As my children donned their uniforms while going off to defend Israel, America, the West, after Oct. 7, I told them: “The morality of this war is clear. You do whatever you need to do to protect yourself, your buddies, your homeland. I am not speaking now as a father, an Israeli, or a Jew – but as an American historian. I’ve studied how America fought in World War I and World War II, in Iraq and Afghanistan. Hamas started this war with a vicious attack. That puts the moral onus on them. If you shoot your officer in the head accidentally – it’s on Hamas. If you have to kill a hostage being used as a human shield – it’s on Hamas. If Palestinian civilians are killed or injured – it’s on Hamas.” Explaining Just War theory I said: “Hamas’ evil imposed a ‘supreme emergency,’ and Israel has the right to fight with supreme measures in self-defense.” If time weren’t linear, I could go back and also give them Thane Rosenbaum’s timely new book, “Beyond Proportionality: Israel’s Just War In Gaza.”
This is a must read on both sides of the Atlantic, written by the multi-dimensional talented novelist and lawyer, Thane Rosenbaum. Thane is a friend whom I met through our common love of Israel, the Jewish people, true liberalism, this Journal and its extraordinary publisher. Israelis must understand the rules of war, because the world is targeting us, and, even more important, because we and our kids want to fight as legally and ethically as possible.
Ultimately, Israeli soldiers respect military ethics for altruistic and selfish reasons. Few delight in others’ suffering: ours is a culture of life fighting Hamas’ death cult. More important, our soldiers judge themselves for their own souls’ sake. When they look in the mirror, they need to know they fought honorably, despite intolerable circumstances.
At the same time, if even one of Rosenbaum’s fellow New Yorkers reads this book and stops throwing thunderbolts of judgment from the comforts of the Upper West Side, Rosenbaum’s efforts will have been worth it. In fact, he writes: “This is the reason I have written this book — to disentangle lies from truth, myth from fact, and to bring some clarity to the legal norms of warfare that are constantly misapplied and invoked against Israel whenever it is forced to defend itself against terrorism.”
This book should be read by the haters and the silenced majority, to justify Israel’s actions – and explain how America fights and will be compelled to fight future wars too. It’s also essential reading for anguished, apologetic “April 1 Zionists.”
On April 1, 2024, Israeli drones mistakenly targeted a World Central Kitchen Aid convoy, killing seven aid workers. Many Americans – including some Zionists who defend Israel and support the war – asked “why did Israel kill those humanitarians?” Allies’ inability to understand the “fog of war,” the unfortunate reality that so much firepower kills many people mistakenly, was terrifying. I worried less about Israel’s reputational hit. I worried more about Western critics’ inconsistency, cowardice, and moral confusion.
As an historian, I focused on the date of the misunderstood deaths, “April 1.” One student noted, “that’s April Fool’s Day too.”
War is Hell. War is inherently immoral. By definition, soldiers violate the normal rules of “thou shalt not kill” and “love thy neighbor” – to counter and conquer a compelling threat. Seeking morality in war is like seeking a Hamasnik pacifist (or feminist or antiracist or humanist or liberal).
Similarly, demanding what most reporters call “proportionality” in war is equally futile, like playing the Super Bowl to tie. You win a war by overwhelming your opponent with, ahem, disproportionate force.
This confusion is why Rosenbaum’s argument is so important. He writes as a prominent lawyer and law professor, who has taught human rights law, along with legal humanities and law literature. He currently directs the Forum on Life, Culture, & Society, hosted by Touro College, and is a Legal Analyst for CBS News Radio.
Rosenbaum distinguishes between body counts and moral accounting. “Death tolls can be lopsided without violating the rules governing proportionality,” he explains. “That’s because proportionality assessments are focused more on what an army was aiming at and less on the results.”
True, dead is dead. But civilian prosecutors consider motive, sifting between premeditated murder, involuntary manslaughter and self-defense. Similarly, militarily, there is a dramatic difference between invading peaceful kibbutzim and villages on Oct. 7, raping, torturing, kidnapping and killing young and old in the most brutal ways and unintentionally killing Gazan civilians, especially as Hamas terrorists hide behind them and often pretend to be civilians – in life and in their exaggerated death counts.
Rosenbaum’s clarity resists today’s popular sloppiness and moral idiocy. This crisp, well-organized, elegantly-argued book shows how misconceptions form – and propagandists exploit mass laziness. So just as the security need to keep Israelis and Palestinians apart sometimes, feeds the lie that Israel is guilty of apartheid – despite there being no race-based Israeli legislation – the accusation that Israel is fighting “disproportionately” builds on the confusion that what counts is the body count rather than combatants’ intentions.
“For proportionality purposes,” Rosenbaum writes, “what matters most is the military value of the target. Once a target is identified as highly valuable and a military necessity, is there a formula that guides a nation in making its proportionality assessment? How many are allowed to be killed before an army is required to walk away? In Gaza, body counts are abysmally inaccurate, if not wholly fabricated. Is Israel bound by the math skills of its adversary?”
These are only a few of Rosenbaum’s annoyingly on-target questions. Regarding the world’s demand that Israel feed its Gazan enemies, he writes: “Nations under siege are not usually well fed. What happens when aid is hijacked by terrorists and never makes it to benefit the civilian population?” Moreover, “Does it make sense that Israel should be feeding and hydrating its enemy?” Why “isn’t Hamas legally and morally responsible for the care of its own people? What about the use of civilians as human shields and the willingness of civilians to serve in that capacity?” And “Who counts as a civilian, and when do civilians who voluntarily choose to provide material aid to an enemy lose their protected status?”
Then, returning to his proportionality analysis, he bravely wonders: “Must Israel and Gaza yield the same number of civilian casualties? Is that what it means to conduct a fair and proportionate war?”
After noting how quickly activists accused Israel of “genocide” even as it was bleeding, Rosenbaum returns to the meaning of the word and standard legal precedents. “A genocide in Gaza,” he writes, “would require a showing that the Palestinian people were the very targets of Israel’s war strategy — the premeditated intention to eliminate the people and not just the terrorists who govern them.”
Applying the standard legal analysis to this insane war of HaMosques, Hamospitals, and killergartens, catapults Rosenbaum to a sweeping conclusion. Juxtaposing urban warfare’s complexities onto the international community’s harsh legal judgments against Israel, Rosenbaum finds the current legal machinery inadequate. We keep expecting today’s barbarians to respect rules tradition-minded “officers and gentlemen” set.
Rosenbaum keeps relying – refreshingly – on research and precision. He demonstrates that the oft-cited Geneva Convention “never anticipated the special situation presented in Gaza.” These were, in fact, “four separate treaties that protect victims of war and soldiers who are taken hostage,” written following World War II. These agreements “understood civilians in the ordinary sense. Most Gazans, however, are decidedly not ordinary civilians.” Many actively assist Hamas. When civilians fight, “even in capacities that do not require them to fire weapons, they may have intentionally surrendered their civilian status.”
Furthermore, “What the Geneva Conventions had in mind are ‘innocent’ civilians, which has little to do with the wearing of uniforms. … Civilians can serve a deadly purpose without weapons” or military bling.
Rosenbaum calls this asymmetric warfare “Fourth-Generation Warfare.” Nation-states will keep facing “rogue nonstate actors,” treating one set of civilians as “natural targets while the other, as noncombatants, are protected.” Terrorists brazenly defy every norm while the world holds Israel to absurdly high standards – standards America and its allies did not have to meet in Iraq or Afghanistan, and which the mainstream media ignored. Hamas targets Israeli civilians purposefully – yet Israeli soldiers are targeted legally when they kill Gazans mistakenly.
Terrorists brazenly defy every norm while the world holds Israel to absurdly high standards – standards America and its allies did not have to meet in Iraq or Afghanistan, and which the mainstream media ignored.
The double standard is inherent to this kind of civilizational conflict. That’s why the rules need updating for the sake of America and all rule-abiding democracies. Rosenbaum goes even more politically incorrect – yet historically accurate – by connecting the dots. Beware, he says, the aggressors are increasingly Islamists exploiting Western ideals and hospitality, while the victims are Westerners blinded by their hospitality, bound by those ideals.
A third major theme flows from the way Israel is singled out, pilloried for not living up to unrealistic expectations, then demonized. How could it be, honest readers will wonder, that a country invaded by genocidal forces on Oct. 7 was so quickly accused of committing genocide against its invaders – Westerners once called it “self-defense.” Clearly, to many haters, including “indoctrinated students, progressive activists, and social justice warriors” in the West, the real crime is Israel’s very existence.
“Terrorism comes with its benefits,” Rosenbaum sighs. “A blanket pardon. Accountability to no one. The lowest of expectations on how to fight fairly. Yet, Israel’s self-defense is held to the highest standards of wartime scrutiny. Nearly every move it makes raises all manner of global condemnation.”
Rosenbaum is a recovering liberal. Originally a normie, decades ago he was just living his life until he had his Herzl Moment realizing how unfair the world was to the Jewish State. That background sharpens Rosenbaum’s abilities to sniff out his former allies’ hypocrisies. He quotes The Washington Post, NBC News and NPR, which during Hamas’ rampage, rationalized the evil by exaggerating “worsening tensions,” a “punishing blockade and occupation,” a “brutal siege” – despite Israel’s 2005 withdrawal from every inch of Gazan territory. If, in 1980s America, a conservative was a liberal who’d been mugged – and in Israel after Arafat’s War of Terror in the 2000s, a conservative was a liberal who’d been bombed – Rosenbaum turned because he was a liberal who dared defend Israel’s right to defend itself.
Alas, even those world leaders who shortly after Oct. 7 understood Israel’s need to respond to the massacre, still granted “a nebulous, nonspecific” right of self-defense “with a catch: Israel was free to retaliate, but not if it meant killing Palestinians, including terrorists. … Collateral damage of any degree in Gaza causes instant fury. Military necessity doesn’t seem to matter. No amount of proportionality will be accepted.”
That leaves Israel in “a Kafkaesque quandary. It “has the right to enter into wars so long as there are no Palestinian casualties of those wars” – even as Hamas tries to maximize the number of Palestinian casualties, then further pads the death count. Israel’s wartime conduct is so circumscribed, “any action taken in its own defense is summarily a war crime.”
Where could such perverse double standards and ideological traps come from?
Revealingly, this ideological assault on the Jewish state uses “much the same imagery” of medieval haters. You can smell the common Jew-hatred in the Dreyfus trial that helped shape Herzl’s Zionism, in Israel’s trials, in medieval Jewish traumas imposed by Christians and Muslims. Hear the echoes: in the “heightened emotions, irrational arguments, distorted histories, the rejection of obvious truths, forged documents, falsified facts, misapplied laws, antisemitic stereotypes, and worldwide anti-Jewish rage.”
That lens illuminates the world’s moral confusion.
That’s how Thane Rosenbaum, Esquire, builds his case, from one sharply-etched, spot-on chapter title to another. He starts with “’J’accuse!’ — The Case Against Israel,” showing how the world is “Judging a Nation, and a People, as Guilty — Regardless of the Facts and Law.” That makes Gaza “A War of Moral Confusion” because “Casualties of War Are Not Victims of Genocide.” He urges: “Listen to What They Say and Watch What They Do: When A Nation’s Enemy Is Committed to Eternal Warfare” and details “The Singular Dilemma of Fighting a War in Gaza: The Relentless Gaze of the Globe.”
By Chapter 5, Rosenbaum asks expansively: “Do the Laws of Armed Conflict Apply to Terrorists Who Surround Themselves with Civilians?” He exposes “The Proportionality Trap: Why Death Tolls in War Need Not Add Up Equally.” Smelling Jew-hatred, he chronicles “When Global Politics and An Ancient Prejudice Hijack International Law” and concludes: “Civilians Voluntarily Serving As Human Shields Lose Their Innocence.”
Bothering to assess the facts too, he exposes media bias, revealed, “When Body Counts and Death Tolls Can’t Be Trusted.” After addressing the moral, diplomatic, and political complexities involved in “The Duty to Provide Humanitarian Aid,” he wonders “What Happens the “Day After?” And, summarizing his thesis, he calls his conclusion: Beyond Proportionality: Why Israel Must Set Aside the Laws of War to Establish Deterrence.”
As I write, our “revolving door” kids and neighbors are deploying once again, en masse, despite having served hundreds of days apiece, hoping to free hostages – while liberating Gazans and Israelis from Hamas’ grip. And most Israelis understand that no country is perfect, including Israel. Yet Israel isn’t perfectly evil either, as its enemies claim.
The book would have been even better had Rosenbaum incorporated more gritty, frontline accounts of what one Israeli Air Force commander briefing me called “HaDilemmot,” the many day-to-day dilemmas Israel’s fighters navigate. Rosenbaum could have described firsthand how Israel’s military sifts targets, calls off justified strikes, even sometimes relinquishes the element of surprise to minimize civilian damage. He could have helped Israelis reassess some mistakes that inevitably occurred amid “the fog of war,” and, yes, a post-Oct. 7 fury. Deeper reportage would help us all sit with the impossible “dilemmot” – for example, destroying a six-story apartment building would play as a “war crime” in The New York Times, but Israel’s split-second decision not to destroy it meant a sniper popped out and killed two 20something soldiers.
Still, the valiant, unapologetic, ever-on-target Thane Rosenbaum has done these everyday heroes a great service. It’s easy to fear, amid this anti-Israel firestorm, that this is one more Wicked Son publication spitting in the wind, trying to reverse an anti-Israel tide that has become today’s hot trend. But by telling the truth, delivering a rigorous legal and moral analysis, standing tall against the prevailing winds, Rosenbaum remains on the right side of history. He’s joined Israel’s young heroes in the battle of their lives, of our lives. It’s a fight for truth, for justice, for accuracy, for – dare I say it – proportionality – and yes, for Israel’s survival as the front line in the war against terrorist barbarism and for Western civilization.
Professor Gil Troy, a Senior Fellow in Zionist Thought at the JPPI, the Jewish People Policy Institute, the Global ThinkTank of the Jewish People, is an American presidential historian. His latest books, “To Resist the Academic Intifada: Letters to My Students on Defending the Zionist Dream” and “The Essential Guide to October 7th and its Aftermath” were just published.
