International Conflict and War ♦ Online 65 Va. J. Int’l L. Online 1 (2024)

Law Breaking, Law Making, and International Law: Palestine, Israel, and the Foundations of International Law

MOHAMMAD FADEL

This Essay argues that the Israel-Palestine conflict’s prominent place in global consciousness reflects deep disagreement on the nature of post-World War II international law and the relationship between power, sovereignty, and legitimacy in that order. It argues that the Zionist movement and then the State of Israel, by creating facts on the ground and enlisting the ex post recognition of its actions by global powers, have consistently sought to make international law by breaking it, in reliance on the principle of effectiveness and assertions of natural right. This strategy has created a paradox between an effective, but law-breaking state, Israel, and a normative, but ineffective state, Palestine, which raises important theoretical questions about the nature of international law. The Essay explores this theoretical paradox through the lens of legal debates dating back to the interwar period in Weimar Germany. It then maps those interwar debates onto the positions of a group of international lawyers’ arguments with respect to Palestine. This Essay argues that the institutional structure of post-World War II international law—including the United Nations (UN), the incorporation of international law into the domestic law of member states of the UN, and the spread of non-governmental organizations dedicated to defending international law—has enabled Palestine, despite its inability to satisfy the empirical prerequisites of statehood, to marshal an increasingly effective coalition of actors united in supporting its de jure right to independence. The continued salience of Palestine, therefore, exemplifies Herman Heller’s political understanding of law as an “intersubjective, normative binding of wills” that is required, at a minimum “to prevent law making by law breaking.”