International law is not the problem

(JNS) — There is much room to improve international law in order to deal with terrorism and the use of force by non-state actors. But that is not essential to fighting terrorism. The law matters but is not always either the problem or the solution. It was not the lack of applicable law that resulted in the Oct. 7 massacre and the international criticism of Israel’s response has nothing whatsoever to do with the law. 

International law already prohibits the terrorism and genocide being waged by the Palestinian Authority and Iran (directly and through proxies including Fatah, Hezbollah, Hamas and Palestinian Islamic Jihad) against the Jewish people. Such law also permits not only Israel’s current military strategy and tactics but much more aggressive responses.

Generally, international law requires combatants to follow the principles of distinction and proportionality. Distinction requires a combatant to avoid specifically targeting non-combatants but does not prohibit attacks on military targets in which non-combatants may be harmed.   

The principle of proportionality is not governed by treaty. It is covered by customary international law, which is the practice of countries out of a sense of legal obligation. There is no such state practice that Israel is even arguably violating. On the contrary, Israel is going well beyond any such practice of other nations. 

Israel’s enemies are committing numerous war crimes by, amongst other actions, deliberately targeting non-combatants, attempting genocide against the Jewish people and locating their military assets amongst civilians and civilian infrastructure.  

Alan Baker, a former Israeli ambassador to Canada and Foreign Ministry legal adviser, has repeatedly and persuasively argued that Israel is abiding by international law while its enemies are not.

Nonetheless, in “Israel under fire: Can international law cope with terror?” Baker concludes that the “essential question still remains as to whether” the “international community” will “adapt international humanitarian law to the urgent and vital needs of today in dealing with modern terror.”

Baker cites the 1970s Protocols to the Geneva Conventions as providing ammunition to those claiming Israel is violating international law. The Protocols, especially the provisions criticized by Baker, are a perversion of international law. For example, they give preferential treatment to those “fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.”

Those provisions and many others in the Protocols are not binding international law on countries that have (wisely) not ratified the protocols, such as Israel and the United States—as even the Biden administration acknowledges in the Department of Defense Law of War Manual, updated just this past July. There is zero state practice that would make these provisions customary international law.  

It is true that the Protocols purport to grant privileged status to certain combatants even if they do not wear insignia or always carry their weapons openly. But this is not international law. 

In any case, there is nothing in the Protocols that permits attacks such as Oct. 7 or prohibits Israel’s right to self-defense. 

The problem is not that the United Nations believes the Protocols constitute binding customary international law. It is not as if Israel’s critics defend its military campaign and criticize Hamas for targeting civilians and hiding amongst civilians, but defend Hamas not wearing uniforms, as arguably permitted by the Protocols.

The problem is not the law as it exists (or any reasonable interpretation of that law) but the perversion of the law. Those like the United Nations who make a mockery of existing law are not going to abide by improved law. And is it that far-fetched to believe that such new laws on terrorism would just be turned against Israel?  

Germany being a signatory to a genocide treaty would not have stopped the Holocaust. The Genocide Convention was enacted in reaction to the Holocaust. Yet the International Court of Justice is baselessly using that Convention to attack Israel.  

The International Criminal Court is without jurisdiction over Israel, which never joined it. In addition, the ICC is prohibited by its operative Rome Statute from taking up cases being investigated or prosecuted by a country that has jurisdiction unless that country is unwilling or unable to genuinely carry out the investigation or prosecution.

Thus, Baker concluded in 2021, “The threats to institute action in the ICC are unrealistic and fail to consider the requirements of the statute of the ICC.” Baker is correct on the law, but profoundly wrong on whether the law matters to the ICC. 

Unfortunately, this approach is reflective of Israel’s legal bureaucracy, which scheduled extensive meetings with ICC prosecutor Karim Khan’s team before he sought arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant.  

An Israeli newspaper reported: “Israeli officials were stunned by Khan’s last-minute and unexpected announcement. Khan had prepared this announcement and even recorded a video, despite knowing his team was on their way to Israel for meetings.”  

What is stunning is that the Israeli officials believed the law and whether Israel is following the law had any relevance to the ICC. 

Attributing reasonable disagreement over the law or the slightest good faith of any sort to the lawless bodies masquerading as courts that are attacking Israel is a dangerous misdiagnosis.