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On July 19 of this year, the International Court of Justice (ICJ) issued an advisory opinion that Israel’s occupation of Palestine is illegal, and that Israel is committing the crime of apartheid in the West Bank and Gaza. The U.N. General Assembly requested the advisory opinion in a December 2022 resolution. The resolution asked the ICJ to answer two questions:
(a) What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures?
(b) How do the policies and practices of Israel referred to [in (a)] above affect the legal status of the occupation, and what are the legal consequences.…”
Despite Israel’s argument that it completely withdrew from Gaza nearly two decades ago, the court ruling reaffirms that Gaza remains occupied. Israel still controls entry points and exits, water space, airspace, access to resources, the freedom of movement, enacts surveillance, and, of course, strikes the area whenever it chooses. Over more than half a century, interventions in the realms of international law—from the United Nations to the International Court of Justice—have gone ignored as Israeli annexation, occupation, and violence have continued to escalate, uninterrupted. In 1948, the United Nations General Assembly passed resolution 181 declaring that Palestinians have a right to return to their homeland. To this day, seven million refugees still have not been allowed to return. In 2004, the International Court of Justice ruled that Israel’s “separation barrier” was illegal. The logic is that significant parts of the wall’s route confiscate and destroy Palestinian land and resources, disrupt the lives of thousands of protected civilians and de facto annex large areas of territory. In the advisory opinion, the court wrote that the “construction of the wall severely impedes the exercise by the Palestinian people of its right to self-determination and is therefore a breach of Israel’s obligation to respect that right.” Today, the wall still stands. In January of this year, in an interim ruling on a case brought by South Africa accusing Israel of pursuing genocide in Gaza, the ICJ declared that the rights of the claimants were plausible and Israel was responsible for taking preliminary measures to prevent a genocide, but it has failed to do so.
The problem with international law is that it can’t be enforced. Enforcement falls to the Security Council, of which any of the permanent members (including the U.S.) can veto any resolution. Hence, in practice, there has been no meaningful accountability for Israel. The world’s inability to hold Israel to account has led us to this genocidal moment. The law will not be able to turn back time or bring those who have been senselessly murdered back to life, but sanctions and pressure are more likely when legal justice is clearly defined. The argument that two equal parties are simply unable to come to an agreement has always been a farce and a product of the peace process framework. The limitations of international law have allowed for a precedent in which an occupier can negotiate human rights away from those they occupy.
Noura Erakat has been at the forefront of the American fight for Palestinian human rights as a lawyer and scholar for over two decades. Her 2019 book, Justice for Some: Law and the Question of Palestine, argued that, when leveraged in service of social or political movements, international law can be an effective tool to advance emancipatory struggles.
In our conversation over Zoom, Erakat discussed the limits of international law in holding genocidal regimes, including the Israeli government, accountable for their crimes, but also how it can be used in concert with other advocacy strategies such as movement work and narrative building. She argued that the law helps us create language for those advocating for a liberated Palestine, but that activism, sanctions, boycotts and protest cannot be underestimated. Ultimately, for the law to work in our favor, we must first win. Even if that means starting a revolution.
The interview, which took place in June, has been edited for length and clarity.
Nessouli: I have seen you speak several times in the last nine months, and each time you are able to apply international humanitarian law (IHL) to prove the illegality of Israel’s actions. Before we go into the actual law, can you describe the frustration that comes with knowing how IHL ought to work and witnessing Israel’s impunity?
Erakat: My entire work as a scholar of third world approaches to international law (TWAIL), regarding Palestine in particular, has been one that understands international law as the site of domination and as constitutive of its colonial form in order to protect colonial interests and powers. That’s certainly evident in the Genocide Convention as well. The Genocide Convention is different from IHL—they’re all different. And I’ll discuss why being on the genocide grounds is far more optimal for us than to be on IHL grounds.
Consider that the Genocide Convention was drafted only when this kind of destruction of a people occurred within Europe’s shores. And I’m not saying that it’s because people cared about Jewish people. They didn’t. Jews were also dehumanized, and there was a racial regime that excluded them from citizenship, that ghettoized them, that subjected them to premature death and ultimately to a logic of annihilation.
It’s more what this says about Europe. Under the Convention—and we see this in IHL as well—brown and black people were not historically conceived as civilians or even as combatants—people who have the right to fight under the laws of war. They have been explicitly rendered “The Savage.” They don’t become incorporated and recognized as civilians or as fighters that deserve protection until 1949, when they are recognized as civilians. And then in 1977 they are seen as fighters in the Additional Protocols to the 1949 Geneva Conventions.
But in the Genocide Convention, we see this incorporated in a few ways. Number one, we see the bifurcation of this very narrow reading that the “destruction” of a people must be their literal destruction, like you have to destroy them, which means you can ethnically cleanse them, you can remove them from their land, you can destroy their liberation movement—but that’s not tantamount to a people’s destruction under the Convention. Theres also a way in which intent is constructed so narrowly: There has to be a specific intent to destroy and specific acts to achieve said destruction that absolves colonial powers of the ways they have destroyed peoples through extraction, torture, forced removal, forced labor, through marginalization and so on and so forth.
So why is genocide optimal to IHL? IHL is basically a site of contestation. There are no clear rules. When it comes to Israel in particular, they’ve literally advanced very novel legal theories about their confrontations with Palestinians going so far as to describe it as armed conflict short of war. U.N. Special Rapporteur Francesca Albanese’s most recent report documents that Israel has repurposed IHL to advance genocide.
Nessouli: The ICJ’s ruling in the case brought by South Africa this year sent a three-pronged message to Israel: (1) Order a halt to the Rafah offensive; (2) Allow access to Gaza for war crimes investigators; and (3) Increase humanitarian aid immediately to the region and keep the Rafah crossing open. Unfortunately, the court doesn’t have the power to enforce these orders. How can we expect the ICJ decision to be effective if they can’t enforce anything?
Erakat: It’s a tool for those of us who are agitating. And you can see, actually, many states have done a lot. Weapons embargoes. Applying diplomatic sanctions. Sending aid. The ICJ decision is not an enforcement order. It’s leverage, period. Japan has used it. We’ve seen Belgium, we’ve seen Canada, we’ve seen a lot of states actually use it. The ICJ never had the capacity to end this. The fact that the ICJ found that there was plausible genocide does two things: Number one, it triggers the Convention where there is a duty to prevent, not merely to punish, genocide. So now all states are on notice that you can’t send military aid here. You can’t support Israel diplomatically here because, even if you’re not aiding genocide, at the very, very least, you’re not preventing it.
The second thing that’s significant about this decision is it rejects, outright, Israel’s argument that it is merely engaged in a war of self-defense—that it’s legitimate because they’re achieving a just end of defending themselves. The finding of plausibility of genocide cuts against that. And so that’s what the ICJ decision did.
Nessouli: Do you think that it will impact culture and therefore human rights?
Erakat: I don’t think that law is definitive in telling us what the state of the world is.
But I think that the law helps create a shield for us.
It’s one thing when we say Israel is an apartheid regime. Most analysts acknowledge that two sets of law—military and civilian—apply to two sets of people. Palestinians in particular have said so well before ’67, when and have understood it as racial discrimination since Israel’s establishment, from the onset. For Palestinian scholars it’s obvious because Zionism and apartheid are born in the same British crucible.
It’s another thing when you have legacy organizations like Human Rights Watch and Amnesty International say it, right? It’s not necessarily that they discover something that we didn’t know, but they expand the possibility of language and how we understand this issue. It creates a discursive battleground. And oftentimes it’s a battleground over legitimacy. So can we use this universal language? A doctrine where everybody supposedly agrees to it? If we can achieve certain consensus over legal frameworks, then we’re basically taking ground. We’re not going to win the battle, but we’ve taken ground to fight.
And that’s what the law discursively is doing for us; it is establishing the grounds we fight on. So that you can say on the House floor now, as several members of Congress did, that Israel is an apartheid state because human rights organizations said that they were. You change the conversation.
Nobody is out there believing that Palestinians got this wrong. They’re watching in horror. Most people who haven’t said anything are just afraid to speak because they’re worried about punishment.
That’s a sign of weakness, not power. When you have to use that much coercive force in order to exact an outcome, that is the lowest form of power. Cause that’s saying you have no legitimacy: The only way that you get people to follow you is to promise them punishment if they do not.
Nobody is following from a place of morality. The only nuclear power in the Middle East has had zero red lines, has used unrelenting force.
Nessouli: Right. They’re on their back foot.
Erakat: Israel has never looked weaker, which is probably why they’re angling for war in the north. I mean, its military is so embarrassed. Israel is the eleventh most significant military in the world. They wanted to decimate Hamas. Hamas is not close to being decimated. And for Israelis: Not only did they not protect you, your border was never protected. They can’t, unless they annihilate everybody. There’s no way to defeat Palestinians. I mean, they’re incredibly weak. I don’t want to claim victory here, because this is a tragedy and there is going to be more death from dehydration and malnutrition and starvation than there has already been from bombs. I’m not trying to exaggerate. All I’m saying, though, is that Israel is not winning.
Nessouli: I think a lot of people who hear you might ask: When does Israel get punished? Do you have any hope that these legal structures could ever apply to Western powers or their allies?
Erakat: Yes, when we win. Not before we win, but when we win.
Even the ICC, I mean, it’s coming with a double-edged sword. They’re only charging Israel with starvation. And other crimes against humanity. But they definitely didn’t get to genocide or apartheid. It’s not out of the question, but it seems very far given the pushback that they’ve already received. It took six years to establish jurisdiction for the ICC over Palestine, which should have been a nonissue because they were recognized in 2012 as a state, and now the UK is challenging jurisdiction. But even the issuance of arrest warrants is good because it’s saying this is not just the opinion of radicals taking to the streets.
The other thing is that the ICC decision was never going to come without charging Hamas leadership. That’s the thing about these international institutions, they don’t take power into account. The most disappointing thing for me, about these international legal institutions is that they are, by their very nature, depoliticizing in the sense that they drop power out of their analysis altogether. They just want to evaluate who shot what, what did you target, how did you target. Where is the context of how this happened, and that there's a structure of oppression in which this is happening? The court’s not dealing with that.
Nessouli: Right. How frustrating is that?
Erakat: The reason that I shifted from practice to scholarship was that I was so frustrated with the limited efficacy of the law. I became more concerned with understanding why it was working in this way. So now I study it, but I also study other things; I study racism, I study movements. There’s a lot of ways that you can still use [the law] very strategically, and you should use every opportunity that you have. Law is power. But we're powerful, too.
And in fact, I think that the South Africa petition happens precisely because we’re powerful. They wouldn’t have done it on their own if there wasn’t a mass movement. If there weren’t the eight-hundred plus scholars, the fifty-five genocide scholars, the Special Rapporteurs, if there weren’t people across the world protesting. That’s where the power came from, that then gave them that possible entrance and that now gives other countries possibilities for intervening.
But we exaggerate the potential of law. The law can serve us when we are powerful. But it can also work against us. We have to be really careful. And my advice is just don't have any loyalty to the law. If it’s not serving our interests, dump it.
If the law ever did what it was supposed to do, we wouldn’t be in seventy-five years of Nakba. Period.
Nessouli: The U.N. just released its first investigation into October 7. It concludes that while there was violence against women, there is no proof of rape, let alone mass rape, ordered by Hamas. On the other hand, the investigation by the U.N.’s Human Rights Office did conclude that the Israeli regime itself actually engages in systematic sexual and gender violence against Palestinian children, women, and men. The U.N. said that they were unable to independently verify Israeli claims due to a lack of access to victims, witnesses, and crime sites and the obstruction of its investigations by the Israeli authorities. Even if the U.N. is able to come out with these reports, how much do you think their findings matter?
Erakat: It matters depending on which states are willing to do anything about it. What is to be done with international law if none of the states want to follow that?
What did the Arab states do? I mean, just imagine if the Organization of Islamic Cooperation convened and took a decision to collectively boycott petrol sales.
Nessouli: Yeah like [they did in] ’73 right? How impactful was that for just a week on the U.S. economy?
Erakat: Right. Or imagine if the Arab League decided, we’re going to unite, and we’re going to push to expel or unseat Israel from the General Assembly.
There is agency in every single area and yet …
Nessouli: It’s not lucrative. It’s like these choices become co-opted.
Erakat: Right, but then we should be more concerned with the lack of our own self-determination and democracy than we are concerned with the failure of international law.
Nessouli: I totally agree with that.
Erakat: You mentioned the sexual assault. The reason that [rumor] can get traction even without any evidence and proof is obviously a racial trope, right? And it’s a trope about the savagery and the danger of the lustful nonwhite man.
And it’s also a story about protecting women. Women have continued to be used in order to create the border for the nation—this notion that we have to do this in order to protect women. But it’s actually an age-old colonial racial trope. The fact that it is not actually about sexual assault is evidenced in the abject lack of concern for Palestinian men, women, and children subject to systematic sexual assault and abuse.
Nessouli: It’s so frustrating to me that places like The New York Times can publish articles about it like “Screams Without Words” without rescinding or correcting information, and that politicians like Debbie Wasserman Schultz can go on CNN and say she’s seen things she probably has no proof of having seen. Media outlets continue to peddle misinformationHow do we hold them accountable?
Erakat: I mean here, maybe law is good. We could sue the media corporations. But there’s going to be the separation of powers issue in the United States established in constitutional law that stipulates that the judiciary shall not decide on issues that are better suited to other branches of government. In this case, the United States has not only decided there is no genocide but has actively participated in it. So any finding that these media corporations are complicit in genocide would put the U.S. executive branch—or its government—on trial, and no court is going to do that. Moreso, because courts are also overseen by judges who have political careers in mind—they’re appointed, they’re not going to get a job if they decide to indict the U.S. government. They may demur, as two federal courts have done in response to the lawsuit brought by the Center for Constitutional Rights charging Biden, Blinken, and Austin with complicity in genocide.
These are humans—that’s what’s going on here. There are interests. But these humans are also affected by movements, by their family, by their children, by their community. So that’s why what we do outside [the law] is so impactful, and not to be diminished. In terms of the media, I mean, I think resigning from the media is really important. I think alternative media is really important. I think creating our own media is really important. I think that it’s incredibly significant that there’s a generational gap in where people get their media from. These legacy organizations, which are incredibly harmful, are also only speaking to a particular demographic, which is older. They’re not the future.
A concerted effort to boycott these media organizations might be a tactic. If you’re reading The New York Times, stop; if you’re asked to publish in it, don’t; you know what I mean? We haven’t necessarily exercised our own agency, either, in order to mete out punishment. I think that there’s still room for us to do that.
Nessouli: It seems like there is no set of common principles. There is a mass slaughter happening in Palestine, and we are caught up litigating whether it is bad enough.
Erakat: Here’s why this is so frustrating for us, especially as Palestinians: none of these principles matter, none of them. The worst thing that can possibly happen to any Jewish person, the thing that they’re most traumatized by and afraid of, is literally happening to Palestinians. Siege for 17 years, occupation for 57 years, forced displacement, being placed on a caloric diet subject to systematic military campaigns, a restriction on movement, a lack of ability to determine your own future, and then on top of that, to be killed with advanced weapons technologies in the most painful way and to be denied medical access and then starved to death.
What else would we want to protect people from? And yet none of that, none of the pain that Palestinian flesh bears registers. And there’s this commonsense logic that this is not flesh. That’s another reason why I don’t just study law. I don’t think that our transformation is going to come from some logic. If this was a logical matter, you would just agree. But logic isn’t doing the work. There’s a spiritual transformation that has to happen here. How do we tap into that spiritual realm? And I see it a lot. I’m really, really hopeful. Just the amount of sacrifice and the courage that people have made, that is spiritual transformation. That’s spirit work.
Nessouli: Have you had any moments where you realized that you are really tapped into your spiritual work?
Erakat: All the time, every day. It’s a mixture of consuming untold grief and shame and guilt and all the things associated with it. Like, maybe I don’t want to look today, for a mental health day.
But the things that are really taking me over the top, that have just made my heart go bap bap bap, have been seeing Palestinians singing, medical workers singing, seeing Palestinian children play and dance among tents, seeing the hakas from the Maori people in New Zealand, when I saw my colleagues form human barricades around their students praying. All those things have been like, yo, as disgusting as this racism is on display, look at this. This is humanity. Look at us. This is us. So I tap into that just to recharge.
Nessouli: Yeah, exactly. We all have our different roles. And of course we know your role, but what do you think your role is right now?
Erakat: I’ll be real. At some point I was complaining that I didn’t feel effective because I felt like a free agent who played every position on every team. I think the grief and the anxiety and the horror just drove me; like, I’m going to do everything. I’ll do anything that anybody asks me. And so it just felt like I’ll speak and I’ll lawyer and I’ll organize. And so I did. But I didn’t feel effective. At some point I had to shift and say speaking publicly and media intervention is my primary role. If I have spent really my entire life studying, working, building to be prepared for this moment, then this is exactly what I should be doing without feeling guilty that I can’t also organize or lead campaigns or mobilize at the diplomatic level and all of the other things we need to be doing. And it gets really confusing, I think, for all of us, because we haven’t been able to stop it. We haven’t been able to achieve a ceasefire. Somehow, whatever it is that we’re doing, however much of it that we’re doing, it’s not enough.
Nessouli: Are there alternative futures that you’re imagining for Palestinians that you can put into words, like radically new institutions you can think of? I mean, should we just be revolting?
Erakat: So many people think about revolution as this overnight thing. Oh, we just push hard, fight hard, and then a new world is born.
And that’s not necessarily how new worlds are born. I think that we birth new worlds in our vision, in our labor, in the messages that we leave behind, in the way that we lie down as bridges for the future, and how we’re prepared necessarily for the moment when we have to both be ready to revolt and to govern. Getting to the place of thinking what is necessary has been this work of radical imagination.
Doing the work, and investing in, what does that governance look like? Not just what does the rejection of all the things that we hate look like. And so when I think about imagining new futures for Palestine, I don’t see it as separate from thinking about the rest of the region.
And the fact is that the entire region is not a site of self-determination for all its peoples. They are governed by military governments, security regimes, and marginalization.
We can build this amazingly different future where we don’t try to emulate those failed structures around us, but perhaps create models that nobody else has created.
And so much of that we saw created in the encampments, so much of what Palestinians have created in their ability to survive this, right? How have they been able to survive but for these alternative models and resilience.
So, yeah, I dream of a future where we don’t need a state. And that our protection doesn’t come from borders and citizenship and militaries that fight supposedly in our name. I dream of a future where we seek abundance in one another’s abundance, as opposed to our personal enrichment and accumulation.
I don’t think that there is a way forward for a Palestinian future that doesn’t involve the tackling of all these systems that have transformed Palestine into a question. It’s a process of rejection and a process of building. And what is it that we’re building? We’re building every day and, if anything, I think I’d like to see us build more.
