International Law on Palestine: Between Stalinist Legalism and American Constitutionalism

Fakhry Al-Serdawi

November 11, 2025

Because the body of international law on Palestine, at least since 1947, is also the same body of law on Israel, and because Palestinian self-determination is entangled with Israeli self-determination, it is tempting to provide an analysis of “both-sidesism” when it comes to Israeli and Palestinian legal cynicism. Yet, it is important to avoid that, because the way the Israeli political class has used the international law of occupation for explicit security purposes and implicit ethno-nationalist pursuits verges on 20th-century Orwellianism. We cannot denounce Palestinian legal cynicism in good faith without acknowledging the overarching totality of the Netanyahuist-Zionist catastrophe.

Norman Finkelstein provided a good example of how one can critique the Palestinian political and activist class while absolutely rejecting the contemporary Israeli regime. Not only did he expose the class position of some of the Palestinian organizations, claiming that BDS and BLM are “all acronyms,” he also rejected the cynical Palestinian use of international law, which benefits from the provisional legalities of the two-state solution while maintaining the ultimate goal of rejecting this solution. While this mirrors the Israeli position, we once again should avoid “both-sidesism” because the Israelis have a decreasingly small use for international law in comparison to their counterparts. Yet, this context of mistrust and existential war sacrifices the normal discussions on the two-state and the binational state frameworks.

It would be better to look at the discourses of legal nihilism among American proponents of and skeptics on the Palestinian question. Both Joseph Massad, a prominent Palestinian-American post-colonial scholar, and Chris Cutrone, a prominent Palestine-skeptic Marxist, seem to attack Wilsonian self-determination from their own perceived Leninist perspectives. Massad considers that Woodrow Wilson opened the door for a Zionist right of self-determination, or right to “conquer,” that is connected to the material prospects of the land and the capitalist state, while providing the Palestinians with a cultural, honorary, and symbolic right to self-determination.¹ Cutrone, on the other hand, emphasizes Lenin’s rejection of the League of Nations as the “den of thieves and their victims,” in comparison with Stalin’s embrace of “the racist nationalist Wilson’s vision instead of world proletarian socialist revolution”.² Cutrone uses this reading to validate his eccentric conviction that the Palestinian question - the darling of anti-imperialists - is an imperialist ideology itself.

The attack on international law, international organizations, and self-determination from both Massad and Cutrone is misguided, presuming that Palestine-Israel of today is the necessary historical outcome of Wilsonian internationalism. While Cutrone argues that we should take world events in good faith, even Trump’s recent US bombing of Iran, he adopts post-colonialism and Critical Race Theory (ideas that he normally abhors) to describe Woodrow Wilson’s post-war policy. This lack of nuance goes back to the negotiations leading up to the establishment of the League of Nations itself, where almost nobody offered real constitutional and legal analysis, rather getting caught up in internal political struggles.³

Bringing up Wilson’s racism within the discussion, is similar to how the opponents of the League went so far as to claim that it was some kind of Southern plot, that Wilson and his fellow Southerners in the Democratic party were advocating to “get back at the North.”⁴ Others considered the League as a Bolshevik plot (opening the door for anti-Semitism, of course), alleging a link between the international ideals of the League and the internationalism of the communist movement. There is a certain irony that while Trotsky was attacking the League in defense of the European working classes, Senator Henry Cabot Lodge himself said that the League had moved the nations towards “sinister figure of Trotsky, the champion of internationalism”.⁵

The main factor behind Wilson’s policy was rather the fact that self-determination is not a mere moralistic obligation, but a necessity for war-prevention, which was of general interest. Until 1919, there was a multi-partisan interest, including socialists, progressives, feminists, and trade unionists, in establishing an international forum that would prevent war, an organization that would allow less, not more, intervention in European affairs, in a way that does not contradict Washington’s 1796 Farewell Address, where he warned the United States against permanent foreign alliances that would undermine the young nation’s independence. Even William Howard Taft himself was the president of a Republican led peace association called “The League of Nations”.⁶

In this anti-war context, there is nothing particularly related to “racial nationalism” in point 5 on “self-determination” of Wilson’s 14 points which asks for “A free, open-minded, and absolutely impartial adjustment of all colonial claims, based upon a strict observance of the principle that in determining all such questions of sovereignty the interests of the populations concerned must have equal weight with the equitable claims of the government whose title is to be determined”.

The actual serious consideration of Wilsonian self-determination could have even led to liberal constitutionalism and the dismissal of ethno-nationalism in the Middle East. In 1919, Howard Bliss, the American president of the Syrian Protestant College in Beirut, demanded at the Paris Peace Conference the establishment of a fact-finding mission to democratically document the aspirations of the population in the Levant. A commission was formed by Henry King, the president of Oberlin College in Ohio, and the philanthropist Charles Crane. The survey results showed a general aspiration for a multi-ethnic constitutional unified Levant state that encompassed Syria, Lebanon, and Palestine under an American mandate.

While the Versailles treaty was rejected by Lenin and Trotsky, Wilson’s “equal weight” principle did not diverge largely from Lenin's conception of self-determination. If Trotsky objected to Versailles because “while the Balkan peninsula is being barbarized, Europe is becoming Balkanized”, it was not the League of Nations that led to the barbarization and the Balkanization of the Middle East, but the way the British and French empires exploited the League.

A nuanced reading of the history of the League opens the door to a similar reading of the United Nations and multilateralism as a whole. If Lenin simply rejected international law and Stalin simply accepted it, then law is necessarily a Stalinized phenomenon. But the history of the Soviet interpretation and application of International Law is much more complex than that. The rejectionist policy of the Soviet Union actually changed during the Lenin era, not in the Stalin era when he acceded to the League in 1934.

In the first years of the League of Nations, the Soviet leadership was expecting the success of the revolutions in Western Europe; motivating them to reject international law to be free from entanglements resulting from imperial rivalry. Because of the failure of both Soviet reconstruction and the social revolution in Europe, the Soviets found themselves compelled to participate in the Genoa Economic and Financial Conference in 1922,⁷ where the behavior of Lenin in his memorandums to the delegation became very similar to the future behavior of Stalin in the San Francisco Conference of 1945 for the establishment of the United Nations, where both prioritized the empowerment of the Soviet negotiating position through the principle of unanimity in decision-making.

Stalinist legalism was not about mere acceptance of international law, but about the official position that the Soviet use of international law is always revolutionary in both substance and form. Because Soviet Jurist Evgeny Pashukanis opposed this line, through a reading of international law as having a tactical revolutionary substance but a bourgeois form, he was accused of attempting to bring down the Soviet system to the level of a capitalist system, in parallel with other figures like Trotsky and Grigory Zinoviev, and he was considered an enemy of the people.⁸

While posing itself as antithetical to Western imperial law, Stalinist legalism in reality was actually a subcategory of Bonapartist legal cynicism, which views law not within its rational function, but as an instrument for the politics of state capitalism. This leads to a Machiavellian use of international law, where “a prince should not honor his promises if it is to his disadvantage to do so”.⁹

Subsequently, the Stalinist conception of self-determination is divorced from war-prevention law, utilized only for imperial self-interest, while the tactical revolutionary conception of self-determination is connected to the rational and utilitarian goals of the war-prevention law, which is based upon collective interest. Lenin himself made that connection when he said that “The recognition of the right of nations to self-determination is the most effective means of fighting imperialist war.”

While non-aggression had a rough Stalinist beginning with Poland and Finland in the 1930s, both Western and the Soviet camps sought to take it seriously in the post-war period, and Trotskyist predictions on the United Nations during and after the War turned out to be inaccurate. In 1945, Joseph Vanzler even went to the extent of claiming that “The chances for a peaceful coexistence of nations and harmonious collaboration among them are far slimmer under the 'United Nations' than they were in the days of the League”. But the overall history of the United Nations shows otherwise; the principle of the prohibition of the use of force has been occasionally taken seriously.¹⁰

Unfortunately, Israel-Palestine was not among the instances where war-prevention law was taken seriously. This came about because of an overemphasis on the ideological, identitarian, and cynical readings of self-determination, starting with the Soviets, who were searching for a strategic and “progressive” ally in the Middle East, and thus backed the establishment of Israel in 1947.¹¹ At the beginning, the Soviet foreign affairs apparatus connected the humanitarian plight of the Jews in Europe to conditions of social revolution in Europe, contending that the solution to the Jewish question is not immigration to Palestine but that only the “destruction of all the roots of fascism and the democratization of the European countries can give the Jewish masses normal living conditions”.¹² Nevertheless, in his book about the 1949 truce negotiations, Elmer Berger explains how the anti-Zionist Soviets ended up using Zionist self-determination for their own advantage, claiming humanitarian motives while concealing the unpublicized goal; to create disruption in the Middle East in a way that would undermine Western Influence.¹³

Berger also documents how president Harry Truman was trying to create an equilibrium between the right of self-determination and war-prevention international law, claiming that “the principle of self-determination required Arabs as well as Jews to be consulted”. Truman was supportive of Jewish immigration to Palestine but thought that the goal of establishing a Jewish State (with disregard to anti-war international law) made his objectives harder to obtain. He accepted setting up a state only on a peaceful basis, because he had “no desire to send 500,000 American soldiers to make peace in Palestine”. Yet, the pressure of the lobby of Zionist organizations, at the eve of the 1948 elections, compelled the Truman administration to override war-prevention international law in favor of an ideological and sentimental commitment to self-determination,¹⁴ creating the well known pattern of US abandonment of "cooperation with world opinion in the search for peace in Palestine” in favor of fortifying “Israeli defiance” to the United Nations.¹⁵

This Zionist defiance to international law, Berger explains, comes out of a non-compromising interpretation of the right to self-determination related to the 1919 Paris conference larger map of the Jewish state. Rule of law means stability, which means that the Israelis could not expand in the future. While they on paper accepted the 1947 partition plan, this acceptance was only provisional; their territorial acquisitions in the 1948 war and their placement of the armistice lines in the 1949 negotiations were “jumping-off” points, planned for future expansion.¹⁶

Since the creation of Israel in 1948 caused mass displacement of the Palestinians in the Nakba, the international law on Palestine moved into a situational category (not necessarily as a specific identitarian category of affirmative action towards an “oppressed group”). While there are many identitarian readings for the right of the refugees to return, some readings are based on universal legal principles. Joseph Klein, for example, interprets the right to return, not as an arbitrary and vague woke call for “land back”, but as an attachment to the fundamental libertarian right to property and land.

The real development of international law on Palestine took place after the 1967 occupation of the West Bank and Gaza. This complex situation is regulated under three different and interrelated bodies of international law. First, there is the law on the prohibition of the use of force, regulated under the United Nations Charter, which prohibits the forceful acquisition of territory and land. The second juridical body is the law of occupation, which considers occupation legal for fulfilling temporary security necessities. The third body of law is the right to self-determination, whose goal in the context of foreign occupation is not purely identitarian or related to the romanticization of the identity of the occupied population. Yael Ronen, an academic for the Hebrew University of Jerusalem, describes the general legal category of occupation in international law as a temporary encroachment upon the right to self-determination.¹⁷ This right, therefore, is not necessarily related to a blood and soil ideology, but has a rational utilitarian anti-war use. While temporary occupation is a legal encroachment upon the right to self-determination, permanent occupation is a criminal aggression, an illegal encroachment upon the right to self-determination. In 2024, the International Court of Justice ruled on the illegality of the Israeli occupation because of the permanent characteristics of the settlement construction and de facto (soon to be de jure) annexation.

Those who reject international law on Palestine as a foreign and unconstitutional influence that should never infiltrate the US legal system do not realize that all of these “war-prevention” instruments are not only part of US law, but also supreme law of the land, having been ratified by the President and approved by the Senate in accordance with Art. VI clause 2 of the Constitution. Even in the infamously isolationist and strict conditions of Thomas Jefferson's Manual of Parliamentary Practice, which considers a treaty constitutional only if it concerns another nation and deals with matters that are normally the subject of a treaty,¹⁸ the anti-war international law requiring the end of the occupation is not unconstitutional or intrusive.

But the American strategy since the 1970s, and particularly since the 1990s, has ignored the law and opted for the bureaucratic management of the two conflicting Israeli and Palestinian rights to self-determination, while contributing to the reproduction and perpetuation of the structural causes of the conflict. After three decades of the US and Western-mediated negotiations, it was clear that the Israelis used the function of Palestinian self-determination to replace “peace process” with “pacification process”.

While the European Union and the US used "pacification” for the - social justice sensitive - re-education of the modern Palestinian human (by then, he might be ready for the never-coming end of occupation), the Israeli capitalist state wanted otherwise to use "pacification” to achieve not the end of the occupation, but the spectacle of the end of the occupation. They, unlike their American and European counterparts, have been content with managing the reserves and Bantustans of the pre-modern Palestinian man. Bar-Ilan University Professor Mordecai Kedar offers a position revealing of the Israeli mindset, the 8 States solution, a plan creating several “Palestinian Emirates” whose tribal governance is based on the sociology of Arab monarchies.

Most Western commentators on both sides of the conversation, seem to approve this historical liquidation of the reality of the occupation. For example, Palestine-skeptic Marxist, Ralph Leonard, describes the conflict as an existential “rassenkampf” or “race-war”. The British and European anti-immigration populist ontology of reading the Palestine-Israel conflict is more similar than many might think to the decolonization leftist ontology in the US. Those activists also believe in the “race-war” hypothesis, but from the opposing perspective. Their view that North America is as much colonized as Palestine also leads to the erasure of the reality of the occupation.

Does American constitutionalism have the potential to halt the establishment’s perpetuation of the war? Edward Said believed in the potential of the rich American constitutional and libertarian tradition that is embedded in the design of the American Republic at its inception. He argued that “It has not been turned to, it has not been sought out, and has not been made an interlocutor… as Palestinians, we have not genuinely been acquainted with the presence of the other America, much less of its work”.¹⁹ Alexander Hamilton, John Jay, and James Wilson, and other 18th-century American jurists and politicians, had a radical and revolutionary understanding of the body of natural and customary law called “the Law of Nations,”²⁰ codified under (Article I, Clause 10) of the Constitution. They understood that a nation whose people entrust the parliament with blatant aggression ceases to be “a part of the civilized world".²¹ The framers of the Constitution prioritized natural and rational legality over legislative-executive legitimacy when they affirmed that the American people themselves could not grant Congress the power to violate the fundamental norms of the “Law of Nations”.²²

Yet, the foreign policy establishment acts with impunity. The Palestine-related cases: Corrie v. Caterpillar Inc. in 2005; (Related to the killing of activist Rachael Corrie), Al-Tamimi v. Adelson in 2016; (Related to Sheldon Adelson’s financing of the Settlers in the West Bank), and Defense for Children International – Palestine et al. v. Biden in 2023, (obviously related to the Gaza War), were all dismissed under “The Political Question Doctrine,” which bars the judicial power from reviewing violations of the executive and legislative violations of international law, if such review challenges foreign policy decisions.

This impunity comes out of a long historical development of the function of International law in American society. In the late 19th century, dependence on natural law faded away in favor of legal positivism and the rise of the doctrine of absolute sovereignty, allowing Congress to violate treaties and the Law of Nations.²³ This “parliamentary legitimacy,” which served the interests of a statist but liberal bourgeoisie, was more fragile in Europe than in America. Bourgeois parliamentary legitimacy would metamorphose under monopoly capitalism into popular authoritarian legitimacy. Natural Law, abandoned by the bourgeoisie and the progressive forces, would be revived by reactionary forces, as the law of the “people” and the “Volk” to destroy bourgeois-liberal positivist law and lay the ground for the National Socialist positivist law.²⁴

After the Nazi catastrophe, Europe would abandon absolute sovereignty, and the post-war German and Italian liberal constitutions both would provide that the general rules of international law shall prevail over domestic law.²⁵ In the post-war era, a hierarchical system of international law was established, where ordinary rules became distinguishable from peremptory norms from which no state shall derogate (Jus Cogens), general norms that would be directed towards all states without exception (Erga Omnes), norms that are the equivalent of national constitutional fundamental norms, which include the prohibition of genocide, slave trade, torture, aggression, and later on; apartheid.²⁶

Yet the connection between the US's victorious intervention in Europe and the economic boom at home would fortify the doctrine of absolute sovereignty in the Cold War. The September 11 attacks would lead to reactionary readings of the Law of Nations, and the 2008 Economic Crisis would lead to more extreme interpretations of this absolute sovereignty.²⁷ The post-neoliberal movement had to understandably defend national sovereignty against economic globalization, but also attacked legal multilateralism, including anti-war law, in the process. The motivation behind this rejection is the claim that international law is inherently undemocratic; “since the world as a whole has no legislature, this view might seem to leave no place for any sort of international law.”²⁸

Those anti-globalization populists who prioritize parliamentary legitimacy over rational legality, did not create any new revolutionary tactics with their legal nihilism. Many find it easy to criticize international law: Third Worldists; “Axis of Resistance” supporters; podcast class public speakers and social justice academia (it’s ironic that woke activists attack international law because it is Eurocentric, and patriot libertarians attack the same law because it is European and un-American). And while this dismantlement of international law seems cathartically “progressive,” Franz Neumann warns that this kind of “apparent progressivism” is a tenet of pre-fascist law, because while it removes the mask of legal equality, it would also eliminate the barriers of the mask.²⁹ In this case, it is Palestinians who are literally being uprooted from Gaza.

The reinstitution of the doctrine of absolute sovereignty in a way that disregards anti-war international law could be a sign that the results of de-globalization are becoming catastrophic instead of progressive. This is even more alarming for those who attack international law as capitalist politics, while being keen on justifying the much more reactionary capitalist politics of the War on Terror, which has damaged not only international law but the American constitutional life itself.

In Israel, the attack on legal multilateralism in the name of national sovereignty is even more hypocritical. When Netanyahuist Liel Leibovitz uses neoliberal globalization and legal multilateralism interchangeably, lamenting both the dismantlement of the Israeli worker state, and the attack on the West Bank settler professional managerial class, he is talking about two different and contradicting issues. Yes, international legal criticism of the settlers is real, but Leibovitz glosses over the fact that the settlers, for the last decade, have benefited largely from the restructuring of the regional neoliberal order after the failure of the anti-authoritarian uprisings in the region.

What is to be done about international law then? A first step would be to stop applying the analogy of the League of Nations to the contemporary international legal order. It is pure miseducation to project the failures of a primitive proto-international law from a century ago to the current complex anti-war international law, which is harmonized with the American constitutional system. This decades-long developed international law should therefore be recognized as both an extra-parliamentary and parliamentary space, either within the work of local parliaments on international matters or within the deliberative and law-creating spheres of international organizations, like the UN General Assembly.³⁰ Therefore, we can recognize that international law has developed to become a site of parliamentary struggle, to which Lenin’s principles apply: (1) International law is only obsolete if the position of the left is strong. (2) If we, the left, are not the ones to dismantle parliaments and reactionary institutions, we must work within them. (3) Revolutionary strategy requires combining legal and illegal work. (4) It is easier to express radical nihilism towards class opportunism within the international legal community than to turn it into a solution for the difficult revolutionary problem.

Anti-war international law is not necessarily an elitist phenomenon antithetical to working class values. On the contrary, it is exactly the cold rationality of the law that points towards the Palestinian question in America as a crisis of the overreach of the administrative state (and its enmeshment with AIPAC). This material approach could salvage the Palestinian question from its gentrification by a mainstream left that has turned it into an elitist and culturally niche civil religion that blames the conflict on the ambiguous notions of “patriarchy” and “white supremacy”.

To overcome legal cynicism, there is a need to defend and uphold the original revolutionary and natural function of the law, which is the only way to disarm our opponents of their own legal cynicism. We cannot make the law only relevant to prove how our enemies made it irrelevant (something that not only Zionists do, but also some Pro-Palestine leftists). In that, Oliver Lissitzyn provides a valuable lesson to the left, whether we are talking about the life-style decolonization Stalinists or the neoconservative “First Worldist” Trotskyists:

Indeed, if the non-Soviet nations should cease to take international law seriously and get into the habit of manipulating it for immediate advantage, why should the Soviets behave differently? Such behavior will merely confirm their belief that law is an instrument of policy cynically used by the capitalists for their own gain. The only way to teach the Soviet leaders the value of international law is for us to practice it.³¹

1 - Massad, J. (2018) "Against Self-Determination", Humanity: An International Journal of Human Rights, Humanitarianism, and Development. University of Pennsylvania Press. pp. 161-191

2 - Cutrone C. (2024) "Israel-Palestine and the “Left”". Platypus Review 163. Available online: https://platypus1917.org/2024/02/01/israel-palestine-and-the-left/

3 - Ross. W. (2013) "Constitutional Issues Involving the Controversy Over American Membership in the League of Nations", American Journal of Legal History. pp 1-88

4 - Ibid. Page 44

5 - Ibid. Page 6

6 - Ibid. Page 3

7 - Grzybowski Y. (1964) "International Organizations From The Soviet Point of View". Law and Contemporary Problems 882-895

8 - Hazard. J. (1938) "Cleansing Soviet International Law of Anti-Marxist Theories". The American Journal of International Law, Vol. 32, No. 2 , pp. 244-252 American Society of International Law; Cambridge University Press

9 - Lissitzyn O. (1980) "Soviet Interpretation and Application of International Law". International law Studies. Volume 61, pp 76-89. US Naval War Collage.

10 - Lissitzyn O. Ibid. Page 87

11 - Rucker, L. (2005) "Moscow's Surprise: The Soviet-Israeli Alliance of 1947-1949". Cold War International History Project. Working Paper #46. pp1-37. Woodrow Wilson International Center for Scholars.

12 - Ibid. 14

13 - Berger. E. (1993) Peace for Palestine: First Lost Opportunity. University Press of Florida. Page 232

14 - Ibid. pp 234-235

15 - Ibid. Page 35

16 - Ibid. Page 230

17 - Ronen, Y. (2024) "The Right to Self-determination, Occupation and the Law". Japanese Yearbook of International Law, Vol. 67.

18 - Henkin. L. (1968) "The Constitution, Treaties, and International Human Rights". University of Pennsylvania Law Review Vol. 116, No. 6 Page 1016

19 - Said, Edward. (1980) "The Palestine Question and the American Context.” Arab Studies Quarterly, vol. 2, no. 2, Page 147.

20 - Dubinsky, P. R. (2010) "International Law in the Legal System of the United States". The American Journal of Comparative Law, 58, Page 464.

21 - Lobel, J. (1985) "The Limits of Constitutional Power: Conflicts between Foreign Policy and International Law". Virginia Law Review, 71(7); Page 1083.

22 - Ibid. Page 1091

23 - Lobel. Ibid. pp1103-1110

24 - Neumann, Franz. (1937) "The Change in the Function of the Law in Modern Society". The Rule of Law Under Siege: Selected Essays of Franz L Neumann and Otto Kirchheimer. University of California Press. pp127-133

25 - Lobel. Ibid. Page 1152

26 - Henkin. Ibid. Page 1027

27 - Curran. J. (2018) "“Americanism, not globalism”: President Trump and the American Mission". Lowy Institute.

28 - Rabkin, J. (1999) "International Law vs. the American Constitution—Something’s Got To Give". The National Interest, 55, Page 31.

29 - Neumann. Page 136.

30 - Doyle. M. (2009) "The UN Charter – A Global Constitution?", Ruling The World? Constitutionalism, International Law, and Global Governance. Cambridge University Press, pp. 113-132. See also: Macdonald, R. (2000) "The Charter of the United Nations as a World Constitution". International Law Studies. 75. US Naval War College. See also: Peters. A (2021) "Constitutional Theories of International Organisations: Beyond the West". Chinese Journal of International Law, Volume 20, Issue 4, December 2021, pp 649–698.

31 - Lissitzyn. Ibid. Page 89