We are seeing considerable mention of the concept of “International Law”, used as a stick to beat Israel and the US for their attack on Iran. The claim is that it is an unprovoked “war of aggression”, and thus illegal under the UN Charter.
It is tempting to say that it is hard to imagine any war that includes an allied Israel and America which would not be criticized as illegal, especially when Trump is President, but instead I’ll look at the concept itself.
International law is a strange creature. It is claimed to be the foundation of global order, upon which system of treaties, customs, conventions, and judicial decisions are based. These supposedly regulate how states behave, while they encourage peace, and protect human rights. It purports to codify a world governed by rules rather than raw power.
But there are contradictions here which raise doubt about the whole edifice.
No Legislator, No Judge, No Sheriff
Proponents of International law claim that it is universal and binding, yet… what does this depend upon? Relations between states are at best anarchic, and thus it is claimed that International Law is essential to control interactions between powerful players. Well and good. But where is the central authority which can enforce it?
Domestic law functions because a state holds a monopoly on legitimate violence and thus can enforce its own rules. No such monopoly exists between sovereign states. The UN once aspired to be a world government; the reality, however, is that it has no means of restraining its members. The UN Charter Article 2(4) bans the threat or use of force which threatens territorial integrity or political independence and makes only narrow exceptions for self-defense under Art. 51. But the Security Council, which has five permanent members with veto power, can legitimize or overlook wars at their discretion.
Jus ad Bellum
The idea that wars can be legally or illegally begun is itself a source of confusion. By definition, war makes licit actions – killing ones’ enemy to name but the most obvious of these – that are fundamentally illegal inside a state, creating a “state of exception” where normal rules of civilized conduct are suspended. Thus, to analogize from the legality of an action inside a state to legality between states requires a leap of faith that they are actually analogous. And they clearly are not.
Wars are not “illegal” in the same way murder is illegal inside a functioning state; they are political acts judged by history, power, and consequences. Pretending otherwise does not prevent war. It merely ensures that when war comes, the losers are labeled criminals, while the winners write the history books.
Jus in Bello and the Blurring Divide
Once war begins, Jus in Bello regulates how war is fought, requiring attacks to target only military objectives and combatants while sparing civilians, banning starvation as a weapon, and enforcing proportionality between military actions.
But what is a civilian target? Are power stations to be immune in war, allowing one’s enemy to continue to run their factories and produce military matériel? Are attacking armies to allow their opposing armies to be fed because there is no way to feed civilians without feeding combatants?
There must be proportionality, it is claimed, and military advantage must never outweigh expected civilian harm or the harm done to you. How is this to be achieved in modern times when the entire population of countries are marshaled to nurture the war machine? In asymmetric wars against non-state actors (such as terrorist groups embedding among civilians), the traditional separation between jus ad bellum (justice of resorting to war) and jus in bello (justice in conduct) increasingly blurs. Are we to refrain from attacking the state sponsors of a terrorist attack because it is not “proportionate”? Refraining from such attacks based on “proportionate” response is a recipe for wars which can never be surely resolved, since decisive blows may never be struck.
This is a recipe, not for the end of a conflict, but for its continued lengthy continuance long after it would otherwise have ceased. If you need a reason why modern wars seem to go on for ever, here it is.
Enforcement Requires Precisely what it Bans
In theory, the UN can enforce International Law by Article 41, under which the Security Council may call upon the Members of the United Nations to apply measures such as an “interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations” in order to stop an “illegal” war.
But what happens when a country simply ignores the UN? For that matter, what happens when members of the UN simply ignore its demands?
There is no recourse that an “illegal” war can be suppressed or punished except by force—i.e., another war. If enforcement requires the very thing being banned, the rule refutes itself. It is like declaring theft illegal while licensing rival thieves to police theft.
Self-Defense Is a Blank Check
The UN Charter allows war in the face of “armed attack”, yet states can interpret this in any way they choose. Consequently, every aggressor claims the same justification: self-defense, prevention of an imminent threat, or response to “provocation.” No judge presides over a court to adjudicate these claims: the guilty party judges himself. International Law demands perfect foresight from states while yet denying them the right to act on imperfect information, in precisely those situations when imperfect information is inevitable, and survival itself may well be at stake.
International Law is Undemocratic
International Law lacks democratic legitimacy. It was not derived by a democratic process, nor were the people ever asked to approve it. The legitimacy of domestic law comes from legislatures accountable to citizens. Law imposed by a dictatorship or by fiat without democratic acquiescence is thus per se illegitimate. But International Law by its nature can only be created by states through diplomats and politicians. Citizens almost never have a say in treaties, and certainly never did when “International Law” was instantiated. Was there ever a referendum on whether to accept the post WWII imposition of International Law? How indeed could such a referendum possibly have been instituted, since it purports to apply to all countries? Are we to have dozens of referenda?
The result is a system that claims moral universality but simply has no democratic legitimacy.
It Privileges the Status Quo
Since 1945 we have insisted on one very strange idea: borders are and must be inviolable, and cannot be changed by force. This is fundamentally ahistorical and contradictory, for those borders were themselves drawn by prior force. Poland did not cede its easternmost territory to the Ukraine willingly; Germany did not yield territory to Poland and Russia by plebiscite. And millions were forced out of the land their ancestors had inhabited by force. Yet now these borders cannot and must not be changed? Modern orthodox ideology loves “International Law” because it promises peace without hard work. Weak states resort to it because they hope it will protect them from stronger neighbors. But strong states ignore it when their interests demand otherwise. This is a predictable outcome of a system designed by the victors of the last war to ensure that the territorial changes they made were untouchable.
Yet this legalizes injustice: it prioritizes “order” over “justice,” making even peaceful change impossible: a state has only to claim that its territory cannot be changed for nothing to happen. The right of peoples to self-determination – enshrined in UN Charter Art. 1, common Article 1 of the Covenants — collides squarely with the concept of strict territorial integrity. Thus, at the same time as the UN guarantees self-determination for minorities, it makes it impossible.
Moral Reality vs. Legal Fiction
We can perhaps agree that some wars are clearly evil: unprovoked attack surely is. Some are clearly justified: resistance to conquest is a good example. But many fall into neither category—civil wars or armed intervention to stop atrocities, for example. Yet International Law forces these into a Procrustean bed: are they authorized or not, it asks. Even a response to a credible threat of genocide can be classified as an “illegal war” because it entails unprovoked invasion. At least the pre-modern concepts of “Natural Law” or “Just War” weighed causation, intention, proportionality, circumstance and exigency in its judgement as to whether a war was acceptable. The modern concept of International Law does none of these things.
Pacifism Disguised as Law Guarantees More War
Declaring aggressive war illegal does not eliminate the causes of war, which are multiplicitous. It instead just adds a layer of hypocrisy and delay. States that believe they face existential threats will fight whatever the chimera of International Law asserts, after having first claimed the moral high ground. The League of Nations’ paralysis in the 1930s demonstrated this pattern: collective security without collective willingness to fight produces neither security nor peace. Realist critics like Morgenthau, and Waltz have stated this bluntly: “power, not parchment”, restrains states.
Conclusion
International Law, then, is more performance than principle: a wishful aspiration operating effectively only when aligned with power. Its only genuine function is as a rhetorical tool against the unpopular, for when crucial interests are at stake, states will always choose survival and their own interests over legal formalities.
This undemocratic, contradictory, and ahistorical system—plagued by enforcement gaps, blurred categories, hybrid vulnerabilities, and double standards—serves only to prolong conflicts by making them unresolvable. It is sanctimoniousness masquerading as peace.
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