By Line Reguig
Disclaimer: This article provides a legal analysis based on publicly available information, official statements, and established principles of international law. It does not represent a determination by any court or international body.
As of early 2026, the Middle East is sinked in a poly-crisis that has pushed the boundaries of the United Nations Charter to their breaking point (again). The current state of hostilities is not the result of a single isolated incident, but rather a systemic breakdown of regional deterrence. The intersection of the collapsed nuclear diplomacy, the intensification of the shadow war between Israel and Iran, and the institutionalized presence of US forces in Iraq and Syria has created a perpetual cycle of kinetic exchanges.
This environment presents, again, a fundamental challenge to international law; how to regulate a conflict where the lines between states acts, proxy maneuvers and “pre-emptive” defenses are increasingly blurred.
- The fragility of the prohibition on force
The legal point of departure remains the Article 2 (4) of the UN Charter, which establishes the principle of territorial integrity. However, the interpretation of the Article 51 exception, i.e Self-defence, has become a primary site of legal combat.
Recent history, including the drone strike on Tower 22 (US military base), in 2024 and the preceding and subsequent Israeli strikes on Iranian diplomatic or military personnel, illustrates a widening gap in legal theory. The International Court of Justice historically requires a high threshold for an armed attack. Yet, current state practice by the US and Israel suggests a shift toward a “cumulative threat” model, where a series of smaller incidents is used to justify a large-scale military response, a theory that remains highly contested by a majority of international law scholars. Moreover, any defensive response must comply with the customary requirements of necessity and proportionality, yet the rising number of civilian casualties suggests these principles are increasingly ignored.
- The triangle of attribution and proxy warfare
One of the central pillars of this conflict is the law of state responsibility. In fact, under the effective control standards established by the ICJ in the case Nicaragua v. United States of America, a state is only responsible for the acts of non-state groups if it directs or controls the specific operation. Therefore, on one hand, the US and Israel tend to bypass the effective control stated by the ICJ in favor of the overall control. Both argue that providing the Axe of resistance by providing the means to conduct strikes, Iran bears legal responsibility. And if host states (Syria, Lebanon and Iraq) can’t stop these groups, they automatically lose the protection of their sovereignty.
On the other hand, Tehran maintains a strategic ambiguity affirming that regional groups act out of their national/ideological interests. Iran argues that without any proof of a direct command for a specific strike, any attacks against Iranian soil or personnel constitutes an independent act of aggression.
- The escalation cycle: from proxies to direct confrontation
The beginning of 2026 has marked a continued shift from long-standing proxy confrontation to more direct forms of state-to-state engagement between Israel and Iran. Traditionally, their rivalry unfolded through intermediary armed groups such as Hezbollah in Lebanon, Hamas in Gaza, and various militias in Iraq and Syria, allowing both states to avoid direct military confrontation. However, this structure has progressively eroded. Since at least 2023–2025, Israel has increasingly conducted and publicly attributed strikes targeting Iranian military personnel and infrastructure linked to the Islamic Revolutionary Guard Corps (IRGC), particularly in Syria. These operations have included repeated attacks on IRGC officers and logistics hubs used to support regional armed groups, illustrating a more direct form of engagement with Iranian state assets rather than solely with non-state proxies.
- The Global Ripple Effect and the European Dilemma
The erosion of established constraints on the use of force cannot be understood as a merely regional phenomenon. Rather, it points toward what international legal scholarship has termed a “Grotian moment,” namely a period in which foundational norms of the international legal order are reshaped through evolving state practice rather than formal amendment or treaty-making.
Within this shifting landscape, Europe occupies a structurally ambivalent position. While remaining closely aligned with the United States in security and defence matters, the EU has consistently articulated a commitment to a restrictive interpretation of the legal basis for the use of force. EU institutions have repeatedly reaffirmed that any recourse to force must be grounded in the framework of the United Nations Charter, in particular Article 51, which limits the inherent right of self-defence to cases of an actual or imminent armed attack.
This position has been reflected in official statements by senior EU representatives. Indeed, Josep Borrell has repeatedly emphasized the centrality of a “rules-based international order grounded in international law,” cautioning against interpretations that risk circumventing established legal thresholds. Likewise, Olaf Scholz has underscored the importance of avoiding escalation and ensuring that any use of force remains firmly anchored in international legality.
The EU’s cautious posture reflects not only legal orthodoxy but also strategic calculation. The progressive normalization of doctrines such as “anticipatory self-defence” or the “unwilling or unable” test remains highly contested within international legal discourse.
Their broader acceptance would risk lowering the threshold for the unilateral use of force, thereby enabling their invocation by other states across different geopolitical contexts, including Eastern Europe and the Indo-Pacific.
In this respect, Europe’s reluctance to endorse or participate in legally ambiguous uses of force should be understood not merely as political caution, but as an effort to preserve the normative integrity of the jus ad bellum regime. The stakes extend beyond any single conflict: they concern the long-term resilience of a legal order upon which European security itself is structurally dependent.
A law of power or a power of law ?
The legal ambiguity surrounding the 2026 escalations is not an accident; it is a structural byproduct of a paralyzed multilateral system. Beyond the immediate implications for the prohibition on the use of force, this erosion signals a deeper crisis affecting the future of international treaty regimes as a whole. As compliance with foundational norms of the United Nations Charter weakens, a broader process of normative spillover emerges, undermining the credibility and effectiveness of other legal frameworks built on the same assumptions of good faith and reciprocity.
This dynamic is particularly visible in the field of migration governance. Legal protections enshrined in instruments such as the 1951 Refugee Convention and reinforced through frameworks like the Global Compact for Safe, Orderly and Regular Migration depend not on coercive enforcement, but on states’ continued commitment to multilateral norms. As the use of force becomes increasingly detached from clear legal justification, a parallel normalization of exceptionalism risks emerging in migration policies, with states invoking security imperatives to circumvent obligations relating to asylum, non-refoulement, and fundamental rights protections.
In this context, the absence of a functioning Security Council or effective judicial arbitration does not merely shift the balance from the Power of Law to the Law of Power; it accelerates the fragmentation of the international legal order across multiple domains. As coercive practices become embedded in diplomatic conduct, the prohibition on force risks being hollowed out, transforming from a binding norm into a flexible instrument of strategic management.
For the international community (if it can still be described as such) the existential question is no longer confined to identifying the aggressor. It extends to whether the current legal framework retains the authority to define, constrain, and ultimately protect. Nowhere is this question more urgent than for migrants and displaced populations, whose rights remain contingent on a system whose normative foundations are increasingly contested.
