Readers, you all have read about the Hamas surprise attack on Israel on Saturday and probably seen the distressing videos and images of atrocities including the murder, kidnapping, and assault of civilians and the celebrations that followed. Saturday was the saddest day for the Jewish people that I can remember in my lifetime. I think the days that follow will be sad days, too. They will be sad because we will all be witnesses to a war that, like all wars, is going to cause a lot of death and destruction. And I fear they will be sad because we may see that the legal and moral attitude towards the Jewish state of many, including many Western elites, while it will be subdued for a while in light of the obvious barbarism of the attacks on Saturday, may not change in the near term. I fear that as Israel prosecutes the war against Hamas, she will come to be seen as the villain, or at least a “pox on both their houses” villain.
I am not an expert on public international law, and so I don’t really write about the Israel/Palestinian conflict from a legal perspective (though I have departed from that rule on rare occasions, probably not in a way that would stand up to academic scrutiny). I am not going to address the law here. But I do want to make a plea for those people who read Letters Blogatory and who are experts on public international law to reflect on the obvious disconnect between the way the international law community thinks about Israel and what is or should be clear to people of good will about the history and morality of the situation. Somehow over the past several decades, probably since the Six-Day War at least, there has been a “black is white” redefinition of terms and ideas that has been used to undermine the legitimacy of the Jewish state and its reactions to groups like Hamas.
- We hear that the Jews are not indigenous to the land of Israel, even though we satisfy all the criteria usually used to discuss indigeneity, with the exception that unlike nearly any other indigenous people, the Jews have been successful in becoming the dominant group in its native land again. Sometimes we hear from the Palestinian leadership that the reason the Jews are not indigenous to the land of Israel is that we are not the “real” Jews but rather Khazars or Europeans or whatever. Relatedly, we hear that Israel is a “settler-colonial” state, even though the Jews in Israel mostly fled there from elsewhere in the Middle East or Europe in the last century, and even though the Israeli state is plainly not a colony of some other state or group outside of Israel.
- We hear that Israel is an Apartheid state like the old South Africa, even though a day like Saturday reminds us of the security reasons why Israel built the physical security barriers it built after the Intifadas, even though Israeli Arab citizens, while they face the kind of difficulties ethnic minorities face in many countries including our own, have full civil and political rights—and even though the Jews were oppressed minorities in the surrounding Arab states for centuries and probably would be today if there were any Jews left in those countries that, before the founding of Israel, had large Jewish populations.
- We hear that the point of the murder, kidnapping, and assault was to defend the Al Aqsa Mosque in Jerusalem, even though before the 1967 war, when East Jerusalem was ruled by Jordan, neither Jews nor Arab Israelis were allowed access to the Temple Mount while since then, Israel has left the site under the authority of the Islamic authorities, subject to security controls that do sometimes interfere with Muslim freedom to worship at the site when there is a threat. Sometimes we hear from the Palestinian leadership that the Israeli position on the holy sites is wrong because there never was a Jewish temple on the Temple Mount.
- We hear that Hamas is resisting Israel’s occupation of Gaza, even though Israel’s military left Gaza almost twenty years ago, and even though it evacuated its citizens from Gaza at that time. Yes, Israel (and Egypt) have continued to blockade Gaza since Hamas took over the territory in an attempt to starve the terrorist group of weapons meant to attack Israel—a blockade that the Palestinian Authority in the West Bank supported at first and that obviously, in light of Saturday’s events, was insufficient to do what Israel hoped it would do.
- While issues about how to fight a war within the boundaries of the law in an urban setting are difficult, we see an overwhelming focus on supposed Israeli war crimes in a way that makes it hard, from the outside perspective, to take seriously what the experts have to say. Israel has it within its power to kill as many people in Gaza as it wants to kill. It doesn’t do it. Hamas expressly calls for the destruction of Israel, and when it gets the chance, as on Saturday, it kills or kidnaps as many civilians as it can and then celebrates. And Hamas, at least if you are willing to credit what the Israelis say, locates its military assets in civilian spaces, so as to shield themselves from attack or, if the Israelis do attack, to have a propaganda victory on the world stage. Of course Israel is bound by international law in wartime, as is Hamas. Of course there are extremists in Israel who probably are itching to commit war crimes. And of course, many experts do condemn Hamas for its indiscriminate attacks and its attacks aimed specifically at civilians.
As I said, I am not an expert on the law of apartheid, the law of armed conflict, the law of colonialism, the law of indigenous peoples, etc. So I can’t give authoritative views about what the law in those areas actually is. But what I can say, from what I hope is the perspective of someone who is committed to peace and justice between Israel and the Palestinians and to a Palestinian state alongside the Jewish state, “if this is what the law is, then I think there is something wrong with the law.” So I will end where I started, with a plea: I hope those who are experts will at least ask themselves whether expert opinion has gotten so far out of whack with ordinary right and wrong that it’s a good time to revisit the expert consensus.