The insane brutality in Palestine lays bare the imbalance and the bigotries inscribed into the international legal order.

Amid the bloodshed and the bluster in the pulverizing of Gaza, something extraordinary occurred. The lawmaker Aida Touma-Suleiman, a Palestinian citizen of Israel, addressed the parliament’s winter session on the 16th of October with an unobjectionable plea to protect civilians on both sides. “Jews as well as Arabs, Israelis as well as Palestinians.” Determined not to let a good thought go unpunished, her colleague Merav Ben-Ari broke into a heckle: “There is no symmetry! There is no symmetry!” Ms. Touma-Suleiman managed to stand her ground enough to reaffirm: “Between children there is symmetry….a child is a child is a child.” To which Ms. Ben-Ari, taking the floor, responded,

The children in Gaza have brought this upon themselves. We are a peace-seeking nation, a life-loving nation. There is no symmetry.

Ms. Ben-Ari is not a party member of the ruling right-wing coalition. She is a member of what passes in Israel for the “liberal” and “centrist” opposition. Gone, apparently, are the days of “iron lady” Golda Meir, who blamed the everlasting conflict on the Arabs’ failure to “love their children more than they hate us.” No, no, this time around. It is the children who are wrong. At the opening of the session, the prime minister of Israel set the tone of the assembly:

This is a struggle between the children of light and the children of darkness, between humanity and the law of the jungle.

Even absent the creepy and game-giving reference to a struggle against children, and even by the standards of Likud, the statement is rather on-the-nose. One nearly can miss the overtones of the apocalyptic and the messianic in the reference (referring, as it does, to an end-times war of extermination prophesied in the Dead Sea scrolls) in light of the less esoteric, more old-school sort of racism in view. These are not the words of a measured, thoughtful statesman putting a respectable face on war. They are the fanatical, sweaty ramblings of a cartoon villain. The line in question, reproduced in English on the prime minister’s official social media, has since been scrubbed from Twitter; but that hasn’t stopped it from becoming something of a catchphrase in Benjamin Netanyahu’s press blitz for this latest butchering in Palestine. He has elaborated on this theme in writing for the Jerusalem Post, employing a rhetoric and vocabulary which his western backers may more easily identify with:

[W]e will not realize the promise of a better future unless we, the civilized world, are willing to fight the barbarians. Because the barbarians are willing to fight us…. In fighting Hamas and the Iranian axis of terror, Israel is fighting the enemies of civilization itself….

Today, we draw a line between the forces of civilization and the forces of barbarism. It is a time for everyone to decide where they stand. Israel will stand against the forces of barbarism until victory.

His principal benefactor in Washington, Joseph Biden, has done a little better than his client in making the same point sound less batty. His rendering:

[D]emocracies like Israel and the United States are stronger and more secure when we act according to the rule of law. Terrorists purposefully target civilians, kill them. We uphold the laws of war—the law of war. It matters. There’s a difference.

Indeed there is a difference. It is this. Almost as soon as news broke in the west of the October 7 “al-Aqsa flood” operation, led by the Izz ad-Din al-Qassam brigades of the Palestinian joint resistance, virtually every politician and public figure and respectable institution burst into a chorus of opprobrium. They spared no time or breath reaching the verdict that war crimes were definitely committed, that they were premeditated and purposeful, that terror and civilian death were the singular aims and ends unto themselves. Charges of lurid and sensational and unverified depravities, drawn from the wellspring of racial paranoia, were issued one after the other, and treated as fact on the flimsiest of evidence; less to establish what had happened, than to confirm what they’d prejudged. Words like “barbarous” and “savage” have reentered circulation. The ritual condemnation of Hamas has become the ticket price of saying anything in public about Palestine, one way or another. For anyone whose response to Palestinian militancy was not sufficiently reproachful, the tone-policing west was swift and ceaseless giving lessons about “humaneness” and “decency,” while the “indecent” left are scolded, and politicians are censured, for using slogans that may hurt Israeli feelings.

Meanwhile, the armed forces of Israel have dropped around 53,000 tons of explosive ordnance—the equivalent of multiple atomic bombs—on a captive population, whom they also happen to be starving. They have deposited flesh-searing chemicals on children. They’ve taken hospitals and mosques and schools and refugee camps and repurposed them into smoldering mass graves. About this, the Israeli government makes no bones. The defense minister calls his Palestinian adversaries “human animals,” who must be dealt with “accordingly,” and thus he has “released all the restraints.” The army’s spokesman admits their “emphasis is on damage and not on accuracy.” The U.N. representative declares open season on U.N. workers. The president rejects the very notion that Palestinians can be “innocent” at all. The heritage minister casually floats the possibility of deploying nuclear warheads (which Israel still, officially, does “not” have), all while members of the parliament talk fast and loose about “bomb[ing] without distinction,” “erasing” or “flattening” Gaza, punishing the whole populace and expelling them en masse. “Right now, one goal,” says Ariel Kallner, lawmaker of Likud: “Nakba! A nakba that will overshadow the nakba of 48!” The agriculture minister agrees: “We are now rolling out the Gaza Nakba.” The prime minster speaks in ominous tones of biblically sanctioned genocides. But have no doubts, the very serious experts tell us—don’t you see that Israel’s trying its best to comply with international law? It’s now politically and professionally toxic even to call for a meager “ceasefire,” and don’t you dare to second-guess that Israel only acts in lawful self-defense…

When the occupied and dispossessed do violence to their oppressors, they are held to the swiftest and most punishing sort of scrutiny. This severeness is matched only by the sheer solicitude and indulgence that the occupiers enjoy in acting out their doomsday rage and glee. And it is mirrored in the all-but-spoken principle that no measure of brutality by Israel can ever warrant Palestinian violence, but any act of violence by Palestinians merits all manner of atrocity in return. That is, if the “atrocity” is even registered as such. It is, rather, only the acts of Palestinian forces, both real and imagined, that have convulsed the western psyche; only Israelis’ grief and alarm for which sympathy is now publicly compulsory. Somehow, despite the global outpour of condolence and munitions straight to Israel, the courtiers of empire bleat in injured tones about how the world has turned its back on the “Jewish state.” Each new week unearths some fresh new angle of atrocity from that interminable October day, for western audiences to hash and rehash as the war-drums beat, lest the international community fail to condemn Hamas enough. The state of Israel’s methodical and ongoing extirpation of entire Palestinian family trees passes, in comparison, with a shrug.

There is, after all, no symmetry. Karim Khan, the prosecutor for the international criminal court in the Hague, returned earlier this month from a preliminary visit to Israel and Palestine, concluding his brief trip with a mealymouthed press statement tailor-made to suck up to his Israeli minders. That’s not to say it would much help, for the Israeli state has never recognized the I.C.C.’s legitimacy to begin with. But a little tiff like that that has been no obstacle to Mr. Khan from rushing to the conclusion that “Hamas and other terror organisations” committed “crimes that shock the conscience of humanity,” while saying nothing of crimes by Israel, except to assure the world that the Israeli military knows what they’re doing. It’s a fitting sequel to Mr. Khan’s op-ed for the Guardian last month, in which he stated “there are no children of a lesser God.” (Fair enough; but might that not mean there could be lesser children of the same god?) In this “pandemic of inhumanity” (nice touch) Mr. Khan reminded us that “we must cling to the law.” What law does he have in mind? As early as November, Mr. Khan wasted no time in concluding that the “repugnant” acts against Israelis “represent some of the most serious violations of international humanitarian law.” As for the butchered and besmutted Palestinians “enduring unimaginable suffering,” they’re simply “caught up in hostilities.”

Tragic, but incidental. It’s a strange experience, as Palestinians are bled and starved and enfiladed, and Israeli leaders dispatch genocidal calumny by the heapful, to be reminded of which way the scale of justice tips. Our language masks the horror. It’s the Israelis who are “slaughtered,” while Palestinians are just “lying under rubble.” How did they get under there? Where did the rubble come from? U.S. senator Bernie Sanders, who talked tough just two years ago against Israeli bombardment, described the present situation as a “humanitarian disaster.” One would think some earthquake or an act of god had simply paid a visit. Violence to Palestinians is something that just happens, mechanically and inculpably, no matter how excessive or severe. It is a language of inevitability.

Well, it was inevitable, in a way, when one gets down to it, when one’s grasp of history begins before the 7th of October. I was in Palestine, though not in Gaza, during the last major military conflagration. It was 2014, mere months after the last attempt at “peace talks” finally imploded—due, in part, to Israel’s rejection of the state of Palestine signing international treaties which confirmed that human rights law should be applicable in the territory. The state of Israel has never taken kindly to the insolent suggestion that its occupation should be constrained at all by international law, much less by international committees or tribunals. But there was still hope in those days, however pollyannic, that the “legal” pivot to the conflict could bring a paradigmatic shift. That with Palestine’s admission to the “rule-based” international order, a discourse of “laws” and “rights” could make the worth of Palestinian life more legible to the west. I was part of a small cohort of would-be lawyers there to put our western booklearning to good use on that front. And when the following year the state of Palestine acceded to the Rome statute, placing its territory in the jurisdiction of the I.C.C., there seemed a chance, as the Gaza strip lay waste in ember and debris, for some sort of official accounting.

The turn to law by Palestinians was always going to be something of a gamble. But whatever else one might fault the Palestinians for, the failure to exhaust their remedies isn’t it. Less bloody and less volatile than armed struggle alone, and more certain than the squalid and one-sided peace negotiations, the law was hoped to provide a neutral language that could translate the cause of Palestinian justice in a way the “rational” and “enlightened” western powers may understand. They were the ones, after all, who wrote the law. Commitment to it has always been a badge of pride for the “civilized” nations of the world. And so despite the years of feet-dragging by the I.C.C., and despite the efforts of Israel to stonewall investigations and to demonize the human rights community altogether, it was hoped that law would yield something better, more concrete, than strongly worded letters by U.N. committees.

What is the worth of Palestinian life under the law? It is something to be weighed and measured against the “advantage” gained by the military commander who kills them. The question everybody’s asked is whether Israel’s actions are “proportionate,” which people sometimes seem to think means tit-for-tat. (The “eye-for-eye” threshold has long been surpassed, more than 10 times over.) One of the favorite pastimes of the apologists of empire is to lecture others on how “proportionality doesn’t mean what you think it means.” Indeed they’re right. It’s even worse. The principle of “proportionality” comes down to us not from lex talionis, but from jus in bello, a.k.a. the laws of war, or what’s sometimes obscenely called “international humanitarian law.” It states (so we are told) that a nuclear-armed and technologically superior military may launch an aerial carpet-bombing of entire, densely populated city blocks, in full knowledge that hundreds or even thousands of civilians will be blown into a pulp, so long as the following condition is met. The “incidental loss” to civilian property, bodily integrity and life must not be “excessive in relation to the concrete and direct military advantage anticipated.” A reassuring benchmark. The lives of Palestinians can be apparently dispensed with, so long as the Israeli military thinks it’s worth it.

One balks to wonder whether Israel or its backers, in the spirit of legal fairness and neutrality, would tolerate its civilians being similarly apprized, and summarily executed, by al-Qassam brigadiers and bombs. To ask the question is already to have answered it. The near-total condemnation of Russia’s “use of indiscriminate weapons such as aerial bombs in residential areas” in Ukraine tells us how unambiguous law can be when it comes to civilian life in western interests. But speak of Palestine, and one will find a wealth of “nuance” and “complexity” where was once the austere clarity of red lines. It is plain as blinding day that in the crosshairs of the Israeli military, there are in Gaza no civilians, just human shields; no casualties, just collateral; no innocents, only terrorists in waiting. It is never “technically” Israelis’ fault when Palestinians die: it’s a complicated situation, after all.

The lodestar of this complication is the curious saga of the “Goldstone report,” published by the U.N. human rights council after the Gaza massacre of 2008–09. Dubbed “Cast Lead” by the military, the operation was the début of Israel’s routine policy of “mowing the grass in Gaza”—the spectacular use of force, deployed every couple of years, to pacify unruly natives under siege. Led by Richard Goldstone, the eminent South African jurist whom the report is nicknamed for, the U.N. mission managed to bypass Israel’s attempts to obstruct an investigation and established some basic findings of fact. They found, inter alia, that both the Palestinian resistance and the Israeli military had committed war crimes and other violations of international law in the course of the hostilities: the former, in firing slapdash shells and rockets toward Israel; the latter, in launching indiscriminate and disproportionate attacks, as well as deliberate and intentional ones, against the civilian population. The findings were, in a word, a bombshell, or maybe a landmine. Mr. Goldstone—who is Jewish, if it matters, and who took great pains to affirm Israel’s right of self-defense and made sure they got their fair shake—endured a concerted public battery of vitriol and slander, not to mention blacklisting and threats, charging him with treason to the tribe. Two years later, Mr. Goldstone issued a soft retraction, to much imperial fanfare, in the pages of the Washington Post:

If I had known then what I know now, the Goldstone Report would have been a different document…. While the investigations published by the Israeli military and recognized in the U.N. committee’s report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy.

Just a few bad apples, then. Nothing more to see here. Except all the remainder of Israel’s crimes and violations, recounted extensively and thoroughly over hundreds of the report’s pages, which neither Goldstone nor his three co-authors ever disavowed. (The other authors never disowned the finding of Israel’s “intention,” either.) All the same, the claim that “Goldstone recanted” is an abiding and powerful myth. Just as “Cast Lead” was a dress rehearsal for later massacres in Gaza, a staging ground to test the limits of carnage that the Zionists could produce and get away with, the Goldstone affair set the terms of the debate for how criticisms would be dealt with in the future. Of course Israel never does anything bad intentionally. It has the most moral army in the world. And if sometimes it so happens to kill thousands of children, displace 2 million people and destroy 3/4 of a population’s homes, why, it’s only ’cause its hands were forced. No other nation would be expected to endure what Israel must put up with, don’t you see they’re dealing with Hamas, of course it has the evidence, you don’t need to see it, you’re so obsessed with Israel, are you some kind of antisemite?

An unseemly number of legal experts have been keen to swallow this, and to vomit it back ad nauseam, and then rehearse the legal acrobatics it takes to justify whatever feats Israeli armaments are doing. In these routines, the cardinal rule of law which says civilians ought never to be targeted, the principle of “distinction,” is assumed to be upheld—there is no “policy” of “intention”—which makes the other essential principle, that of “proportionality,” do all the thinking for them. That is to say, the experts leave all the thinking to the Israeli military, for the law gives it to the little black box in the mind of the commander to judge the acceptable level of “collateral,” so long as it’s a member of Hamas who’s “really” being targeted (as we’re told it always, only, ever was).

A notable exception is the scholar Luigi Daniele, who has written smartly and bravely against this deferential trend which leads one so often to conclude that Palestinian deaths are just “unfortunate but proportionate.” Instead, Mr. Daniele invites us to consider why a barrage of several 2,000-pound GBU-31 JDAM warheads, with a lethal radius of up to 400 yards each, on identifiable concentrations of civilians in the Jabalia refugee camp—even if a legitimate “target” is there among them—should not count necessarily as the indiscriminate and intentional killing of civilians, “proportionality” notwithstanding. It is a question whose answer eludes no one, except for lawyers.

That is, in fact, what the Palestinian resistance is regularly accused of, each time they lob a homemade Qassam rocket over the reservation wall and toward the Israeli frontier towns. The technological gap between the parties has given Israel a lot of wiggle room to dodge a similar charge of criminal imprecision. But as per U.S. intelligence, nearly half of Israeli aerial bombs have been of the “dumb” variety, prone to hitting things as far as a football field away from any target, to say nothing of heavy shellfire by artillery. And the use of “smart” precision weaponry may not count for much when they involve wide-area high explosives on densely populated urban centers. New reporting by the journalist Yuval Abraham in +972 Magazine, quoting Israeli military and intelligence sources, has given a blood-chilling glimpse into what these advanced technologies are really good for:

Nothing happens by accident. When a 3-year-old girl is killed in a home in Gaza, it’s because someone in the army decided it wasn’t a big deal for her to be killed—that it was a price worth paying in order to hit [another] target. We are not Hamas. These are not random rockets. Everything is intentional. We know exactly how much collateral damage there is in every home.

This sinister calculus forms a part of what is called in Israel the “Dahiya doctrine.” Coined by the former military chief Gadi Eizenkot, a lawmaker and current member of the war cabinet, the doctrine promotes the use of “overwhelming” force, less to neutralize lawful targets than to maximize “incidental” harm, in order to disabuse the civilian populace of its insurgent forces, and galvanize “civil pressure” to lay down arms. A source explained:

We are asked to look for high-rise buildings with half a floor that can be attributed to Hamas. Sometimes it is a militant group’s spokesperson’s office, or a point where operatives meet. I understood that the floor is an excuse that allows the army to cause a lot of destruction in Gaza. That is what they told us. If they would tell the whole world that the [Islamic Jihad] offices on the 10th floor are not important as a target, but that its existence is a justification to bring down the entire high-rise with the aim of pressuring civilian families who live in it in order to put pressure on terrorist organizations, this would itself be seen as terrorism. So they do not say it.

Nor do they need to; anyone with eyes can tell you that. The Israeli forces’ adoption of “Dahiya” methods was one of the central findings of the original Goldstone report, and they’ve had occasion since then only to practice and perfect it. (Remarking on the 2014 shelling of the Shuja’iyya neighborhood by Israel, a U.S. military officer said: “It’s not mowing the lawn. It’s removing the topsoil.”) What is revelatory in Mr. Abraham’s reporting is his discussion of the military’s shiny new automated system, known creepily as “Habsora,” or “the gospel,” which uses “artificial intelligence” to make up fresh new targets to pursue whenever ordinary human intelligence runs out of things to bomb.

There is in consequence what has been and should be called a “mass assassination factory” in Gaza, in business more for quantity than for quality in the sheer production of bodies. It is here that the state of Israel—a state with all the trappings of western “liberalism” and “enlightenment,” and accoutered with the bloodied edge of western rationalism and technology—performs experiments in asymmetric warfare. What is being tested, also, are the limits of western credulity and indulgence. So far, the acceptance of mass civilian death and infrastructural collapse as a “proportionate” cost of war has made all civilians fair game, so long as the fig leaf of a resistance “target” buried among them is valued high enough; or, to put the same thing differently, if the civilian value is judged sufficiently low. And with the “war aim” defined as the liquidation and extirpation of an entire resistance movement—no matter what their rank, and wherever they might be, and even if only dreamed up by algorithmic guesswork—the potential thus seems limitless for whatever toll of death it happens, so conveniently, to require. In view of that, the question of “proportionality” is not only beside the point. It is in front of it, obscuring a policy of knowing and deliberate state terror behind a legal technicality. It doesn’t take a paranoid to appreciate the wisdom in Thomas Pynchon’s words:

If they can get you asking the wrong questions, they don’t have to worry about answers.

It’s a neat trick, when you get down to it. Any fool can see how it works. You take your enemies and monstrify them, bestialize them, treat them as something less than human: bereft of logic and ambition beyond the murderous. Call them savages, even Nazis—worse than the Nazis, why not?—at least the reich was rational. The Nazis had their reasons. Not like your enemies, who murder innocents for the hell of it. And so you hold your enemies to standards of law they had no say in, of which they never received the benefit, which they have neither the luxury nor the incentive to uphold. And when inevitably they behave badly, there is no reasoning with terrorists. The only language they comprehend is force, and the more of it the better, to teach their people some stern lessons in civility. Not that this makes you like them, of course—it’s only terror when they do it. You, you only do it because you have to, because it’s rational, because there’s a military necessity. You have your reasons, after all.

This sort of argument has given Israel legal leeway to do what even Joseph Biden neglected not to call an “indiscriminate bombing,” and what a U.S. senior intelligence officer described in Newsweek to William Arkin as “ipso facto an attack on civilians.” For every launch and strike, the military has lawyers on hand to weigh things up and sign off on the bombing. Their laxity, together with the explosive might of aerial armaments, has been the ticket to a smorgasbord of carnage. Yet in the midst of all the wreckage and the carnage and the pageantry of horrors, law offers little succor. At least from the yes-men and the flatterers, the credulous and the apologists—the ones who have the ears of power—in whose hands “humanitarian law” becomes a death warrant.

Bias, certainly, is one problem. Unremitting, undigested propaganda is another. But partiality is built into law’s structure. The signal feature of asymmetry pits an internationally backed, technologically superior state against a stateless people and their underground guerrillas, in a state-centric global order designed by, and for the benefit of, the powerful. Palestinians, being stateless, are never considered as combatants, with rights to take part in hostilities and receive P.O.W. privileges; they are always criminals to be prosecuted, if not executed on the spot. They are rarely victims, in official discourse, but incidental losses to be shrugged off. And the terror of bureaucratized and rationalized machinery of death, belonging to the state with fleets of bombers, tanks and warships, is made invisible in comparison to the outrages performed by the poorly armed insurgents who oppose it.

The humanist and universalist goals behind the international laws of war were always secondary. Not until the 1970s was the immunity of civilians from attack even codified explicitly. It came in the first additional protocol to the Geneva conventions, signed in the heyday of the decolonial period, when newly liberated nations got at last seats at the table occupied by their imperial masters. The “third world” won a great concession in the protocol, which recognized resistance fighters as legitimate combatants, instead of criminals or traitors, and wars of liberation as being of an international character, not merely a domestic or internal one. (The validity of these provisions has never been accepted by the U.S. or by Israel.) It also gave a clear expression to the principle of “distinction,” which in prior treaties was conspicuously missing. Tellingly, in the protocol’s deliberations, the majority of states were actually against including any mention of “proportionality.” As the scholar Luis Bogliolo tells it, “[t]hose who had been on the receiving end of bombs were quick to point out that proportionality had been repeatedly invoked to justify the killing of civilians.” They knew that to ban something as “excessive” is to imply a level that’s acceptable. In the end, however, the western backers of “proportionality” got to have their way—out of the fear, perhaps, of how the butchers of Nagasaki and Hiroshima might behave without it.

In joining the discourse of law, the former colonies hoped to demonstrate that they were every bit as capable of being “civilized” as their former oppressors. In fact, a good case could be, and had been, made that they were more. But there was an inherent disadvantage. Mohammed Bedjaoui, the celebrated Algerian jurist, who went from advising the Front de libération nationale to presiding over the international court of justice, knew the score:

Here we come to the real nature of the so-called “international” law, to its substance and even to the reality of its existence. As it has been formed historically on the basis of regional acts of force, it could not be an international law established by common accord, but an international law given to the whole world by one or two dominant groups…. The classic international law thus consisted of a set of rules with a geographical basis (it was a European law), a religious-ethical inspiration (it was a Christian law), an economic motivation (it was a mercantilist law) and political aims (it was an imperialist law).

The Algerian resistance had shown that the colonized could best the master at his own tool, however flawed it was. And efforts like the additional protocols to Geneva, led by the decolonialists and their socialist comrades, were a needed, if incomplete, corrective. As the scholar Jessica Whyte has argued, the decolonialists of the 70s tried to bring the laws in line with the principles of revolution and self-determination, a move to which the western powers objected as political and moralistic. Against “politicized” reform, the empires reaffirmed the virtues of liberal neutrality and legalistic norms, as they’d inscribed into the postwar international order. Yet the earlier and more famous Geneva conventions, signed in 1949, were hardly the humanitarian triumphs of popular legend. In his history of the treaties, Boyd van Dijk describes how they were less an internal reckoning of the “great powers’” brutality, a sobering from the bloodbath of the second world war, than a platform to preserve their tactical agenda. A discourse of “neutrality” concealed the law’s entrenchment of a state-centric and imperial status quo. Western empires weren’t keen to let go of the air and arms supremacy which they had always found so lethally beneficial. What had made the war “exceptional,” in fact, was simply that the Europeans gave themselves a taste of what they’d been concocting forever elsewhere, in their colonies. But to distinguish themselves from the villainous losers, the victors relied on a clever fiction: their violence, unlike their enemies’, was intended for the sake of victory, not destruction. It was rational, even if ruthless; it had a point. One feels a shudder, and a pang of recognition, in reading the words of U.S. army lawyer Elbridge Colby, remarking on the French use of aerial bombardment to put down a Syrian revolt:

[I]t should be clear understanding that this is a different kind of war, this which is waged by native tribes, than that which might be waged between advanced nations of western culture…. To a fanatical savage, a bomb dropped out of the sky on the sacred temple of his omnipotent God is a sign and a symbol that that God has withdrawn his favor. A shell smashing into a putative inaccessible village stronghold is an indication of the relentless energy and superior skill of the well-equipped civilized foe. Instead of merely rousing his wrath, these acts are much more likely to make him raise his hands in surrender. If a few “non-combatants”—if there be any such in native folk of this character—are killed, the loss of life is probably far less than might have been sustained in prolonged operations of a more polite character. The inhuman act thus becomes actually humane….

This was in 1927. It was 20 years after the completion of the Hague conventions, and more than half a century since the start of the first convention at Geneva, when the nations of Europe got together to set the terms of gentlemanly warfare. It was agreed that some baseline of etiquette should be observed by “civilized” peoples in the act of killing each other, whoever’s cause was wrong or right. While those same bastions of humaneness were hard at work drafting meticulous rules for playing nice, they were in the thick of punishing incursions into Asia and the so-called “scramble” over Africa. Legal niceties were only meant for the “gentle” races of the world. For the swarthier breeds of men, the old-school tropes of the orientalists obtained. That they were indolent but vicious, cowardly yet cruel, despotic but made to be submissive. “The natives of a lot of these [Arab] tribes love fighting for fighting’s sake,” declared Hugh Trenchard, marshal of the British royal air force, in 1930 to the house of lords. “They have no objection to being killed, some of them, if they can kill you….”

It wasn’t, strictly speaking, a question of pigment. The major blueprint for the modern laws of war came in the form of U.S. army general orders, no. 100, authored by the German immigrant and law professor Franz Lieber, and adopted by Abe Lincoln as the ground rules for the U.S. civil war. A chief concern of Lieber’s was to ensure black union soldiers were treated fairly, as proper belligerents, instead of runaway property. But Lieber was also an inveterate racist, who saw the prospects of black freedom in the creation of a “peasantry of colored people” to be later deported, to some colony, somewhere else. As for the whites, Lieber fretted over the possibility that the “favored” and “master” race might lose its “purity,” and feared that racial coexistence would bring about no less than a “state of barbarity.” The destiny of white America, he wanted manifested. The union war effort was very much in keeping with his racial and national feeling:

[T]he Integrity of the country must be maintained at any price, under any circumstances. God has given us this great country for great purposes; He has given it to us, as much as he gave Palestine to the Jews.

That the logic of Franz Lieber’s code is colonial, as is its legacy in the laws of war, has been shown brilliantly by the political scientist Helen Kinsella. On the question of legitimacy, the code put black unionists and rebel whites on equal footing, commissioned as they both were by formal governments; what was left out are those outside a European style of sovereignty, like the indigenous. Native resistance, then, could not be otherwise but criminal—and therefore punishable and killable, summarily. Non-combatants were to be spared—but only to the extent that war’s necessities might permit—while starvation, land dispossession and destroying the enemy’s “means of life” had Lieber’s blessing. To such recourses Lieber gave a rational veneer: “The more vigorously wars are pursued, the better it is for humanity.” The better, rather, for those who count as human:

I believe that the white race will eventually absorb and sweep away all others…. The fighting and slaying the Indians is terrible to me; but their gradual extinction I consider desirable, and the quicker the better.

Lieber’s code provided a handy guide to Yankee mayhem in the Indian wars, and it was put to great effect in massacres overseas. Imperial plunder on the continent carried forward to the Philippines, where the local indios learned up-close what the white man’s burden really means. All was done, that moral progress of civilization might be fulfilled. The human and the humane took definition by delimiting who was not. Stories of settler victimhood and native savagery were of a kind with the commonplace assumption that the indigenous were backward. Indian land use, being so often more nomadic and less settled than what the white man was used to, was seen as a “waste,” and while native rights to occupancy were grudgingly accepted, their actual ownership was not. Natives were trapped in a vicious circularity: their lack of sovereignty meant they were barbaric, and their barbarity made them unfit for self-rule. They were an obstacle, in a word, a land encumbrance to be cleared; and when conflict broke out between the settlers and the natives, it served to vindicate white anxieties about what needed to be done with the indigenous, and gave them an excuse to do it.

Such “new world” discourses had taken place against a particular backdrop from the “old”—the peace of Westphalia, dated 1648, which settled Europe’s brutal wars of religious difference by agreeing to respect each prince’s sovereignty, and not to intrude on other princes’ realms. How might this system translate overseas? Huig de Groot, the spokesman for the Dutch East Indies company (who’s known to history as Grotius, “father of international law”), provided useful guidance: he wrote of a hierarchy of nations, with “civilized” Christians on the top and “barbarian” infidels on bottom. Groot believed in good ol’ Christian charity, the sort that counseled mercy and moderation, except when it came to the more barbarically inclined—“more animals than human beings”—whose ways “offend[ed] against Nature.” In their case, to fight and dispossess them was not only just, but necessary to vindicate the “natural law.” A century earlier, the Castilian theologian Francisco de Vitoria admitted that the Indians were, in fact, quite human—if perhaps stunted and like “children”—with rights to their own lands. But the Castilian annexation of America he thought justifiable, insofar as it was necessary to “protect the innocents” from savage practices, or to preserve the Spaniards’ rights, under the so-called “law of nations,” to trade and settle and spread the word of Jesus.

The apologetics of imperial lawmen were actually an improvement on what an earlier crop of conquistadores were up to. In 1514, the crown of Aragon and Castile launched their escapade into America by announcing to its inhabitants:

[W]e ask and require…that you acknowledge the Church as the Ruler and Superior of the whole world, and the high priest called Pope, and in his name the King and Queen Doña Juana our lords, in his place, as superiors and lords and kings of these islands and this Tierra-firme….

[I]f you do not do this, and maliciously make delay in it, I certify to you that, with the help of God, we shall powerfully enter into your country, and shall make war against you in all ways and manners that we can, and shall subject you to the yoke and obedience of the Church and of their Highnesses; we shall take you and your wives and your children, and shall make slaves of them, and as such shall sell and dispose of them as their Highnesses may command; and we shall take away your goods, and shall do you all the mischief and damage that we can, as to vassals who do not obey, and refuse to receive their lord, and resist and contradict him; and we protest that the deaths and losses which shall accrue from this are your fault, and not that of their Highnesses, or ours, nor of these cavaliers who come with us.

This requerimiento, or “requirement,” declared in a foreign and inscrutable tongue, transformed the natives’ reluctance to submit into an act of punishable aggression. It derived from a more archaic doctrine of political theology, which held the bishop of Rome, as heir to the Roman emperor and earthly vicar of Christ, to be lord of all the Earth, which the god had given him as patrimony. On that authority, the pope had given to Castile the rights to colonize what Cristóbal Colón had discovered, just as an earlier pope had granted Portugal the rights to conquer and enslave the Africans. But these were not some holy free-for-all. The papal interventions were meant to keep relations chummy among the Christian kingdoms, dividing the world by “spheres of influence,” as much as to expand the imperium of Christ. The medieval west evolved a complex code of chivalry to govern fratricidal violence, all in the name of a Christian peace from which the infidel was excluded. It was in such pacific spirits that Odo of Lagery, known as pope Urban II, convened in 1095 a council at Clermont to announce a “truce of God” among the Christians, and redirect the Frankish armies against the “unclean nations” in Jerusalem—the first time the west dispatched crusading hordes to occupy the land of Palestine.

The effort has not relented since. It has been saddled with some hiccups and hiatus, and its identity and ideology have changed, but the Zionist project whose apogee was the establishment of Israel is a self-conscious part of this tradition. Zionist founder Theodor Herzl, writing when his movement was still in the market for a place, made the pitch for middle eastern real estate as follows:

Palestine is our ever-memorable historic home…. We should there form a portion of a rampart of Europe against Asia, an outpost of civilization as opposed to barbarism. We should as a neutral State remain in contact with all Europe, which would have to guarantee our existence.

The affinity of Herzl and other Zionist leaders for the Teutonic culture of their birth was deep, and led to such remarks as those of Kurt Blumenfeld, secretary general of the Zionist organization, that “the Jews who settled in Palestine would thus form a bastion of German influence in that part of the world,” who “could be relied upon to spread German culture, and promote German economic penetration, throughout the Turkish Empire.” As late as 1940, agents of the Zionist terror gang Lehi (later to be absorbed into the Israeli military) were conspiring with the Nazi reich to build a Jewish state in the Levant aligned with “the German worldview.” But Zionist fellow-feeling was not so nationally circumscribed. Chaim Weizmann, the first Israeli president, was sympathetic to the Castilian reconquista of al-Andalus—which was a sequel of a sort to the crusades in the Levant, as well as the prequel to Spanish conquests in America—and so is Mr. Netanyahu, who cites the Spanish example as a precedent. (The reconquista, it must be said, involved the Christians’ genocide and expulsion of Jews and Moors alike.) London or Washington, it turned out, would do as finely as Berlin. For the first prime minister, David Ben-Gurion, the important thing was to conscript the Jews into the western mission civilisatrice:

We do not want Israelis to become Arabs. We are in duty bound to fight against the spirit of the Levant, which corrupts individuals and societies, and preserve the authentic Jewish values as they crystallized in the [European] Diaspora.

The ghosts of imperialisms past never quite went away. Their specters haunt the rafters and foundations of the international legal order, entangling all in the unfinished business of “civilization.” The legal scholar Ntina Tzouvala calls it an “argumentative structure,” an unspoken discursive shape, dividing inside from the other and defining the former against the latter, deciding whose lives matter, even if the jargon now has changed. Words like “economic development” and “cultural advancement” do what civilization used to; the primitive are the “developing,” and the savage “threats to security”; “capitalism” is Christendom, and “liberalism” its creed. For decades, the state of Israel wore this secular mantle well, even if its insistence on an ethnic-religious statehood made the Zionist project more anachronistic than not. Now, it doesn’t even try. As if to make up for lost time in a 19th century party it was late to, the Israeli government drops the masquerade of subtlety, and cuts right to the “barbarian” chase.

One consequence of this “mask-off” moment is a recursion, or regression, into older ways of war. In this revival, the political philosopher Michael Walzer—a man once identified with the antiwar left, but who is more properly in the pro-war Zionist center—was something of an early adopter. His 1977 Just and Unjust Wars brought back for a modern age the classical and moralistic (as opposed to legalistic) theory of war which the early publicists, like Vitoria and Groot, inherited from medieval theologians and ancient Rome. Writing a decade after the six-day war, Mr. Walzer justified Israel’s first strike as legitimate “self-defense,” by equating the middle east to “an unstable society, like the ‘wild west’ of American fiction.” The admission that it was “fiction” is revealing, for it implies that the Zionist imaginary is even more colonial than was the American frontier. Also telling is Mr. Walzer’s latest missive for Quillette, arguing that in its current operation, Israel “can’t be asked to avoid civilian casualties.” Never the less,

Israel today, assuming its military leaders are at least minimally rational (and ignoring the moral lunacy of its political leaders), doesn’t intend to kill civilians.

That “assuming” and that “ignoring” are doing quite a bit of intellectual powerlifting. The assumption of Israeli rationality underwrites the conclusion that no matter how calamitous and necrotic, the war effort must be just, and if it’s just then whatever it takes to get it done must be righteous too. At the same time, the tactics of the Palestinian resistance—presumed depraved and nihilistic at its core—are invoked not only as the basis of Israel’s campaign, but as the reason for its operational conduct, absolving Israel of its choice to wage gratuitous war. Here the undercooked and overdone comparisons of the Palestinians to the Nazis do more than to sensationalize the stakes involved. They lend credence to the thought that only Israel, unlike its enemy, is capable of a goal beyond destruction. And they give a historical antecedent to Israel’s rationalization of what would be otherwise called premeditated mass murder.

Bristling at the U.S.’s recent suggestion that the body count is piling somewhat high, Mr. Netanyahu said, “You carpet bombed Germany, you dropped the atom bomb, a lot of civilians died.” His chief armorer and creditor, Mr. Biden, replied: “Yeah, that’s why all these institutions were set up after World War Two to see to it that it didn’t happen again…don’t make the same mistakes we made in 9/11.”

The longer that you contemplate these sensible-sounding words, the wronger and more wrongheaded it becomes. It was Mr. Biden, after all, who stood before America to say October 7 “was like fifteen 9/11s.” The international legal order built upon the hecatombs of world war was engineered to maintain, not to undermine, the victors’ military might. The United States was on the opposing side of efforts to restrain imperial violence, and to this day rejects the jurisdiction of the I.C.J. and the I.C.C. It continues to fast-track armaments to the Israeli military, and lends its awful weight continuously to upend global gestures for a ceasefire.

Despite all this, Mr. Biden does have a scintilla of a point. The point is that the state of Israel is something like a test case for the western way of making war. Its military and its lawyers, along with its cheerleaders and fans abroad, have strained against the limits of what’s acceptable, exploiting ambiguities and imperial advantages. “In war the law is also a battlefield,” wrote the activist and scholar Noura Erakat, “and the contest is to define what is legal and what is not.” But in the end, the law has less to do with war’s prevention or limitation, than with its legitimation, a way to make the empire look better. There’s only so many thousands of bodies one can produce before it shows the cracks in the façade.

What this year’s Gaza uprising and massacre by Israel have revealed is an irony of world-historical proportions. A three-month-long campaign of colonial pacification, with civilian corpses mainly to show for it, does not inspire faith in imperial arms. It is, in fact, the collective forces of the Palestinian resistance who’ve made themselves the side of reason and rationality, pressing as they are for the only logical and possible resolution, namely a ceasefire and renewed negotiations. In contrast, the Israeli forces are resorting to insane, unbridled and indiscriminate violence, by way of aerial and remote machines of death, proving only their proficiency in killing innocents. This proficiency has resulted in the “incidental” assassination of three Israeli hostages—the rescue of whom, officially, is still the “reason” for the war—due to their being mistaken for Palestinians—who remain, even in civilian form and holding white flags, fair game. And this is to say nothing of the Israeli deaths by trigger-happy “friendly fire” on the 7th of October.

It was in Palestine, after all, where the crusading west first tried to raise themselves as masters of the civilized; and it’s in Palestine where now it sinks to new barbaric lows. The barbarity of the civilized is legendary, and it threatens to degrade us all. And it will continue to degrade us, till one side or the other gives, somewhere between the river and the sea.

San Francisco, 2023.