International War Law: A Scholar's Clarification of Terms

International law is pragmatic and grounded, not a utopian talisman. Professor Yuan Yi Zhu. (Photo used with Professor Zhu's permission)

The State of Israel is frequently accused of violating "international law," committing "genocide," and engaging in "disproportionate" attacks against civilians in its war against Hamas in the Gaza Strip. International Relations Professor Yuan Yi Zhu argues that these concepts are being abused and are badly misunderstood.

In an article published in the December-January 2023-4 issue of The Critic, Professor Zhu argues against the idea that "international law" is a kind of divine or quasi-divine Higher Law to which all must subscribe unconditionally and unquestioningly.

Instead, he says international law is whatever is agreed upon among states, and is thus the subject of many pragmatic compromises. For instance, international humanitarian law is an agreement among states to engage in war more humanely, not avoid war entirely. It is also an agreement to use weapons which will kill and not needlessly harm.

Needless harm is also the guiding principle of proportionality. Contrary to how people use it in the news and political discourse, "proportionality" does not at all mean making sure that all sides suffer a similar amount of dead in a conflict, or that only a certain specified number of civilians are allowed to be killed in an armed conflict relative to combatants.

Rather, proportionality means that an armed force may not use more force than needed to achieve a valid military objective. So, if a one-ton bomb will do the job, a two-ton bomb may not be used. Civilian deaths are only considered disproportionate if there was or is a military method to achieve the valid military objective without causing that many casualties.

Furthermore, genocide does not simply mean "killing lots of civilians." Intent matters. Even disproportionate killing of civilians in an armed conflict, if indeed proven to be disproportionate, does not amount to genocide unless there is a demonstrable, proven intent to kill or sterilize or otherwise gravely harm a given population or people.

The war in Gaza understandably has emotions running high, but abusing and distorting important and grounded concepts for the purposes of political attacks helps no-one.

All sides would do well to understand international law as it actually is. As Prof. Zhu puts it:

"Often dismissed as airy-fairy nonsense, international law is actually a supremely pragmatic branch of legal science."