'International law' undermines Israel.

If there are no consequences for starting and losing a war, is it any wonder why people start wars so often?

Israeli soldiers operating in southern Lebanon (photo: IDF/X)

Please consider supporting our mission to help everyone better understand and become smarter about the Jewish world. A gift of any amount helps keep our platform free of advertising and accessible to all.

---

This is a guest essay written by Shlomo Levin, a retired rabbi with a Master’s degree in human rights law.

You can also listen to the podcast version of this essay on Apple Podcasts, YouTube Music, YouTube, and Spotify.

---

Since the dawn of history, nations have attacked each other for territory and resources, or sometimes for darker reasons such as religious persecution.

A key purpose of our current law-based international system is to finally put an end to this strife and bloodshed. All countries that join the United Nations must forswear both the use of force and even the threat of the use of force in their relations. Obviously, they therefore also not use force to acquire territory.

But just a quick look at the Middle East is enough to make clear this promise of a new era of peace and security has not been fulfilled.

Here is a question that will help us understand why: What are the consequences? If one citizen uses violence against another, there is a punishment: They can be sent to prison. But what are the consequences when, instead of one person attacking another, an entire country carries out an attack?

Leaders of the attacking country can be charged at the International Criminal Court for committing the crime of aggression. But unfortunately, there are lots of reasons why this is not much of a deterrent.

The International Criminal Court has even less jurisdiction over aggression than it has over the atrocity crimes it was originally created to prosecute, and so it can be easily evaded (and, in fact, no charges of aggression have ever been brought).

Also, as we recently saw Vladimir Putin host a summit with leaders of numerous foreign countries and the United Nations secretary-general in spite of Putin’s International Criminal Court war crimes indictment, International Criminal Court indictments do not seem to pack much of a punch.

Beyond that, international law largely works to insulate countries that carry out aggression from suffering any consequences at all.

For example, let’s say a country launches a war of aggression with the explicit purpose of stealing a neighbor’s territory. In Jewish law, when someone tries to steal from another, the punishment is that they lose an amount equal to what they hoped to gain. So if Reuven takes 100 shekels from Shimon, as punishment Reuven has to not only return what he stole but also dip into his own pocket to give Shimon an extra 100 shekels instead.

But that is not the way international law works. While it would seem sensible and proportionate that a country trying to take another’s territory should instead be forced to cede territory to its intended victim, that is not what’s on the books.

Instead, the prohibition of acquiring territory by force still applies. The attacked country is not allowed to counter attack to take territory from the aggressor, and even if, in the course of defending itself, it winds up occupying territory when the war is over, it has to give that territory back.

Now, what if the attacking country wants not just to conquer territory, but to commit genocide, ethnic cleansing, and other atrocities besides?

Human rights law makes clear that there is no room for the intended victims to do this back to the attacker as retaliation or revenge. The rationale is straightforward: Every individual has inviolate human rights, including the right to life, due process of law, and so forth. So the fact that some government or armed group violates the rights of others, no matter how horrendous their crimes, cannot lead to the forfeit of anyone else’s basic human rights. This necessarily includes the rights of even its own citizens.

So, where does that leave us?

If you attack a neighboring country but then lose the war you started, international law says things should simply go back to exactly the way they were before. And if the country you attacked takes your territory or unduly harms your civilians, international law turns you into the victim — and you then have solid legal ground to complain that these are violations of your rights.

Is it any wonder, then, that Israel’s neighbors continually attempt to destroy it? Consider the 1967 Six-Day War, when Israel was truly threatened with destruction but instead wound up taking over Sinai, Gaza, and the West Bank.

Israel reasonably said that it wants to continue occupying at least some of that territory to make sure such an attack cannot be perpetrated against it again. And international law, as codified by the recent advisory opinion of the International Court of Justice, says that this is completely not allowed. No matter how many times Palestinian leadership threatens to carry out future aggression and atrocities, and no matter how many times they have done in the past, that cannot provide a legal justification for Israel to occupy their territory. Their right to independence and self-determination is absolute.

Now, think about October 7th. Israel, of course, needs to defend its citizens. But how? Reoccupying Gaza or even building a buffer zone inside Gaza territory is a violation of the prohibition of acquisition of territory by force. From an international law perspective, the crimes of Hamas are simply irrelevant to Israel’s need to defend itself in the future.

Not to mention that scrupulous adherence to humanitarian law makes it extremely difficult to rescue hostages or destroy rockets being stored in tunnels under dense urban areas. In other words, international law says there is little Israel can do, and it is illegal for Israel to impose any consequences for the atrocities Hamas carried out.

Recently members of Israel’s settler movement held a conference on the Gaza border to discuss the prospects for establishing new settlements there. A Likud official named Oved Hugi was quoted as explaining his reason for wanting to establish new Gaza settlements by saying: “The Arabs must lose territory in the war, so that they remember that they lost. For an act like this [the October 7th massacre], they must get the punishment of losing territory.”

It is pretty clear that any attempt by Israel to actually move settlers into Gaza would be met by worldwide outrage. But Hugi raises an important question: If there are no consequences for starting and losing a war, is it any wonder why people start wars so often? And if international law imposes no punishment for invading Israel, killing thousands of people, and taking hundreds of hostages, are we surprised that they did it and are threatening to do it again?

Perhaps the intention was good behind developing an international prohibition on the acquisition of territory by force and making human rights inviolate for every individual.

But it is plain as day as we look at all the horrors going around us that this rubric is not working. It is time we recognize that the current manner in which international law is codified and enforced is not such a promising path towards peace and security after all.

---