Think of the law as like the sail of a boat. The sail, or the law, guarantees motion but not direction. Legal work together with political mobilization, by individuals, organizations, and states, is the wind that determines direction. The law is not loyal to any outcome or player, despite its bias towards the most powerful states. The only promise it makes is to change and serve the interests of the most effective actors . . . It is this indeterminancy in law and its utility as a means to dominate as well as to fight that makes it at once a site of oppression and of resistance, at once a source of legitimacy and a legitimating veneer for bare violence, and at once the target of protest and tool for protest.
Noura Erakat, Justice for Some: Law and the Question of Palestine, at 11.1
Dear Readers,
I know I said the next edition would be about the other case in front of the International Court of Justice — Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem2 — and I will write about it, but these last few weeks, I have not been able to bring myself to write about the law beyond my day job.
To be honest, my oscillations between rage, heartbreak, despair, and hopefulness — sometimes experienced all at once — have made it difficult at times to be analytical, to write of the mechanical features of law when people are dying right now, as I type, even as I listened to the incredible presentations at the ICJ. And when I have felt such frustration with outcomes regarding my own clients.
When I sat down to write on Sunday, February 25th, I learned about a young member of the U.S. Air Force, Aaron Bushnell, who self-immolated in front of the Israeli Embassy.3 As he walked to the site of his act of protest, Aaron told us through a streaming video
My name is Aaron Bushnell. I’m an active duty member of the United States Air Force. And I will no longer be complicit in genocide. I’m about to engage in an extreme act of protest, but compared to what people have been experiencing in Palestine at the hands of their colonizers, it’s not extreme at all. This is what our ruling class has decided will be normal.
His last recorded words were: “Free Palestine.”
For the millionth time in four months, my heart broke. And again, I could not bring myself to write about the law.
Something I have known for a long time but have come to understand viscerally over the last 7+ years — the law was not created and is not meant to grapple with the complex, messy, contextual aspects of humanity. It just isn’t. Certainly people want to use it and see it that way, but it does not function that way, nor was it intended to. (An important conversation for another time).
As Noura Erakat said with such clarity, “Legal work together with political mobilization, by individuals, organizations, and states, is the wind that determines direction.” She explains: “The same law can have a different meaning depending on the historical context, the balance of power, and the strategy of the legal work.” Justice for Some, at 7-8.
Indeed, I started writing about the legal cases regarding Palestine in the hopes that it would help bring attention to the active genocide in Gaza and ethnic cleansing occurring in the West Bank as perpetrated by Israel and facilitated by the United States, the United Kingdom, Germany, and other Western countries, while also providing you with resources and materials to learn from, share, and/or consider.
And, critically, to then encourage, empower, and/or instigate your activism. It is one of the few tools I have to use in this global struggle for freedom and liberation.
Additionally, and I will address this in upcoming editions, the Palestinian struggle for liberation and self-determination is deeply, and I mean deeply, entwined with struggles for liberation in the United States.4 There is a very long history of solidarity across movements for good reasons.
And if we are concerned about deeply entrenched systems and structures in the U.S., such as over-criminalization, militarization of police, state-sanctioned violence, mass surveillance, racism, dehumanization of Black Americans, newcomers to the United States, Indigenous peoples, and other persons of color, the criminalization and regulation of trans bodies, the top 1% controlling US political, economic, legal, and environmental structures, misogyny, imperialism, and so much more, then any close examination of the US’s relationship with Israel should mobilize us all and spur our activism for change. (Resources in footnote 1).
South Africa v. Israel Updates
As noted in the last edition, South Africa filed a request that the ICJ issue additional provision measures. The Court decided not to do so, and instead doubled down on its original provisional measures, which requires that Israel to “take all measures within its power to prevent the commission of all acts” included in the Genocide Convention and “that its military forces do not commit any of the above-described acts.” The ICJ’s provisional measures are binding on Israel as a signatory of the Genocide Convention.
As documented by Human Rights Watch, Israel is not complying with the ICJ’s orders. Many other NGOs, UN entities, and human rights attorneys have found the same. (On Twitter, you can see more on this by scholars such as Noura Erakat, Diana Buttu, Francesca Albanese, Zach Foster, and Luigi Daniele).
On March 6, South Africa again urged the ICJ to issue new provisional measures in response to Israel’s continued denial of humanitarian and food aid from entering Gaza, as well as its continued indiscriminate bombardment of Palestinians in Gaza.
Palestinians in Gaza are no longer at “immediate risk of death by starvation.” At least 15 Palestinian children — including babies — in Gaza have already died of starvation in the past week alone, with the actual numbers believed to be much higher. These deaths are “man-made, predictable and entirely preventable.” It is predicted that they will increase exponentially and not linearly in the absence of a cessation of military activities and a lifting of the blockade.
Palestinian children are starving to death as a direct result of the deliberate acts and omissions of Israel — in violation of the Genocide Convention and of the Court’s Order. This includes Israel’s deliberate attempts to cripple the United Nations Relief and Works Agency (‘UNRWA’), on whom the vast majority of besieged, displaced and starving Palestinian men, women, children and babies depend for their survival.
Israel has repeatedly used humanitarian aid as a “bargaining chip in negotiations” through its creation of a hostile, inoperable environment for aid agencies. This includes: blocking such aid through obstructions, restrictions and denials; closed crossings; deliberately killing and targeting humanitarian workers; its destruction of Palestinian crops and arable land; its killing of Palestinian livestock; its cutting off the North of Gaza — in particular — from sufficient aid deliveries; its reducing Palestinian men, women and children to eating animal feed, bird seed and leaves, unfit for human consumption; and its pattern of attacks on desperate Palestinians as they try to obtain aid from humanitarian convoys, discussed in more detail below. Humanitarian chiefs’ “[w]orst famine fears” have been “realised”. As stated by Medical Aid for Palestinians, “[t]his is the fastest decline in a population's nutrition status ever recorded. That means children are being starved at the fastest rate the world has ever seen.”
And the application continues, “Israel is now massacring desperate, starving Palestinians seeking to obtain food for their slowly dying children.”
The application is brief yet heavily documented. It is an important read.
As of March 27, 2024, the Court has not yet responded.
Other Developments
Earlier this week, the UN Security Council was able to pass a ceasefire resolution. It is worth watching the process.
The resolution
Demands an immediate ceasefire for the month of Ramadan respected by all parties leading to a lasting sustainable ceasefire, and also demands the immediate and unconditional release of all hostages, as well as ensuring humanitarian access to address their medical and other humanitarian needs, and further demands that the parties comply with their obligations under international law in relation to all persons they detain;
Emphasizes the urgent need to expand the flow of humanitarian assistance to and reinforce the protection of civilians in the entire Gaza Strip and reiterates its demand for the lifting of all barriers to the provision of humanitarian assistance at scale, in line with international humanitarian law as well as resolutions 2712 (2023) and 2720 (2023)[.]
Fourteen members voted for it and the United States abstained, allowing it to pass.
It is critical to note that according to countries voting for the resolution and international law experts this resolution is binding on Israel. I emphasize this because the US government has repeatedly claimed that the resolution is non-binding.
Israel has yet to cease its genocidal acts in Gaza.
Again, as I have noted in prior editions, how and if the Security Council can and will enforce the ICJ ruling and its own resolution binding Israel to cease committing genocidal acts remains to be seen. The US would likely veto any effort to impose sanctions or take any other punitive action against Israel.
On March 26, 2024, Francesca Albanese, a UN special rapporteur, released: “Anatomy of a Genocide - Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Francesca Albanese (A/HRC/55/73).”
Here is the summary of her report:
After five months of military operations, Israel has destroyed Gaza. Over 30,000 Palestinians have been killed, including more than 13,000 children. Over 12,000 are presumed dead and 71,000 injured, many with life-changing mutilations. Seventy percent of residential areas have been destroyed. Eighty percent of the whole population has been forcibly displaced. Thousands of families have lost loved ones or have been wiped out. Many could not bury and mourn their relatives, forced instead to leave their bodies decomposing in homes, in the street or under the rubble. Thousands have been detained and systematically subjected to inhuman and degrading treatment. The incalculable collective trauma will be experienced for generations to come.
By analysing the patterns of violence and Israel’s policies in its onslaught on Gaza, this report concludes that there are reasonable grounds to believe that the threshold indicating Israel’s commission of genocide is met. One of the key findings is that Israel's executive and military leadership and soldiers have intentionally distorted jus in bello principles, subverting their protective functions, in an attempt to legitimize genocidal violence against the Palestinian people.
The full report is available here.
Nicaragua v. Germany — a new case in the ICJ
As I noted in the previous edition, Nicaragua filed an application against Germany alleging it is complicit in genocide. I have not yet had a chance to read the full 43-page application, but it is available here if you are curious.
The ICJ has scheduled oral arguments to be heard on April 8 and 9, 2024.
Defense for Children International — Palestine v. Biden
The Plaintiffs have filed their opening brief, and there are, as of March 27th, eight amici briefs.
This case is a test of the promise the United States made, to itself and the international community, to honor and adhere to its legal obligations to prevent, and not be complicit in, genocide. It is also a test of the federal judiciary’s role in our constitutional system, as it asks the Court to operate as a truly independent, co-equal branch of government. In the face of a genocide—and the Executive’s failure to prevent and complicity in that crime—the foundational principles of separation of powers compel the courts to assume such a role.
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As set forth below, the political question doctrine does not and cannot shield executive actions that violate a legal duty from judicial review. Furthermore, there is no categorical “foreign policy” exception to this foundational principle, no matter how difficult or daunting the task. To the contrary, the constitutional command to judicially review and constrain executive violations of law takes on an urgent, even existential, dimension when the legal violation at issue is facilitating and accelerating the destruction of an entire people, as it is here.
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To borrow from former Supreme Court Justice and then-Nuremberg Prosecutor Robert H. Jackson, the question for this Court is whether our system of governance, and the law against genocide, is “utterly helpless to deal with crimes of this magnitude” by defendants “of this order of importance.” The law was not helpless during the Nuremberg proceedings, and it is not helpless now. The Genocide Convention and its ratification and implementation, as well as the international system and frameworks put in place to prevent genocide, require the judiciary to uphold these commitments. Our constitutional system was founded on the principle that the law is not helpless; rather, that these powerful Defendants are “answerable” to it, and it is the duty of the court to apply it. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 141 (1803).
I hope to read through these briefs sometime soon; they are all available for your viewing if you are curious.
That is all for now. I apologize for the hasty nature of this edition. There is a lot happening in our world right now. I hope all of us choose to keep bearing witness, taking action, raising our voices, and pushing toward a future where all people are free. It will take all of us.
Respectfully submitted,
Amy
I highly recommend this book. In it, Ms. Erakat defines “legal work” as “work that the legal actor performs to achieve a desired outcome.” She explains: “The same law can have a different meaning depending on the historical context, the balance of power, and the strategy of the legal work. . . . Legal work embodies and evidences the imbrication of law and politics.” Justice for Some, at 7-8.
Additionally, Ms. Erakat has done numerous podcast episodes and interviews on the topic of international law and the Palestine exception.
On X/Twitter, Omar Shakir, Alonso Gurmendi, Diana Buttu, and Noura Erakat provided good commentary about the 52 presentations that occurred over the last two weeks.
Please check out Lyle Jeremy Rubin’s article for The Nation, “Taking Aaron Bushnell at His Word (and Deed).” Or wonderful threads on X/Instagram by Vets About Face,
For more on this, check out works by people like Angela Y. Davis, such as Freedom is a Constant Struggle for the intersections of struggles.