, if we must look through that lens. On the contrary, it has a duty to protect. Committing genocide is certainly not self-defence. Western powers use and refer to international law when they talk about self-defence, not to argue a right for the Zionist entity, but to sanction and justify war crimes and genocide. The legality or illegality of an act committed does not matter. Impunity for international law is characteristic of the Zionist entity. For the Western powers, it is simple: violations of international humanitarian law are rewarded with impunity when committed by friends and punished with sanctions when committed - or allegedly committed - by the enemy. It is not a double standard; it is a colonialist/imperialist standard.

Perhaps never before have institutions, organs and procedures of international law been subjected to such continuous global exposure, with a series of official acts that turned out to be largely disregarded. How much of this is due to constitutive flaws, internal to the genesis of the institutions and laws, and how much to the once again confirmed ineffectiveness of the instruments of a universal order?

We can list countless shortcomings within international law and its institutions. Procedurally, there are serious problems (ex post facto, length of time to process cases, high costs), effectiveness and deterrence are questionable, and enforceability is fictional. For Palestinians, it is more about its inherent flaws, rooted in its history as a tool for powerful states and empires to use and abuse as they see fit for their hegemonic interests.

There are many critiques of international law, some drawn from the traditions of the Global South, others more reformist. A lot of work has been done on these shortcomings, so we won't go into detail here. What interests me is how we reconcile the knowledge of these inherent flaws with our fierce defence of the language of international law. Ever since I started studying international law, I have had a question to which I have been unable to find an answer: if international law is unenforceable, how does it work? Was it even created to work? Another question that comes to mind is the political nature of international law.

Seeing the US vote to sanction the International Criminal Court for doing its job (albeit a very bad job) is the least shocking thing the US has done as an empire. Western powers have always considered themselves above the law. Thanks to Palestine, it is clear that respect for international law is only a requirement of the enemies of the US and NATO. This, I believe, is the real dilemma. The weaker states with little political influence must respect international law because they are the target of the instruments of international law used by more powerful states. The verticality of international law is the weakness. In this sense, the Palestinian Resistance will always be prosecuted by international law.

Let us review some recent events. For example, UN Secretary-General Guterres' seemingly disruptive words on accusations of genocide turned out to be colourless in their practical effects. What idea did you get from those statements?

The Zionists would cry foul if their hegemonic narrative is not delivered verbatim. They want total impunity. Even if the declaration does not threaten their impunity, their demand is zero scrutiny. We Palestinians, on the other hand, rejoice in the smallest declarations of our humanity. It's a pity. We must demand more. He said nothing worthy of such applause. To say that October 7th did not happen in a vacuum is not a heroic act. The UN is complicit in the history of oppression that Guterres admits is not a vacuum. Ardi Imseis, a scholar and practitioner of public international law, has written a lot about the history of UN complicity. Only when the UN recognises that the partition plan was a mistake, that "Israel" was built on settler colonialism and the genocide in the Nakba, and that the Palestinians are a colonised indigenous people with the right to self-determination and return within that framework, should we think about engaging with the institution in good faith. If we are naive enough, we will hope that this will be achieved. But as long as there are veto-holding permanent members of the Security Council, none of this hope matters. It is indeed colourless.

The vote in the General Assembly on the ceasefire or the recognition of a Palestinian state seemed to be practically irrelevant, since everything is in the hands of the Security Council, where the US veto weapon has given the green light to Israel's heinous actions and policies. What do you think of this pathology inherent in the UN?

Again, as long as there is veto power in the Security Council, none of the votes in the General Assembly matter in any material sense. The more accurate formulation is that as long as the US empire functions, the UN remains useless. It is right to call this a pathology. There are some delusions about the power of the UN and its authority. The first thing we learn in international relations is that states have a monopoly on violence. The UN is made up of member states, and member states have their own interests. That is why peacekeeping is out of the equation: states are not interested in peacekeeping; they are interested in maintaining the status quo. Sometimes, however, peace can maintain the status quo, and only then are states interested in peacekeeping at the UN. That is why I see the peace process as coercive. It is a process designed to undermine self-determination. The two-state solution undermines Palestinian self-determination. By endorsing and imposing this solution, the UN has continued what it began with the partition plan. The recognition of Palestinian statehood can also be seen in this light.

Why has UNRWA been retaliated against by the Western governments that finance it by deciding to stop funding it?

The United Nations Relief and Works Agency (UNRWA) was established on 8 December 1949 to provide relief to displaced Palestinian refugees.  At the time, however, refugee protection was not the primary mandate of UNRWA, but that of the UNHCR, which is responsible for providing humanitarian assistance and protection to refugees, stateless persons and internally displaced persons. UNRWA was intended to be temporary: neighbouring host countries were expected to take responsibility for assisting refugees. As this has not been the case in most countries, Palestinian refugees continue to receive humanitarian assistance from UNRWA in the form of education, food, and shelter.

However, this type of assistance distracts the world's attention from the main issue, which is the return of refugees to their homes from which they were displaced. Many of them are Palestinian. Since Palestinians are denied their right of return by many Israeli laws and regulations, particularly the Absentee Law and the Administrative Law, UNRWA appears to be (inadvertently) facilitating and paying for the consequences of this displacement.

The retaliation against UNRWA is based on the pretext of unsubstantiated allegations that its workers are part of resistance forces designated as terrorist organisations by Western governments (surprise!). But the real reason is that UNRWA exists to legitimise the rightful aspirations of Palestinians to return by documenting the refugee status of displaced Palestinians. Another terrible reason is that the Zionist entity's tactic of starving and suffocating Palestinians as part of its Dahiya doctrine cannot be achieved with the presence of functioning UNRWA services.

Is it not the very existence and operation of UNRWA that legitimised "Israel's" colonial persistence in Palestine?

It is a Band-Aid. That is very clear to the Palestinians. But it is the only source of hope for millions of refugees. Neither I, nor anyone critical of 'humanitarian' institutions, can deny that there is no alternative source of protection for refugees and displaced Palestinians. The only alternative is the dismantling of Zionist settler colonialism. This is the limit of criticism. We can criticise until the end of time, but if we do not imagine or begin to create the world we deserve, our criticism is useless. The Zionists want to dismantle UNRWA because they want to dismantle the Palestinians and the right of return, but the Palestinians want to see the dismantlement of UNRWA because they want to be free from Zionist settler colonialism and return home.

What do you think of the activities carried out by the Special Rapporteur on Occupied Territories? There is a feeling that the work of this profile is as useful and interesting as it is disregarded and ultimately irrelevant. What do you think?

It is important to note that Special Rapporteurs have a limited capacity to influence change. Nevertheless, they offer a powerful space to engage the formal institution of the UN in a serious discourse about what is happening in the OPT. It is important to note that the language of settler colonialism was never used before the current Special Rapporteur. It is important to mention this because this framing is important for Palestinians. The denial of the lived experience of colonialism is a legacy of international institutions. It is refreshing to see this analysis in a formal report. However, one disagreement with the analysis of the current Special Rapporteur, Francesca Albanese, is that for Palestinians, settler colonialism cannot be defeated by law, but through a process of de-colonisation by all means necessary to dismantle Zionism, land back and return.

The case brought to the International Court of Justice by South Africa, a country of the so-called Global South, was of great historical importance but of little practical effect. For what reasons? Why did the Court only issue precautionary measures, which were, moreover, confirmed by two other rulings, which were completely snubbed by "Israel", which responded with even worse crimes?

The South African legal team presented a very strong case. Anyone who followed the hearing can say with pride that important legal work has been done. But this is the way the International Court of Justice works; the first step is an evaluation, which leads to provisional measures. But these are rather useless. To determine that a state simply abide by law because of 'plausible' reason to believe it failed to abide is laughable when the question is genocide. Surely procedures and timelines are no more important than 40,000 lives. It may be absurd to someone who does not understand these procedures, but it is even more absurd when you see the procedure while you are a live witness to an ongoing genocide. 

The provisional measures simply meant that the International Court of Justice asked "Israel" to ensure respect for international law. While the process is still ongoing, the genocide has reached its 9th month. The International Court of Justice has no teeth.

We also witnessed a significant disregard for the highest organs of the United Nations when Iran, in accordance with the procedures of international law, formally informed the competent authorities of its imminent action in self-defence following the Israeli attack on its consular headquarters in Damascus. No one took any action, and then quite a few (including international jurists) commented on Iran's gesture as retaliation rather than self-defence. Compared to what "Israel" did, there seems to be a double standard here too. Isn't there?

It is about hegemonic narratives, racism, imperialism, and, quite frankly, the norm. Since when have Global South states had the right to self-defence or their actions been framed as such in the mainstream media? It is taken as normative that Global South states or those described as enemies of the West simply have no rights. They're outlaws because they're enemies of the West. They have no territorial sovereignty, no security interests, and no rights to their natural resources. This is a basic fact of today's world order. Again, this is the imperialist standard.

The action of the International Criminal Court, with the arrest warrants issued by Prosecutor Karim Khan, has been given a media hype of authority and fairness, even in pro-Palestinian circles, when in fact it contains obvious elements of asymmetry and lack of clarity. Some have spoken of "bothsidesism". First of all, it must be remembered that this is a request for arrest warrants that came after a long delay and that was subject to strong (American and Israeli) pressure before it was issued. And then, once it was issued, it contained an indictment against both two Israeli and three Hamas leaders. The former are not openly accused of genocide. The latter are also accused of committing rape. Some of your colleagues have welcomed these warrants: are there any concrete reasons for them to do so? 

International criminal law upholds individual responsibility and sees genocide, for example, as an act of persons/individuals rather than the state. This fundamentally contradicts the understanding of settler colonialism, which is a process of forcibly removing the indigenous people from the land and replacing them with the settlers. This process is not carried out by individuals but by the settler state, in this case "Israel".

It is rather simple: for that settler state to expand and swallow more land, it has to get rid of the natives. For Palestine, this process began with the genocide of 1948, or what we call the Nakba. Genocide is a process of state-building for the coloniser. How can we limit this to the prosecution of individuals for crimes committed after 2002? The International Criminal Court certainly has a blind spot for colonialism. Accepting this premise in the International Criminal Court means that Palestinians must capitulate to 76 years of colonisation, displacement and genocide.

Karim Khan claims to know exactly what happened on October 7th. But what happened on October 7th? Can anyone say with certainty that they know exactly what happened? Certainly, the only narrative in the mainstream media that seems to imply full knowledge of what happened is the Zionist one. Except that most, if not all, of their claims have been debunked. So, what exactly had happened?

The investigation began by presenting October 7th as the first act and the attack on Gaza as a response. This is simply an ahistorical framing. The denial of past war crimes committed in Gaza over the years, despite various submissions to the International Criminal Court by the Palestinian Human Rights Organisation and international legal groups, is a political statement. Dozens of International lawyers working on the situation in Gaza since 2014 will surely tell you that there is something fundamentally wrong with ignoring all their submissions and calls for investigations and focusing only on October 7th and the aftermath of October 7th. 

Khan's ambivalence is intentional. While International law equates the violence of the occupier with that of the occupied, Khan's decision to issue arrest warrants for Yahya Sinwar, Ismail Haniyeh and Mohammed Deif, while only issuing two arrest warrants for Netanyahu and Gallant, is appalling. He reiterated that "Israel" has the right to defend itself. Surely this is a denial of "Israel's" position as an occupier. While he made extensive use of adjectives such as 'unconscionable' and 'devastating' when referring to 'alleged' crimes committed by Hamas leaders, he reiterated "Israel's" right to self-defence.

The International Criminal Court prosecutor did not enter Gaza or engage directly with Palestinian victims, in contrast to his approach of visiting Israeli 'victims' and taking their testimony. His approach shows indifference to Palestinian suffering and demonstrates the entrenched nature of anti-Palestinian racism in the International Criminal Court.

What Khan fails to understand (or chooses to ignore and misrepresent) is that "Israel" has historically shown no respect for international law and has repeatedly attacked the International Criminal Court, challenging its jurisdiction, while Hamas has welcomed investigations as long as they are 'impartial'.

Khan heeded the call of a non-member of the International Criminal Court and refused to visit Gaza, even though Palestine is a signatory to the Rome Statute. Not to mention the statement that Hamas was guilty of rape and torture, despite the UN investigation denying these claims. We need not point out that, on the contrary, it was Palestinians who were systematically subjected to these crimes long before the genocide began. Ultimately, the credibility of Palestinian testimony is disregarded because Islamophobia and anti-Palestinian racism are the status quo.  

I am reminded of Gramsci's theory of hegemony and how hegemony is exercised through coercion and consent. The Zionist hegemonic narrative about October 7th was exercised in the International Criminal Court arrest warrant by rooting it as the objective outcome of an open investigation and by the consent of those who rejoiced at the arrest warrant for Netanyahu and Gallant.  

While many Palestinians are happy to finally see a glimpse of action from the institutions of the ICC after more than 76 years of colonialism, we recognise that the International Criminal Court falls short of understanding our demands for emancipation. 

The joy, on the other hand, can be understood through two lenses: The pessimism about overcoming the US imperialist world order and the injustice inflicted on the Palestinians, and the post-Oslo human rights NGOs that have mastered the language of international law as a tool of justice. 

The Palestinian NGOs and International lawyers who rejoiced at the sight of the International Court of Justice case and the International Criminal Court arrest warrant may simply be experiencing one or both symptoms. It is pragmatism. It is simply nihilism. To refuse to imagine a free, decolonised Palestine from the river to the sea, or to frame justice for Palestinians through the lens of decolonisation, is nihilism.

They see international law as credible and respectable. It may be flawed in their eyes, but it is the lens through which they define their humanity. It is dehumanising to believe that the very tool that refuses to defend your right to resist effectively is useful. Respectable politics in this sense is nihilism. To believe in the rule of law under the unipolar imperialist order is nihilism. It seems contradictory to call belief in international law and its institutions nihilism, but it is the denial of every rightful urge to change this unjust and cruel world, to fight imperialism and to join forces that actively do so, that is the edge of nihilism. It is the abandonment of one's own integrity. What is left after that? For Palestinians, our integrity is above the world order.

The International Criminal Court, chaired by Khan, is a body that has not even been ratified by the US and "Israel". So, let's be honest: what kind of real power can it have? Incidentally, when the warrants were issued for Putin's arrest, the US cheered his action, while condemning the warrant for Netanyahu and threatening sanctions and retaliation. This sounds like a classic arrogant display of double standards. How can international law survive in this framework and become something different and better?

There are no double standards. There is only one standard, which distinguishes between the friends of the US and the enemies of the US. We may not want to fall into these totalitarian Schmidtian terms, but it is undeniable that once that is clear, everything falls into place.

Was International law a controversial instrument when the warrants for Putin's arrest were issued? It is clear that international law suddenly became a powerful tool and the US and the West applauded it. Not only that, but it was linked to sanctions and boycotts. Suddenly, all the institutions were no longer neutral.

However, the mechanisms of international law in the service of the oppressed sound terrible to the West and justify sanctions against the International Criminal Court. It is a mere theatricality, because the US does not see the arrest warrant against Netanyahu and Gallant as an issue in itself. On the contrary, this is their way of saving the Zionist entity since Netanyahu is no longer a useful tool for the empire and its interests. The International Criminal Court arrest warrant is working as it should: to reduce justice to the prosecution of individuals. If we were to enter the debate on individual responsibility, we could cite various problems with deterrence, obscure criteria for identifying individuals, and many more. It is not the first time that International Criminal Court prosecutor Karim Khan has acted as an agent of the US. So, this time is no different.

Dr. Abu Zuluf, one gets the impression that the institutions of law have a functional role to play in maintaining a unipolar, imperialist world order. What do you think about this?

That would be my understanding as a Palestinian. Again, the institutions of international law have no teeth. States must take it into their own hands to enforce international humanitarian law. The US enforces international humanitarian law as it pleases. Ultimately, International law is a tool if you're powerful. If you are weak (and relatively speaking all states are weaker than the US empire in their ability to create and enforce norms with complete impunity), international law is interpreted without your input and enforced on you when it is strategically necessary by the empire and its allies.

Even if we were to be cynical, the International Criminal Court warrant would never have been issued if the US did not want to get rid of Netanyahu and Gallant. They see Netanyahu as unpopular and reckless. Blaming Netanyahu is the way to save the Zionist entity and US interests at a time when millions are marching in the streets demanding a free Palestine from the river to the sea. 

Is there a debate, a plan, within the international bodies that preside over the law, for their in-depth reform and re-organisation?

Outside international bodies, we see the emergence of various groups critical of international law. There are the Third World Approaches to International law (TWAIL) and various other strands. Some are more critical than others. Some see international law as valuable despite its flaws, others see it as intricately woven into the imperialist capitalist world order and useless for indigenous decolonial struggles. 

Now the reform of international law is contentious and there are various proposals for making international law more useful. Some are doctrinal, some procedural, and others strengthen the rule of international law. Dozens of institutions have as a goal the reform of the law. Some simply touch on a specific area of International law, such as international investment law, etc. 

The Bolivarian Alliance for the Americas (ALBA) has a promising potential to suggest that international law can be based on solidarity. It suggests that we can move away from Eurocentric International law towards emancipatory international law.

In this sense, we can imagine international law differently once we remove the false premises of "neutrality, fairness, and universality" (Al Attar and Miller, 2010). We can replace them with autonomy, solidarity, and equity. The key word is replacement. It suggests a rebirth. Something initiated by the Bolivarian revolution. This sounds promising in a post-colonial world where decolonisation is complementary and not rooted in an existential struggle on land against uninterrupted settler colonialism.

For Palestine, we do not need international law to grease the wheels of decolonisation or justify the need to liberate our land from Zionism from the river to the sea. The sanctity of anti-imperialism, anti-capitalism, and anti-racism is veneered by indigenous resistance and the re-imagining of a free Palestine and a free Global South, not by theoretical notions of alternative governance. 

Mohsen al Attar, an anti-colonial legal scholar, has also written about how W.E.B. Du Bois's "double consciousness" can be seen in those who are viciously critical of international law and at the same time reluctant defenders of it. The same is true of Palestinian International law practitioners who see the horizontality of international law despite ample evidence of its verticality. One of these is the dichotomy between the coloniser and the colonised or, in the strict terms of international law, the "occupier" and the "occupied".

For Palestinians under the rubble, the reputation of international law is shattered. If International law cannot stop genocide, what good is it? Must we fight to create better ways to 'regulate' the world when they have regulated a stratified system that decides whose humanity is worth protecting and who is disposable? Is there anything more urgent than doing all you can to stop a genocide? Surely the International Court of Justice does not feel the urgency as it tiptoes around an obviously irrefutable genocide. Can we reform international law's inherent anti-Palestinian racism? The demonisation of resistance? The Islamophobia? The task is complicated when it should be simple. Settler colonialism warrants decolonisation, not the limited protection and pseudo-justice of international law.