Warts and all, international law is still better than no law

PUNDITS of all stripes are tearing into one another right now about how to interpret international law. Hamas has indubitably broken it in the worst possible ways. But is Israel doing so as well? As political as it is legal, that controversy raises an older question: What is international law, and does it even exist?

There’s no question that Hamas committed heinous war crimes on Oct 7, when it attacked Israel and sadistically slaughtered about 1,200 people, mostly civilians. It broke additional international laws when it took civilian hostages, and yet more when it started using two million Gazan civilians as human shields. All of these acts are illegal in both customary and treaty-based international law.

As for Israel, the victim nation, international law expressly gives it the “right to war” (jus ad bellum) in self-defence. But it also governs how it must fight “in war” (jus in bello). Here, the legal reasoning is clear in theory but slippery in practice. Israel must do its utmost to spare civilians, for example, although legitimate military objectives may justify some civilian deaths, as long as the toll is “proportionate”. Is a Gazan body count of 11,000-and-counting proportionate?