The Impact of Radical Legal Ideology: From the Classroom to the International Forum

The article “Radical Activists in the International Community System Set the Anti-Israel Agenda”¹ published previously by the Jerusalem Center for Security and Foreign Affairs (JCFA) examined the radical academic affiliations of UN officials and their systematic bias against the State of Israel, contravening their role as impartial examiners. The following segment will delve into the radical ideologies that inform academic legal activism against Israel and the West.

Critical International Legal Theory (CILT) and Third World Approaches to International Law (TWAIL) are academic thought schools that seek to radically transform the Western post-World War II international law traditions that guided the establishment of the United Nations. “Third Worldist” thought is popular in progressive circles, yet fails to provide tools to uplift the developing world. The “Third World” is an outdated, contestable Cold War-era relic that radicals weaponize to subvert the international community system and to advance terrorist agendas.

Introduction

The radical Left considers Hamas’s October 7, 2023, Nukhba massacre as “resistance to occupation.” This “woke” worldview is rooted in academic thought schools: postcolonialism, neo-Marxism, and Critical Theory. Pro-Hamas activism uses these theories to provide a veneer of ethical legitimacy and the international community legal system mainstreams radicalism. The academic-activist convergence became especially obvious after October 7 in student protests and encampments. The academy, international community, and legal system have found common ground in radical ideology.

In the legal field, radicalism is epitomized by Critical Legal Studies (CLS), a branch of Critical Theory, which questions Enlightenment-based legal norms. CLS’s “international” branches Critical International Legal Theory (CILT) and “Third World Approaches to International Law” (TWAIL)² critique public international law, claiming it was established to facilitate colonialism and white supremacy.³

TWAIL is an international counterpart to CRT – Critical Race Theory – another CLS “branch.” These disciplines impact public opinion via the legal academy and law students, in public roundtables, conferences, lectures, and law journal articles.⁴ Many academic UN associates display bias against Israel, though tasked to be impartial observers. International legal instances and forums – the International Criminal Court, the International Court of Justice, and the United Nations – are fertile ground for planting CILT and TWAIL’s ideological seeds since the system is declarative and political and therefore susceptible to “narratives” that replace legal conventions.⁵

TWAIL’s main aim is the “decolonization” of international law, viewing its forums as colonial and Eurocentric power structures.⁶ TWAIL wants to “reconstruct” legal norms to make them reflect the values of the Global South – a Marxist term for the developing world – by including formerly colonized peoples, their indigenous perspectives, and building Third World coalitions to address what it sees as structural inequities.⁷

Third World Identity Politics Justify Palestinian Terrorism

Post-World War II decolonization led to the exponential growth of new “Third World” states (also called the “non-aligned movement” or NAM). They were differentiated from “First World” countries aligned with the United States, and “Second World” states aligned with the Soviet Union. Yet, “non-aligned” became a misnomer: the United States and the Soviet Union vied for and achieved spheres of influence, most states connected to or dependent upon Cold War powers for trade or aid. Often, states oscillated between East and West: Egypt, for example, under President Gamal Abd al-Nasser, received massive military and development direction from the Soviet Union, but later President Anwar Sadat aligned it with the United States. Both Cuba and India were considered “NAM” but were integrally connected to the USSR.

Under the Palestine Liberation Organization, the Palestinian cause alternated power alignments,⁸ from Nasser and the Soviets, the Chinese, the Algerians, and the Vietnamese, and to the West after the Oslo Accords.⁹ Hamas also has intersecting and competing power alignments: it is a proxy of Iran, has received massive support from Qatar and Turkey, and is also connected to Russia, China, South Africa and others.

The Palestinian cause’s “Third World” self-branding allowed it to claim colonization and exploitation, garnering NAM solidarity at the UN, where the numerical majority of member states were “NAM.” As a self-defined colonized people, Palestinians demanded self-determination through “armed struggle” – terrorism- utilizing UN General Assembly resolutions drafted for other populations.

The popular post-colonialist ideologies of Frantz Fanon, Jean Paul Sartre, and Edward Said bolstered support for Palestinian terrorism,¹⁰ while Critical Theorist and “Father of the New Left” Herbert Marcuse’s encouragement academic activism added to the Palestinian circle of solidarity.¹¹ These developments resulted in Palestinian advocacy adopting radical terminology and buzz-words, depicting Israel as an illegitimate “settler-colonialist” “apartheid state” and recommending its isolation, sanction, and erasure.

Critical Legal Studies Deconstructs Rational Law: Narrative Replaces Evidence

French philosopher Michel Foucault’s assertion that public discourse creates arbitrary state power, coupled with Critical Theory¹² which dissects social, legal and economic aspects of Western society, helped inspire Critical Legal Studies (CLS),¹³ as did the Legal Realism school. CLS wanted the legal field to recognize the social context of law: “The critical project is primarily an ethical one, often conducted…deconstructively. Revealing and destabilizing common assumptions and ‘false’ empirical claims, CLS aims to show the cruelty of the current systems of law, and its reign over a world where 50,000 human beings lose their lives, needlessly and avoidably, every single day.”¹⁴

CLS asserts that law expresses the inherent social biases of legislators. It aimed to overturn hierarchy and “achieve a greater good…to undermine structures of oppression.”¹⁵ Civil Rights and anti-Vietnam War-associated CLS activists believed that “the law supports a power dynamic which favors the historically privileged and disadvantages the historically underprivileged,”¹⁶ the powerful using law as an instrument of oppression and hegemony.¹⁷

The fundamental internal contradiction of CLS is that while claiming not to “undermine” law, it aims to “undermine structures of oppression.” Therefore, it targets laws it deems “oppressive.”¹⁸ Yet, in deconstructing norms, new norms are created.¹⁹

Despite this paradox, CLS branched out into subfields²⁰ including Critical Race Theory, concerned with “institutionalized” racism. In this spirit, legal scholar Derrick Bell’s method of “transformative resistance strategy” aimed to expose Black “narratives” to “empower and include traditionally excluded views” and to resist “standards and institutions created by and fortifying white power.”²¹ CRT experts Richard Delgado and Jean Stefancic write, “critical race theory questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.”²²

CRT’s “legal storytelling” method makes narrative an alternative to evidence: “Much of what we believe is ridiculous, self-serving, or cruel but not perceived to be so at the time…In legal discourse, preconceptions or myths, for example, about black criminality or Muslim terrorism, shape mindset – the bundle of received wisdoms, stock stories, and suppositions that allocate suspicion, place the burden of proof on one party or the other, and tell us in cases of divided evidence what probably happened. These cultural influences are probably at least as determinative of outcomes as are the formal laws, since they supply the background against which the latter are interpreted and applied. Critical writers use counter stories to challenge, displace, or mock these pernicious narratives and beliefs.” ²³

The radical assertion of replacing evidence with narrative seeped into the discourse. “Marginalized” groups’ deconstructive counter-narratives (“counter stories”) subvert oppressors.²⁴ By this logic, “truth” is “socially constructed,”²⁵ so validity derives from the teller’s identity, not from Enlightenment-era standards of legal veracity.

This narrative approach connects the Critical Law canon, including CILT and TWAIL. Beckett writes:

From a critical perspective, mainstream PIL [Public International Law – T.S.] appears solipsistic and blind to the plain facts of reality. Thus, CILT tries to focus on empirical occurrences, historical continuities (and ruptures), on a world outside of legal texts and conference proceedings…. focusing on the effects of law…. CILT is…a discourse, or movement, about responsibility…refusing to hide behind claims of neutrality, impartiality, expertise, objectivity, optimality, or any other technicalization. The mainstream claims of objectivity, neutrality, and determinacy are not targeted for fun or mischief making, but because they function to disguise or evade responsibility – to focus attention on technical expertise rather than moral accountability…. CILT lacks any obsessive respect for disciplinary boundaries…²⁶

Hence, CILT is a path to social justice that circumvents conventional legal standards.

TWAIL and CRT

TWAIL was established in the 1990s at Harvard Law School, and later steered by professors such as James Thuo Gathii and Antony Anghie.²⁷ The Cold War “resistance front” inspired the genre as did, apropos, Algerian UN Ambassador (1979-1982) Mohammed Bedjaoui, a jurist and ICJ judge (1982-2001) who serves on the TWAIL legal journal board.²⁸

TWAIL views international law as Eurocentric and imperialist, as Florida International University law school professor Cyra Akila Choudhury writes:

Because postcolonial theory is part of the foundation of TWAIL, Said is a shared ancestor…. Said’s critical insights have been important to TWAIL’s own critiques of the international legal system and its epistemic bases. TWAIL scholars’ historical work converge with those studying the historical roots of Islamophobia in the 20th Century insofar as they both concern themselves with imperialism and a proliferation of racist “knowledge” about the Global South. Incorporating Islamophobia as a strand in TWAIL, therefore, might involve…how modern imperialist projects that have resulted in the devastation of the Middle East are not only undergirded by historical discourses of civilization… religious bigotry against Islam now weaponized and amplified through the discourses of (trans)national security.²⁹

As in CLS, TWAIL scholars emphasize the identity of legal interlocutors. Victor Kattan³⁰ suggests that legal arguments and motions in international courts should be authored by Palestinian legal scholars. Similarly, Professor Noura Erekat, in a Harvard legal journal, models on CRT’s “whiteness as property” argument, asserting that Ashkenazi-dominant Zionism privileges “whiteness,” marginalizing Mizrahi Jews and Palestinians,³¹ by valuing “European Enlightenment ideals of civilization and the superiority of Whiteness. Settler-decolonization is necessary for Palestinian self-determination and has the potential to achieve Jewish emancipation beyond the state.”³² It would follow that European Enlightenment-inspired international law is “born in sin” since rules-based institutions are founded and grounded in racial oppression, exploitation, and injustice.³³

Consequently, TWAIL aims to deconstruct norms by reconstructing international law.³⁴ Thus, predictably, legal scholars have downplayed and criticized TWAIL and CLS.³⁵ Harvard law professor Naz Modirzadeh observes that TWAIL has failed as a political movement since it views statehood as a European innovation and obstacle, “founded on colonial predation and that the Global South state as a fact in the world has demonstrated itself to be rapacious, undemocratic, corrupt, and abusive of its own people.”³⁶ The movement creates no “vessel” for its “reimagining” of international law,³⁷ demonstrating how the progressive schools provide grievances but no solutions.

In addition, many “Third Worlders” reject TWAIL, which “lump(s) together those living in the West and those in the Global South as….’children of the postcolony,’” suggesting that “being of the Third World is a ‘state of mind’ that is more about how one identifies, or with whom one creates bonds of solidarity, than about where one is born or where one lives and works.”³⁸ Many “TWAILers” also hail from the Third World diaspora, detached from views actually held in the Third World.³⁹ It “…remains a Global North-dominated and largely English-language academic sub-field.”⁴⁰

Despite TWAIL claims, it is also doubtful if early Third World jurists “would even agree with them on fundamental dispositions towards international relations or the purpose of international law.”⁴¹ Like other Critical disciplines, TWAIL fails “…to articulate sufficiently robust conceptions of what ideas like ‘anti-imperialism,’ ‘emancipation,’ ‘justice,’ or ‘liberalism’ mean. It is, in short, extremely difficult to ‘use’ TWAIL scholarship politically or programmatically.”⁴² This critique applies to “Third Worldist” anti-Zionism. The Palestinian cause’s Third World identity has conveniently been promoted by scholar-activists from Palestine National Council member Edward Said (1977-1991) to Palestinian diaspora activist law professor Noura Erakat, who reside in the West.⁴³ As Middle East analyst Khaled Abu Toameh has pointed out, “pro-Palestinian” activists abroad are radical compared to pragmatic Arab counterparts in Israel.⁴⁴

“TWAILer” Activism in International Community Institutions

TWAIL proponents are indeed militant academic activists. For example, in August 2024, a TWAIL conference titled “Rethinking International Law After Gaza” held in Istanbul, Turkey⁴⁵ hosted Professor Mohsen al Attar of Xi’an Jiaotong-Liverpool University, who authored the following: “Decolonising the curriculum in international law: entrapments in praxis and critical thought,”⁴⁶ “How the Multi-Level Democratisation of International Law-Making Can Effect Popular Aspirations Towards Self-Determination,”⁴⁷ and “Third World Approaches to International Law and the Rethinking of International Legal Education in the 21st Century.“⁴⁸ Another UK professor, Shahd Hammouri⁴⁹ of Kent University, lectured on a British Bar human rights law forum panel on Israeli military courts,⁵⁰ and writes for the TWAIL journal, which has featured regular articles and even an entire edition on the Palestinian issue, and in 2022, a BDS petition by TWAIL scholars.⁵¹

Conclusion

Critical Theory’s alphabet soup of legal offspring – CLS, CSJ, TWAIL, CILT, CRT – aims to weaken and subvert Western and international institutions and law. While purportedly scholarly, these theories are determined to undermine evidence-based jurisprudence with narrative. Their influence extends beyond academia to law graduates and political activists working in government, NGOs, and international institutions. The rapid mainstreaming of CRT demonstrates how academic concepts can reshape public discourse and policy.

Anti-Zionism and antisemitism have also been sanitized by this type of academic activism. International legal proceedings against Israel illustrate the implications of these larger ideological shifts. Academic activists have reframed law through Critical Theory, creating precedents that destabilize international law and national sovereignty.

Policy Recommendations

Academic Funding Reform: Massive funding of CLS-style academic and extracurricular programs promotes anti-Western ideas and undermines international community institutions and legal conventions. This is why Western governments and foundations should cut funding of these programs, and demand transparency and accountability from institutions that accept foreign funding.

International Institution Reform: The UN and associated bodies require structural reforms to address bias and restore institutional impartiality. They must eliminate compromised “special rapporteur” positions and restructure voting mechanisms. International Courts and tribunals must maintain evidence-based standards rather than adopting “social justice” interpretations that prioritize narrative over facts. Member states have the power to reduce participation and funding if these standards are not kept.

Legal Education Standards: Law schools should prioritize classic legal principles over critical theory methodologies. Critical legal theory represents a fundamental challenge to Western legal traditions. Continued funding and legitimization of these academic movements poses significant risks to democratic governance and the rule of law.

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Notes