Few contemporary conflicts have been as saturated with legal language as Gaza. Provisional measures issued by the International Court of Justice, arrest warrants sought by the International Criminal Court, findings by United Nations commissions of inquiry, emergency sessions of the General Assembly, and a near-continuous flow of legal argument in diplomatic, journalistic, and activist forums all testify to the intensity with which law has been invoked. And yet, this same conflict appears to confirm a familiar sceptical verdict: international law lacks enforcement where it matters most.
This juxtaposition — legal proliferation alongside material impotence — has often been read in one of two ways. On the one hand, Gaza is taken as proof that international law remains an axial moral grammar: a vocabulary of universal obligation that persists even when it cannot command obedience. On the other, it is read as evidence that law is little more than rhetoric: a repertoire of justificatory moves deployed in a struggle governed ultimately by force.
This article argues that both readings miss something essential. Gaza does not simply reveal law’s moral residue, nor does it exhaust law’s meaning as ideology. Rather, it exposes international law as a diapausal order: a form of legality adapted to conditions of weak enforcement, fractured sovereignty, and absent peace, which operates not through command but through latency. Law, in such conditions, persists as exposure, constraint, and memory — shaping future fields of action even where it cannot terminate present violence.
Gaza thus forces a reconsideration of what international law is, not as an aspirational system awaiting better politics, nor as a cynical mask for power, but as a distributed governance layer whose efficacy lies precisely in its inability to “finish itself” through coercion.
Two Familiar Mistakes
Most discussions of Gaza and international law reproduce one of two errors. The first is enforcement fetishism. On this view, law either coerces or it fails. The absence of immediate compliance with ICJ provisional measures or ICC arrest warrants is taken as decisive evidence of legal irrelevance. This position often borrows, implicitly or explicitly, from a Hobbesian image of law as sovereign command, smuggled into international law despite its persistent inapplicability.
The second is rhetorical cynicism. Here, law is reduced to a grammar of legitimation. Legal argument matters only insofar as it supplies states and movements with discursive resources; its normative claims dissolve into political preference once stripped of enforcement. This approach often draws inspiration from critical legal scholarship, but flattens critique into dismissal.
Both positions presuppose that law must either rule or deceive. What they cannot account for is how legal orders persist, accumulate effects, and structure future constraints in the absence of either sovereign unity or immediate compliance. Gaza reveals this blind spot with unusual clarity.
Axiality Revisited
The language of axiality has been used to capture the persistence of legal norms beyond enforcement. In this sense, international law operates as a moral-normative orientation: genocide, crimes against humanity, starvation as a method of warfare, and collective punishment are not merely prohibited acts but named wrongs that claim universal relevance.
Gaza clearly activates this axial dimension. The application brought before the ICJ under the Genocide Convention, and the Court’s subsequent indication of provisional measures, rest on the assertion that certain obligations bind regardless of geopolitical alignment or military advantage. Similarly, the ICC Prosecutor’s pursuit of arrest warrants asserts that individual criminal responsibility attaches even where arrest is improbable in the short term.
These moves matter. They generate legal claims that cannot be fully neutralised by power alone. They compel justificatory labour; they fracture alliances; they impose reputational and diplomatic costs. Yet axiality alone cannot explain how these effects operate, nor why legal artefacts persist and accumulate even when ignored.
To stop at axiality is to treat law as a moral remainder hovering above violence. Gaza shows something more concrete and more troubling: law functioning as a system under suspension.
Diapausis: Law in a Weak Material Setting
Borrowed from biology, diapause refers to a state of suspended activity adopted in hostile environments — not dormancy, but adaptive latency. Applied to international law, diapausis names a condition in which legality persists without the capacity to complete itself through enforcement.
Gaza exemplifies this condition. Law does not disappear; it reconfigures. Its operations shift from command to latency mechanisms, three of which are especially visible.
1. Exposure: Legal processes render actors legible and locatable. ICC warrants, even when unenforced, generate jurisdictional exposure: travel restrictions, diplomatic friction, insurance risk, and the narrowing of political manoeuvre. The legal naming of conduct — genocide, war crimes, crimes against humanity — fixes acts within a classificatory frame that cannot easily be shed.
2. Constraint: Legal findings condition other systems. Arms export regimes, aid conditionality, trade preferences, and domestic litigation increasingly hinge on international legal characterisations. ICJ provisional measures do not compel ceasefire by fiat, but they recalibrate what can be justified, funded, insured, or defended in allied legal orders.
3. Memory: Perhaps most underestimated is law’s archival function. Orders, warrants, reports, and findings accumulate as a durable record. UN commissions of inquiry, forensic documentation, and judicial proceedings thicken a substrate of evidence that outlasts the immediate conflict. Law here functions as inscription: a memory system that structures future accountability, reparations, and historical narration.
These mechanisms do not end violence. But they alter the terrain on which future action occurs. Diapausal law governs by shaping afterlives.
Seen through this lens, Gaza is not an embarrassment to international law but an empirical demonstration of its diapausal mode. The ICJ’s provisional measures in the Genocide Convention case persist despite contestation and non-compliance, exerting pressure across diplomatic and domestic legal arenas. The ICC Prosecutor’s pursuit of arrest warrants, and the intense jurisdictional and political backlash they provoked, illustrate law’s capacity to immobilise and expose even without arrest. The UN Commission of Inquiry’s findings contribute to an expanding evidentiary archive that will condition future legal, political, and historical judgments. None of these acts sovereignly “resolve” Gaza. All of them nevertheless do something. They demonstrate that legality persists not as command, but as distributed governance under suspension.
Beyond the Apology/Utopia Oscillation
Martti Koskenniemi’s enduring contribution is to show that international legal argument oscillates between apology (deference to power) and utopia (normativity without traction). Gaza confirms this diagnosis daily, as legal claims slide between moral denunciation and strategic justification. But this oscillation, while analytically powerful, risks obscuring a further question: how does law continue to function despite its argumentative instability?
Diapausal theory does not refute Koskenniemi’s critique; it supplements it. Where Koskenniemi explains the grammar of contestation, diapausal theory explains the ecology of persistence. Legal orders endure not because arguments stabilize, but because legal artefacts accumulate, interlock, and migrate across institutions and temporal horizons. Gaza demonstrates that the apology/utopia oscillation coexists with a slower, infrastructural process of legal inscription that reshapes future constraints irrespective of argumentative resolution.
Roberto Unger’s project insists that institutions are made and can be remade. Law, on this view, should be reimagined as a tool of democratic empowerment rather than resigned administration. Diapausal theory shares Unger’s anti-necessitarianism but rejects its voluntarism. Gaza exposes the limits of institutional imagination under extreme material constraint. Law cannot simply be redesigned into efficacy where enforcement capacity, geopolitical alignment, and economic leverage are absent. Rather than heroic reconstruction, diapausal law foregrounds non-heroic operations: latency, residue, and memory. These are not politically neutral. They shape the possibilities of future reform precisely by surviving periods in which transformation is blocked. In this sense, Unger supplies the imperative of reconstruction; Koskenniemi supplies the critique of legal ideology; diapausal theory supplies an account of what legality does when neither enforcement nor reconstruction is available.
Law Without Peace
International law has long been theorised as a law between wars or after wars. Gaza forces recognition of law during unending conflict — law without peace. Such law is neither illusion nor salvation. It is a distributed, inscriptive order that governs by exposure, constraint, and memory. Its power lies not in stopping violence, but in shaping what can follow violence. If Gaza teaches anything about international law, it is that legality does not vanish when sovereignty fractures. It adapts. It enters diapause. And in doing so, it continues to govern — not by command, but by shaping the futures that violence cannot fully control.
Timothy Wong in an independent researcher, based in Australia.
Hello, Timothy Wong! Many thanks for your stimulating article, ‘The diapausal life of international law: Gaza and beyond.” New territory for me, as I’m not a legal professional. My question may thus be too elementary or off-base, but I’ll raise it anyway and take my chances. In borrowing the idea of latency from biology, is there any disanalogy lurking there? If something is latent in, say, the human body, how does it become active? I would guess by something else in the body triggering it. Is there anything like that to be expected in the diapaused life of international law? What would be a trigger? Maybe something extra-legal, like motivation? Cheers.
Hi stephen a. jones. Thank you for your question.
In biology, latency or diapause isn’t mere dormancy; it’s an adaptive pause in development triggered by environmental conditions (e.g., seasonal cues, hormonal signals, resource scarcity). A latent state can be “activated” when an internal threshold is crossed or when external conditions shift (e.g., temperature change or photoperiod) and that triggers physiological processes to resume. In this sense, there is an actual mechanism or catalyst mediating the shift out of latency.
My diapausal analogy for international law isn’t about such a mechanistic switch from “off” to “on.” Instead, it’s about a structural condition of persistence under constraint: legality does not vanish where enforcement capacity is weak, but it reconfigures its modalities of operation from immediate command → ongoing latency. In the diapausal register, law doesn’t “activate” in response to a discrete trigger the way a hormone or environmental cue triggers an insect’s diapause exit; it never fully “turns off” or “switches on” in that way. What persists are relational and infrastructural effects that accumulate over time even in the absence of effective enforcement. These include:
• Exposure — legal classification and visibility (e.g., an ICC arrest warrant fixes actors into a juridical frame, shaping their mobility and reputational calculations even without physical arrest).
• Constraint — legal characterisations shape other regulatory systems (trade, aid conditionality, domestic litigation) that continue to exert effects.
• Memory / inscription — documentation, findings, forensic records accumulate and inform future accountability, reparations and historical narrativization.
These mechanisms are enduring conditions rather than binary triggers. So if you’re looking for a “trigger” analogous to biology — something that flips diapausal law into full activity — the better comparison is not a switch but a gradual reweighting of structural forces. For example:
• A shift in geopolitical alignment or enforcement capacity might enhance law’s material traction (e.g. broader compliance with provisional measures), but in the diapausal framing this is a modulation of a pre-existing latent structure rather than an activation ex nihilo.
• Political and social mobilisations, changes in public opinion, or institutional reform can increase the salience and weight of legal norms — but these don’t “trigger” law to start working; they reconfigure how its persistent infrastructure shapes action across multiple domains (diplomatic, economic, normative).
In short:
• Biological latency → an internal/external trigger leads to renewed physiological activity.
• Diapausal international law → continuous latent effects that never fully disappear, accumulate, and shape future fields of action irrespective of an identifiable trigger.
So the “trigger” in legal diapausis is not an event that activates law from dormancy, but rather a shift in the wider politico-legal ecosystem that changes how already-present legal structures are weighted and leveraged. In other words, what matters is not activation but differential amplification of persistent legal capacities.