The sanctity of international law has been compromised to demonise Israel

Principles of the rules based order are being eroded by those who see Hamas and Israel as morally equivalent

Von Clausewitz taught us in the 19th century that war was the continuation of politics by other means. Had he lived in the 21st century, he would probably have substituted “law” for “war”.
Since the Vietnam War, war has been conducted on TV as well as on the battlefield – a lesson well-learned by Hamas when on 7 October last year it brought the barbarities of the medieval pogrom into the online age. But there is a third front, too: over the past year, Israel has been fighting for its existence not only on the battlefield and in the TV studio, but also in the international law courts.
In May, the prosecutor of the International Criminal Court (ICC) Karim Khan KC requested the ICC to issue arrest warrants, not only against Hamas’ leaders Yahya Sinwar and Ismail Haniyeh (the warrant against the latter was overtaken by his assassination by Israel in Tehran), but also against Israel’s Prime Minister Benjamin Netanyahu and its Defence Minister Yoav Gallant. That decision was not only a moral outrage but also fundamentally flawed as a matter of law.
Put most simply, Israel was legally entitled after 7 October to take steps to ensure that Hamas’ ability to rape, murder and abduct its citizens was removed. And as Hamas deliberately hid its supplies, arms and fighters among the civilian population of Gaza, the responsibility for civilian deaths – each one of which is its own entire tragedy – lies squarely with Hamas.
It is unclear why the ICC prosecutor waited until May to issue the warrants. While Israel’s military response was built up over months, the events of 7 October were – as an intended and integral part of the outrage – broadcast to all, in real time. The unexplained delay in issuing warrants against the Hamas leadership gives the impression that ICC’s real targets were the Israelis, and the warrants for the Hamas leaders – against whom they have little impact, anyway – were added as a form of moral equivalence.
But the central legal principle at play here is that of complementarity, under which the ICC will usually decline to act where there is an independent and effective judicial system in the state concerned to address any legal charges. Israel has one of the most independent judiciaries in the world, as exemplified by the fact that a previous Prime Minister, President and Chief Rabbi have all sat in prison. But all of that was ignored by the ICC prosecutor.
The UK was correct to challenge the ICC’s jurisdiction over this case, which is itself a heavily contested legal issue, and the ICC invited the UK to submit legal arguments on the point. But in a volte-face following the general election, the new Starmer government announced it would not be filing a submission “in line with our longstanding position that this is a matter for the court to decide”. As a legal position, that is incomprehensible; parties make submissions, especially when invited by the court to do so, and the court decides. As a political position, it is all too comprehensible; Labour lost 5 seats to “pro-Gaza” independent candidates and came close to losing several more. Leaving it to other states, such as Germany, to make the jurisdictional running was plainly a political, and not a legal, decision.
On a second legal front, Israel is the defendant in proceedings before the International Court of Justice (ICJ) brought by South Africa. Those proceedings continue, but it was the ICJ’s Provisional Measures ruling in January which led to the charge of genocide against the Jewish state, a charge which is now repeated by many as if that’s what the ICJ had decided.
The truth is that the ICJ made clear that, at the interim hearing, it was assuming that the Palestinians had a plausible right to be protected from genocide (ie focussing on the question of legal rights), but not that there was a plausible genocide (ie not focussing on the disputed facts).
This subtle but critical distinction unsurprisingly eluded almost all of the international media. Rather more surprisingly, it escaped some leading lawyers, too. Four retired members of the UK Supreme Court signed a letter supporting UK sanctions on Israel, founded on the proposition that the ICJ had determined “there was a plausible risk of genocide in Gaza”. Although the then President of the ICJ, Judge Donoghue, later confirmed that the court “did not decide … that the claim of genocide was plausible”, the open letters had already been printed, the placards ordered and the internet memes circulated.
International law has not been having a good war. And that is a real concern to those of us who support the international legal order and want to see it thrive. Part of the problem might be one familiar to us from other areas: international treaties and rules set up to deal with the conduct of states, are ill-equipped to deal with non-state actors with the capabilities of states, and of terrorist organisations funded and controlled by states.
But there is also a suspicion that the answer to the question “Are Israel’s acts lawful?” is too often a knee-jerk “no”, even before those acts are identified.
Over the past year, I have heard international lawyers decry the use by Israel of missiles and of ground forces, of targeted assassinations and cyber-warfare, of attacking supply lines and building a security wall. Some have contended that attacking Hezbollah fighters with exploding pagers – and it’s hard to conceive of a more targeted response – is also unlawful. But I have heard little from lawyers about how Israel can prevent another 7 October while acting within international law.
One such conversation ended with the suggestion that Israel and its sworn enemies should negotiate and “compromise somewhere in the middle”. I pointed out that the starting bid of Hamas (and Hezbollah, and the Houthis) was that all Israeli Jews should be killed, while Israel’s position was that none should be, and asked where “in the middle” a compromise might lie.
I’m still waiting for an answer. Perhaps some lawyers are better at identifying problems than finding solutions.
Lord Wolfson of Tredegar KC is a former justice minister