It is the general opinion of most governments, legal experts, Middle East specialists, and the editorial boards of major English-language newspapers that the construction of homes for Jews in the West Bank is, at least in some cases, a violation of international law. Yet it is not at all clear why this should be so. Two recent books on disputed territories in international law, both of which pay special attention to Israeli settlements in the West Bank, address this subject in detail, and in the end side against Israel. But, writes Eugene Kontorovich in his review, their authors fail to appreciate the problem that the law in question has never been applied to any country besides the Jewish state:

Here is how law typically works. There is a question about the meaning of a rule. . . . Typically, lawyers would resolve the application of a rule to a case by looking at precedent—that is, the application of the rule to other analogous cases. Indeed, Friedrich von Hayek has said that the essence of law is that it is a system of general rules, made in advance of the cases to which it would apply, that is then applied prospectively to like cases.

But the question of the meaning [of the relevant clause of the Geneva Convention] is different from most legal questions because in practice, it has neither prior precedent nor future application outside of the Israeli context. Indeed, the esoteric world of belligerent-occupation law has become a de-facto language for talking about the Jewish state. [The operative clause] has become one of the most invoked provisions of the Convention, cited thousands of times by the United Nations. Yet every time it is mentioned, it is in the context of Israel, and Israeli Jews in particular.

[My] criticism of the methodology [of these two books] is not a claim about double standards, or international hypocrisy. A double standard is when there is a preexisting standard, that is then applied differently to like cases. . . . The objection here is not about double standards, but rather the non-application of the actual standard to the case at hand.

Even if the agreement with Hamas to secure the release of some, and possibly all, of the remaining hostages—and the bodies of those no longer alive—is a prudent decision for Israel, it comes at a very high price: potentially leaving Hamas in control of Gaza and the release of vast numbers of Palestinian prisoners, many with blood on their hands. Nadav Shragai reminds us of the history of such agreements:

We cannot forget that the terrorists released in the Jibril deal during the summer of 1985 became the backbone of the first intifada, resulting in the murder of 165 Israelis. Approximately half of the terrorists released following the Oslo Accords joined Palestinian terror groups, with many participating in the second intifada that claimed 1,178 Israeli lives. Those freed in [exchange for Gilad Shalit in 2011] constructed Gaza, the world’s largest terror city, and brought about the October 7 massacre. We must ask ourselves: where will those released in the 2025 hostage deal lead us?

Taking these painful concessions into account Michael Oren argues that they might nonetheless be necessary:

From day one—October 7, 2023—Israel’s twin goals in Gaza were fundamentally irreconcilable. Israel could not, as its leaders pledged, simultaneously destroy Hamas and secure all of the hostages’ release. The terrorists who regarded the hostages as the key to their survival would hardly give them up for less than an Israeli commitment to end—and therefore lose—the war. Israelis, for their part, were torn between those who felt that they could not send their children to the army so long as hostages remained in captivity and those who held that, if Hamas wins, Israel will not have an army at all.

While 33 hostages will be released in the first stage, dozens—alive and dead—will remain in Gaza, prolonging their families’ suffering. The relatives of those killed by the Palestinian terrorists now going free will also be shattered. So, too, will the Israelis who still see soldiers dying in Gaza almost daily while Hamas rocket fire continues. What were all of Israel’s sacrifices for, they will ask. . . .

Perhaps this outcome was unavoidable from the beginning. Perhaps the deal is the only way of reconciling Israel’s mutually exclusive goals of annihilating Hamas and repatriating the hostages. Perhaps, despite Israel’s subsequent military triumph, this is the price for the failures of October 7.