Readers, an apology. I know you come to Letters Blogatory to read about international judicial assistance. But I find myself unable to write about anything other than the war in Israel. It will pass in time. But in the meanwhile, if you prefer not to read posts like this one, feel free to skip it! I promise to get back to my usual topics soon.
My last post began and ended with a plea to the people who, unlike me, really know about public international law to consider whether their field has gotten so out of tune with ordinary right and wrong that a rethink might be in order.
I read a few public international law blogs, most often Opinio Juris, to try to learn about what folks are saying and thinking. It’s a great, substantive blog, with leading figures participating in the dialogue. It’s just very impressive.
I looked yesterday to see what writers on Opinio Juris had said so far about the war. No doubt its coverage is just beginning; blog posts don’t just spring into being overnight! The one post I found was Reimagining Palestine in TWAIL Scholarship: A Conversation with Noura Erakat, by Mohsen al Attar. “TWAIL” stands for third-world approaches to international law. Dr. al Attar attached an addendum his post, since the post was written before Hamas’s surprise attack (or “counter-offensive,” as he calls it) and there was an obvious need to acknowledge the news. I found the addendum striking and distressing:
Addendum: Our interview with Erakat took place prior to the counter-offensive launched this past weekend. Tragically, these developments have only underscored the pertinence of our conversation. Many have noted that a fair few international lawyers approach decolonisation more as a theoretical exercise than as a tangible practice, and even less so as praxis. As Fanon insightfully quipped, “decolonisation is always a violent phenomenon” for the coloniser “does not give up their loot easily”, Sukarno added.
What does this mean? Behind the erudite language, it seems to mean what Najma Sharif, a writer with more than 40,000 followers on social media, meant when she wrote more colloquially to an audience of 23 million: “what did y’all think decolonization meant? vibes? papers? losers.”
What it means, in other words, is that the Jews in Israel—in Israel proper, not in Gaza—have no place there, that they are colonizers in Israel itself, and that while all the murder, mutilating, kidnapping, and raping we have seen are perhaps regrettable, they are justified by the Palestinians’ “anti-colonial” project.1
The addendum seems plainly to justify Hamas’s barbarism, but does Dr. al Attar really reject the existence of the Jewish state? Isn’t he merely a supporter of a Palestinian state alongside Israel who has gotten confused about ends and means? Well, no. Here is an excerpt from the main post, apparently written before the Hamas attack, when Dr. al Attar cricticizes how beholden TWAIL scholars are to “organic liberal commitments” and “double-consciousness,” which explain why “TWAIL has not taken up the Palestinian struggle”:
The Third World is aware of Europe’s vintage double-standards and it was their majority at the UNGA that forced through the ICJ’s advisory opinions on Israeli settler-colonialism, first on the Apartheid Wall and forthcoming on permanent occupation. One hundred and forty states across the Third World have recognised Palestinian statehood, even as Euro-America leverages some carrots and many sticks to scupper support for an indigenous sovereignty movement and the juridification of an ongoing anti-colonial struggle. In short, the number of legal pathways into Al Quds are multiplying at a much faster rate than the corresponding scholarship in TWAIL. Why the cold shoulder?
What is Al Quds? Jerusalem. What are “legal pathways into Al Quds?” In context, I take it to mean legal theories aimed at undermining the existence of the Jewish state. “[F]rom a TWAIL perspective,” Dr. al Attar writes, “how could the Balfour Declaration or Partition Plan or Oslo Accords ever possess any legitimacy?”
I don’t think Dr. al Attar speaks for anyone but himself, and certainly not for the editors of Opinio Juris, and I think that scholars have a right to publish their ideas. I have no demands to make. But I do have a question. Was October 10, 2023, the right day to publish Dr. al Attar’s post? Does anyone at OJ think that his views are reprehensible enough to suggest that an editor’s note would be a good idea, or to suggest that what he is proposing would be a moral catastrophe? Is Dr. al Attar’s view just an edgy critique of first-world norms, or should the editors have exercised their judgment and decided against publication? Is the answer to that question different on October 10 than it was on October 6, now that we know what decolonization “praxis” looks like?