Barrie Sander joins JiC for this four-part series on what the situation in Israel and Palestine tell us about how we understand, construct, and tell stories about international law. Barrie is Assistant Professor of International Justice at Leiden University – Faculty of Governance and Global Affairs.

Part One – Introduction

International law, like life, is awash with stories. Yet, what stories can we – international lawyers – usefully tell when confronted with ongoing scenes of mass violence and devastation? This is a question I’ve been struggling with recently and I confess I’m yet to arrive at a fully satisfying answer.

International law is more than a set of rules; it is a language through which people try to make sense of the world around them. Moments of crisis often trigger periods of self-reflection amongst international lawyers about whether and in what ways the language of international law matters. In the immediate aftermath of Russia’s invasion of Ukraine in 2022, the field was captivated with the question of what the crisis signalled for a so-called ‘rules-based international order’. This question has arisen once more with the devastating escalation of violence and atrocities in Israel and Palestine in recent months. For some, international law is already dead; for others, the language of international law has reached a moment of reckoning that may signal either a new dawn or its oblivion; still others, rely on images rather than words to convey their despair.

Yet, what unites these reactions is that each tells a story – a particular narrative about international law and its role in the world around us. When we encounter a crisis situation and try to understand it, what we often search for is not merely consistent and reliable facts but a compelling story. Importantly, storytelling involves more than the mere sequencing of events, but encompasses a process of narrative construction through which events are given shape and meaning. As Thomas Skouteris explains, any intellectual process of narration is always ‘positioned’, entailing ‘assumptions and choices (e.g. which facts to mention, how to tell the story, whose common knowledge to use, etc.) that are far from natural, mechanical, or neutral’. And while stories can help cement the status quo, in international law narratives can also be invoked to resist dominant structures of power. It is perhaps for this reason that storytelling can become so fraught with tension.

Within the field of international law, there has been extensive interest in the relationship between law and narrative. Understanding this relationship is important for moving beyond treating international law as a response to societal problems and to instead ‘position law itself as constructing the very problems it seeks to solve’. In this series of four posts, I reflect on different dimensions of the relationship between international law and narration in the context of the situation in Israel-Palestine.

Why do I offer these reflections? To answer this, I need to tell you a little about my own story. Although the Netherlands is where I currently call home, I’m originally from the UK where I grew up in London. I’m also Jewish and was initially drawn to the field of international law by an interest in learning more about mass atrocities, including those perpetrated against the Jewish community during the Second World War. I wanted to understand how and why these types of atrocities occur, and what avenues for justice, if any, might be possible in response. 

Like many, I have watched with immense shock, horror, anger, fear, and discomfort, the atrocities perpetrated by Hamas and Israel, as well as the growing Islamophobia and anti-Semitism that has accompanied them around the world. As a researcher and teacher of international law, as someone with a Jewish background, and as a human, I strongly oppose the military campaign waged by Israel in response to the atrocities committed by Hamas on and following 7 October. This campaign has wreaked devastation on the people of Gaza to such an extent that claims of significant violations of international law, including international criminality, have become not only possible but compelling. Even US President Biden, Israel’s closest ally, has talked of Israel’s ‘indiscriminate bombing’ in Gaza.

The devastation wreaked by Hamas, including their ongoing captivity of hostages and indiscriminate rocket fire into Israel, must be condemned in the strongest terms and without ambiguity or equivocation. It does not, however, provide an excuse for the horrors of Israel’s military operation, which has destroyed entire neighbourhoods and rendered Gaza ‘uninhabitable’. Israel’s campaign not only exceeds well-established limits of international law, it is also counter-productive, exacerbating rather than alleviating conditions conducive to further cycles of violence and suffering in the region. 

Moreover, as UN Secretary-General António Guterres has rightly observed, ‘It is important to… recognise the attacks by Hamas did not happen in a vacuum’. Rather, they must be placed in the context of ‘56 years of suffocating occupation’, during which time Palestinians ‘have seen their land devoured by settlements and plagued by violence; their economy stifled; their people displaced and their homes demolished’. Indeed, as Ben Saul, the UN Special Rapporteur on human rights and counter-terrorism, has emphasised, when you consider that conditions conducive to terrorism such as ‘protracted unresolved conflict, gross violations of human rights, which include self-determination and systematic discrimination… have been present in Israel-Palestine for many decades, it’s no surprise that violence, and really extreme forms of violence, have resulted’. Importantly, to contextualise Hamas’ acts of terror in this way is neither to condone nor exonerate them. Rather, it is to foreground asking what steps will be needed to release the region from violence. 

I, therefore, support calls for an immediate ceasefire, the return of all hostages held by Hamas, the release of all Palestinians arbitrarily detained by Israel, the facilitation of humanitarian aid to the people in Gaza, and a shift towards policies and approaches that seek to address the underlying causes of the conflict. I also strongly oppose the misplaced usage of terms such as ‘anti-Semitism’ and ‘blood libel’ by Israeli officials to characterise, for example, the investigation of the International Criminal Court and South Africa’s application before the International Court of Justice. And I offer solidarity to those who have been confronted with attempts to have their work silenced, presumably rooted in discomfort with the positions they advance.

At a recent talk on Israel-Palestine in which I participated, a student asked, ‘How do we make the violence stop?’ One of my colleagues responded, ‘I don’t know, but keep asking that question’. It is in the spirit of continuing to ask that question that I seek to offer some reflections on the stories we tell within the field of international law. 

I do so by exploring the significance of three dimensions of international legal storytelling: first analogies and comparisons; second, framing and structural bias; and finally, disruption and transformation. Each dimension, I suggest, can help reveal the potential and limits of international law as a vocabulary of emancipation, as well as highlight what international law tends to make visible and what it tends to marginalise and exclude with respect to situations of ongoing violence. The focus of my next two posts is the field of international criminal law, while my final post turns to the field of international human rights law by examining the case brought by South Africa against Israel before the International Court of Justice pursuant to the Genocide Convention.