The essence of law is its generality. We appeal to the “rule of law” when we want to judge particular cases according to general norms. This is a fundamental truth for any kind of law, from municipal bylaws to international humanitarian law. A law is a general rule, made in a general spirit with a general application, to borrow from Jean-Jacques Rousseau. A decree, on the other hand, deals only with the particular. Rousseau is adamant on this distinction. What procedurally might look like the enactment of a law isn’t actually creating anything legal if it concerns itself only with a particular case.
Generality can even help us determine what a rule is just by watching it applied. Consider the following thought experiment. A traffic cop stands by the side of a road with a radar gun. Five cars pass at five different speeds: 50 mph, 55 mph, 60 mph, 70 mph, and 80 mph. Two are pulled over and three pass by unhindered. Can we determine what the relevant rule is?
Well, if the cars doing 50, 55, and 60 pass, and the cars doing 70 and 80 are stopped, we could safely assume an enforced speed limit that is higher than 60 and lower than 70, maybe even exactly 65. If the cars pulled over were those doing 50 and 80, we might assume that there is a minimum speed somewhere around 55 and a maximum somewhere around 75, but this would be a bit more tenuous.
If we observed only the cars doing 55 and 70 being stopped, but not the one going 60, we might assume there was no rule at all, or at least no rule relating to speed. If, in this case, we noticed that the cars that were pulled over had black drivers and the other three white drivers, we could conclude that there was entirely different sort of rule governing the policeman’s behavior.
Trying to determine customary international law by the reactions to different states’ behaviors, especially in war, works the same way. It just so happens that one driver always seems to be violating the speed limit, which changes constantly, sometimes doesn’t exist, and is calculated according to made-up retroactive conditions.
When it comes to Israel, thunderous intonations about “international law” serve two rhetorical functions. The first is to deflect any suspicion of bias against Israel. The implied claim is that the emotional outbursts that accompany any Israeli action aren’t because of a special animus towards Israel—or heaven forbid possibly even latent anti-Semitism—but rather the neutral application of general principles of the international order in place since 1945 if not even before.
The second rhetorical function is almost never acknowledged, but its power is that everyone knows it’s there. Our most salient frame of reference for violators of international law, our dominant image of “war criminals” and “international tribunals,” is of course the Nazis. Attaching this terminology to any and every military action by Israel over the course of decades speaks to the fantasy of hauling the Jews before a kind of tribunal where their guilt can finally be established.
Perhaps the most misused term from the universe of the laws of war is proportionality. Every military action that Israel has conducted in my lifetime has been held to be “disproportionate.” Normally the case is made by comparing casualty statistics, and indeed in all of Israel’s wars the number of Israeli casualties has always been significantly lower than those of its enemies. It is rare that the side that wins a war has higher casualties than the side that loses, and Israel has for the most part emerged with the upper hand in all of its military confrontations with its Arab neighbors, even those that began with what for Israel were the worst possible opening conditions.
When modern armies face guerrillas or terrorist organizations, the death toll also tends to be lopsided, even in cases where the modern armies are defeated. The morality of the cause is rarely assessed by the body count, nor is the legality of the means employed. The Allies killed many more German and Japanese combatants than they lost themselves, and many, many more civilians. Even more lopsided have been the casualty counts in wars conducted by Western states since the end of the cold war: in ex-Yugoslavia, Iraq, Panama, Mali, Sierra Leone, and elsewhere.
In any case, the comparative casualty count doesn’t have much to do with the legal definition of proportionality, which, as the International Committee of the Red Cross spells out, requires that “the effects of the means and methods of warfare used must not be disproportionate to the military advantage sought.”
This legal concept is certainly confusing and far from intuitive. To an untrained ear, it really does sound like it might be a matter of comparing casualty counts; even to a trained ear, the concept is difficult to work with. Collateral damage from a military operation must be proportional to the intended military outcome—but what is the desired proportion? The easy examples that are usually offered in legal analyses—wiping out a village to locate one fighter is obviously not proportional—look nothing like the dilemmas that commanders in the field face. What to do about a weapons facility hidden in a home? Should soldiers pursue attackers not in uniform in a residential area? Should a high-value military target located somewhere with reliable but not certain intelligence that no civilians are nearby be attacked? What about crucial military infrastructure that also has a secondary civil application? Resolving these dilemmas is difficult; and with intelligence that might be faulty and the general fog of war and a lack of sympathy for the side they are fighting against, they might look very different in a reckoning after hostilities end, outside the theatre of combat, by a nonpartisan observer.
The first legal term from international law to be deployed against Israel in such a unique manner, even before proportionality, was collective punishment. The temptations that this term offered are a small version of what the entire discourse seems to relish in—the thrill of throwing a term that immediately conjures up Nazi associations at the Jewish state.
Collective punishment is normally defined as penalties, including criminal and administrative punishments or fines, imposed on a group of people for actions committed by someone else.
For an occupying army to round up all the civilians in a village where they suspect a guerrilla attack originated and then execute some or all of them, fully aware that the people being killed have nothing to do with the attack, is a form of collective punishment. The Germans frequently resorted to this tactic in occupied Poland.
When it comes to Israel, however, this term has assumed a new definition, roughly a military action that affects anyone not directly involved in the action that the army is reacting to. The impulse here is that armed action against Israel is a form of criminal activity, not military activity, and that Israel must therefore react with some kind of criminal justice—locating the perpetrator, arresting him, putting him on trial. To state the obvious: this is not how any army prosecutes a war. No army only targets enemy soldiers who were directly implicated in previous hostilities. And no army avoids targeting regime and infrastructure targets that degrade enemy capacities to continue the fight because this might adversely affect the enemy country as a whole. On the contrary, that is usually the point, and as long as the operation adheres to the principles of proportionality and discrimination doing so is considered a normal act of war.
Collective punishment was, in so many ways, the first temptation of those building the special dictionary for Israel. It was part of the discourse around Israel already in the 1960s. It wormed its way into the mainstream in the same way later accusations would: first it was repeated by activists in a variety of improbable contexts; then academics took it up; and finally it is amplified by media outlets that had no choice but to reproduce faithfully what relevant experts are saying about the situation.
You can search the archives of the New York Times going back about 100 years. The phrase “collective punishment” appears 633 times, of which 447 are in reference to Israel. There are two things going on, and it’s worth separating them conceptually. One is the obsessive attention to Israel and its perceived sins. Some of the deeds referred to merit consideration as possible claims of collective punishment, most notably the Israeli tactic of demolishing the houses of the families of terrorists killed while carrying out attacks. But that still doesn’t come close to explaining why there are so many references to Israeli actions and so few to actions by states and militaries in so many other armed conflicts that were raging over the same period.
The second thing is less noticeable, but in many ways even more significant. It is not so much the outsized critical attention that is unique to Israel but rather the conceptual creep of any state sin when applied to Israel. Because while some of the deeds the Times references are to acts that might be regarded as collective punishment, many are to normal acts of war. Actions that many armies in conflict undertook in the same period—some justified, others criticized, others still entirely ignored—aren’t labelled with a name evoking Nazi crimes, except when they are carried out by the Jewish state.
Proportionality and collective punishment are both technical terms that are easy to misuse as moral terms in everyday speech, which is perhaps why they lend themselves so easily to bespoke redefinition.
Occupation is a bit different. Occupation isn’t a moral term. It describes a (temporary) legal status caused by war. When the army of one state holds territory that previously belonged to another state, that territory is considered occupied until a new political arrangement is established. A territory is normally occupied during or immediately after a war. Occupations are not illegal, but an occupying army has certain legal obligations as spelled out in two bodies of international law, the 1907 Hague Convention and the more detailed 1949 Fourth Geneva Convention.
Moreover, occupations aren’t normally thought of as causes of war, but rather as one of the consequences of war. In the case of Israel and the territories it conquered from neighboring Arab states, this was clear in the immediate aftermath of the war but became obscured as time passed. Territories were occupied because Israel won a war its enemies had instigated and in which its enemies’ stated goal was the destruction of Israel. The occupation continued because rather than make peace with Israel and recover territories, these defeated enemies, at least initially, refused to engage in any kind of negotiations with it that might end in full recognition. Where this refusal ended, as for example with Egypt in the 1970s, the occupation came to an end too.
In contrast, the refusal of the Palestinians in 2000 and onward to agree to a final-status peace agreement with Israel that involves a full reconciliation—recognition of Israel’s legitimacy as a Jewish state and termination of claims—has frozen in place the complicated status quo in the West Bank of the “interim” accords of the 1990s. In practice, the de-facto arrangement since around 2002 is even worse for the Palestinians than that of the interim accords, as not only does the IDF still fully occupy 61 percent of the territory (what’s known as Area C), but it also regularly enters areas which under the accords are supposed to be under full Palestinian security control.
In the Gaza Strip, the divergence from the interim accords went in the other direction. The interim accords saw Israel withdraw from roughly 80 percent of the Strip in 1994. In 2005, Israel unilaterally left the remaining 20 percent and uprooted all the Israeli settlers who had been living there—actions taken outside the accords. In November of that year, a multilateral agreement among Israel, the Palestinian Authority, the U.S., and the EU was reached governing movement and access from Gaza. It included provisions for a secure crossing with Egypt at Rafah, safe passage to the West Bank, and the construction of a seaport in Gaza. Implementation was difficult, especially after the election of a Hamas-led government in 2006. The agreement became a dead letter a year later when Hamas effected a coup in Gaza and the European border inspectors fled.
That happened in 2007, exactly 100 years after the Hague Convention, the one that stipulated that “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” This definition stood for a century and was never questioned and never revised by any international treaty or authoritative legal finding of any kind. Almost nothing about our reigning conceptions of international order, war, or sovereignty, remained unchanged through two world wars, decolonization, a cold war, and all the other upheavals of the last century, but this definition stayed.
Until, that is, Israel completely withdrew from Gaza, and suddenly, by almost complete consensus, the entire community of legal “experts” and humanitarian “activists” began inventing new custom definitions of occupation for the express purpose of considering Israel an occupier of Gaza.
Israel controls the borders of Gaza, we were told, which is only partially true. Israel does control its side of its border with Gaza, as any country in the world controls its side of a border, but not, for example, Gaza’s other border with Egypt. Israel, the legal experts add, maintains a naval blockade on Gaza. This is absolutely true, but a blockade is an act of war, governed by the laws of war, and entirely applicable as long as the governing authority in Gaza was either not preventing the firing of rockets on nearby Israeli cities (as was the case until 2007) or actively responsible for it (as has been the case since 2007).
The point of all this is not the one-sidedness of it all or even the hypocrisy. A conflict will always draw out hypocrisy from partisans aligned with various sides. And Israel was far from blameless in the problems of Gaza, nor were all its decisions and assessments wise or effective.
The point is that in making a legal argument, one must bring forth an actual legal premise—that is, a general norm that can be applied to specific cases. But the word “occupation” wasn’t being used in any legal sense; rather it was a nice way of assigning all moral culpability to Israel—for Israel’s actions, of course, but also for any misdeeds of the Palestinians, indeed for the general state of the entire conflict.
This and this alone was why inside the world of self-appointed guardians of global moral rectitude the word occupation was something that could not be yielded. This is why the new definitions—something, anything—were thrown into use so quickly without any care for consistency. For if a territory is occupied because its border with a hostile neighbor is closed, a great deal of the globe is occupied. If a territory is occupied because there is a blockade on it, nearly every country at war in modern times can be said to have been under occupation. (In fact, given the Houthi blockade of the Red Sea, Israel could by this logic be considered occupied by Yemen.) And if a territory is occupied because a powerful nearby military could enter it but hasn’t, there is scarcely a piece of land right now that isn’t “occupied.”
But this definition isn’t meant to apply elsewhere. It is meant only for Israel. It is not legal or in any sense normative. There is no general rule being applied to Israel in the sense that Israeli cars are driving above the speed limit and others are not.
There is, however, a clear “rule” being applied, one that parallels the example of the drivers being stopped not so much because of how fast they were driving but because of who they are.
The Final Term
In the world of global activists, there is a near-theological devotion to the postulate that Israel is uniquely evil, standing in the way of global brotherhood, and that good people everywhere would see that clearly if networks of powerful people weren’t using their money and influence to distort the truth and silence critique. The only way to make this pathology sound like a reasoned political program is to resort to international law. The argument is: there are laws and Israel is violating them, therefore my consuming hatred of Israel is just an application of these higher principles. It is necessary to stick to this conceit, otherwise their obsessive pathology starts looking like, well, an obsessive pathology.
As I showed in an earlier essay on Jerusalem, the legal argument often makes no sense on its own terms. In the case of Jerusalem, the critique of Israel rests on four putative legal norms— internationalization, armistice line, final status, status quo—which nowhere else exist and which actually contradict each other, each one applied selectively for a different argument, and always in a way that makes the Israeli position not just unconvincing or inadvisable or imprudent but somehow criminal.
For years it has been blindingly obvious that the next term to be colonized for the benefit of anti-Israel activism would be genocide. After lurking at the fringes for some time, that is precisely what has happened since October 7. Not coincidentally, this rhetorical escalation was brought about by the Hamas operation, which more than any other incident in the century-long conflict over Palestine actually looked genocidal—Einsatzgruppen with GoPros.
Note what I say. It was the original Hamas attack, not the Israeli response, that brought the genocide accusations—accusations of Israeli genocide against Palestinians—to the mainstream. These accusations preceded the Israeli military operation in Gaza and rested on the flimsiest of evidence, like when the Israeli minister of defense said, “We are fighting human animals.” In other words, at a moment when Israel was fighting, in Israel, those who had burned, raped, mutilated, and kidnapped Israelis—when Israeli forces were still clearing those terrorists out of the Israeli territory they had invaded on the seventh of October—such words were cast as a dehumanization of the Palestinians as a people and proof of genocidal intent. We “cannot stand by as Israeli officials engage in genocidal language and describe genocidal intent against Palestinians for the actions of Hamas,” wrote Karen Attiah of the Washington Post on October 13, long before Israeli forces entered Gaza. This though the minister’s words stand out not a bit from the descriptions Western leaders made of forces they fought in ISIS or even state leaders and armed forces in Iraq, Afghanistan, Somalia, Serbia and elsewhere. Joe Biden called ISIS “barbarians” at the launch of the Obama administration’s anti-ISIS operation in 2014, an operation that came in response to attacks against Americans that were tiny compared to the October 7 massacre; George W. Bush referred to Al Qaeda as “barbaric criminals” on the day military operations against Afghanistan commenced on October 7, 2001.
The claims of Israeli genocide in Gaza, however improbable, are once again couched in scholarly language and legal principles that are invented for Israel and Israel alone. Were any of them applied to any other theater of conflict, there is scarcely a military action in the world that couldn’t be classified as genocide. In this, they are following a well-worn tradition, one that thinks itself invisible, but is actually transparent.