[Prefatory Note: this post needs updating, but it still seems relevant in pointing to the generally neglected interplay between legality and legitimacy as important modes of assessing conrroversial transnational behavior of states, especially with respect to the war/peace agenda of geopolitical actors, which for reasons of convenience I identiy as the five Permanent Members of the Security Council.]
Abstract: International law failed in Gaza after October 7 to stop genocide and crimes against humanity despite authoritative rulings by the ICJ and ICC, and resolutions in the UN General Assembly. Israel consistently defied international law, being shielded in doing so, by ‘lawful’ geopolitical shielding and complicity by the NATO permanent members of the UN Security Council, especially by the United States. Such obstruction created enforcement, complicity, and accountability gaps that has allowed Israel’s criminality to proceed. These formal legal condemnations of Israel’s conduct do support the conclusion that international law is weak whenever its assessments clash with strategic interests of geopolitical actors. This should not be interpreted to mean that international law is irrelevant to the pursuit of justice or rights-based peacemaking . International law remains potentially important as it legitimates civil society activism and solidarity initiatives with a people, in this case the Palestinians, struggling for their basic rights. Hypothetically, if the ICJ and ICC had sided with Israel, accepting legal arguments about Israel’s right of self-defense or the counter-terrorist nature of its use of force, then the contradictions between law and justice would have given Israel a (deeply contested) legal entitlement to carry out genocide, ethnic cleansing, and overall criminality. It is notable that most wars since 1945 have been won by the side that prevails in the Legitimacy War, and not as political realists continue to insist, by the side with superior military capabilities. That is capturing the high moral and legal ground in a violent conflict is often more decisive than dominating the battlefield as the colonial powers and the US should have discovered in the Vietnam War. A mobilized people as in the anti-apartheid campaign can shift the balance of political forces to favor human rights and justice. Whether this will happen in the Gaza context remains uncertain due to the severity of the genocide and the depth of complicit behavior by the governments of the liberal democracies, especially the United States.
Did International Law Fail in Gaza? Yes and No
The failures of international law in relation to the prolonged and cruel genocide taking place in Gaza for a period approaching two years are more obvious that its limited successes and positive, if indirect, impact of the underlying struggle to promote basic Palestinian rights. It seems appropriate to lament these failures as being far more consequential than any successes for the entrapped Palestinian civilian population of Gaza, with extended genocidal tremors bringing further misery to Palestinians living in the Occupied West Bank supposedly under Israeli protective administration legally required to respect international humanitarian law. The core failure of international law, and of the United Nations as the principal site for enforcement in situations of this kind, is the inability to implement authoritative renderings of international law that are of benefit to victimized persons suffering from pervasive criminality. In an early 2024 an Interim judgment of the International Court of Justice almost unanimously granted South African requests for Provisional Measures back in the first months of 2024, which if complied with or enforced would have greatly mitigated Palestinian suffering for all the months that followed.
Additionally, the International Criminal Court accepted the Chief Prosecutor’s dramatic recommendation that arrest warrants be issued for Israel’s Prime Minister, Benjamin Netanyahu, and former Minister of Defense, Yoav Gallant. It was unlikely at the time of issuance that these arrest warrants would never be actualized, but the struck a mighty symbolic blow that infuriated Israel and angered its ally, the United States. It was a persuasive step in challenging the public discourse that had previously held sway to the extent that Israel was the victimized party, not Gaza or the Palestinian, and it was Israel that had a legal entitlement to strike back. Although the arrest warrants covered crimes committed before October 7 they can a dark shadow over such Israeli pretensions that the IDF was ‘the most moral army in the world.’
Neither authoritative of these ejudicial initiative has been enforced, nor has the juridical actions even attempted to impose some level of accountability on those powerful states or their leaders whose governments aligned themselves with Israel by lending various forms and levels of material, strategic, and diplomatic support, making them complicit for failing to uphold the Genocide Convention’s emphasis on preventing and punishing the crime of genocide and seeking to end the impunity of geopolitical actors and their protected allies. Beyond this, the issue of corporate complicity has been almost totally neglected until the UN Special Rapporteur on Occupied Palestine. Francesca Albenese, controversially highlighted corporate compllicity in her June 2025 UN Report, which made her almost immediately subject to targeted unlawful sanctions imposed by the US Government in a defiant lawless challenge to the independence for UN experts.[1]
What is revealed is the normative order operative since 1945 is seriously deficient when examined closely. It was never endowed with the autonomous capabilities to make international law effective in the face of non-compliance by a geopolitical actor (conveniently identified here as the five permanent members of the Security Council or P%) or a state enjoying geopolitical protection by way of the veto or by direct alignment by a formal alliance as with NATO members. In effect, for these two categories of sovereign states (that is, violators and their powerful protectors) adherence to international law when it comes to global security issues is essentially voluntary and was intended to be so from the outset.[1] Nevertheless, from the perspectives of civil society activists or governments giving priority to a reconceptualization of national interests more in line with the contemporary global public good, international law has become a useful policy instrument for resistance on behalf of a global normative order that is post-geopolitical with respect at least in the setting of global security, war, genocide prevention, and human rights, including economic and social rights.[2]
This defining operative reality of international law, even as progressively interpreted, in relation to the war/peace agenda can be summarized as producing several gaps that are responsible for widespread disappointment when it comes to the effectiveness of international law and lowered expectations of transcending geopolitics in relation to responses by the United Nations in this most vital area of international relations.[iii] For the sake of clarity these gaps can be briefly identified:
—Enforcement Gap: The International Court of Justice in responding to South Africa’s formal submission alleging Israel’s violation of the Genocide Convention in the course of its military operations constituted genocide, displayed a juridical respect for a regulative view of international law in its near unanimous rulings that granted several of South Africa’s requests for interim measures given the humanitarian emergency conditions in Gaza.[iv] The ICJ is empowered to declare the law authoritatively in response to legal disputes referred to it for resolution, but it is dependent on compliance by the losing party or enforcement sanctions imposed by the Security Council, which are hampered by the veto (both its inhibiting prospect or actual exercise) in contexts with a geopolitical dimension.
In this instance Israel refused to comply with interim rulings based on a finding that it was ‘plausible’ to view Israel proclaimed intentions together with its combat tactics as genocide and the right of veto possessed by the NATO P5 members of the Security Council were standing by to nullify any serious enforcement efforts or punitive action. Additionally, the interim character of the ICJ judgment, although of historic significance, was an additional concern arising from ponderous legal proceedings that might take several years before a final judgment is forthcoming. At such a point, the genocidal reality will have been superseded by developments and the ICJ outcome would be mainly of significant as a precedent, yet itself weakened by a provision in the ICJ Statute denying any legal obligation to respect prior ICJ pronouncements.
—Accountability Gap: As with enforcement, accountability for international wrongdoing is subject to a geopolitical exception that is illustrated by the approach taken after World War II (itself foreshadowed by the feeble effort to hold actors accountable for criminal acts dddafter World War I). This approach rejected accountability tied to violations of international law by all states during the war. In deference to geopolitics accountability was determined by the winners and imposed on the losers who were prosecuted and punished. This underlying dichotomy was given a ‘civilized veneer’ by according the accused losers of some elements of due process and the appearance of a fair trial. In contrast, the crimes of the winners, including indiscriminate bombing of German and Japanese cities and the use of atomic bombs, were not legally scrutinized, much less prosecuted and punished. From a regulative perspective this treated international law as a partisan policy instrument rather than as a universally applicable restraint on the behavior of sovereign states. This precedent set in the aftermath of World War II also incorporated these regressive features of international relations into the normative order established to cope with the unmet dangers of the nuclear age, as well as the related risks of the emergent Cold War.[v] In effect, global security and large-scale war prevention were entrusted to the P5 to address outside the framework of the UN, which resulted in arms races, periodic war/peace crises, reliance on secretive deterrence frameworks that were completely removed from any pretensions of legality or even some mechanism of custodial guardianship. This discretionary nuclearism was further geopoliticized by the selective nonproliferation regime that seems blind when it comes to Israel’s covert acquisition of a nuclear arsenal while committed to waging war against Iran to destroy its nuclear program, especially its enrichment facilities. The structure reveals a reliance on the prudence of political leaders of the nuclear weapons states, which seems a fragile basis on which to stake the future of the human species.
—Complicity Gap: The reference here is to the legal responsibility of governments, corporations, banks, and international institutions/alliances that have either openly or covertly intentionally aided and abetted the commission of serious international crimes, including genocide. In the context of the Gaza genocide the support given to Israel by several Western governments was instrumental in carrying out the crime. It included the provision of weaponry, funds, intelligence-sharing, steadfast diplomatic protection against moves to censure or sanction, and a willingness to go along with Israel’s diversionary, manifestly false legal, moral historical narratives of self-defense counterterrorism, and antisemitism. The issue of criminal complicity was central to the 2025 SR Report containing data and analysis pointing to high profits from genocide gained by 48 named corporations and financial actors, including some of the most prominent. Such truth-telling by the SR, Francesca Albanese, led Israel’s primary supportive government, the United States, to impose the previously mentioned personal sanctions, themselves unlawful as applied to a UN undertaking. This punitive pushback by the US was obviously intended to inhibit criticism of the economic infrastructure of Israeli support, as well as to warn the ICC, the UN, and other political actors, including the Palestine Authority, to refrain from future efforts to attack Israel or the United States from the perspective of international law.[vi] It was also reinforced Israel’s defamatory propaganda that Ms. Albanese was long unfit for the job because of her antisemitic beliefs and performance as SR, thus wrongfully challenging UN attempts to expose human rights abuses and hold perpetrators accountable. In this instance, such action interfered with UN efforts relating to the genocide through reliance on the veto-free Special Procedures capabilities of Human Rights Council;
—Pedagogical Gap: This may be the least familiar and yet in the long run the most significant gap, which in my view, is all-important for closing the other three gaps in the post-1945 global normative order. This pedagogical gap needs to be narrowed, if not closed, for there to be any realistic hope of incorporating a regulative view of international law into the worldview and operational code of foreign policy elites in relation to global security, war prevention, and crime prevention agendas.[2]
Yet the pedagogical gap is the most daunting ideological barrier because it remains unacknowledged reflecting the ideological hegemony of outmoded militarized versions of political realism within the policymaking domains of geopolitical actors and their civilian infrastructures of well-funded lobbying on behalf of special interests and think tanks subscribing fully to the critical realism of governmental foreign policy establishments. There is no immediate way of overcoming this barrier, and my advocacy is initially directed at revamped citizenship training and public international law instruction and practice around the world. The central objective would be to place a greater emphasis on adapting political realism in international relations to the underlying urgencies of climate change, ecological instabilities, genocidal violence, the menace of nuclear weapons, and aggressive recourse to force to resolve international conflict situations. International law in its regulative role illuminated by critiques of geopolitical usages and historical international roles including giving legal backing to economic exploitation and colonial arrangement should be included in interdisciplinary and sophisticated law school instruction and scholarship. This should be understood as part of an upgraded and reconfigured perception of the relations between adherence to international law and the pursuit of national interests and the public good. As matters now stand the most influential centers of study and policy research are dominated by anachronistic ideas of legal and foreign policy pedagogy tied to various versions of militarized group think, intolerant even of such prudently inclined and morally sensitive political realist thinkers as John Mearsheimer, Stephen Walt, John Bacevich, and Trita Parti who continue to identify themselves ‘realists.’[3] I suppose their exclusion from Washington’s corps of foreign policy advisors is mainly due to their greater skepticism when it comes to national reliance on military approaches to foreign policy challenges. Such views are unwelcome and unrepresented in the inner circles of foreign policymaking of the geopolitical or P5 actors, perhaps most overtly in the United States, a telling sign that the military/industrial complex remains an impediment to the adoption, or even the serious discussion, of less militarist and more cooperative interpretations of global security.
Hopefully, the influence of TWAIL perspectives on younger generations of students and teachers will sharpen their critical convictions with what is identified here as ‘progressive interpretations of international law.’[vii] As is understandable TWAIL scholarship and advocacy has sought up to now mainly to criticize and reform international law in the economic sphere engaging the right to development from the perspectives and priorities of the Global South. In the future it seems reasonable to expect more attention to be devoted to policy challenges in the spheres of global security and war/peace. The Treat of Prohibition of Nuclear Weapons (TPNW, 2021) is an example of Global South leadership with regard to denuclearization and abolition of nuclear weaponry. Another example is the degree to which challenging the enforcement gap with respect to the Gaza genocide have been due to legalist initiatives at the UN and elsewhere pushed almost exclusively by countries in the Global South.[viii]
Because of the political realist dominance in the policy realm of ideas, the subject-matter of public international law tends to be marginalized, except as it bears on trade and investment, in law schools, and most influential lawyers have little knowledge of either its constructive potential or its systemic disregard in policy-making arenas of decision. This should be challenged and changed, adapting cooperative multilaterism, which depends on codifying agreements in the form of enforceable treaties, to policy concerns of global scope. Future security, stability, and even species survival depend on making these adjustments in a timely manner, and will only happen as a result of civil society pressures, which until now have ranged from weak to non-existent
Reevaluating International Law’s Response to the Gaza Genocide: A Legitimacy War Perspective
Without underestimating the weaknesses of international law in relation to global security, war/peace issues, and genocidal internal politics, it is nevertheless even with these flaws an important policy instrument in the context of civil society activism and public discourse in relation to the quest for demilitarized justice-driven peace and ecologically sensitive stability among states. With respect to the Gaza genocide, post-1945 international law with regard to this crime is set forth in the 1948 International Convention of Genocide that was relied upon by South Africa’s widely praised recourse to the ICJ, with interim proceedings at The Hague given wide TV coverage and receiving favorable coverage of the presentation of its principal allegations against Israel: violation of the Genocide Convention and unlawfully blocking the international delivery of humanitarian aid to the population of Gaza long deprived by Israel of the necessities of life. Such a visual and theatrical presentation of the international arguments for and against Israel’s policy in Gaza has had a major impact on the continuing process of delegitimizing Israeli claims of self-defense, counterterrorism, and antisemitism further informed by its contention of being victimized by the October 7 attack that it claims was ‘the real genocide.’
At the same time, the carefully crafted and TV broadcast legal arguments of the South African team lent legitimacy to the South African requests for interim measures on an emergency basis and the weaknesses of Israel’s responses had a major public delegitimizing impact, including on the previously self-censoring most influential international media platforms. These patterns were reinforced by the ICJ Interim Rulings granting South Africa’s requests for provisional measures, especially characterizing its principal allegation as ‘plausible genocide’ and ordering Israel to stop impeding the delivery of humanitarian assistance.
What gave this historic interim set of rulings additional legal credibility was the near unanimous vote among the 16 participating judges, and beyond this, the professionalism of the legal reasoning and conclusions that did not mirror their national affiliations. This alone tended to refute US/Israeli dismissal of the legal outcome in the ICJ as matters of politics not law.[ix] Until the present, the media continued to self-censor explicit descriptions of Israel’s behavior in Gaza as ‘genocide,’ but recently the NY Times broke ranks with a guest column by an academic genocide specialist, Omar Bartov, although ambiguously as it published prominently a notorious genocide-denier, Bret Stephens, a few days later. Yet on balance part of the delegitimating trends affecting Israel’s stature as a state among states is the normalizing of ‘genocide’
Even though the enforcement gap precluded implementation of the ICJ rulings, the decision is correctly interpreted as having as a breakthrough in the civil society protest efforts to turn the tide of discourse and public opinion in the Legitimacy War that up to then Israel, benefitting from Western governmental, media self-censorship, and Israeli inflated accounts of supposed Hamas atrocities slanting public perceptions to forgo judging the severity of Israel’s response for several months. This attitude of indulgence was largely abetted by decontextualizing the October 7 attack to enable Israel’s response to seem within the scope of reasonableness in asserting a self-defense rationale for its retaliatory attack. This shielded Israel from criticism and censure throughout the remainder of 2023.[x] As important as the formal behavior of the established intergovernmental tribunals were in the legitimacy competition, the voice of independent experts, most notably associated with the Special Procedures mechanisms established by the UN Human Rights Council, especially the brilliant institutional innovation of appointing Special Rapporteurs to address significant human rights themes or problematic country conditions.[xi] Partly due to Israel’s sensitivity about criticism, its formidable media influence, and the Zionist diaspora lobbying and support network, the SRs for Occupied Palestine have increasingly become a controversial center of attention either by way of praise for their truthful reports despite harassment intended to be disabling or because of the relentless campaigns to question their credibility as impartial experts. This dynamic peaked during the first three years of Francesca Albanese six-year tenure, climaxing with the US Government imposition of unprecedented and legally questionable sanctions on July 9, 2025, barring her entry to the US and freezing any American assets she might possess.[xii]
The formation of the Gaza Peoples Tribunal is a further legitimating development with respect to the Palestinian struggle and its Sarajevo Declaration is a clear statement of opposition to Israel’s policies and the complicity of most liberal democracies.[xiii] A further legitimizing development if the courageous civil society efforts to offset Israeli refusal to allow unimpeded delivery of humanitarian aid is by way of the Freedom Flotilla initiatives, that also were delegitimizing as far as Israel is concerned due to crude attempts to disrupt the delivery missions, punitively seizing of the nonviolent activists undertaking these hazardous voyages, culminating with their detention and deportation.[xiv]
A further symbolic battleground in the Legitimacy War is being struck by governments mainly in the Global South, so far most noticed by the activism of the Hague Group, which met at Bogotá in July at the invitation of co-chairs from South Africa and Columbia, featuring an opening inspirational remarks by Francesca Albanese and ending with the issuance of a statement signed by representative of 12 governments recommending the adoption of six measures intended to exert pressure on Israel to end the Gaza genocide.[xv] Earlier supporters of Israel’s genocide in Gaza have been showing some signs of opposition as evidenced by the ambiguous decisions of France, UK, and Canada to recognize Palestinian statehood belatedly and conditionally and the UK parliamentary inquiry initiated by Jeremy Corbyn seeking an end to British support for Israeli genocide in Occupied Palestine.[xvi]
Israel itself contributed to its rogue status by a series of delegitimating acts, none perhaps more impactful than its combat policies causing severe hunger and massive malnutrition in Gaza, and then cloaked in by fake claims associated with the Gaza Humanitarian Foundation. This policy has resulted in more than one thousand deaths due to starvation, including young children, and IDF sniper violence at the food delivery sites. Such a genocidal policy provoked large-scale protests including in Western countries. Israel and the US policies associated with the weaponization of humanitarian aid in the cruelest imaginable manner, initially by formally excluding UNRWA and other international actors from aid delivery in Gaza on the unsubstantiated grounds that a tiny fraction of its Palestinian personnel was implicated in the events of October 7 or diverted to Hamas. It turned out after an investigation to be based on flimsy evidence alleging 12 UNRWA staff of an estimated 13,000 collaborated with Hamas in carrying out the attack. Israel succeeded in mounting an effective, punitive propaganda campaign to defund UNRWA, although its humanitarian work of providing health services, education, food, and shelter for many thousand Palestinian refugees despite enduring more than 300 staff deaths resulting from Israeli targeted bombardments of UNRWA facilities.[xvii]
As appalling was its response to criticism for denying international deliveries of desperately needed food was to set up a ‘Gaza Humanitarian Foundation,’ funded and administered by the US together with Israel, relying on supervision by a US ‘private contractors’ (mercenaries) to run the four Gaza food distribution centers inconveniently located in comparison with both the 400 such sites humanely situated and managed for decades by UNRWA in contrast to the IDF lethal violence Palestinians encountered at the GHF sites, which have resulted in more than 1000 deaths among the crowds of hungry Palestinians seeking urgently needed food for their starving families and themselves. This practice was daily reported visually and narrated extensively in previously self-censoring sites by brave journalists that risked being targeted themselves, with an intensifying delegitimizing effect on underlying perceptions of Israeli outrageous benign claims of humanitarian intentions. Israel’s plans to construct a ‘Humanitarian City’ built as a confinement center for Palestinians displaced by Israeli operations during the period of reconstruction is another Orwellian deep dive into the severest forms of repression disguised as ‘humanitarianism.’ Such transparent deceptions accentuate Israel’s delegitimating way of dealing with a resident civilian population forcibly torn from its devastated homeland and deep nationalist attachments to the land of its ancestors. Such an initiative has even been denounced by Israel’s former Prime Minister, Ehud Olmert.
Also relevant to this recital of delegitimizing policies and practice is Israel’s defiant responses manifested ever since its establishment to authoritative rulings of international law as expressed by the ICJ and ICC, as well as toward majoritarian criticisms of Israel’s failure to respect international law or human rights in numerous General Assembly resolutions and in its rejections of its obligations in international humanitarian law as encapsulated in the 4th Geneva Convention governing Belligerent Occupation regulating Israel’s occupation of Palestinian territories resulting from the 1967 War.[xviii]
In effect, the combination of Palestine’s enhanced legitimacy due in large part due to having international law and morality on its side, as reinforced by Israel’s reliance on complementary delegitimizing policies and practices exhibiting a patterns of behavior evident long before October 7. It can be traced back to the ethnic cleansing inflicted by the Nakba in 1948 and forward to apartheid structures of Israeli practice as analyzed and assessed in a serides of expert studies by the most respected human rights NGOs and by the UN Economic and Social Council of West Asia (ESCWA).[xix] It is highly incriminating that the liberal democracies of the West, priding themselves on anti-racist progress in their own countries and supportive of the anti-apartheid campaign against South Africa, remained silent until this day in the face of these persuasive indictments of Israeli racism.
Causal linkages are difficult to establish, but this kind of pushback against Israel’s policies toward Occupied Palestine, have had the tendency to shift the balance of legitimacy decisively during the prior two years in favor of the Palestinian narrative in the Legitimacy War. The early results have been to lead governments supportive of Israel in Europe and elsewhere to start back pedaling, and to lead the citizenries in these countries to shift policies and behavior more strongly in the direction of the implementation of Palestinian rights under international law, especially in relation to the recognition and realization of the Palestinian inalienable right of self-determination. Whether recent trends toward the recognition of Palestinian statehood are an empty gesture meant to convey a concern for Palestinian interests or a long overdue signal of a transformative shift in the approach of Western countries to Israel/Palestinian conflict remains hidden within a smoky crystal ball. In forthcoming diplomacy it may be, as the once promising Oslo diplomacy turned out to be, a trap for Palestinians and a gateway to annexation or Bantuization of Palestinian aspirations.
Concluding Observations
The law/legitimacy nexus is particularly relevant in the course of an anti-colonial struggle, making it of great significance that the settler colonial template has come to displace the earlier Zionist narratives relating to a post-Holocaust sanctuary for a Jewish homeland and a modernizing twist captured in the phrase ‘making the desert bloom.’ The combination of Palestinian rights denied and Israeli wrongs confirmed, gives international law leverage in the legitimacy debate that arises in the course of all self-determination and liberation struggles, and by reference to the historical record shows, contrary to the postulates of the political realists, that the side with the inferior military capability has most often politically prevailed since 1945. The British discovered this in India and Malaya, the French in Algeria and Indochina, the Dutch in Indonesia, and the Americans in Vietnam. Inferior military capabilities of colonized nations were neutralized by the outcome of the Legitimacy Wars, despite the great suffering inflicted in the process, because the nationalism of the resident population was willing to outlast the repressive side due to its deep legal, moral, and psychological beliefs in the righteousness and achievability of their struggle.
This is a lesson of the last 80 years that adherents are incapable of learning because it would entail an abandonment of militarized geopolitics and encourage adherence to a functionally grounded cooperative multilateralism more congruent with the global public good, adherence to international law and morality, and redirecting resources from militarism to mitigating dangers of nuclear war, global warming, energy transition, and ecological instability.
The immediate application of this analysis to the Palestinian ordeal is almost impossible, partly due to its complex interaction with several other daunting issues of international relations. Zionism is not just a dominant ideology in Israel, reinforced by Holocaust nightmares and ultra-religious patterns of justification, that also has so far benefitted from a sophisticated network of overseas influence. Beyond this, the West still covets Western hegemony in the Middle East for its energy reserves, as well as its markets for weaponry and Western goods, and geographical proximity to trade routes. Despite the collapse of European colonialism, the US has led the post-colonial project of imperial exploitation and domination in the region with Israel as a crucial strategic partner. This is not just an economic undertaking, it is an inregral aspect of ‘the clash of civilization’ anticipated by Samuel Huntington in the immediate aftermath of the Cold War, and still the locus of key fault lines, epitomized by the Palestinian challenge to Israel and Iran’s hostility to West encroachment, and secularism.[xx]
The key question that follows from the Palestinian victory in the Legitimacy War is whether a coherent Palestinian nation can still emerge from the hot embers of the Gaza genocide. In the aftermath will the national movement among Palestinians, including those confined to refugee camps for decades, will flourish and avoid being dispersed physically and fragmented politically. In effect, will the remarkable Palestinian sumud, resistance, and resilience be able to regroup and remain sufficiently committed to achieve a pragmatically shaped solution of a quality that brought unexpected constitutional democracy to South Africa?
[1] See report to UN by Francesca Albanese, “From the Economy of Occupation to the Economy of Genocide,” A/HRC/r9/13, 16 June 2025. Sameur in France. GNQP Statement; SHAPE Statement
[1] Some prominent examples in the Gaza context are the normative encounters between the independent legal experts of the UN Human Rights Council, especially in relation to the last four Special Rapporteurs (SRs) for Palestinian Territories Occupied by Israel since 1967. For pre-Albanese assessments by three prior UN SRs see Richard Falk, John Dugard, and Richard Falk: Protecting Human Rights in Palestine: Working Through the United Nations, Clarity Press, 2022. Such encounters have been highlighted in the intense friction between SR Francesca Albanese and governments supporting
the reputation of international lawyers and legalism in the context of international relations. By ‘progressive’ is meant that international law is interpreted as a regulative framework rather than a policy instrument subject to double standards in responding to the polices of adversaries and to those of allies and properly criticized as exercises in moral hypocrisy and state propaganda that undermines the reputation of international lawyers and legalism in the context of international relations. See Falk & Hans von Sponeck, Liberating the United Nations: Realism with Hope, Stanford University Press 2024. In light of the support of Israeli genocide on the part of most liberal democracies, the hopefulness expressed by the title is seems naïve, at least in the short run.
[1] See Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), ICJ interim decisions, 26 January 2024, 28 March 2024. See generally Alexander Wentker, “More and More Disputes on War and Genocide are being Litigated at the International Court of Justice,” Chatham House Report, 4 September 2024.
[1] See Richard H. Minear, Victors’ Justice: Tokyo War Crimes Tribunal, Princeton University Press, 2016; Gary J. Bass, Judgment at Tokyo: World War II on Trial and the Remaking of Modern Asia, Knopf, 2023.
[1] Relevant here is the focus of the Genocide Convention on the Prevention and Punishment of the international crime. At least for parties to the treaty, this would seem to brand complicity as prima facie participation in the crime. But see Reed Rubenstein, Senior Legal Advisor of US Secretary of State, as warning the ICC that ‘all options are on the table’ if it does not refrain from hostile acts against Israel or the US, governments, states that deny the jurisdiction of the ICC in relation to themselves as non-parties to the Rome Statute establishing the legal framework of the ICC. The Rome Statute in fact claims jurisdiction over non-signatories if the alleged crime occurs on the sovereign territory of a treaty party, in this instance Palestine. Of course, Rubenstein although has a title that suggests a legalist perspective made a purely political, really a geopolitical argument at the UN that is implicitly dismissive of legal relevance. “US threatens ICC: Drop Israel war crimes probe or ‘all options on the table,’ Middle East Eye [ https://www.middleeasteye.net/news/united-states-icc-drop-israel-war-crimes-probe-all-options-table]
[1] Hidden here, is the biasing of judgment by the strong influence of special interests as evidenced by the US Congressional bipartisan and shameful honorific welcoming of Israel’s Prime Minister despite his notorious role as the chief and most unapologetic perpetrator of the Gaza genocide. These special interests associated with strategic alignments and economic benefits involve a maximum effort to at the reassertion of Western dominance of the world after the collapse of European colonialism and the end of the Cold War as serving economic interests. In different ways the three recent armed conflicts in Gaza, Ukraine, and Iran are manifestation of both this urge to dominate and to deter Russia and China from mounting challenges.
[1] Among the most notable challenges of a legalist character have been the South African submission to the ICJ in late 2023, the Hague Group challenge at Bogotá of July 2025, and several UN General Assembly Resolutions seeking international guidance with respect to a mandatory ceasefire and the legal status of Israel role under the 4th Geneva Convention of being the Occupying Power of Palestinian Territories after 1967, including Gaza. On the latter see authoritative near unanimous Advisory Opinion of the ICJ, “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Territory, including Gaza,” 19 July 2024. In contrast, the Western liberal democracies of Europe and North America have refused to subject Israel’s response to the October 7 attack to legal scrutiny, and have endorsed and materially supported its genocidal response, unreservedly until a groundswell of civil society protests have induced all of Israel’s supporters except for the US to engage in ‘damage control’ by acting in defiance of Israel wishes such as belated recognition of Palestinian statehood, often accompanied by conditional clauses that would withdraw the statehood pledge or that impose conditions on the Palestinians such as hostage release.
[1] Only one ICJ judge, Julia Subutinde from Uganda, relied on this absurdly distorted reasoning and voted against all of the rulings in the South Africa genocide submission on the ground that since she regarded the dispute as ‘political’ rather than ‘legal’ dispute, and hence, the ICJ lacked jurisdictional authority. It seems absurd and distorted in view of the clearly legal contention that Israel was violating provisions of the Genocide Convention.
[1] by portraying the Hamas attack as worst-case ‘terrorism’ with no account taken of Israel’s numerous and unapologetic violations of international law, including defying the ICJ Advisory Opinion of 2004 on its Separation Wall and violations of the Apartheid Convention(1973) as well as the legal duties spelled out in the 4th Geneva Convention, the context including a punitively interpreted blockade established in 2007 after Hamas’ electoral victory the prior year; Israel’s complacency in view of several reliable warnings of an impending attack from Gaza and its appearance of seeking a pre-planned pretext for activating its obviously planned end game of territorial annexation and Palestinian ethnic and political erasure to be put into operation under the cover of a response to the Hamas attack
[1] The Human Rights Council has 48 thematic and 14 country mandates, each with an appointed special rapporteur, normally serving without compensation for two three-year terms. Special rapporteur can withdraw by resigning at any point, and can be challenged by the Assembly of 47 UN member states for exceeding or departing from the designated scope of the mandate.
[1] For pre-Albanese experience of the three prior SRs see Falk, Note 2. Also, Marjorie Cohn, “Ex-UN Special Rapporteur says Francesca Albanese Deserves Nobel Prize, Not US Sanctions,” Truthout, July 14, 2025
[1] See Gaza Peoples Tribunal issued the Sarajevo Declaration of the Gaza Tribunal on May 29, 2025.
[1] Rosane, Olivia, “Israeli Navy Seizes Second Gaza-Bound Freedom Flotilla Vessel in 2 Months,” Common Dreams, July 26, 2025.
[1] Hague Group, Emergency Conference of States, Bogotá, 2025, attended by 30 countries, addressed by Francesca Albanese, Issued “Joint Statement on the Conclusion of the Emergency Conference on Palestine,” 16 July 2025, committing 13 signatory countries to integration into their domestic legal systems the acceptance and implementation of six concrete measures, including an arms embargo, prohibition of carriage of military equipment to Israel by ships flying their national flag, comply with international law duty to take actions to prevent genocide and seek accountability for all serious international crimes, and seek to accept universal jurisdiction as a national judicial basis for granting victims of Israeli abuses in Occupied Palestine Territories a means to seek legal redress for harms suffered.
[1] The motivations behind these recent various moves by France, Germany, and Canada purporting to affirm Palestinian statehood, in the face of Israeli and US objections, is to revive the failed ‘two-state Oslo diplomacy’ under the less favorable conditions. If ever implement by the present configuration of forces it would likely eventuate in a Palestinian ‘bantustan statelet’ demilitarized and neutralized. Although it might curtail the full realization of the Zionist Project, its proponents would insist that such acts are as far as Palestinian self-determination and identity claims can be acknowledged. Such an outcome would in no way would fulfill the liberation criteria attached to the fulfillment of the Palestinian right of self-determination by authentic Palestinian representatives. This ‘solution’ would leave Israel free to maintain Zionist apartheid views of Jewish supremacy as embodied in the adoption by the Knesset of the 2018 Basic Law. See detailed Chinese Academy Newsletter, “Palestine as a Battleground in the US-France Influence Game,” 28 July 2025, carefully analyzing the French calculations underlying Macron’s declaration of support for Palestinian statehood. Although an incisive analysis it understates the role of domestic pressures in shaping the Macron decision.
[1] See Ian Martin UN, “UNHQ Report of Inquiry into Incidents in the Gaza Strip,” bearing on Israel discrediting attacks and punitive exclusions of UNRWA and other UN Gaza humanitarian aid initiatives.
[1] See especially the two near unanimous outcomes in the ICJ: The Advisory Opinion of July 19, 2024 and the Interim Judgment of the ICJ on March 26, 2024 as cited in Notes 4 & 8. The arrest warrants issued by the ICC have had a delegitimizing impact that exceeds their legal relevance as accountability measures. Unlike the ICJ the ICC is not part of the UN and several important states have declined to become parties to the Rome Statute, the treaty framework governing ICC proceedings, including Israel and the US, as well as Russia and China. Along with other states who are parties, these governments refuse to cooperate with the ICC in relation to the implementation of arrest warrants, which means the ICC remains unable to pursue indictment, prosecution, and punishment phases of international criminal law enforcement.
[1] See Falk & Virginia ; HRW; AI; B’Tselem
[1] Huntington, Samuel P., The Clash of Civilizations and the Remaking of World Order, Simon & Schuster, 1996, which is a revised version of his much-debated 1993 article in Foreign Affairs in the same year, and notable for substituting China for Islam as the primary adversary of the US and the West after the Cold War.
[1] International law, as is all law, itself is subject to sharp critiques as serving the interests of the rich and powerful in the Global West, including with respect to the subject-matter of war and peace if assessed from the perspective of justice rather than interests. The two world wars and anti-colonial movements of the last century made some impact on this prior experience as did jurisprudential contributions of scholars (e.g. Balakrishnan Rajgopal, Upendra Baxi) from the Global South, giving rise to the TWAIL movement that continues, and seeks to align international law with justice as with the development of right to development, the principle of self-determination, and rights of resistance by peoples subject. Oona Hathaway and Shapiro accord great significance to the Pact of Paris (1928) outlawing aggressive war in their book. And the advent of nuclear age made war prevention a practical imperative for all states, but eventuated in the normalization of this category of weaponry, splitting the governments of the world between a reliance on deterrence and calls for nuclear disarmament signaled by the Treaty of Prohibition of Nuclear Weapons (TPNW), a project of the Global South, so far rejected by leading governments in the Global North. It remains the case that ‘political realism’ controls the foreign policy of leading countries, and reflects the economic and political interests of predatory capitalism, militarized geopolitical calculations, and post-colonial imperialism. The UN after 1945 allowed the ‘winners’ to enjoy impunity for their international crimes (but not the ‘losers’) and to shape the future of world order by continuing to base global security on preserving the freedom of action of the victors in World War II. What has changed is that there now exists an alternative international law discourse, more closely aligned with the public good, that is available to challenge the behavior of geopolitical actors, but not yet influential in shaping the foreign policy of geopolitical actors. Henry Kissinger, the arch realist of our time admitted his annoyance with assistants who reminded him of relevant constraints of international law that he believed should be seen in the formation of war/peace statecraft.
[2] Adopting a ‘regulatory’ perspective toward international law does not ensure justice but only promises consistency in the application of law, and respect for the authoritativeness of decisions by institutions such as the ICJ and ICC that are empowered to resolve legal disputes. Such an understanding of a law-oriented approach has recently been Government indirectly repudiated by the US, perhaps most clearly by its announced sanctions on Palestinian Authority officials because of their role in the ‘internationalization’
of the Gaza conflict by their submissions to the ICJ and ICC, an action described in the sanctioning statement as contrary to ‘the national security interests’ of the US. See BBC coverage,
[1] See report to UN by Francesca Albanese, “From the Economy of Occupation to the Economy of Genocide,” A/HRC/59/13, 16 June 2025. GNQP Statement; SHAPE Statement
[2] Some prominent examples in the Gaza context are the normative encounters between the independent legal experts of the UN Human Rights Council, especially in relation to the last four Special Rapporteurs (SRs) for Palestinian Territories Occupied by Israel since 1967. For pre-Albanese assessments by three prior UN SRs see Richard Falk, John Dugard, and Richard Falk: Protecting Human Rights Through the United Nations: , Clarity Press, 2023. Such encounters have been highlighted in the intense friction between SR Francesca Albanese and governments supporting Israel’s military operations in Gaza, dramatically highlighted by sanctions imposed on her, barring entry and freezing private economic assets. See Falk, “Sanctioning Francesca Albanese,” The Nation, July 15, 2025. See also law-influenced initiatives of the Gaza Peoples Tribunal, The Hague Group, and Ahmet Davutoglu & Richard Falk, ed., Genocide in Gaza: Global Voices of Conscience, Clarity Press, 2025. Sanctioning Albanese appears to violate two relevant international treaties binding on the US: Convention on the Privileges and Immunities of the United Nations; Agreement regarding the Headquarters of the United Nations (the Host Country Agreement).
[iii] By ‘progressive’ is meant that international law is interpreted as a regulative framework rather than a policy instrument subject to double standards in responding to the polices of adversaries and to those of allies and properly criticized as exercises in moral hypocrisy and state propaganda that undermines the reputation of international lawyers and legalism in the context of international relations. See Falk & Hans von Sponeck, Liberating the United Nations: Realism with Hope, Stanford University Press 2024. In light of the support of Israeli genocide on the part of most liberal democracies, the hopefulness expressed by the title is seems naïve, at least in the short run.
[iv] See Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), ICJ interim decisions, 26 January 2024, 28 March 2024. See generally Alexander Wentker, “More and More Disputes on War and Genocide are being Litigated at the International Court of Justice,” Chatham House Report, 4 September 2024.
[v] See Richard H. Minear, Victors’ Justice: Tokyo War Crimes Tribunal, Princeton University Press, 2016; Gary J. Bass, Judgment at Tokyo: World War II on Trial and the Remaking of Modern Asia, Knopf, 2023.
[vi] Relevant here is the focus of the Genocide Convention on the Prevention and Punishment of the international crime. At least for parties to the treaty, this would seem to brand complicity as prima facie participation in the crime. But see Reed Rubenstein, Senior Legal Advisor of US Secretary of State, as warning the ICC that ‘all options are on the table’ if it does not refrain from hostile acts against Israel or the US, governments, states that deny the jurisdiction of the ICC in relation to themselves as non-parties to the Rome Statute establishing the legal framework of the ICC. The Rome Statute in fact claims jurisdiction over non-signatories if the alleged crime occurs on the sovereign territory of a treaty party, in this instance Palestine. Of course, Rubenstein although has a title that suggests a legalist perspective made a purely political, really a geopolitical argument at the UN that is implicitly dismissive of legal relevance.
[vii] Hidden here, is the biasing of judgment by the strong influence of special interests as evidenced by the US Congressional bipartisan and shameful honorific welcoming of Israel’s Prime Minister despite his notorious role as the chief and most unapologetic perpetrator of the Gaza genocide. These special interests associated with strategic alignments and economic benefits involve a maximum effort to at the reassertion of Western dominance of the world after the collapse of European colonialism and the end of the Cold War as serving economic interests. In different ways the three recent armed conflicts in Gaza, Ukraine, and Iran are manifestation of both this urge to dominate and to deter Russia and China from mounting challenges.
[viii] Among the most notable challenges of a legalist character have been the South African submission to the ICJ in late 2023, the Hague Group challenge at Bogotá of July 2025, and several UN General Assembly Resolutions seeking international guidance with respect to a mandatory ceasefire and the legal status of Israel role under the 4th Geneva Convention of being the Occupying Power of Palestinian Territories after 1967, including Gaza. On the latter see authoritative near unanimous Advisory Opinion of the ICJ, “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Territory, including Gaza,” 19 July 2024. In contrast, the Western liberal democracies of Europe and North America have refused to subject Israel’s response to the October 7 attack to legal scrutiny, and have endorsed and materially supported its genocidal response, unreservedly until a groundswell of civil society protests have induced all of Israel’s supporters except for the US to engage in ‘damage control’ by acting in defiance of Israel wishes such as belated recognition of Palestinian statehood, often accompanied by conditional clauses that would withdraw the statehood pledge or that impose conditions on the Palestinians such as hostage release.
[ix] The sole ICJ judge that bought this absurdly distorted reasoning was the Ugandan judge who voted against all of the rulings on the ground that since it was a political rather than legal dispute the ICJ lacked jurisdictional authority.
[x] By portraying the Hamas attack as worst-case ‘terrorism’ with no account taken of Israel’s numerous and unapologetic violations of international law, including defying the ICJ Advisory Opinion of 2004 on its Separation Wall and violations of the Apartheid Convention(1973) as well as the legal duties spelled out in the 4th Geneva Convention, the context including a punitively interpreted blockade established in 2007 after Hamas’ electoral victory the prior year; Israel’s complacency in view of several reliable warnings of an impending attack from Gaza and its appearance of seeking a pre-planned pretext for activating its obviously planned end game of territorial annexation and Palestinian ethnic and political erasure to be put into operation under the cover of a response to the Hamas attack
[xi] The Human Rights Council has 48 thematic and 14 country mandates, each with an appointed special rapporteur, normally serving without compensation for two three-year terms. Special rapporteur can withdraw by resigning at any point, and can be challenged by the Assembly of 47 UN member states for exceeding or departing from the designated scope of the mandate.
[xii] For pre-Albanese experience of the three prior SRs see Falk, Note 2. Also, Marjorie Cohn, “Ex-UN Special Rapporteur says Francesca Albanese Deserves Nobel Prize, Not US Sanctions,” Truthout, July 14, 2025
[xiii] See Gaza Peoples Tribunal, Sarajevo Declaration
[xiv] Rosane, Olivia, “Israeli Navy Seizes Second Gaza-Bound Freedom Flotilla Vessel in 2 Months,” Common Dreams, July 26, 2025.
[xv] Hague Group, Emergency Conference of States, Bogata, 2025, attended by 30 countries, addressed by Francesca Albanese, Issued a “Joint Statement on the Conclusion of the Emergency Conference on Palestine,” 16 July 2025, committing 13 signatory countries to integration into their domestic legal systems the acceptance and implementation of six concrete measures, including an arms embargo, prohibition of carriage of military equipment to Israel by ships flying their national flag, comply with international law duty to take actions to prevent genocide and seek accountability for all serious international crimes, and seek to accept universal jurisdiction as a national judicial basis for granting victims of Israeli abuses in Occupied Palestine Territories a means to seek legal redress for harms suffered.
[xvi] As Craig Mokiber has pointed out the idea behind this international move toward Palestinian statehood is the establishment of a ‘bantustan statelet’ demilitarized and neutralized, and by such acts be done with Palestinian identity claims, which in no way would fulfill the liberation criteria of the Palestinian right of self-determination. Leaving Israel free to maintain Zionist views of Jewish supremacy as depicted in the adoption by the Knesset in the 2018 Basic Law. See Chinese Academy Newsletter analyzing the French announced declaration of support for Palestinian statehood
[xvii] See Ian Martin UN, “UNHQ Report of Inquiry into Incidents in the Gaza Strip,” bearing on Israel discrediting attacks and punitive exclusions of UNRWA and other UN Gaza humanitarian aid initiatives.
[xviii] See especially the two near unanimous outcomes in the ICJ: The Advisory Opinion of July 19, 2024 and the Interim Judgment of the ICJ on March 26, 2024 as cited in Notes 4 & 8. The arrest warrants issued by the ICC have had a delegitimizing impact that exceeds their legal relevance as accountability measures. Unlike the ICJ the ICC is not part of the UN and several important states have declined to become parties to the Rome Statute, the treaty framework governing ICC proceedings, including Israel and the US, as well as Russia and China. Along with other states who are parties, these governments refuse to cooperate with the ICC in relation to the implementation of arrest warrants, which means the ICC remains unable to pursue indictment, prosecution, and punishment phases of international criminal law enforcement.
[xix] See Falk & Virginia ; HRW; AI; B’Tselem
[xx] Huntington, Samuel P., The Clash of Civilizations and the Remaking of World Order, Simon & Schuster, 1906, which is a revised version of his much debated articles in Foreign Affairs in the same year, and notable for substituting China for Islam as the primary adversary of the US and the West after the Cold War.
Global Justice in the 21st Century 