Russia is an aggressor and condemned, and Israel has ‘a right to defend itself’, say European and North American leaders. These politicians with access to subject-matter experts should be knowledgeable enough to avoid misleading the public on these matters. Astoundingly, they still do, and subvert international law in the process.
Judging from these leaders’ statements, one might think the issue of ‘Israel’s right to defend itself’ is straightforward. It is a truism that every nation has the right to defend itself against military aggression. In Israel’s case this assertion arguably misrepresents international law, propagates a fiction, and undermines the international system. Comparison of the assessment of Russian and Israeli military operations illustrates how politicians’ blanket statements may confuse the public on the question of whether a crime of aggression has been committed.
The crime of aggression is taken seriously in international law. The International Military Tribunal of Nuremberg described a war of aggression as “not only an international crime, it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of all of them”. It is a grave charge. The UN Charter prohibits “the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”.
Prima facie, Russia’s annexations and invasions certainly invite investigation for a contravention of international law in Crimea in 2014 and again in its invasion of Ukraine in 2022. The crime of aggression seems to have taken place. However, Russia argued that the potential entry of Ukraine into NATO would bring nuclear armed adversary forces up to Russia’s western border. From Russia’s perspective, Crimea was occupied out of fear that the naval-base at Sevastopol would fall into NATO’s hands. The further invasion of Ukraine in 2022 derived from Russia’s conclusion that the presence of NATO forces within 500 kilometres of Moscow would be intolerable, and inevitable unless Russia acted pre-emptively.
Similarly, Israel’s pre-emptive strike on Iran was prompted by the perceived threat to Israel posed by Iran’s nuclear weapons program. It is widely accepted that Iran coordinated and resourced forces hostile to Israel in Gaza and Lebanon, which led to the initial exchanges. Reported developments in Iran’s nuclear program purportedly raised Israeli concerns about an existential threat from a state that is openly opposed to Israel’s existence. The Israelis concluded that Iran’s acquisition of nuclear weapons looked inevitable. So Israel acted, launching strikes on Iran starting on 13 June 2025. On 21 June 2025 the US brought the conflict to an end after launching its own, unilateral attacks on Iran’s nuclear facilities.
While Israel’s actions were not entirely unquestioned by the media, UN bodies, think tanks and others, many European and North American political leaders comfortably fell back on the justification that Israel’s right to defend itself extended to preventing Iran from acquiring a nuclear weapon. Indeed, Germany’s Chancellor went as far as to say that the strikes on Iran were ‘dirty work Israel is doing for all of us’. These politicians have also largely bitten their tongues while Israel has illegally annexed parts of Syria, has attacked regional states, and appears to be committing ever more grievous crimes against humanity in the occupied territories.
It appears to have been equally easy for most European and North American political figures, key think-tanks and even UN bodies to coalesce around a response to Russia’s actions. The security issues raised by Russia, which remain central to Russia’s contemplation of a ceasefire or peace negotiations despite the threat of more onerous sanctions and mounting costs, have been dismissed. The Europeans, for the most part, have settled on some alternative revanchist explanation for Russia’s actions. The conflict has been described as a war of aggression, threatening the sovereignty of Ukraine and other states. Russia has been accused of committing war crimes, and crimes against humanity in the Russian occupied territories.
Of course, politicians and the political establishment are not responsible for determining whether the crime of aggression has been committed, or for enforcing the prohibition, and prosecuting the individuals responsible. States have no formal legal role in any of those functions. The administration of international law falls to three entities: the International Court of Justice (ICJ), the United Nations’ Security Council, and the International Criminal Court (ICC).
The UN Charter states “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken … to maintain or restore international peace and security”. The Council can refer matters to the ICJ.
The ICJ competence includes all matters specifically provided for in the UN Charter or in treaties and conventions in force. Its jurisdiction covers: any question of international law; the existence of any fact which, if established, would constitute a breach of an international obligation; and the nature or extent of the reparation to be made for the breach of an international obligation. Its decisions are founded on international custom (as evidence of a general practice accepted as law), treaties, and on the general principles of law recognised by ‘civilised nations’.
Under the Rome Statute, the ICC has jurisdiction over prosecutions of individual state officials responsible for planning and ordering aggression. Unlike other crimes in international law, such as war crimes and crimes against humanity, the consensus is that only leaders, that is policy makers, can be held accountable when a state commits the crime of aggression. In the absence of a previous ICJ finding, the ICC may have to make a determination of state responsibility for aggression as a prerequisite for the finding of individual responsibility for the crime aggression. The ICC has promulgated the elements of the offence of aggression.
The point? The European and North American political class generally claim to be promoting and defending international law. It’s a worthy goal, and generations of serious, capable, and dedicated scholars, diplomats, officials, and politicians have striven to create a legal regime that would outlaw the wars of aggression that killed millions in the 20th century and destroyed the livelihoods and lives of millions more.
Of course, there are inherent problems in the international legal system that often make it inefficient, and often ineffective. Russia’s veto power, and America’s use of the veto in support of Israel, make a farce of the Security Council’s role in identifying aggression. The ICJ is hampered by the refusal of states to recognise its jurisdiction and the lack of enforcement power, unless the Security Council accepts and acts on the ICJ’s advisory opinions. The ICC is hampered by the failure of major powers to sign on to the Rome Statute, or that have never ratified it, restricting significantly its jurisdiction and capacity to find nations that will act on its warrants.
The system is not perfect, but still optimists seek its continued improvement. However, with the simple misleading assertion that ‘Israel has the right to defend itself’ the whole regime is undermined. International law is further weakened when, in the absence of the proper authorities, unauthorised judgements are pronounced. A determination of the existence of aggression, and allocating guilt for initiating it, should not be a political judgement dependent on the protagonist’s alignment. All aggression is criminal and all nations must be subject to the same standards if international law is to mean anything.
The presence of hypocrisy is most corrosive of international law. Political leaders have a moral and legal obligation not to consciously sabotage its foundations. They don’t seem to care.
Copyright Mike Scrafton. This article may be reproduced under a Creative Commons CC-BY-NC-ND 4.0 licence for non-commercial purposes, and providing that work is not altered, only redistributed, and the original author is credited. Please see the Cross-post and re-use policy for more information.