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.