Statehood and sovereignty: How Middle East conflicts challenge International Law - comment

“The state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory,” Max Weber said in 1918.

But what happens when the state does not boast a monopoly on the legitimate use of violence?

What happens when, for instance, there are two monopolies on violence in one state – one regular army and another paramilitary organization that functions as an army in every respect and even bullies and threatens the regular army’s forces, as is the case in Lebanon?

Or, for example, a state whose government is controlled by a rebel organization loyal to another country but speaks in the name of the state it has taken over, as is the case in Yemen?

Or, for example, a political entity split in two, when some countries recognize it as a state despite its unclear borders, and two different parties with five different armies manage different parts of it, each claiming to speak for the entire state, as is the case with the Palestinians?

Are these states? Does international law apply to them?

One of the favorite claims of the UN rapporteur for human rights in the Palestinian territories, Francesca Albanese, is that Israel has no right of self-defense against Hamas, according to her reading of international law, since Hamas is a non-state actor, and international law permits “orderly” states the right to self-defense only when attacked by other “orderly” states.

The same envoy who just two years ago implored Hamas leaders, “You have the right to resist,” is now spreading the doctrine that Israel has no right of self-defense against Hamas. In other words: Hamas should attack, and Israel should never have the right to retaliate.

Even if we do not follow Albanese’s distorted approach, which calls on the aggressor to kill and decrees that the side attacked must remain silent, it is clear that the so-called “international law” falls short of providing legal tools to deal with a situation like Israel’s and, more broadly, of all law-abiding states in the West (since most nondemocratic countries do not follow international law anyway).

They call this “asymmetric warfare.” The same warfare that was able to bring down the Twin Towers with a small array of weapons has now reached the stage of legal warfare: Terrorist organizations are “allowed” to massacre partygoers, burn entire families alive, kidnap infants and the elderly, and rain thousands of rockets on populated areas – but the law-abiding state is not allowed to respond.

Even when the law-abiding state allows hundreds of trucks loaded with humanitarian aid during wartime; even when the law-abiding state allows passage of civilians from an enemy entity through its territory; even when the law-abiding state issues advance warnings about bombings, thereby losing its critical element of surprise; even when the law-abiding state declares to the world that the enemy is not the people living in Gaza but the terrorist organization that carried out the worst massacre of the Jewish people since the Holocaust – even then, this state is vilified as supposedly committing genocide, its leaders face arrest warrants, and its allies turn their backs on its war against terrorism, which is their problem, too, not just ours.

Indeed, terrorist organizations, the non-state actors of our region, expertly exploit these loopholes in the law. Led by their patrons in Tehran and Doha, they play a game that makes it difficult for Israel as a proper law-abiding state to respond in any way, especially as it is under a much larger magnifying glass than any other country in the world – in a way that can only be explained as an irrational obsession with the actions of the Jews.

Israel needs a new approach

Iran and Qatar learned from the past mistakes of Arab states. In the past – when Israel fought state against state, jet against jet, tank against tank, and soldier against soldier – it was easier to make the case, the laws of war were clear, and even the Red Cross, which has failed horrendously for more than a year with the issue of Israeli hostages, proved somewhat effective.

This is why Tehran and Doha, which in the name of political Islam are leading a new crusade to destroy the State of Israel, have turned to proxy wars and partial takeover of state fragments instead of fighting a direct war. This way, they evade international law and impose on Israel a war against armed militias fighting against civilians and among civilians – instead of against states and regular armies, as was the case in the past.

These terrorist organizations – and Tehran and Doha, which pull their strings – will not easily give up. If there is one thing we learned from the October 7 massacre, it is that when the enemy says it intends to slaughter you, you must take its words seriously and not wave them off dismissively.

Therefore, as long as the threat exists, and Iran and Qatar continue to fund the enemies, there will be no choice, and Israel will have to stand guard and take the initiative at all times.

However, military initiative and cunning are not sufficient on their own. Military initiative, even when leading to enormous achievements, is ultimately tactical and affects the battlefield, but not the international arena.

Even if we are destined to live on guard, there is no escape not only from brilliant military actions but also from deep and complementary diplomatic initiatives, similar to the 1949 ceasefire agreements that arose from the defeat of Arab armies, or the Potsdam Agreement at the end of World War II. As then, so now, the diplomatic initiative is complementary to the military one.

The current foreign minister must lead a true revolution in Israel’s foreign service and diplomatic initiative. Until now, the prime minister and his emissaries have given the impression that the Foreign Ministry is more of a burden than an asset for them; a source of potential trouble whose loyalty is questionable at best.

The prime minister, a person for whom centralized micromanagement of matters close to his heart is a central hallmark, preferred private envoys over building a professional and excellent foreign service. Dore Gold, Meir Ben-Shabbat, Yitzhak Molcho, and now Ron Dermer – all outstanding individuals, loyal public servants, and first-class diplomats – were forced to carry out the work of Israel’s foreign service.

EVEN OUTSIDE the bureaucratic level, foreign ministers were not always chosen from a diplomatic background, as could well be seen from the previous foreign minister’s tweet rampages, some of which were embarrassing at best.

Now, with the arrival of a new foreign minister who is said to have good strategic vision, it is time to make Israel’s foreign service great again. Just as in the military apparatus, many are awakening from the conception of passivity and defense and understand that Israel must transition to initiative and offense, the same is true of a political-legal campaign. A row of professional diplomats and legal professionals must be positioned to lead renewed political and diplomatic initiatives and think outside the box, strengthen existing alliances, and create new ones.

There is no shortage of ideas. Central Asia and the Balkans are dealing with the rise of Islamist radicalism, so let’s collaborate and learn from each other.

In the Middle East, there are minorities heavily affected by the Islamic Republic and the Muslim Brotherhood, such as the Kurds or the Armenians, so let’s weave alliances, over and under the table, and fight legally and diplomatically against the ills of Qatar, Turkey, and Iran.

Let’s establish Israeli cultural centers similar to the German Goethe Institute or the Spanish Cervantes Institute to help reduce alienation from Israel and the Jewish people.

For those who dare to dream, perhaps Israel should even lead an initiative, through its allies in the Western world, to expand international law and anchor rational war laws that provide protection in the case of warfare against fragmented states with multiple armies and militias – not just in orderly states, which almost do not exist in this region.

Let’s channel the frustration from UNRWA and its terrorist-infested cadres and curricula to productive work on de-radicalizing the Palestinian educational system and enhancing chances for peaceful coexistence.

We are in a critical time. Israel’s ultimate goal was always to just exist and be a free people in the land of Zion and Jerusalem, as the anthem goes. The enemy’s end game has always been expansionism and the fight to collapse the Jewish state.

If we are destined to live on guard, we must do so in all areas where we are attacked and not limit the struggle to the military domain alone. Let’s break out of that conception and move from defense to offense, not letting them have a moment of rest, just as they have not let us rest for long decades.