From Might to Right: Restoring Credibility to International Law in Gaza and Beyond
The endurance of the Israel–Palestine conflict is not rooted in immutable hostility but in a deep asymmetry of power. Israel’s unmatched military, economic, and diplomatic strength has become both its principal asset and its chief vulnerability. Power unrestrained by justice generates defiance; resistance without power breeds despair.
What is often justified in the name of “security”—the occupation, the blockade, the surveillance apparatus—has itself become the mechanism that undermines long-term stability, perpetuating fear and fueling radicalization on both sides.
True peace does not arise from the balance of weapons but from the balance of dignity. As long as one nation’s safety depends on domination and the other’s survival rests on defiance, violence will remain their shared language. The ultimate test of any civilization lies in whether its strength can learn restraint—to build dignity rather than destroy it.
International law was never intended to serve as a reflection of might, yet in the Israel–Palestine context, it too often operates as one. The jus ad bellum has grown elastic, stretched to encompass “preemptive defense,” while the jus in bello bends under selective enforcement. The crisis is not merely moral—it is legal. When the Security Council’s silence becomes habitual and the International Court of Justice’s pronouncements are politely disregarded, the credibility of law itself begins to hemorrhage.[1]
Under Article 51 of the United Nations Charter, the right of self-defense is exceptional, not a standing authorization[2]. In discourse surrounding Gaza, however, self-defense has often been reinterpreted as an open-ended prerogative, conflating retaliation with protection[3]. Scholars such as Yoram Dinstein and Christopher Greenwood have long noted that the principles of necessity and proportionality constrain the use of force, even in response to an armed attack[4]. Prolonged bombardments of densely populated areas, attacks on dual-use infrastructure, and deprivation of essential goods raise serious doubts as to compliance with these standards.
In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004), the ICJ confirmed that security concerns cannot justify measures amounting to permanent territorial acquisition or the systematic denial of fundamental rights[5]. The legal framework governing occupation, codified in the Fourth Geneva Convention (1949) and reinforced by Additional Protocol I (1977), is unequivocal: Article 33 prohibits collective punishment; Article 55 requires the occupying power to provide food and medical supplies; and Article 54(1) of Additional Protocol I forbids the starvation of civilians as a method of warfare.[6]
When occupation becomes indefinite, the line between administration and annexation blurs—and with it, the legitimacy of the framework itself. The jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) in Prosecutor v. Tadić clarified that occupation exists where “effective control,” not formal declaration, is established[7]. By that measure, control over borders, airspace, and essential infrastructure may satisfy the legal test for occupation, triggering full application of the Fourth Geneva Convention[8]. While the conduct of state forces attracts scrutiny under this framework, non-state actors remain bound by Common Article 3 and customary international humanitarian law prohibiting attacks on civilians. Compliance with international humanitarian law must be reciprocal and universal to preserve legitimacy.
The International Criminal Court (ICC)’s 2021 decision asserting jurisdiction over the Situation in Palestine reaffirmed that neither de facto control nor political ambiguity can insulate violations from legal review[9]. The Court’s reasoning in Prosecutor v. Al-Bashir further established that political or functional immunity cannot preclude accountability for serious international crimes[10]. Amnesties or pardons for grave breaches of humanitarian law therefore contravene jus cogens norms and undermine the deterrent purpose of the international legal system. The complementarity principle presupposes a national willingness and capacity to prosecute; where domestic justice becomes selective or politically constrained, international mechanisms must fill the gap[11]. Failure to act perpetuates impunity and reveals a crisis not of law’s substance, but of its application.
The most corrosive effect of selective legality is its toll on credibility. When similar conduct by different states provokes radically different responses, the principle of equality before the law becomes aspirational rather than operative. International law cannot coexist indefinitely with political exceptionalism. The Security Council’s paralysis under Article 24 of the United Nations Charter underscores this enduring tension between power and legality—a tension that renders the collective security system inert precisely when it is most needed.[12]
A durable peace cannot be built on asymmetrical legality. Both parties are bound by the same corpus of international law—the laws of armed conflict, the Rome Statute, and the jurisprudence of the International Court of Justice. The principle of reciprocity demands that compliance be mutual, not discretionary.
The path to peace lies not in suspending law for political convenience but in restoring its impartial and consistent application. The dignity of both peoples depends less on diplomatic negotiation than on reaffirming legality as their shared language of restraint. Until law ceases to be negotiable, peace will remain rhetorical. Justice must be the first ceasefire.
[1] U.N. Charter art. 2(4); Thomas M. Franck, The Power of Legitimacy Among Nations 3–6 (1990).
[2] U.N. Charter art. 51.
[3] See generally Michael N. Schmitt, Responding to Transnational Terrorism Under the Jus ad Bellum: A Framework, 56 Naval L. Rev. 1 (2008).
[4] Yoram Dinstein, War, Aggression and Self-Defence 230–36 (6th ed. 2017); Christopher Greenwood, Self-Defence and the Conduct of International Armed Conflicts, in International Law at a Time of Perplexity 273, 281 (Yoram Dinstein ed., 1989).
[5] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, ¶¶ 102–13 (July 9).
[6] Geneva Convention Relative to the Protection of Civilian Persons in Time of War arts. 33, 55, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; Protocol Additional to the Geneva Conventions of 12 August 1949 (Protocol I) art. 54(1), June 8, 1977, 1125 U.N.T.S. 3.
[7] Prosecutor v. Tadić, Case No. IT-94-1-A, Judgment, ¶¶ 84–87 (Int’l Crim. Trib. for the Former Yugoslavia July 15, 1999).
[8] Eyal Benvenisti, The International Law of Occupation 4–6 (2d ed. 2012).
[9] Situation in the State of Palestine, Case No. ICC-01/18-143, Decision on the Prosecution Request Pursuant to Article 19(3) for a Ruling on the Court’s Territorial Jurisdiction in Palestine, ¶ 118 (Pre-Trial Chamber I, Int’l Crim. Ct. Feb. 5, 2021).
[10] Prosecutor v. Al-Bashir, Case No. ICC-02/05-01/09, Judgment on the Appeal of Jordan Against the Decision on Non-Compliance, ¶ 113 (App. Ch., Int’l Crim. Ct. May 6, 2019).
[11] Rome Statute of the International Criminal Court art. 17(1)(a)–(b), July 17, 1998, 2187 U.N.T.S. 3.
[12] U.N. Charter art. 24(1); Ian Hurd, After Anarchy: Legitimacy and Power in the United Nations Security Council 45–47 (2007).