On Palestine and the Death of the West’s International Legal Order

This post is the first in the mini symposium, International Law in the Current Moment.

Introduction 

The history of international law is littered with paradigmatic signposts of change, moments of calamity and renewal, collapse and regeneration. From the Peace of Westphalia to the Congress of Vienna, the Treaty of Versailles to the San Francisco Conference—change in how humanity has politically organized itself on the international plane has usually emerged from some moment of great tumult that, in turn, has resulted in fundamental shifts in the international legal order to consolidate new ways of being. As my students often hear from me before we dive into Brownlie’s Principles, international law is more than a collection of rules that govern international affairs. It is, in many ways, a story of human failure, as charted through the norms that have been created and recreated to manage the divisions that we have irrationally erected that artificially divide our species and the increasingly limited resources we rely on (think: State sovereignty). When those failures have proved so overwhelming that they shatter the extant legal order in their wake, we are called to ask why and how has this happened? And, more importantly, what ought to come next? 

Palestine as Litmus Test 

For multitudes, including me, events in occupied Palestine over the past two years represent one such human failure suggestive that we may now be at a crossroads, or at least ought to consider ourselves to be. Whether this results in fundamental changes to the international legal order in the nature of those so common to our discipline’s history is not yet clear. What is clear, however, is that how we respond to this moment will reverberate for some time to come.  

As millions across the globe have reminded us—whether through university student and faculty encampments, high-street shut downs, union-led port closures and work stoppages, sporting, academic and cultural boycotts, people’s tribunals (e.g. here, here, and here), and, yes, even a New York City mayoral election indicative of generational shifts in western public opinion—the anti-Apartheid Palestine freedom struggle is now the socio-political cause of our time, an issue on which the measurement of our collective morality turns and with it, how we read, understand and apply international law.  

Since the fateful events of 7 October 2023, during which over 1,200 Israelis were killed and 252 others taken captive, Israel has unleashed a level of violence on occupied Palestine not seen anywhere this century. Conservative estimates indicate over 69,000 Palestinians in Gaza have been killed, almost half of whom women and children. Thousands of extended families have literally been erased, with tens of thousands or more individuals presumed dead under the rubble. Based on Israeli intelligence data, the UN Commission of Inquiry on Palestine/Israel reports that as of May 2025 “83 percent of those killed in Gaza were civilians”. Over 170,000 Palestinians have been injured, many for life. Over 1.9 million Gazans have been forcibly transferred multiple times (that’s almost 90 percent of the population), and all of them have been subjected to an unrelenting campaign of saturation bombing, scorched earth and starvation as methods of war. According to the UN Satellite Centre, approximately 70 percent of the total structures in Gaza have been destroyed or damaged, including residential, commercial, education, health, water, sanitation, energy, religious and cultural infrastructure. In other words, everything that sustains organized human existence.  

All of this has been accompanied by a continuing stream of hundreds of open calls evincing genocidal intent on the part of the Israeli leadership and those under its command, not to mention mainstream Israeli popular and social media. These include that there are “no uninvolved” civilians in Gaza, that they are “human animals”, that the only “answer” is the “total extermination of Gaza and all two-legged animals there”, and that the Palestinians are modern day “Amalekites”, biblical enemies of the ancient Hebrews whose “seed” God commanded be “wiped out” (“Now go, attack the Amalekites and totally destroy all that belongs to them. Do not spare them; put to death men and women, children and infants, cattle and sheep, camels and donkeys”: 1 Samuel 15:3).  

In two years, the Israeli occupied Gaza Strip—among the most densely populated places on Earth almost half of whose population are children, and which Israeli sociologist Baruch Kimmerling has called the “largest concentration camp ever to exist”—has been ground to dust by the occupying Power. Israel has done this with well over 70,000 tons of largely American-made bombs, amounting to more than was dropped on Dresden, Hamburg and London combined during WWII (again, a conservative estimate). In January 2024, the International Court of Justice (ICJ) determined that Israel is plausibly committing genocide against the Palestinians of Gaza. And both before and since then, numerous other UN affiliated bodies (e.g. here, here, and here), international, Palestinian and Israeli human rights organizations (e.g. here, here, here, and here), and hundreds of international law and genocide specialists the world over (e.g. here and here) have concluded that not only is the Gaza genocide plausible, but that that ominous threshold has long been passed. 

Some will question my claim that the situation in Palestine constitutes (or ought to constitute) a paradigmatic moment in the history of the international legal order. They will rightly point to situations elsewhere in the world which engage violations of the same legal principles or similar and even worse levels of atrocity. The list is long, but one need only recall Rwanda, Sudan, Ukraine, and Yemen to demonstrate the point. For the record, I share this general sentiment. 

But what makes Palestine different in many respects is not what is happening there, horrific though it is, but rather who is perpetrating it, under what pretense, and the extent to which it uniquely belies the origin story of the post-WWII western liberal international legal order. In essence, it is the positionality of Palestine’s tormentors that affords it a broader urgency, a situation that remains “absolutely exceptional” when it comes to the universal application of international law, to quote the fellow himself who kicked it all off, Lord Arthur Balfour (quoted here, p. 47). 

When I speak of “tormentors” I am referring not only to the illegal Israeli occupying power, but also to the small number of western States, led by the United States, with their accompanying corporate, media and intellectual elite, that have historically supported it as the so-called “only democracy in the Middle East” and a partner with “shared values”. Why this matters goes directly to the provenance of international law not only as a thing we teach and practice, but also as part of the organizing frame of the multilateral order since 1945. We are all intimately familiar with this origin story, so it can be restated simply. Following the ravages of the Axis powers during WWII, culminating in the Holocaust of six million European Jews, the victorious Allies magnanimously fashioned a new international legal order in their image. This order was based on liberal principles, including inter alia the general prohibition on the use of force in international affairs, with its corollary prohibiting territorial conquest, respect for human rights including self-determination of peoples, and the principle of sovereign equality of States. The year 1945 was a watershed, as the story goes, for the triumph of this western liberal order, as evinced in the proliferation of multilateral treaties that would ensure that ‘Never Again’ would humanity allow such ravages to occur. And underpinning it all, we have rightly been taught, is the experience of the Jews of Nazi-occupied Europe who were made to pay the ultimate price for simply being who they were.  

For many in the post-war West, the Jews have come to represent the perennial victims, as epitomized, for example, in the person of celebrated Nobel Laureate Elie Wiesel who argued the Holocaust was somehow unique and different from genocide simpliciter. As part of this powerful story of calamity and renewal, Israel—the self-designated Jewish State—has assumed the contours of a mythical phoenix arising out of the ashes of the War, a beacon of hope and morality, a Light unto the Nations. In this sense, the validity of the post-WWII liberal international legal order has in many ways been indelibly connected to Israel, not only as a plucky State of survivors of European fascism, but also as both a project and idea that ought to prevail for the vindication and continued predominance of the Western liberal project itself.  

In this context, it isn’t hard to see how, for the non-European Palestinians, being the victims of the West’s perennial victims has placed them in a uniquely disadvantageous position. As I have written elsewhere, Israel’s 1948 ethnic cleansing of the indigenous Palestinians from what was their ancestral land, its wholesale dispossession and usurpation of their property, its mass-denationalization of that population, and its denial of the right of those people to return and restitution constitute gross and systematic violations of relevant international law which continue to the present day. For over almost eight decades they have been compounded by myriad actions of Israel—administrative, legislative, judicial and military—all of which have been animated by what Israeli human rights organization B’Tselem has characterized as a regime of “Jewish supremacy” between the river and the sea—an apartheid regime.

Taking only Gaza, even before 7 October 2023, Israel had shorn it of anything remotely capable of sustaining dignified life. How else to describe (then): 56 years of illegal Israeli military occupation, compounded by 16 years of unlawful Israeli blockade; multiple Israeli military assaults resulting in tens of thousands of casualties, including the killing and maiming of thousands of children; a multi-decade process of de-development and deindustrialization, resulting in a 45 percent unemployment rate and a 60 percent poverty rate, with 80 percent of the population dependent on some form of international assistance; and a health care system on its last legs for having been suffocated by the illegal blockade (for all of that see here). I would be remiss were I not to recall that approximately 70 percent of present-day Gazans are actually not from Gaza, but are rather registered Palestine refugees who hail from areas that are now within Israel and who have been barred by Israel from return and restitution for decades because they are not Jewish. All this to say, and as noted by the Secretary General on 25 October 2023, the events of 7 October “did not happen in a vacuum”. 

My point: in having the temerity to resist their permanent dispossession, displacement, and erasure in favour of a people whose own persecution in Europe had little to do with them, there is little the Palestinian people (or their allies) have been able to do before running up against western hegemonic power in some form or another. Use of force? ‘Terrorism‘. Diplomacy? ‘Diplomatic terrorism‘. Journalism? ‘Journalistic terrorism‘. Legal recourse? ‘Lawfare’. The result is that when Palestinians have tried to seek redress, including through rights enshrined in international law, out come the double standards.  

One of the most obvious of these is the position taken by western States and intellectuals over Ukraine when compared with their position on Palestine. In both cases, an occupying Power is illegally present on foreign territory in violation of Article 2(4) of the UN Charter. In both cases, the occupying Power has purported to annex all or portions of the occupied territory to itself in violation of the peremptory prohibition on territorial conquest and the obligation erga omnes to respect the principle of self-determination of peoples. Yet, while in Ukraine these western actors have rushed to support or impose all manner of forcible and non-forcible measures against the wrongdoing State, in Palestine they continue to actively support their commission to varying degrees while conjuring all manner of fanciful justifications for same. For instance, we are told that Palestine is not a State, even though it is recognized as such by 158 other States and engages in actions on the international plane only open to States. Likewise, we are told that Israel’s actions in occupied Palestine comport with its purported “right” of self-defence, even though the ICJ has determined that Israel may not rely on Article 51 of the UN Charter to use force in relation to attacks that emanate from within the Occupied Palestinian Territory, and that Israel’s very presence in occupied Palestine is unlawful for being in violation of the UN Charter.  

Not surprisingly, these double standards have not gone unnoticed by the vast majority of people and States. Who among us is not familiar with the resulting refusal of the Global South to support the West’s push against Russia in Ukraine? How can the West’s recognition and call for sanctions in respect of the Sudan and Rohingya genocides not be viewed with cynicism, when it remains complicit in the Gaza genocide? So intent are western elites to cover up this hypocrisy that they are increasingly adopting measures to obstruct or render illegal free expression of their own citizens when it comes to advocating for Palestinian human rights, whether under the spurious guise of the fight against anti-Semitism, or the abuse of counter-terrorism legislation and the like. The drive of the United States, in particular, to shield Israel from any form of accountability on the multilateral level—whether by pulling (or threatening to pull) vital funding and participation from the UN, abuse of its veto in the Security Council, or by imposing crippling sanctions on judges and personnel of the International Criminal Court or UN experts—is especially demonstrative of the extent to which Palestine’s treatment by the West shines a bright light on the precarity of international law. The US’s strongarming of the passage of Security Council resolution 2803 (2025) of 17 November 2025 which, on its face, raises serious questions of legality for being in violation of jus cogens norms of erga omnes character, is but the latest example of this (see here and here). As many of us have repeatedly argued, Palestine remains the litmus test by which the integrity and sustainability of the international legal order is to be judged. 

Conclusion 

Writing in 1987, Brian Urquhart, former UN Undersecretary-General for Special Political Affairs, lamented that “[t]he Palestine problem has haunted the development of the United Nations ever since 1948”, and that the UN’s involvement in the question of Palestine “has twisted the organization’s image and fragmented its reputation and prestige as no other issue has” (Brian Urquhart, A Life in Peace and War, Harper & Row 1987, p. 114). In 2025, the Palestine problem appears to have metastasized to the point of bringing the western liberal international legal order as a whole to a critical breaking point. If the victims of untold atrocities in occupied Europe and their western supporters are capable of undertaking and justifying atrocity crimes being livestreamed to the world on a daily basis, what does that say about the state of humanity as a whole? Will the tumult of this moment be enough to force a break with the past that has produced it, as so many other moments in the history of our discipline have done? Or are we doomed to continue on this path to oblivion?