Palestine as a Litmus Test for Transitional Justice

ABSTRACT^∞

We are currently witnessing another sustained and significant mobilization of people across the globe, coming on the heels of the racial justice uprising of 2020. This postscript of the International Journal for Transitional Justice’s (IJTJ) Special Issue on Race, Racism and Transitional Justice reflects on whether transitional justice as a field can offer meaningful avenues for rectifying past and ongoing racial injustices, by examining the concrete and pressing example of Palestine. It argues that transitional justice has never fully grappled with the ‘question’ of Palestine, which was a live one at its birth and remains a live one today. It concludes that it is an open question whether the appeal of transitional justice to the rule of law and universal principles in the current international context can be divorced from how the rule of law operates in practice and how it selectively applies to racialized others.

I want the people in America who see this mural to know that we in Palestine are standing with them, because we know what it’s like to be strangled every day … George Floyd was killed because they practically strangled him, and cut off his breathing … And every day, this wall strangles us and makes it hard for us to breathe … We must remember that George Floyd didn’t die due to a lack of oxygen. He died because of a lack of justice.

(Interview with Taqi Spateen, Palestinian artist based in Bethlehem,

in the occupied West Bank, who painted a mural of George Floyd

on the Separation Wall in June 2020 depicted in Figure 1)¹

INTRODUCTION

I write this postscript at a time when the Israeli Prime Minister Benjamin Netanyahu has rejected proposed ceasefire terms and declared that ‘there is no other solution but a complete and final victory.’² The steadily increasing death toll for Palestinians killed in Gaza stands at a staggering 35,709 people (with many more unaccounted for under the rubble), 79,990 injured, 75 percent of people internally displaced in Gaza (1.7 million), and 1.1 million people facing catastrophic levels of food insecurity at the time of writing.³ Israel faces charges of grievous war crimes – warnings of genocide included.⁴ At one point, Oxfam estimates that ‘Israel’s military [was] killing Palestinians at an average rate of 250 people a day which exceeds the daily death toll of any other major conflict of recent years.’⁵ Around 1,200 Israelis were killed in Hamas’s devastating incursion on 7 October 2023, with over 200 hostages taken, triggering this latest escalation of violence in a decades-long conflict that implicates many of the themes at the center of this Special Issue on Race, Racism, and Transitional Justice.

Several state officials in Israel have blatantly deployed anti-Palestinian racism, using dehumanizing and incendiary language to justify the state’s response. For instance, President Isaac Herzog declared that ‘It’s a war that is intended, really, truly, to save Western civilization, to save the values of Western civilization.’⁶ Additionally, Defense Minister Yoav Gallant remarked that ‘This is a war between the children of light and the children of darkness.’⁷ When announcing the complete siege of Gaza, the Defense Minister asserted that ‘We are fighting against human animals.’⁸

Concomitantly, many civil society organizations have mobilized protest actions that challenge the weaponization of grief about the horrific attacks of 7 October 2023, which pervert the lesson from the Holocaust of ‘Never Again’ to cover for a current military campaign of revenge and collective punishment. Hundreds of thousands of people have taken to the streets across the world demanding an immediate ceasefire, effective recognition of the right, of Palestinians to self-determination, as well as an end to genocide, and the Israeli occupation amongst others. These protests speak to the urgency of a process through which the full humanity and rights to self-determination of all Palestinians and Israelis are fully realized, a process that can address the profound racialized injustice of the status quo in the region.

This postscript spotlights anti-Palestinian racism as a specific form of racism that Palestinians encounter. It reflects on the limitations of the field of transitional justice for furthering decolonial efforts, considering the situation in Palestine. It argues that transitional justice has never fully grappled with the ‘question’ of Palestine, which was a live one at its birth and remains a live one today. The situation in Palestine affords an opportunity to reflect on how transitional justice can shroud itself in a discourse of technocratic legalism that threatens to obfuscate the underlying racialized politics of its interventions. Palestine is a litmus test for the field of transitional justice because of what it is unearthing about truth-telling and racial gaslighting. Additionally, the situation in Palestine has surfaced who has historically been entitled to levy the charge of genocide, which genocides have been cognizable and which have been unremembered. The postscript concludes by ruminating on whether transitional justice will continue to be deployed as a tool to subject racialized others to rules, while some remain above and outside the reach of those rules.

ANTI-PALESTINIAN RACISM

Race is the socially constructed and contingent system of meaning that societies attach to morphology and ancestry.⁹ As E. Tendayi Achiume and I state in the introduction of this Special Issue, 18(1) “racism is the material expression of the exclusionary practices and subordinate inclusionary practices that flow from specific forms of racialization, which necessarily takes different shapes and forms in various times and spaces.”¹⁰ Crucially, colorism is but one expression of racism against phenotypically darker-skinned people. Given that groups in the Middle East, including both Arabs and Jews, have historically fallen in and outside of constructed ideas of Whiteness,¹¹ addressing anti-Palestinian racism means making cognizable discrimination based on more than just phenotypical differences in color.

Edward Said has articulated that Palestinians are subject to Orientalism, a worldview that depicts people from the Middle East as inferior in comparison to the West.¹² Anti-Palestinian racism developed as a form of racism that ‘silences, excludes, erases, stereotypes, defames or dehumanizes Palestinians or their narratives.’¹³ Anti-Palestinian racism has been identified as including the following forms: denying and justifying violence against Palestinians; failing to acknowledge Palestinians as an Indigenous people with a collective identity; and erasing the human rights and equal dignity and worth of Palestinians amongst others.¹⁴

Palestinians also encounter anti-Muslim racism and Islamophobia, regardless of whether they identify as Muslim, Christian or Druze or are non-religious.¹⁵ Rabiat Akande explains how ‘racial and religious othering were mutually co-constitutive in the colonial encounter’ and how the ‘legacy of that past survives in the continuing interplay of the racial and religious othering of the non-Euro-Christian other.’¹⁶ Racial and religious othering leads to discrimination that is intersectional.¹⁷ Akande demonstrates how ‘anti-Muslim discrimination reveal[s] a homogenization and attribution of racial markers to Muslims despite Muslims being culturally, nationally, and ethnically diverse.’¹⁸ She scrutinizes how the ‘law racializes these persons by homogenizing and ultimately demarcating these persons as a disfavored “other” to “civilized” society.’¹⁹ Akande clarifies how the persistent societal and legal understanding of racism in solely ‘phenotypical terms effectively preclude[s] religious minorities from legal remedies,’ such that they fall through a ‘protection gap’ in the law.²⁰

Systemic anti-Palestinian racism can coexist with colorism, Islamophobia and anti-Arab racism but extends and goes beyond these, and needs to be named as such. It can also impact others who are perceived to be Palestinian, perhaps because of their religion, skin tone, or ethnicity. It is beyond the scope of this postscript to excavate all the forms of racisms and racial injustices that Palestinians have endured and been subjected to. Moreover, by highlighting the pernicious role of anti-Palestinian racism in this postscript, I do not seek to minimize the reality and lived experiences of other forms of racism, nor the deleterious effects of antisemitism. Instead, I wish to draw attention to how insidious anti-Palestinian racism is, since it is a form of racism that remains unnamable in most contexts.²¹

A racial analysis is especially useful for analyzing the current moment and provides a framework for understanding the subordinating and colonial dynamics at play.²² Zionism is ‘both a racializing project and a colonial one.’²³ As others have elucidated, the systemic harm from this political movement is ‘not merely discrimination’ but a settler colonialism that seeks to replace native populations, such that Jewish foreigners, to varying extents, can have more privileges than indigenous Palestinians.²⁴

Since 1917, when the British Empire designated territory as a site for Jewish settlement, Noura Erakat explains that:

The native Palestinians, then 95 percent of the whole, who claimed sovereignty and sought self-determination, threatened Zionist settler sovereignty and have thus been marked for removal. Israel, with the support of British and American imperial patronage, steadily expanded its territorial takings in pursuit of its settler colonial ambitions.²⁵

James Baldwin, reflecting on this coloniality, concludes that:

the state of Israel was not created for the salvation of the Jews; it was created for the salvation of the Western interests. This is what is becoming clear (I must say that it was always clear to me). The Palestinians have been paying for the British colonial policy of ‘divide and rule’ and for Europe’s guilty Christian conscience for more than thirty years.²⁶

Israel has subjected Palestinians to colonization, dispossession, occupation, displacement, repression of rights and crucially the repression of rights claims to form a state internally and externally.²⁷ Ardi Imseis analyzes the role of international law in subordinating Palestine and its people in a state of ‘international legal subalternity.’²⁸ Consequently, the Palestinian diaspora consists of differentially situated people: those who live within Israel, those living in the occupied Palestinian territories and the vast diaspora of Palestinians globally, some of whom live in refugee camps and have for generations. The next section considers whether transitional justice could make a meaningful difference to the lived realities of Palestinians.

TRANSITIONAL JUSTICE AND THE ‘QUESTION’ OF PALESTINE

Palestine is a litmus test for the field of transitional justice and its ability to address wrongdoing.²⁹ Many have traced the origins of the field of transitional justice back to the immediate post-war setting in Europe and the Nuremberg trials and de-Nazification efforts that resulted. What then does it mean that the field of transitional justice has never fully grappled with the ‘question’ of Palestine? It took 75 years for the United Nations to commemorate the Nakba (catastrophe),³⁰ which refers to the mass displacement and dispossession of approximately 750,000 Palestinians during 1948. Where have the language, rhetoric, tools and practices of transitional justice been as it relates to the question of Palestine?³¹

One clear limitation is not centering and surfacing the voices of Palestinians writing on this issue and narrating their own experiences in the mainstream of transitional justice.³² What does truth-telling mean in the context of Palestine? What are Palestinians entitled to know and to learn? What does justice demand?³³ What do reparations mean and require for Palestinians?³⁴ Similarly, what do criminal prosecutions and court proceedings and their absences tell us about the role of the law as it relates to Palestine?³⁵ What function can local and restorative justice practices play in Palestine? How have memorials and memorialization been used to acknowledge the harms that Palestinians have suffered? What of vetting and reforming of abusive institutions as it applies to Palestine? Mainstream transitional justice scholars have not adequately taken up these issues, whereas in other contexts these inquiries dominate the scholarly conversations.³⁶ What are we to learn from these comparative silences in transitional justice as it relates to Palestine? What has limited the exploration in the field of the transitional justice possibilities and potentials for Palestine for such a long time?

Reflecting on these issues allows for some deeper inquiry into the structural dynamics and limitations of the field. Perhaps because there has not been a formal transition, a shift either from authoritarian to democratic political forms or from conflict to postconflict setting, transitional justice is presumably inapposite. Yet, as Achiume and I argue in the introduction to this Issue, there is an unwarrantedly myopic focus on transitional periods in the field.³⁷ Further, in ‘answering the question of what countries should be seeking to transition to, racial justice, racial reckoning and transformation’³⁸ need to be given greater primacy. Yet, transitional justice as a field seems premised on a sort of racial aphasia or a forced forgetting and ‘“unwillingness to confront the persisting and imperial operation of race in society.”’³⁹ By this I am likening it to colonial aphasia, an ‘occlusion of knowledge, a difficulty generating a vocabulary that associates appropriate words and concepts with appropriate things, and a difficulty comprehending the enduring relevancy of’⁴⁰ race and racism. Transitional justice, until recently,⁴¹ has tended to restrict our gaze to the most recent atrocities, which inhibits our ability to consider the racialized and colonial roots of the present moment in the field.

There are also inherent problems posed by transitional justice placing the state at the center of both problem identification and resolution.⁴² States may be a necessary condition but they are certainly not sufficient. For example, in analyzing the experience in Rwanda in this volume, Ezechiel Sentama demonstrates how state-centric transitional justice interventions in other contexts have served to subordinate the priorities, practices and values of marginalized individuals and groups.⁴³ The state-centric focus of many transitional justice efforts is especially problematic as it relates to the question of Palestine because of the need for transitional justice processes to meaningfully engage across the Palestinian diaspora in multiple states.

Transitional justice as a field depends on a particular non-predatory theory of state–society relationships, where the reformed state provides protection, justice and services in ways that do not capture the lived experiences of historically subordinated and racialized peoples. This is expressly so, given that the transatlantic trade in enslaved Africans and colonialism created sizeable communities of people of African descent across many nations, and geopolitical hierarchies have meant that historically Black, Indigenous and other subordinated groups have not been easily able to translate their rights claims into law nationally, regionally or internationally. Thus, some commentators have concluded that transitional justice mechanisms fall short of offering meaningful avenues for decolonization and rectifying ongoing injustices centered on land dispossession and self-determination that impact some 350 million Indigenous peoples residing around the world.⁴⁴ This is the case for Palestinians who cannot rely on the munificent actions of a settler colonial state.⁴⁵ The urgent and necessary demands of Palestinians for self-determination and statehood must continue to be recognized.⁴⁶ The next sections consider the special salience that international law and its institutions have had for Palestinians.

NOT THE HAGUE

There is a tension in the field of transitional justice between the local and the international. There has been a recent emphasis on replacing a universalist vision of transitional justice with a pluralist one that recognizes different normative visions of justice.⁴⁷ This has been marked by a shift in the field towards grassroots organizing, Indigenous knowledge systems, the stories and experiences of survivors and pluriversality of understandings as informing the shape and form of transitional justice.⁴⁸ Consequently, the location of tribunals in The Hague represents an increasingly problematic situs for the field. Their physical and constitutive distance makes them remote from victims, witnesses and affected societies. In addition, there is valid concern about whether international tribunals can satisfy the justice, reparative, distributive, reconciliatory and other demands of populations.⁴⁹

One of the main arguments for international tribunals is their expressive condemnation and communicative power; the ability of a sanction to reverse the false message sent by an offender’s actions about the value of the victim relative to the offender.⁵⁰ Notably, shaming sanctions can take place outside of formalized transitional justice processes. For example, nongovernmental and international organizations routinely utilize ‘naming and shaming’ as a common advocacy strategy to publicize violations as well as to encourage compliance and enforcement with human rights.⁵¹ Indeed, the very act of naming has an expressive condemnation function because of the stigma that is thought to accompany the label of rights violator. As Kamari Clarke has argued, the act of ‘naming and ordering, without naming or prioritizing other global acts that are part of the world’s context for violence, perpetuates structural inequalities’ and racial subordination.⁵²

What then have the proceedings at the International Criminal Court (ICC) named and expressed about the situation in Palestine to date? There have been multiple attempts by Palestinian representatives to get a determination of individual criminal liability at the ICC.⁵³ The ICC has long faced a crisis of credibility on charges of systemic racism and bias, as highlighted in this Special Issue. The situation in Palestine appears to be reproducing the core of that critique.⁵⁴ Palestinian representatives have repeatedly sought to get the ICC to invoke its jurisdiction over crimes taking place in its territory in 2009⁵⁵ and in 2015.⁵⁶ Palestine was formally recognized and allowed to become a state party to the Rome Statute in 2018. It then submitted a referral to the prosecutor ‘to investigate, in accordance with the temporal jurisdiction of the Court, past, ongoing, and future crimes within the Court’s jurisdiction, committed in all parts of the territory of the State of Palestine.’⁵⁷ The ICC finally opened an investigation in March 2021 to cover alleged crimes committed ‘in the occupied Palestinian territory … since 13 June 2014.’⁵⁸ Many have expressed concern that the delay by the court reflects a lack of a sense of urgency and political will to proceed with the situation in Palestine in earnest.⁵⁹

There has been a significant increase in the number of complaints and referrals of the situation in Palestine to the ICC since October 7, 2023. These include: South Africa, Bangladesh, Bolivia, Comoros and Djibouti’s group referral to investigate allegations of war crimes and crimes against humanity alleged to have been committed in Palestine;⁶⁰ as well as a referral by Mexico and Chile;⁶¹ Palestinian human rights organizations Al-Haq, Al Mezan and the Palestinian Center for Human Rights’ lawsuit requesting that charges of ‘apartheid’ and ‘genocide’ be added to this investigation;⁶² and a Reporters Without Borders complaint to the Office of the Prosecutor to investigate war crimes involving the targeting and killing of Palestinian journalists.⁶³

The Prosecutor of the ICC released a preventative statement on February 12, 2024, asserting that ‘I am deeply concerned by the reported bombardment and potential ground incursion by Israeli forces in Rafah.’⁶⁴ The Prosecutor went on to warn that:

those who do not comply with the law should not complain later when my Office takes action pursuant to its mandate. To all those involved: my Office is actively investigating any crimes allegedly committed. Those who are in breach of the law will be held accountable.⁶⁵

Media reports indicate an effort by United States and Israeli officials to prevent the issuance of arrest warrants for several senior government officials including the prime minister.⁶⁶ Rachel Lopez has observed how the ICC has been used consistently in the past to ‘immunize White guilt, shielding the citizens of majority White nations from the court’s reach.’⁶⁷ Anushka Sehmi’s piece in this volume on the Kenya situation serves as a powerful reminder that transitional justice mechanisms like the ICC do not operate in an ahistorical vacuum.⁶⁸ The focus of prosecutions over the years has only functioned to further entrench impunity and heighten the sense that the Court is a neo-imperial tool to protect Western interests and allies. The Court’s allocation of resources and its decisions about which other situations to advance and which arrest warrants to issue – against Putin for Ukraine, but not until recently Netanyahu for Palestine⁶⁹ – have only exacerbated the sense of the racial selectivity of prosecutions.⁷⁰ The perception of racialized double standards is playing out in who gets to be a victim and have their experiences quickly affirmed and recognized by the international community as a violation of community norms, as opposed to having their experiences backgrounded. Yet, recognition is a key goal of transitional justice.

Moreover, the field of transitional justice needs to continue to reckon with how the ICC’s presumed status as a mechanism of transitional justice remains undisturbed,⁷¹ notwithstanding the ways that the institution exacerbates racial subordination and continues the civilizing mission of international law.⁷² Scholars have canvassed how even as the ICC focuses almost exclusively ‘on cases presumed to rescue and protect Black and Brown bodies, its very foundation [is] shaped by White supremacy.’⁷³ The mechanisms used and relied upon by transitional justice also tell us something about the field itself.

The field of transitional justice also must reinvigorate its commitment to grappling with how a mechanism like the ICC, which is top-down, offering primarily carceral solutions,⁷⁴ continues to be given such primacy in terms of resources and attention, notwithstanding the push for more local and grassroots efforts.⁷⁵ By focusing on individual criminal responsibility, the ICC, like other criminal tribunals, abstracts crimes as if they occur in a vacuum and does not consider the responsibility of state actors, institutions like the media, corporate actors, and others. This obscuring and backgrounding of the role of collective responsibility has a disparate impact on the claims of historically subordinated and racialized groups and on the propensity of such mechanisms to address systemic racism both past and present.

FROM INDIVIDUAL TO COLLECTIVE RESPONSIBILITY

A focal point for transitional justice is the need to acknowledge past wrongdoings. Consequently, there is a premium placed on official acknowledgement to victims and recognition of their suffering by state actors. This has meant that institutions whose main aim is determining collective and state responsibility tend to feature rather prominently in transitional justice analyses. Paradoxically, the International Court of Justice (ICJ), which is the principal court that can hear disputes between states and give advisory opinions on international legal issues, does not surface prominently in the transitional justice literature. This may be because of a practice of states not consenting to the court’s jurisdiction on issues pertaining to transitional justice matters, or states and United Nations organs not seeking out advisory opinions from the court that relate to transitional justice. I suspect that this is not the case, given all the cases that have come before the court that concern various conflicts around the world which implicate transitional justice in just the last ten years alone.⁷⁶ Maybe the lack of engagement with the ICJ simply reflects the move away from overly legal approaches in the field. Yet, that does not square with the continued role that the ICC plays in transitional justice. Perhaps, it is more about the fact that only states can appear before the ICJ. Certainly, this is not in line with transitional justice’s purported victim-centered approach. The field puts a premium on collecting testimonies from victims and allowing them to share their stories and providing a public platform for their experiences to be recognized and acknowledged. Nonetheless, examining whether the ICJ can serve as a potential transitional justice site, given its focus on determining state responsibility, in my mind is an important one.

I am under no illusions about the historical role the ICJ has played in furthering imperial ends. I do not want to oversell or overstate the ICJ’s significance or any court’s capacity to contribute to transitional justice.⁷⁷ The ICJ has a long history with Palestine. The Court has issued one decision relating to the question of Palestine, and held a six-day hearing beginning on February 19, 2024 in another case, where an unprecedented fifty-two states and three international organizations presented arguments about the legal consequences of Israel’s occupation of the Palestinian territories.⁷⁸ This is the highest level of engagement with oral proceedings in the Court’s history. It comes after the United Nations General Assembly asked the court in 2022 for an advisory opinion.

This postscript focuses our attention on the case that South Africa initiated against Israel for an emergency order from the ICJ. South Africa asserts that ‘Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza.’⁷⁹ It requested a provisional order ‘as a matter of extreme urgency’ to protect Palestinians from ‘further, severe and irreparable harm.’⁸⁰ South Africa argued that Israel’s conduct violates the 1948 Genocide Convention’s prohibition of acts of genocide, failure to prevent genocide, as indicated by Israel’s extensive direct and public incitement to genocide ‘which has gone unchecked and unpunished.’⁸¹ South Africa’s case against Israel alleges that Israel’s actions are genocidal in character because they are committed with the intent ‘to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and’ ethnic group.⁸² South Africa requested several provisional measures ordering Israel: to stop perpetrating genocide, to prevent genocidal acts and incitement and to punish any that have been committed, to preserve evidence relating to any allegations of genocide and to immediately suspend military operations in and against Gaza.⁸³

Significantly, South Africa is following the precedent set by the Gambia, when it brought Myanmar to the ICJ and secured provisional measures against it for genocidal actions against the Rohingya ethnic minority.⁸⁴ South Africa relied on the Court’s holding in that case that the Convention creates obligations between all of its signatories, allowing them to hold each other accountable for breaches of it. The advocates from South Africa forcefully argued that the ‘very reputation of international law … hangs in the balance.’⁸⁵

Israel argued that there is not a dispute between South Africa and itself, that the ICJ has no jurisdiction, that it is acting in self-defense, that official statements have been misconstrued, that they are taking measures to safeguard civilian well-being and that the provisional measures sought go too far, amongst others.⁸⁶ Outside the court, the Prime Minister of Israel responded defiantly that ‘We will restore security to both the south and the north. Nobody will stop us – not The Hague, not the axis of evil and not anybody else.’⁸⁷ The Prime Minister has also articulated publicly the de facto reality on the ground; that he rejects the prospect of Palestinian statehood and has asserted that Israel must maintain security control over the West Bank and Gaza.⁸⁸

The Court did not dismiss the case as Israel requested. Instead, it found the ‘existence of a dispute’⁸⁹ and that at least: some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the [Genocide] Convention.⁹⁰

In addition, the Court found that Palestinians ‘appear to constitute’ a distinct national, ethnic, racial or religious group, ‘and hence a protected group’ within the Convention.⁹¹ The Court concluded that: at least some of the rights claimed … are plausible. This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts.⁹² It also found that there is a risk of irreparable harm to ‘the right of Palestinians in the Gaza Strip to be protected from acts of genocide and related prohibited acts’ of the Convention,⁹³ given that the ‘catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the Court renders its final judgment.’⁹⁴

The Court indicated provisional measures for six of the nine measures sought by South Africa.⁹⁵ The Court ordered the following:

78 … . Israel must, in accordance with its obligations under the Genocide Convention, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group. The Court recalls that these acts fall within the scope of Article II of the Convention when they are committed with the intent to destroy in whole or in part a group as such … The Court further considers that Israel must ensure with immediate effect that its military forces do not commit any of the above-described acts.

79. The Court is also of the view that Israel must take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip.

80. The Court further considers that Israel must take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.

81. Israel must also take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Genocide Convention against members of the Palestinian group in the Gaza Strip.

82 … Israel must submit a report to the Court on all measures taken to give effect to this Order within one month, as from the date of this Order.⁹⁶

The ICJ will not deliver a final judgment on the merits until years from now. However, the granting of these provisional measures indicates the legal plausibility of South Africa’s case, which the United States had previously sought to discredit as ‘meritless, counterproductive and without any basis in fact whatsoever.’⁹⁷

Notably, the proceedings at the ICJ in this case have the potential to do many of the things that the field routinely expects transitional justice mechanisms to do in other contexts. This includes investigating crimes, publicly identifying perpetrators, outlining the responsibility of state actors, providing acknowledgment to victims and recognition of their suffering, collecting and hearing evidence, as well as serving as a guard against nationalist and revisionist accounts of past events. Following the Court’s initial provisional order, the case is already registering on a number of these aims. For example, South African President Cyril Ramaphosa in a televised address declared that ‘Today, Israel stands before the international community, its crimes against the Palestinians laid bare.’⁹⁸ The Israeli Prime Minister, Benjamin Netanyahu, asserted that:

the mere claim that Israel is committing genocide against Palestinians is not only false, it’s outrageous, and the willingness of the court to even discuss this is a disgrace that will not be erased for generations.⁹⁹

The Palestinian foreign minister, Riyad al-Maliki, remarked that ‘The ICJ judges assessed the facts and the law, they ruled in favor of humanity and international law’ and noted that Palestine calls on all states to ensure the measures ordered by the court are implemented, ‘including by Israel, the occupying power.’¹⁰⁰

In transitional justice initiatives, proceedings and their outcomes can serve as forms of moral communication used to express condemnation, revalidate a victim’s worth and strengthen social solidarity. Yet, the expressive condemnation here is coming from the ICJ, which is not a mechanism that is usually associated with transitional justice. The initial provisional order is especially striking because the bar is subterranean as it relates to Palestine.

The Court did not address Israel’s self-defense argument. The reason why an actor is using force, and its validity, is legally irrelevant in terms of determining what one can do after resorting to force. International law has bodies of law that govern the justice of war (jus ad bellum) and different ones that govern just and fair conduct in war (jus in bello). The latter regulates the conduct of parties engaged in armed conflict irrespective of the legality of the decision to use force. This body of law is also known as international humanitarian law and grave violations of it constitute war crimes. The claimed justness of the cause of war does not give carte blanche to use any means and methods of force in conflict. Instead, there is a proportionality requirement, such that even if the use of force is deemed justified and necessary under this standard, the type and amount of force used must be proportional. Accordingly, it is no defense to a charge of war crimes, crimes against humanity and/or genocide to respond with the purported legality of the initial decision to resort to force.

Transitional justice mechanisms are also presumed to provide a basis for further actions, and to inform and catalyze public debate about how to deal with negative peace in a manner that helps to address the past with an eye towards securing a future with positive peace. The initial proceedings before the ICJ have certainly served as a catalyst for debate about what further action is needed, especially as this relates to cessation of hostilities and securing negative peace.¹⁰¹ The Court did not initially order South Africa’s first requested provisional measure, that ‘The State of Israel shall immediately suspend its military operations in and against Gaza.’¹⁰² Many have expressed disappointment about the lack of a call for a ceasefire and how this is a pyrrhic victory that will not change the devastating reality on the ground.¹⁰³ A principle objective of transitional justice is victim mollification and by this measure the Court’s initial provisional order clearly falls short here, as many Palestinians are understandably frustrated with the Court.¹⁰⁴ The lack of a ceasefire order is especially striking given that the Court previously ordered one in 2022, when it demanded that ‘The Russian Federation shall immediately suspend the military operations it commenced’ against Ukraine.¹⁰⁵

In the week following the ICJ’s initial provisional order, Israel reportedly killed almost 900 Palestinians.¹⁰⁶ Israel also announced plans to launch a ground invasion in Rafah, which is ‘normally home to 280,000 Palestinians,’ but ‘currently houses – primarily in makeshift tents – more than half of Gaza’s population, estimated at approximately 1.4 million people, approximately half of them children.’¹⁰⁷ People fled to Rafah following prior Israeli military evacuation orders to leave their homes and areas further north, which Israel has largely destroyed.¹⁰⁸ The United Nations Secretary-General has warned that an assault against Rafah ‘would exponentially increase what is already a humanitarian nightmare with untold regional consequences.’¹⁰⁹

On February 12, 2024, South Africa filed an urgent request for additional measures under article 75(1) of the rules of court of the ICJ.¹¹⁰ This is a rarely invoked rule that allows the Court to decide to examine on its own ‘whether the circumstances of the case require the indication of provisional measures which ought to be taken or complied with by any or all of the parties.’¹¹¹ Israel objected to this request. The Court found that the perilous situation in Rafah ‘demands immediate and effective implementation of the provisional measures’ already ordered by the Court ‘and does not demand the indication of additional provisional measures.’¹¹² On February 26, 2024, the Justice and Foreign Ministries of Israel submitted a report to the ICJ, which was not released to the press or the general public.¹¹³ In the report, Israel ostensibly told the ICJ that it is implementing’ the Court’s January 26, 2024 order:

and detailed the steps it has taken to provide humanitarian aid to Gaza, as well as the measures being taken by senior legal and law enforcement officials against those who may have made comments inciting genocide against the Palestinians in Gaza.¹¹⁴

Yet, it was not until following South Africa’s March 6, 2024 request for additional provisonal measures concerning the widespread starvation in Gaza,¹¹⁵ that the ICJ issued additional meaures. The Court found “that famine is setting in”¹¹⁶ and on March 28, 2024, the ICJ ordered Israel to:

Take all necessary and effective measures to ensure, without delay, in full co-operation with the United Nations, the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance, including food, water, electricity, fuel, shelter, clothing, hygiene and sanitation requirements, as well as medical supplies and medical care to Palestinians throughout Gaza, including by increasing the capacity and number of land crossing points and maintaining them open for as long as necessary.¹¹⁷

Ensure with immediate effect that its military does not commit acts which constitute a violation of any of the rights of the Palestinians in Gaza as a protected group under the Convention on the Prevention and Punishment of the Crime of Genocide, including by preventing, through any action, the delivery of urgently needed humanitarian assistance.¹¹⁸

Significantly, the ICJ depends on the United Nations Security Council to enforce its orders. However, the United States has a permanent seat and veto on the Council. The United States has provided cover for Israel and repeatedly vetoed United Nations Security Council resolutions calling for a humanitarian ceasefire in Gaza.¹¹⁹ It was not until March 25, 2024, that the United States’ abstention enabled a temporary cease-fire resolution to be adopted at the Security Council.¹²⁰

The ICJ also ordered Israel to provide it with a report one month following its March 28, 2024 indication of additional provisional meassures.¹²¹ Yet, Israel’s clear violations of the ICJ’s provisional orders¹²² are laying bare the capacities of legal institutions.¹²³ The lack of compliance with the ICJ’s provisional orders does not further the transitional justice objective of combatting impunity. Moreover, the Palestinian case is testing the bounds and applicability of transitional justice to countries that are at the presumed center of the international order, as opposed to those relegated to the margins and the periphery. In the next section, I want to turn attention to how the politics of this moment and the question of Palestine have rendered increasingly vivid the fraying seams of the racially unjust world order.

FROM HYPOCRISY TO COMPLICITY

The current moment is unmasking the blatant anti-Palestinian racism, hypocrisy, and complicity of many actors in the Global North. In a seeming bid to distract from the weight of the ICJ’s January provisional order, the day after its ruling, nine states moved to defund the United Nations relief agency for Palestinian refugees (UNRWA), for the alleged actions of a small number of employees that Israel claims were involved in the October 7, 2023 attacks, putting lifesaving programs to two million people in the Gaza strip in peril.¹²⁴ Philippe Lazzarini, UNRWA Commissioner General, responded with shock:

It would be immensely irresponsible to sanction an Agency and an entire community it serves because of allegations of criminal acts against some individuals, especially at a time of war, displacement and political crises in the region.¹²⁵

The United Nations announced on April 22, 2024 following an independent external review that “Israeli authorities have yet to provide proof of their claims that UN staff are involved with terrorist organisations.”¹²⁶ The suspension of aid based on an unsubstantiated allegation,¹²⁷ certainly frustrates the aspect of the Court’s order concerning ‘the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.’¹²⁸ It also makes plain the racial devaluation of Palestinian lives that vital aid can be withdrawn on a whim.

More slow violence from forced famine,¹²⁹ food insecurity¹³⁰ and disease¹³¹ is predicted, laying the groundwork for an entirely preventable public health emergency that will continue to have long-lasting effects even after the bombing ceases. The escalating massive human rights atrocities perpetrated in Gaza by Israel have decimated an estimated 70 percent of all civilian infrastructure in Gaza,¹³² including schools, industrial facilities, health facilities, religious institutions and press offices, which is rendering Palestine uninhabitable.

In these dire circumstances, the United States and the United Kingdom were seemingly unfazed by the perception that they were more concerned by disruptions in trade in the Red Sea as they bombed Yemen.¹³³ These strikes were in retaliation for Houthi rebels in Yemen setting up a blockade of ships destined to Israel and threatened to further destabilize the region. The Houthi rebels claim that they set up the blockade to frustrate Israel’s actions in Gaza and in solidarity with Palestinians.¹³⁴ The devaluation of Palestinian lives and anti-Palestinian racism are made manifest in the decision to protect trade routes over human lives. The capacity to define who matters and who does not, who is disposable and who is not, is connected to racial and colonial logics both past and present.¹³⁵

This racialized devaluation is rendered visible when you contrast the response to Palestine and Ukraine from the Global North. For example, the swift condemnation of an illegal occupation in Ukraine, ‘while also standing staunchly behind Israel, which has occupied the West Bank and Gaza Strip since 1967 and maintains settlements in the former,’ when ‘Israel has also held Gaza under a land, air, and sea blockade since 2007.’¹³⁶ Again and again, the same illegal conduct is met with drastically different reactions: on October 9, 2023, Israel’s infrastructure minister announced that Israel would cut off all water supplies to Gaza,¹³⁷ and on October 22, 2022, European Commission President Ursula von der Leyen addressed the European Parliament to denounce:

Russia’s attacks against civilian infrastructure, especially electricity, [as] war crimes. Cutting off men, women, children of water, electricity and heating with winter coming – these are acts of pure terror. And we have to call it as such.¹³⁸

The gross disparity in the response to what is happening to Ukrainians and the comparative silence regarding Palestinians by actors in the Global North is exposing the anti-Palestinian racism undergirding the ‘rules-based order.’

Meanwhile, several countries are facing accusations of complicity in genocide. For example, the Center for Constitutional Rights brought a lawsuit in federal court in California accusing the United States of failing to prevent genocide and for complicity in genocide.¹³⁹ In dismissing the case on jurisdictional grounds, the court reasoned:

There are rare cases in which the preferred outcome is inaccessible to the Court. This is one of those cases … Yet, as the ICJ has found, it is plausible that Israel’s conduct amounts to genocide. This Court implores Defendants to examine the results of their unflagging support of the military siege against the Palestinians in Gaza.¹⁴⁰

Moreover, other countries like Germany are also facing charges of complicity.¹⁴¹ On March 1, 2024, Nicaragua filed proceedings against Germany before the ICJ for alleged violations of its obligations deriving from the Genocide Convention, the Geneva Conventions of 1949 and their Additional Protocols and other norms of general international law in relation to the Occupied Palestinian Territory.¹⁴² Nicaragua seeks an emergency order from the Court requesting that Germany ‘immediately suspend its aid to Israel, in particular its military assistance including military equipment,’ and amongst other things:

immediately make every effort to ensure that weapons already delivered to Israel are not used to commit genocide, contribute to acts of genocide or are used in such a way as to violate international humanitarian law;

reverse its decision to suspend the funding of UNRWA as part of the compliance of its obligations to prevent genocide and acts of genocide and the violation of the humanitarian rights of the Palestinian People.¹⁴³

Irrespective of how the Court ultimately rules on this case, the concern regarding the potential for complicity of multiple states in Palestine is valid. The situation in Palestine is surfacing the consequences of ignoring complicity, by spotlighting how rare it is to see actors called to account for their racist and complicit actions in other situations. Transitional justice as a field must interrogate how much it masks ‘Western states’ complicity for their historic culpability in postcolonial state disfunction.’¹⁴⁴ This is as it relates not only to charges of complicity in genocide but also to the myriad situations where other actors have facilitated things like colonialism, slavery, apartheid, racial injustice, and subordination, as well as supporting conflicts and atrocities in other states.

The double standards, hypocrisy, and complicity with respect to Palestine exposes how selective enforcement can entrench racial injustice and impunity. The case brought by South Africa before the ICJ provides an example of the periphery, attempting to hold a powerful actor in the purported center to its own rules. The pretense that the orders were not even made, or that they were made and said something else, can also tell us a lot about the limits of the field of transitional justice given the constraints of the political context. Palestine is a litmus test because it demonstrates how the field’s reliance on the rule of law and universal principles in this current international context cannot be divorced from how the rule of law operates to subordinate in ways that fall on racial and colonial lines.

TRUTH-TELLING AND RACIAL GASLIGHTING

It is worth recalling that one of the purposes of transitional justice initiatives is to construct a historical truth. Transitional justice is premised on helping to provide a fuller account of how mass atrocity occurred, and in so doing making it clearer the levels of complicity. Truth-telling processes in transitional justice are also expected to advance and make valuable contributions to preservation of collective memory as well as to serve as guards against revisionist accounts of past events. While reconstructing historical events is always controversial and subject to contestation, transitional justice processes can seek to tell an overarching narrative, and the selection of facts and cases amongst others is critical to that enterprise. I have voiced elsewhere the qualms I have about whether court proceedings and judgments can fully further these aims as well as formal truth commissions.¹⁴⁵ Yet, the preliminary proceedings before the ICJ, have provided a moment of truth-telling in ways that are not fully captured in the transitional justice literature.

Remarkably, the provisional ICJ proceedings provided an essential respite from constant racial gaslighting. Scholars have defined the phenomenon of racial gaslighting as ‘the political, social, economic and cultural process that perpetuates and normalizes a [W]hite supremacist reality through pathologizing those who resist.’¹⁴⁶ And they have clarified that it relies on ‘narratives that obfuscate the existence of a [W]hite supremacist state power structure.’¹⁴⁷ Other commentators have deployed the term to capture how:

[G]roups, not just individuals, can experience a denial of their lived experience and reality and this creates harms. Second, the technique of gaslighting is overwhelmingly directed at those with less power and works to maintain the status quo, which in settler colonial contexts means supporting the colonial project by diverting attention from its oppressive character. Third, gaslighting involves a form of blaming the victim, typically by pathologising those who resist their oppression.¹⁴⁸

Racial gaslighting has many implications for the field because it is antithetical to a genuine process of truth-telling. Transitional justice is supposed to be concerned with people’s understandings of what occurred during a period of mass violence. The field is motivated and informed at least in part by attempts to understand what occurred and why, with initiatives aimed at truth-telling, truth-hearing, and truth-shaping.

Palestine is a clear litmus test for the field of transitional justice because of what it is unearthing about truth-telling and racial gaslighting. The situation in Palestine provides us a space and opportunity to reflect on how instrumental transitional justice has been in furthering the ‘imposition of race-free discourses that keep international and domestic racial orders firmly entrenched.’¹⁴⁹ Racial gaslighting has acted to pathologize and blame Palestinians. Indeed, ‘Palestinians simply cannot be innocent. They are innately guilty; potential “terrorists” to be “neutralized” or, at best, “human shields” obliterated as “collateral damage”. . . Palestinians stand no chance at humanization. Palestinians are rendered the contemporary “savages” of the international legal order.’¹⁵⁰ Consider the statement from President Isaac Herzog that ‘Unequivocally. It is an entire nation out there that is responsible. It is not true this rhetoric about civilians not aware, not involved. It is absolutely not true.’¹⁵¹ In this moment, racial gaslighting also manifests in denying what you know to be true, what you are seeing repeatedly in daily images, and then being lied to about the nature of what you are seeing.¹⁵² Like for example, when an Israeli newspaper claimed that a dead Palestinian baby held by a grieving grandfather was instead a baby doll.¹⁵³ This is indicative of the nonstop barrage of ‘colonial journalism’ by presses in the Global North, which can only use the passive voice in reporting, wherein Palestinians ‘dehydrate to death as clean water runs out’ but are not actively ‘killed’ or ‘murdered.’¹⁵⁴ It is also reflected in the incessant double-speak: the purported frustrations by the Biden administration and public admonitions to Israel to ‘limit civilian casualties,’ all the while continuing a policy of funding and arming the slaughter in Palestine.¹⁵⁵ The American seal and stamp on the carnage in Palestine has also propelled a student uprising that is spreading across campuses.¹⁵⁶ The culmination of all the brazen and blatant racial gaslighting is disorienting and can affect individuals’ and groups’ psychological well-being and sense of mental fitness. Indeed, many have expressed this destabilizing effect by articulating how they ‘have been quietly going mad over the last few months.’¹⁵⁷

The issue of ‘whose truth’ is often a fraught one in transitional justice processes. The Palestinian situation is surfacing multiple historical narratives and counter-histories, and many conceptions of truth: factual, forensic, personal, narrative, social, dialogic, healing, restorative and otherwise. Several of the apparent purposes of transitional justice are being advanced and hindered.

The preliminary proceedings before the ICJ allowed for a moment of moral clarity and consensus. Even though the mainstream media outlets failed to cover the totality of the proceedings, people from around the world could tune in to view advocates forcefully speaking truth to power. The Court’s website was overwhelmed several times throughout the hearings with people trying to gain access directly. If only briefly, up was up and not down. There is a historical record of this decisive moment. This confirmation, even if fleeting, that you are in fact perceiving reality allows for affirmation. Clarity that you are not residing in an alternative moral universe is validating. A powerful rejection of the Orwellian command from the party that you ‘reject the evidence of your eyes and ears.’¹⁵⁸ The propaganda of multiple governments and their efforts to divert your attention from the oppressive nature of the status quo was laid bare. Everyone can see that the emperor has no clothes.

This truth-telling function is made even more necessary when one considers that this is the first ‘live-streamed’ genocide in history.¹⁵⁹ The solemnity of the statements made by lawyers, which were heard by judges before the ICJ, and the Court’s provisional orders makes the truth on the ground harder to ignore and dismiss. It lessens the space for plausible deniability that we did not know what was happening. It puts the world on notice and shines a light on how feckless the international response has been to date.

WE CHARGE GENOCIDE: REDUX

The Palestinian case has also surfaced who has historically been entitled to levy the charge of genocide, which genocides have been cognizable and which have been unremembered. The 1948 Genocide Convention has achieved sizeable ratification from most states in the world.¹⁶⁰ Notably, the prohibitions contained within the Convention apply prospectively and do not extend to any of the earlier genocides conducted on Black, Indigenous and other subordinated groups, nor did they apply to the victims of the Holocaust. This represents an example of how the legality principle ‘in one fell swoop removes the numerous atrocities attendant to colonization and empire-building by Western powers from the gaze of this body of law.’¹⁶¹

The forced forgetting of earlier genocides has resurfaced spectacularly during the proceedings at the ICJ. For example, when Germany indicated that it plans to intervene at the merits stage of the ICJ case in support of Israel,¹⁶² the Namibian president requested that Germany reconsider its intervention. The President asserted that given that on:

Namibian soil, Germany committed the first genocide of the 20^th century in 1904-1908, in which tens of thousands of Namibians died in the most inhumane and brutal conditions. The German Government is yet to fully atone for the genocide it committed on Namibian soil … in light of Germany’s inability to draw lessons from its horrific history, [Namibia] expresses deep concern with the shocking decision.¹⁶³

Namibia calling out Germany for its seeming racial aphasia about the first genocide it committed against the Herero and Nama peoples is astounding to witness. Namibia is drawing attention to the racialized politics of historical recognition of genocide, and how the genocides committed against Black, Indigenous, and other subordinated groups get discounted in popular memory.¹⁶⁴ The build-up to the Herero-Nama genocide in Namibia occurred on January 12, 1904 and the first Lady of Namibia found it absurd for Germany on January 12, 2024 to fail to recognize yet another genocide.¹⁶⁵ There has been no genuine accountability, redress, or reparations for victims of Germany’s colonial crimes in Namibia.¹⁶⁶ The question of Palestine then is a reminder of how transitional justice does not operate in an ahistorical vacuum. The memory of racial and colonial violence is ever present and current manifestations of racial and colonial violence trigger earlier ones.

Consequently, South Africa’s case against Israel, at the ICJ cannot be divorced from its own struggles against racism, colonial subjugation and apartheid. In 1997, Nelson Mandela, while president of South Africa, powerfully stated: ‘We know too well that our freedom is incomplete without the freedom of the Palestinians.’¹⁶⁷ South Africa’s President, Cyril Ramaphosa, spoke about this history in 2024, referring to the ICJ case, stating that:

some have told us we should mind our own business and not get involved in the affairs of other countries and yet it is very much our place as the people who know too well the pain of dispossession, discrimination, state sponsored violence.¹⁶⁸

Indeed, ‘South Africa’s intervention seeks to protect lives that western countries seem not to care about – and for that reason, it is both justifiable and honourable.’¹⁶⁹ Moreover, the legacy of Israel, the United States, and the United Kingdom’s sustained support for the apartheid regime in South Africa cannot be ignored when considering their current positions in the case against Israel at the ICJ. For instance, after intervening to advance a broad definition and lower threshold for determining genocide at the ICJ in the Myanmar case,¹⁷⁰ Germany, the United Kingdom, Canada, Denmark, France, and the Netherlands have not submitted a similar declaration that they plan to intervene in support of South Africa’s case. This inconsistent position within such a short timespan highlights just how much of a mask-off moment we are experiencing in the racialized politics of recognition and remembering of genocides.

It is not coincidental that South Africa’s case against Israel is supported almost entirely by nation states formerly colonized, and by formerly enslaved peoples,¹⁷¹ as well as over 1,000 political parties, unions, and other popular movements.¹⁷² For example, Nicaragua is the first state to seek permission to formally intervene in the case,¹⁷³ Colombia and Libya have also intervened in the case,¹⁷⁴ and Bangladesh and Ireland have indicated that they also plan to intervene in South Africa’s case against Israel.¹⁷⁵ The racial and colonial dynamics at play are made evident by simply examining who supports which party in this case.¹⁷⁶

We are witnessing in real time a lesson from those that have been on the receiving end of violence what active solidarity, humanity, and community care require. This is a historical moment that harkens back to the cases brought by Ethiopia and Liberia before the ICJ to challenge apartheid South Africa’s hold over what is now Namibia.¹⁷⁷ It also invokes 1951, when the Civil Rights Congress daringly decided to hold the United States government accountable for the killing of unarmed Black people by the police and lynch mobs, by bringing a petition before the United Nations Committee on Human Rights.¹⁷⁸ The We Charge Genocide petition condemned the government for its ‘record of mass slayings on the basis of race, of lives deliberately warped and distorted by the willful creation of conditions making for premature death, poverty and disease.’¹⁷⁹ The petition confronted systemic racism and implored an international mechanism for remedy because of the implausibility of getting redress at the domestic level. The We Charge Genocide petition concerned not just the direct and spectacular physical violence of lynchings, but also the structural and systemic nature of violence against Black people. Yet, it was never afforded a public hearing because no state agreed to take it forward.¹⁸⁰

Notwithstanding this, it served as an important precursor to the current moment: then like now the mainstream media largely ignored it, and then like now the US government engaged in a campaign to discredit the charge of genocide.¹⁸¹ Raphael Lemkin, who is recognized as originating the term genocide, was working to secure US ratification of the Convention around the time of the petition, and smeared the petitioners as ‘communist sympathizers.’¹⁸² He publicly supported the official US position, ‘downplayed the long history of violence committed against Black Americans’ and asserted that ‘Genocide means annihilation and destruction’ and ‘not merely discrimination.’¹⁸³ Yet, the petition was advancing a structural account of genocide, one supported by the text of the Convention, which defines genocide as ‘any of the following acts committed with intent to destroy, in whole or in part, a national,’ ethnic, ‘racial or religious group, as such,’ and includes ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.’¹⁸⁴ The We Charge Genocide petition is an example of how historically subordinated peoples have ‘long narrated their own experiences of mass violence with reference to genocide.’¹⁸⁵ Its appeal to international mechanisms and law was primarily due to the domestic repression and the limited space for redress. Yet, there was no affirmation of the lived experience of Black Americans.

The Civil Rights Congress’ We Charge Genocide petition in 1951, and now South Africa taking up the case of genocide against Israel decades later, both function as shaming sanctions from the subaltern. In some sense, it matters less what the outcome of the final proceedings are than that the case was formally made. A shaming sanction operates to stigmatize an offender for a violation and to alert the public about an offense.¹⁸⁶ As discussed above, one area of focus of transitional justice mechanisms is expressive condemnation and communication. Both the Civil Rights Congress’ petition and South Africa’s case against Israel at the ICJ allow us to reflect more broadly on how little transitional justice measures have used their expressive and communicative power to condemn racism and coloniality globally.

CONCLUSION

I want to close by ruminating on the words of the late Black feminist poet June Jordan, who inspired the title of this article. June Jordan clarified in 1991 that one of the ‘issues of our time, really, that I think amounts to a litmus test for morality as far as I’m concerned … is what you’re prepared to do on behalf of the Palestinian people.’¹⁸⁷ Yet, in 2024, those who merely express support for Palestinian rights have been vilified, which has encouraged a culture of silencing.¹⁸⁸ I would be lying if I said that I do not feel trepidation. But, given my own experiences and positionality, like Ta-Nehisi Coates, I must measure these apprehensions against my own ancestors, ‘who certainly faced off against things that were much, much more perilous than … telling people what you [see]. This is the minimum.’¹⁸⁹

Ella Baker informs us that:

oppressed people, whatever their level of formal education, have the ability to understand and interpret the world around them, to see the world for what it is, and to move to transform it.¹⁹⁰

Toni Morrison has specifically admonished academics to transform the world by remembering ‘that your real job is that if you are free, you need to free somebody else. If you have some power, then your job is to empower somebody else.’¹⁹¹ This is made even more urgent given the ‘scholasticide,’ wherein Israel has decimated Gaza’s education system – killing Palestinian students, teachers and academics, and destroying or damaging nearly all universities, colleges, academic institutions and archives in Gaza.¹⁹²

There is ‘no way for me,’ as a Liberian American, to bear witness to what is happening ‘and not say anything about it.’¹⁹³ Indeed, James Baldwin, reflecting on settler colonialism in Israel, once compared it to, ‘[W]hite Americans responsible for sending [B]lack slaves to Liberia,’ who did so not to set them free but because they ‘despised them, and they wanted to get rid of them.’¹⁹⁴ There are parallels in how some Jewish people fleeing from the final solution of the Holocaust established a settler colonial-state without regard to the Indigenous Palestinians, and how some formerly enslaved people fleeing from the horrors of slavery established a settler colonial state that subjected Indigenous Africans they encountered to forced labor and second-class citizenship. While there are similarities in how both projects were aided by White supremacists to get rid of ‘undesirable populations’ within their territories, there are also key differences in their histories and current trajectories that go beyond the scope of this postscript.

Images from Palestine have taken me back to one of the most triggering and traumatizing experiences of my life, seeing war through the eyes of a child. The Liberian civil war resulted from power struggles after a coup d’état disrupted settler hegemonic rule. I remember as a kid trying to make sense of what was happening. I recall distinctly going from thinking this was a big sleepover with friends and family, to understanding quickly as we hid from the sounds of war that we were seeking shelter, security and solace in each other. That I had been in a position of privilege to say I did not want to eat this or that, but we were now rationing food and I was instead begging for leftovers.

I also remember asking my mother what ethnicity I should say I was, if asked by a militant. My mother is the descendent of formerly enslaved peoples who are termed Americo-Liberians, and my father is from a large ethnic group in West Africa: Mandingo. I knew enough about the history of Liberia to understand that membership in both groups was not ideal. One because of a history of settler colonialism, the other because Mandingos are viewed as outsiders having immigrated into Liberia from Guinea over the past 200 to 300 years.

When we fled Liberia, I remember seeing death and destruction on the path to the United States embassy. Decomposing bodies and dogs eating carcasses. I understood even at that early age that my ability to leave family and friends behind was conditioned on things that I had no control over. Status, hierarchy, and privilege were determinative. Things like where I was born, my ethnicity, my race, my class, all these things had a material impact on my chances in life. I learned early on that constructions like my nationality, and having citizenship in the imperial core, and my immediate family members having papers and green cards to the United States, meant that we could leave when others could not and had to stay on the periphery. My rights, my freedoms, my security and my chances were contingent, and based on arbitrary things not within my control.

And, so today, as American tax dollars are underwriting the evisceration of Palestine, supplying weapons, providing political cover, and ensuring that children’s earliest memories will be filled with atrocities, it is impossible to be silent. My positionality compels my writing.

Palestine is a litmus test for the field of transitional justice because of what it is unearthing about its tools, methods and orthodoxy. Achiume and I argue in the opening Editorial for this Special Issue that White supremacy and racism have functioned as important limiting conditions on what and how transitional justice operates in theory and praxis.¹⁹⁵ There are several important implications to be drawn from this study.

Transitional justice in many ways depends on laws for racialized others. Thus, we must reflect on whether structurally the field of transitional justice is merely a means for superficially processing individual mea culpas to the extent they are forthcoming for racial and colonial injustices in lieu of collective responsibility manifested in distributive and reparative justice amongst others. That is, after the slaughter, once all is said and done, the field comes in to serve as a Band-Aid to reconcile people with the racially unjust status quo.

Transitional justice scholars and practitioners must continue to reckon with the legacy and ongoing hypocrisy and complicity of the field as it relates to addressing racism and racial justice. The enduring presence of historical racial and colonial violence is something the field of transitional justice initiatives ignore at their peril. One of the implications of this postscript is that the field of transitional justice must continue to interrogate how the ICC’s presumed status as a credible mechanism has remained undisturbed, notwithstanding the ways that the institution exacerbates racial subordination and continues the civilizing mission of international law. Further, this postscript finds that while the ICJ can potentially be a generative transitional justice site to explore, the lack of compliance with the ICJ’s provisional orders do not further the transitional justice objective of combatting impunity. Moreover, the state-centric nature of the ICJ poses significant limitations for centering victims and affected societies, especially in settler colonial contexts.

Palestine is similarly functioning as a litmus test for the field by drawing attention to how marginal transitional justice processes have been to truth-telling, racial reckoning, and transformation on a global level. Disturbing the relationship between racial gaslighting and the field of transitional justice is another key takeaway from this post-script. We must continuously question whether historically transitional justice interventions have been directed at those with less power to maintain the racially unjust status quo globally, to divert attention from its oppressive character and to limit organizing for alternative ways of being. Additionally, the case of Palestine surfaces who has historically been entitled to levy the charge of genocide, which genocides have been cognizable and which have been unremembered.

The appeal of transitional justice to the rule of law and universal principles in this context cannot be divorced from how the rule of law operates in practice and how it selectively applies to racialized others. Will transitional justice continue to be deployed as a tool to subject others to rules, while some remain above and outside the reach of those rules? Can the field in theory and practice give appropriate acknowledgment and voice to the lived experiences of racialized others and our realities? Will transitional justice mechanisms necessarily fall short of offering meaningful avenues for rectifying ongoing and historical racial injustices? Does the field in practice necessitate an obligation to engage on the restricted terms offered by the (settler colonial) state or can it help foster more imaginative bottom-up emancipatory efforts?

What is abundantly clear is that the concerns that set this Special Issue in motion remain even more urgent today as our world order continues to reel from the fallout of the systemic racism that remains embedded in its foundations, through colonial projects past and present. It is an open question whether the field of transitional justice can make a meaningful difference and be redeemed from its foundational myths and histories.

If there is any hope for redemption, the starting point must include centering excluded subjects, zones and histories,¹⁹⁶ of which there are many like Palestine. By centering the marginalized and those whose rights have been systematically denied, by looking at the faces at the ‘bottom of the well,’¹⁹⁷ perhaps there is a way to tap into any transformative potential in the field.

Footnotes

Author notes