Asymmetric Justice in Gaza

The political situation in Gaza has taken a not-unexpected turn for the worse. Israel is conducting operations in Rafah, where, contrary to widespread expectations, it has done much to overcome the logistical nightmare of evacuating and then feeding close to a million Palestinians in Gaza, supplying some 542,570 tons of aid and 28,255 aid trucks, as reported by the Wall Street Journal. Meanwhile, Hamas does what it can to wreck that operation, and Egypt remains adamant in penning up the Palestinians in Rafah, which only increases the time, costs, and risks of military operations.

But conditions on the ground seem to have little effect on the political controversies that surround that action, coming from both the International Court of Justice (ICJ) and many Western governments, including—on and off—the Biden administration. In both cases, the basic message is the same. As to Hamas, the ICJ said in its order that it is “deeply troubling” that Hamas disregarded its call “for [the] immediate and unconditional release” of the hostages. Hamas will not do so at any time and is not under any diplomatic pressure to comply. So, it is the other half of the judgment that carries all the weight. The ICJ also ordered Israel to:

immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.

Of direct relevance here is a difficult question in the law of contracts. It concerns the sequence of performance of reciprocal obligations. In some cases, two sets of promises should be treated as though they were independent, which means that neither side can justify its nonperformance of the deal by pointing to the nonperformance of its trading partner. For instance, many payment obligations are made absolute, even if the lender breached some obligation after the loan was made (otherwise, checks could not be exchanged in the marketplace). But for most bilateral arrangements that call for continuous cooperation, the abiding principle is one of mutual good faith, such that the two promises are regarded as dependent. Hence, neither side can be compelled to perform until the other side has done so. Both in theory and in practice, it is impossible for both sides to go first, so the usual arrangement calls for simultaneous performance: the buyer need not pay the price until the seller is ready, willing, and able to transfer title to the property. The serious risk of nonperformance could leave the seller without his money even after he has parted with his land or goods, or the buyer without his land or goods after he has parted with his money. The risk of asymmetrical performance is often handled by placing both the purchase price and the deeds into escrow, operated by a bonded, independent third party.

In Gaza, there are no escrow agents. Using the model of dependent covenants, the Israelis need not budge in their effort to remove Hamas until it releases the hostages and relinquishes its power, at which point the war is over. But that is not the way the game has played out. Now, it is the wrong model of independent covenants that controls political discourse, so that all pressure is put on the Israelis to conform to external diktats while Hamas does not comply—it neither lists the hostages dead or alive nor allows UN inspectors to examine their conditions of incarceration. Since Israel is engaged with the world on multiple fronts, it bears the brunt of sanctions even as Hamas, holed up in Gaza, continues to receive material support from Iran and Lebanon, and perhaps Russia and China.

The source of the ICJ judgment on Gaza rests on an unsupported claim that there is some kind of equivalence between the atrocities committed by Hamas on October 7, 2023, and the collateral damage that arises out of the Israeli operations in Gaza, which, as the military historian John Spencer has repeatedly argued, have led to fewer civilian casualties than similar urban wars conducted elsewhere, including those by the United States. Yet, the ICJ addressed only the deplorable conditions on the ground without determining Israel’s justifications for its actions or mentioning the aid it had already supplied. It made no mention of Hamas’s initial grotesque provocation or the standard litany of Hamas’s violations of the laws of war: using human shields, locating military facilities in hospitals and schools, fighting out of uniform, indiscriminately attacking civilians, and more. Nor is there the slightest effort to ask what would happen to Hamas if the Israelis were to back out of Gaza, or what should happen now that Hamas has resumed its rocket attacks on Tel Aviv, which could be followed by others.

The situation is little better if we look to the reactions from around the world. President Biden denounced ICC prosecutor Karim Khan’s announcement that the ICC would seek arrest warrants for officials including Israeli Prime Minister Benjamin Netanyahu as “outrageous,” insisting that “whatever this prosecutor might imply, there is no equivalence—none—between Israel and Hamas.” But for many months, Biden had worked overtime to persuade the Israelis not to do what the ICJ condemned as genocide, that is, continue the offense against Hamas despite the objections stated by the ICJ: the humanitarian crisis and the deaths that would come from such military action. Only belatedly did Biden’s national security adviser, Jake Sullivan, acknowledge that the Israelis had made necessary “refinements” to their plans—after much of the political damage was done. Nonetheless, Biden still appears, at least for the moment, to be withholding sophisticated precision weaponry from the Israelis while resupplying them with other sorts of arms. His indecision has drawn attacks as being too pro-Israeli and too pro-Palestinian at the same time. And Secretary of State Anthony Blinken seemed to echo the ICJ when he criticized the war effort without offering any kind of endgame that forces Hamas off the map if hostilities were stopped. Nor did Blinken address the arguments—again from John Spencer—that this war could end more quickly if the United States supported Israel unconditionally, instead of waffling.

Justin Trudeau, the Canadian prime minister, also misses the interdependence between Israel and Hamas when he writes:

We need an immediate cease-fire. Hamas needs to lay down its arms, release all hostages, but there also must be no more military operations in Rafah by Israel.

Trudeau does not mention what should be done if Hamas keeps both its arms and its hostages.

Sadly, this weird disconnect further isolates Israel from its erstwhile European allies, as exemplified by the recent decisions of Ireland, Norway, and Spain to recognize a disembodied Palestinian state while simultaneously denouncing Hamas, and without supporting a single effort to remove Hamas from power. Spain’s foreign minister, Jose Manuel Albares Bueno, denounced Israel for saying his actions were meant to support Hamas, but Albares cannot explain just who would represent a newly stabilized and demilitarized Palestinian state.

No Western nation has answered this challenge, and the utter indecisiveness has not gone unnoticed by Hamas and its supporters. The commentary from the Arab press only speaks of the eradication of the Jewish state. Thus, one Egyptian TV host, Qaswaa al-Khalali, proclaims that “we should teach all the future generations, all our children, to hate Israel, to hate the Zionist entity. . . . We will never accept any presence of the Zionist entity.” A Lebanese leader, Walid Jumblatt, celebrates October 7, 2023, as a “great moment” in the Arab-Israeli relationship.

A clear indifference to a two-state solution now defines the Palestinian movement in the United States. Harvard University’s graduation ceremony was disrupted by a new group, HOOP (Harvard Out of Occupied Palestine), which took the lead in the aborted negotiations with Harvard for the reinstatement of students suspended for their various protest activities. And note, of course, “occupied Palestine” pointedly refers to all of Israel, whose elimination is the ultimate objective of the group.

The great vice of Israel’s frenemies is that they do understand the difference between good and evil, between butchery and self-defense. But they fail to see that calling for “neutrality” is only an invitation for the slow strangulation of Israel in the Middle East.

In a similar vein, such false even-handedness threatens to destroy the intellectual independence of our educational and political institutions. House Republicans in recent congressional hearings were right to call out university presidents like Northwestern’s Michael Schill for capitulating to ideological pressure. It was not enough for Schill to call for “due process” for protesters who broke rules and laws; it was also necessary to mete out consequences in the form of sanctions against students who were found to have committed those breaches—an easy determination.

As for Israel, the fog of politics limits its options. It has no choice. To back off the immediate offensive is to force the nation to become weaker in spirit and power, as it must spend all of its resources in a defensive posture until some large, coordinated strike is launched against it by its encircling enemies, forcing a grand finale in which Israel could be forced to stand alone. It has taken the initiative in Rafah, which will continue to come with loss of human life as it seeks out and kills Hamas leaders. Yet its best hope for survival is to keep going no matter what its many detractors say or do.

© 2023 by the Board of Trustees of Leland Stanford Junior University