Amid the shock, pain, and anger gripping many Jews and Israel supporters in the wake of the massacre on October 7, 2023, there was a subtle, macabre satisfaction in the notion that finally the world would see Israel’s enemies for what they are. That the brutality would, if not rally the world to Israel’s side, at least temporarily silence the proportionality industrial complex: the NGO analysts, UN commissioners, and foreign ministers who, during any IDF operation against Israel’s adversaries, invariably rush to issue a cacophony of condemnations accusing Jerusalem of a “disproportio-nate” response to terrorist attacks or, at worst, genocide. That Israel would have time, in other words, to defeat Hamas once and for all.
Yet undeterred by Hamas’s atrocities, this coterie launched a preemptive assault on Israel’s response. They precondemned any military action as ipso facto illegitimate and preconditioned a sympathetic media with dire warnings of war crimes and ethnic cleansing. Unburdened by any posturing for peace, their orchestrated portents fueled a latent pro-Hamas movement that began braying for Jewish blood even as Hamas’s assault continued in the two days following the initial invasion of Israel. This mob-like onslaught shattered the hope of fair treatment. The shock has since prompted a reckoning among Israel’s supporters, and one of its first sustained efforts in book form is Thane Rosenbaum’s Beyond Proportionality. Despite its title, this is less legal treatise than primal scream.
Rosenbaum, Distinguished University Professor at Touro University, channels the fury that has welled up among Israel supporters over the past two years and, indeed, over five decades into a cri de coeur against the double standards so long applied to the Jewish state. The result is a searing polemic, and a necessary one, which gives voice to the pro-Israel community’s disillusionment—but stops short of providing a clear remedy for it.
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The introduction offers the first sign that Beyond Proportionality is not a standard legal disquisition. Rather than begin with a dry overview of the laws of war, Rosenbaum recounts the Dreyfus Affair, the trumped-up persecution at the tail end of the 19th century of a French-Jewish military officer who was falsely accused of espionage for Germany. Imprisoned amid a chorus of anti-Semitic bloodlust, Dreyfus was exonerated years later after the French novelist and playwright Émile Zola published J’Accuse, an open letter that charged the French government with a cover-up and forced a tortured reconsideration. Rosenbaum sees clear parallels between the later-day charges against Dreyfus and the present-day ones against Israel.
Both featured “heightened emotions, irrational arguments, distorted histories, the rejection of obvious truths, forged documents, falsified facts, misapplied laws, antisemitic stereotypes, and worldwide anti-Jewish rage.” By beginning in this way, Rosenbaum reveals that he is less interested in delving into the jurisprudence of the laws of war—though he effectively does so later—than in inveighing against the hypocrisy of an urbane, educated elite weaponizing the law under the guise of objectivity and thus bastardizing it. Rosenbaum charges “legacy media and alleged legal experts” with making “inflammatory accusations” against Israel, that they present “an altered reality” in a battlefield of “political propaganda,” in which “Israel ultimately loses the war—measured in spilled ink, and not blood.” Much like the anti-Dreyfusards, Rosenbaum argues, our modern elites marshal the law on behalf of malicious political objectives—namely, a gussied-up calumny against the Jewish state.
If the post-10/7 reaction to Israel represents the modern-day Dreyfus Affair, then Beyond Proportionality aims to be a modern-day J’Accuse. Just as Zola thunderously denounced the French political, military, and legal establishment for their assault on Dreyfus, Rosenbaum directs similar outrage at the self-proclaimed international arbiters of justice targeting Israel. He scolds the “brainwashed, at best, and brain dead, at worst” college students “who protested so fiercely and self-righteously” against Israel for failing to recognize that Hamas “would castrate a homosexual in a Greenwich Village minute,” noting, “That’s the team whose jerseys you are shamelessly wearing.” And to those in the West who one day might face a wave of Islamic terrorism, he asks, “Will you be willing to accept the world’s criticism” on how to combat it? “Because if you are not so amenable, have the humility to keep your mouth shut.”
Rosenbaum reserves particular venom for his peers, the self-proclaimed international legal experts who twist the meaning of the “rules of war” to defame Israel. He notes, for example, that in a report determining that Israel had committed genocide against the Palestinians, Amnesty International “unilaterally redefined the meaning of genocide” by waving away the requirement to have a specific intent to destroy a nation—which it knew it could not demonstrate in Israel’s case—and calling that definition an “overly cramped interpretation.” Amnesty and its ilk know better, Rosenbaum writes; they “simply allow pernicious antisemitic groupthink to get in the way.”
These selfsame experts, according to Rosenbaum, have also warped the definition of proportionality. According to the laws of war, as Rosenbaum cogently explains, proportionality “is measured by military objectives and outcomes”—namely, that “military necessity be sufficiently important to justify the loss of civilian life and destruction of property,” that efforts be made to mitigate such damage, and that any military advantage be “proportionate” to any civilian harm. It is not, as NGOs and the media have insisted, a disparity in the number of dead. The purported arbiters of the laws of war “deliberately distort” this legal concept to delegitimize Israel, transforming it into “urban warfare agitprop.”
Rosenbaum argues that, at bottom, these perversions of the law stem from rank anti-Semitism. “Self-appointed humanitarians” and the factions with whom they make common cause reject the notion of Jewish self-determination in Israel. To them, any military action taken by Israel violates international law by definition “because Jews are alien to the land” and “trespassers have no claim of right to self-defense.” And those not quite willing to go so far nevertheless accept this core logic, imposing on Israel standards that they would never foist on other states, much less their own.
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In the face of such an elemental denial of Israel’s right to exist, Rosenbaum recognizes the quixotic nature of his project. He does not expect to “change many minds,” since he understands that anyone who believes Israel is illegitimate is unlikely to fairly interpret international law as it applies to its actions against Hamas. Indeed, a strong whiff of fatalism at times threatens to overwhelm Beyond Proportionality, with Rosenbaum seeming to write out of a duty to posterity and honesty rather than any hope of salvaging a proper interpretation of the laws of war. Yet as close as Rosenbaum comes to despair, he does not quite abandon the hope that he can relay the true nature of the war in Gaza and wake up the West—if not for Israel, then for itself, should it face such terrorist horrors. Several sections of the book read like blunt-force trauma, an attempt to pulverize deeply entrenched notions about the kind of war Israel is fighting.
In that sense, Rosenbaum captures the confusion of the early phase of this reckoning: the rage against the injustice, yes, but also the uncertainty of its implications. Some voices have begun to emerge calling for Jews and Israel supporters to “get out”—to walk away with heads held high from the august institutions they helped build and in which they invested so much faith and financing, from the Genocide Convention itself to colleges and the legal profession. Rosenbaum skirts the edges of similarly stark rejectionism when it comes to the rules of war. At points, he contends that Israel must “go beyond proportionality” when necessary to achieve victory, especially because Israel’s enemies violate the laws of war so flagrantly. Yet, at other moments, he is far more modest, writing that the “special asymmetries” of urban terror warfare “perhaps require proportionality to undergo a bit of tweaking.” Rosenbaum does not resolve this inconsistency. And this, along with its frequent tendency to revisit previously tread ground and its occasionally disjointed structure and stream-of-consciousness screeds, suggests Beyond Proportionality may have been better had it been a J’Accuse-like essay rather than a full book.
Still, Beyond Proportionality is an important early marker in the reconsiderations that will occur in the coming years. Rosenbaum captures the anguish and clarity of a community only just beginning to grapple with a reality it had long failed to recognize or had ignored: In a world obsessed with bean-counting proportionality, their rights
will never quite count the same.
Photo: Amir Levy/Getty Images
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