juris:generative

Maya Youssef, Breakthrough Classic FM session

Michelle Staggs Kelsall on Dis:Order

Already during the first few weeks of Israel’s war on Gaza in late 2023, faith in international law was coming under sustained assault. By late November, Ata Hindi declared the death of international law, a body of protections immobilised under Gaza’s rubble. How could international law be invoked to protect whole families shattered to pieces both literally and figuratively and buried under makeshift housing? Why speak of proportionality and distinction in the midst of such destruction and such desecration? This was especially so for international humanitarian law, which the ICRC assured us even in March 2024 of being able to provide ‘a way out of the downward spiral we currently see’. Such assurances seem to require the most rigorous self-denial in the face of unremitting rule-breaking. Such scepticism has spread to the very foundational pillars of international law, understood by Michelle Staggs Kelsall as liberal legal approaches to international institutions, subjects and ontologies. In this post, I deploy some of Staggs Kelsall’s ideas as a way to read the current moment in Israel and in Palestine as presenting a moment of rupture for the discipline of international law. The case of Gaza is where we can really test what ordering and disordering means, not only for international legal scholars but, far more crucially, for Palestinians seeking an end to the ceaseless loop of unfulfilled international law promises.

Imagining Different Orders

In her article, Staggs Kelsall carefully demonstrates how the vast bulk of international law critique in fact ends up reinforcing hegemonic international legal orderings. How then, amid Gaza’s wholesale destruction, do we engage with international law? Do we rush to double down on the promise of Palestinian statehood, seeking solace in the order of sovereign equality? Or instead, might this moment call for more serious reflections on moving beyond the state paradigm altogether?

Particularly since the creation of the United Nations (UN), the promise of the state has been a tantalising paradox for peoples of the Global South. The realisation of statehood seemed to suggest independence and freedom as a clean break from colonial domination. But to embody the state form was to agree to its imposed boundaries  – uti possidetus iuris – and the pre-determined rules of international law, which were premised on Eurocentric epistemologies and erasures. In her appraisal of this ordering and its possible disordering, Staggs Kelsall calls on us to think of a world and an international law discipline that can not only see these limitations but escape their epistemological strictures. Far too often, she argues, critical scholars end up reproducing such orders by thinking against them. Could disordering international law move beyond the dynamic of deconstructive and reconstructive debate? What would a disordered world look like? Where might we begin? Is Palestine/Israel a productive site for this endeavour?

A State in Waiting? The Betrayal of Palestine

The tantalising possibility of statehood in such a truncated and epistemically violent form for Palestinians emerged conterminously with the consolidation of the post-war liberal legal order embodied by the UN and its Charter. Palestine’s possible partition was a particularly perplexing matter for the newly created UN. In his recent book, Ardi Imseis demonstrates how the painstaking process of arriving at a recommended two-state ‘solution’ (the majority of the land for the minority of the people) was itself the result of unreconstructed Orientalist tropes that discounted any genuine connection between the land and its Palestinian majority. He argues that the passing of UNGA Resolution 181(II) in November 1947 was a betrayal of the Charter’s ‘consent of the governed’ principle. Either this class A Mandate should have been dissolved in favour of bi-national Palestinian and Jewish democratic rule or it could be reconfigured as a UN Trusteeship. Partition and concomitant population transfers and non-contiguity, however, fundamentally shattered the integrity of this potentially postcolonial polity which had nursed a range of both intercommunal connections as well as violent confrontations. While the UN Charter spoke of ‘peace loving nations’, Israel would declare its independence on 14 May 1948 in the midst of the Nakba – the systematically planned ethnic cleansing of over 900 000 Palestinians and the destruction of 520 villages. Seemingly as a way to counter some of this violence-as-state-making, UNGA Resolution 194 (III) declared in late 1948 that ‘refugees wishing to return to their homes and live in peace with their neighbours should be permitted to do so at the earliest practicable date’. Until today, the promise of this resolution subsists in a liminal zone, much like Palestinian self-determination and its presumed embodiment of statehood as 22% of historic Palestinian territory.

Israel as Disordered Statehood

From its inception, Israel’s creation appeared to embody a critique of liberal legalist temporalities and ontologies in at least two ways. First and in relation to temporality, while its Zionist ideals of transforming the land and its Jewish citizens through labour were redolent of standard modernist tropes, this project was nestled within imaginaries of ancient Israelites as the rightful indigenous custodians of the land. Most recently in her dissenting opinion in the ICJ’s Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory case, Vice-President Sebutinde explored how ancient links between the Jews and the land of Israel could support modern claims to Jewish self-determination and Israeli statehood. She noted how historical and archaeological evidence affirms ‘the physical link between the past, the present and the future of the Jewish people in this part of the world. It can be argued that this history is what informed the civilized community of nations through the United Nations to re-establish the “national homeland of the Jewish people” in 1948’ (para. 8). Through such temporal elisions, Israel can at once look back to a time before the state from a vantage point of the state as the promised future for a people systematically persecuted and traumatised within the heart of the (il)liberal European order. Such temporal tensions were further amplified, of course, once it occupied the remaining territories of Palestine in 1967. Henceforth, a messianic strand was emboldened within Israeli politics that blurred the reconstructed ancient past with an idealised future devoid of any Palestinian presence. This collapsing of past and future complicates standard liberal legalist trajectories. Its overtly spiritual and racially discriminatory animus – as reconfirmed on 19^th July by the ICJ majority opinion on Israel’s occupation – also undermines liberalism’s secular core.

Second, and as a result, Israel’s ontological existence was always necessarily in excess of the bounded liberal legalist state. From 1948 until today, Israel’s borders are often under-defined even in official discourse. While the UN and most states have interpreted its boundaries to result from a combination of its 1948 independence declaration and the 1949 armistice lines with Jordan, Lebanon, Syria and Egypt, Israel’s now half-century occupation of Palestine challenges its commitment to constrained statehood. This is underscored by the Israeli official designation of these territories as (unoccupied) Biblical ‘Judea and Samaria’ (p.30), whose contours are deliberately under-specified. In addition, there continue to exist influential strands within the Israeli polity that look beyond the lands of historic Palestine. The logo of the Irgun, a British declared terrorist organisation that fostered the careers of Prime Ministers Yitzhak Shamir and Menachem Begin, presents Israel as extending across all of neighbouring Jordan – incidentally a majority of whose citizens are themselves Palestinian refugees. Israel’s current Finance Minister, Bezalel Smotrich delivered a speech in Paris only a year ago where the same map was boldly displayed on the lectern. After successfully acquiring greater control over the administration of the West Bank at the end of May 2024, Smotrich boldly declared the following month that we ‘will establish sovereignty … first on the ground and then through legislation. I intend to legalise the young settlements [illegal outposts]…My life’s mission is to thwart the establishment of a Palestinian state.’ The result of such annexationist policies not only violates various provisions within the laws of occupation itself, but undermines the bedrock of the international liberal legal order of sovereign equality of states and peoples deserving of self-determination. In its July Advisory Opinion, the ICJ itself found (para. 162) that Israel exercises sovereign control over the occupied Palestinian territory and was thus in breach of the norm against conquest. Demographically, Israel’s disordered statehood is only heightened through the promise of aliyah (or ascent, in Hebrew) or the right of ‘return’. Under the 1950 Law of Return, Jews anywhere in the world are permitted to live on  ill-defined Israeli lands which have been systematically closed off to those Palestinians not yet fully ethnically cleansed from their ancestral homes or displaced to the diaspora.

In such a context of disordered statehood, could the renewed call for Palestinian statehood realign the region, resulting in ‘stability and the security of all States in the Middle East’ (para. 283) as the ICJ suggests in its July Advisory Opinion?  As the instigator of the advisory request, the General Assembly seemed to share many of these two-state-solution sympathies when in May 2024 it pushed for Palestine to join the (liberal legalist) sovereignty club. This latest initiative came on the back of the UNGA’s November 2012 admission of Palestine as a non-member observer state. In April 2024 at the UNSC, the US chose to block Palestine’s full membership bid. The UNSC admission procedure is one of hegemonic state creation or denial and it speaks to the ways in which diverse sovereignties continue to be suppressed. As Staggs Kelsall suggests, it also forces us ‘to interrogate how consent is framed and what ends it serves’ (p. 754). In this instance, the US has consistently tried to counter UN-sanctioned Palestinian statehood by proffering ‘negotiations’ as the better way of realising a truncated form of Palestinian ‘statehood’. Yet, we have seen time and again that where negotiations between one of the world’s most sophisticated and deadly military-states is pitted against an occupied and fragmented people, consent is meaningless. Consent then is the straitjacket of (non)sovereignty for Palestinians. Even if negotiations are no longer used as the trump card, the more important question remains as to whether the ‘two state solution’ could result in a better future for Palestine and for international law.

In his speech on 10^th May, Palestine’s Ambassador, Riyad Mansour refused to give in to despair, ‘I have sat in these halls next to liberation movements who one by one finally took their rightful place in this august chamber and, without a doubt, the day will come where Palestine will take its rightful place among the community of free nations. Occupation and colonialism and death and destruction are not our fate, they are imposed on us; but freedom is our sole destiny.’ Such a vision is inspiring, but it need not emerge through an emaciated state(let) of Palestine that would have to subscribe to liberal legalist temporalities, epistemologies and ontologies.

Suspending the Presumption of the State

Instead, we can think through this moment productively by putting some ideas of Staggs Kelsall and Ariella Azoulay’s 2019 Potential History book into conversation. Staggs Kelsall plays with the notion of non-dualism, which ‘asks that past, present and future are given equal and contemporaneous attention and treatment’ (p. 741). Similarly, Azoulay as herself a Jewish Israeli who has rejected Zionism, introduces to us here her notion of ‘[p]otential history…[as] a form of being with others, both living and dead, across time, against the separation of the past from the present, colonized peoples from their worlds and possessions, and history from politics. In this space wherein violence ought to be reversed, different options that were once eliminated are reactivated as a way of slowing the imperial movement of progress’ (p. 30). For Gaza and for Palestine/Israel more broadly, a non-dualist, potential history would mean rejecting not only Zionism with its past and ongoing erasure of Palestine and Palestinians, but also, the two-state solution per se. Yet, instead of simply moving to a ‘one-state’ solution, here, I would suggest that something even bolder is required: a no-state solution. Where the state has resulted in such disorder both for Jews and for Palestinians, a different type of ordering is called for, both at the level of international legal doctrine as well as political imaginaries.

This might mean an end to Palestine and to Israel as we have come to know them. It must not mean the annihilation of a people or their potential. For Azoulay and her notion of counter-imperial, worldly sovereignty (or, as I call it, the no-state solution), this ‘does not originate in a decisive moment of decision or declaration; it is not marked by a new beginning, nor is it irreducible to ruling. The practice of governing cannot exhaust the diverse modes of being with others implied by worldly sovereignty. The latter is neither a model of an ideal society or a polity to come, nor is it the power to legislate new laws that institute new realities. It is rather the power to revoke, avert, and deter imperial rule—along with its roles, principles, and norms—in the name of caring for a world shared by all. It is the lights coming on in Jabaliya, Gaza, the promise of a treasure map of alliances.’ (194) Both Staggs Kelsall and Azoulay walk us carefully through the debris of the liberal international (dis)order in spaces of the yet-to-be-known (p. 346, Puar) and reassure us that something else is possible, whether in Gaza or beyond.