It’s been nearly 21 months since the October 7 attacks and Israel’s retaliation in Gaza. 21 months where the world has seen Israel and the United States bend international law to their will in pursuit of some of the worst violations our current world order can imagine: genocide, aggression, starvation as a weapon of war, forced displacement, and war crimes.
In Gaza, Israel has interpreted international humanitarian law so expansively that it has rendered it useless. It’s turned it into “humanitarian camouflage”, as Special Rapporteur Albanese calls it, to enable a genocide.
In recent weeks, it has set up the Gaza Humanitarian Foundation, a mechanism of systematic displacement of Palestinians disguised as aid distribution that has led to the arbitrary killing of hundreds of starving civilians. In the West Bank, it has made a mockery of the prohibition on forceful acquisition of territory seeking to illegally annex Palestinian land.
In Lebanon, it carried out one of the world’s most sophisticated indiscriminate attacks, distributing explosive pagers throughout Lebanon and detonating them without verifying who was holding them at the time. Children and civilians mutilated for the sin of living with someone even vaguely associated with Hezbollah.
In Iran, it has repeatedly launched unlawful preventive attacks not justified by the law of self-defence. In Syria, it has attacked diplomatic premises and killed Iranian citizens. It has also unlawfully occupied a Buffer Zone in Mount Hermon violating the prohibition on use of force. Lastly, on the high seas, it recently also arbitrarily detained the crew of the Madleen, who were trying to deliver humanitarian aid to starving Palestinians.
Throughout this onslaught of illegality, international law has appeared powerless to do anything. Israel openly, willingly (and easily) disobeyed the provisional measures set out by the International Court of Justice.
Benjamin Netanyahu and Yoav Gallant have not been detained despite ICC arrest warrants against them – in fact, several Western allies have stated they will defy the warrants! Moreso, just two days ago the London High Court ruled that the UK may continue to export F-35 components to Israel.
Despite the constant marching, the tireless advocacy, the global effort to bring IDF soldiers to justice, international law seems to be little more than words these days.
In a way, though, this is not surprising. As Audre Lorde said, “the Master’s tools will never dismantle the Master’s house”. International law has historically enabled colonialism and imperialism, not restrained it. In the 16th century, Spanish theologians relied on legal arguments to justify the Spanish conquest of the Americas. In the 19th century, European states gathered in Berlin to devise a set of international legal principles that enabled the Scramble for Africa.
These kinds of dynamics have not changed in the 21st. The United States manipulated Security Council resolutions to argue it had a right to invade Iraq. Since then, it has sought to advance expansive readings of the UN Charter system that would grant so-called “great powers” a right to unilaterally determine when it is legal to attack another: humanitarian intervention, preventive war, the unwilling or unable standard, etc.
This is the main genealogy of international law: a tool that has allowed countless jurists to make legal cases for the enabling of colonialism and imperialism – from Francisco de Vitoria and the Berlin Conference to John Yoo and Natasha Hausdorff. It’s a legacy that has turned this so-called “Rules-Based Order” into almost anathema in the Global South.
It is why Mexico organised a meeting (known as an “Arria Formula”) to defend the broad prohibition on the use of force. It is why South Africa filed an application before the ICJ accusing Israel of genocide. It is why Nicaragua filed a similar application against Germany’s complicity in this genocide. It is why Palestine has submitted to ICC jurisdiction seeking accountability for Israel’s crimes. It’s why the Arab League has proposed a workable peace plan for the Middle East. These Global South initiatives would be unthinkable only a few decades ago.
It is important to recognise the historical moment in which we find ourselves. The rise of Western modernity, premised on the racialised values of the European Renaissance and Enlightenment, that gave birth to international law, was shaped not just by their imposition, but by resistance to it.
The 1780 Tupac Amaru Revolution, the 1791 Haitian Revolution, the 1835 Malê Revolt, the 1857 Indian Mutiny; all played their part in building the conditions of possibility for a new reading of international law – a parallel genealogy centred not on colonialism but on resistance to it; on self-determination and national liberation, not imperialism, all coalescing into the mainstream around the decolonisation movement of the 1960s.
It is this movement that gave the world an immediate right to self-determination and a ban on colonialism. It gave colonised peoples a right to resist, through all available means, including armed struggle. It invented the principle of permanent sovereignty over natural resources, the 200-mile exclusive economic zone, and the principle of non-intervention.
This genealogy of international law is brand new. Six decades in a 500-year history. It is nascent and still fragile, and the cost of fighting for it is being paid with the blood and charred bodies of millions of colonised peoples, most recently, Palestinians, as the bannermen of the old regime refuse to let go.
This new international law is not strong enough to stop a genocide (yet). But, for the first time in five centuries, it exists. It is here. And it is ours to mould.
We empower it with our bodies as we march the streets. We give it meaning when we call Israel’s actions a genocide. We strengthen it with our votes, as New Yorkers recently did. It may not look like it, but the old genealogy of international law is vanishing in the minds of the Global Majority.
As the postcolonial world begins to push back, a new genealogy is emerging. It is up to us what the future holds. Let’s get to it.
Alonso Gurmendi is a Fellow in Human Rights & Politics at the London School of Economics & Political Science’s Department of Sociology.
Follow him on X: @Alonso_GD
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