Interview: Eugene Kontorovich Exposes the Double Standards Against Israel

Eugene Kontorovich is an Israeli legal scholar. He is an expert in universal jurisdiction and maritime piracy, as well as international law and the Israel-Arab conflict.

He is Executive Director of George Mason University’s Scalia Law School Center for the Middle East and International Law.

He also heads the international law department Kohelet Policy Forum. He can be found on X @EVKontorovich. This interview was edited for clarity.

Ari: What is your mission?

Eugene: I'm not on a mission. I’ll leave that for the Blues Brothers; they're on a mission. I'm an academic. We look for conventionally accepted positions, theories, or arguments that contain unnoticed holes. We test and push them.

Conventional framing of Israel and international law rests on a little-challenged and intellectually incestuous consensus. My goal is to bring international law as it's applied to Israel more in line with international law in reality.

Ari: Explain the flaws in how the international media and international law community talk about the West Bank.

Eugene: This is one of the most illiberal and racist ideas that people uncritically accept. People become embarrassed when they reflect on widely-held beliefs about settlements. The basic position against so-called settlements comes down to the idea that Mandatory Palestine territories, where Jews once lived — and which Jordan and Egypt invaded and ethnically cleansed — as of 1948 must remain permanently Judenrein.

The expulsion included the Holy City of Jerusalem, including Old City Jerusalem. According to the mainstream narrative, those areas must forever remain free of Jews. They will remain free of Jews when they're under Arab control and, if those areas come under Jewish control, the Jewish government is obligated to prevent Jews from living there.

People try to disguise what they mean — a Judenrein Judea and Jerusalem — in language of international law, to make it sound clinical. The basic argument is that Israel occupies this territory, which isn’t true. There is no occupation because Israel has the superior sovereign claim to the territory.

About 100 years ago, the League of Nations Mandate for Palestine designated this area as a national home for the Jewish people. Jews were allowed to settle there. When Israel declared independence, its international legal borders included areas known today as the West Bank and Gaza. However, the West Bank and Gaza were not separate areas in 1948. They are integral parts of the Jewish state where Jews lived.

Israel's neighbors invaded to destroy the new Jewish state. They were partially unsuccessful, which is why Israel is independent. They did take over and occupy area that was supposed to be part of Israel. The real occupation of Palestine was Jordan’s occupation from 1948 to 1967, which was not recognized by the international community.

Jordan chose the name West Bank when it took territory that created the so-called Green Line. Why does it not resemble any natural political border? What political border dissects a city? This is not a political border. You see borders in the middle of cities when there's occupation, like divided Berlin or Cyprus.

When Israel reclaimed the territory in 1967, it took territory for which it had a sovereign claim — not Jordan territory. It did not belong to a Palestinian state because there was no Palestinian state in 1967. To “poof” a Palestinian state into existence in 1967 is time-travel-make-believe.

That would be like saying if Ukraine retook Crimea in nine years (Putin took the territory in 2014), Ukraine would be occupying Crimea. By 2033, all the Ukrainians are kicked out, and only pro-Putin Russians remain. Yet, we wouldn’t say Ukraine, in taking back Crimea, was occupying Crimea – though Russia controlled it for 19 years.

Ukraine regaining control of the territory would be considered a liberation. Ukraine would exercise its sovereign rights over Crimea, even though people living in Crimea at that point would object. This is an exact parallel with the West Bank.

There is no precedent in international law that Jews are permanently forbidden from living in the West Bank. Other occupations worldwide include: Turkish occupation of Northern Cyprus, Moroccan occupation of Western Sahara, and Armenian occupation of Nagorno-Karabakh. In each case, people from the controlling country moved into the occupied territory. In not one case did the United Nations declare it a violation of international law or the Geneva Conventions. International law [relative to occupation] really isn’t international law because it applies only to Israel.

Ari: Why is international law obsessed with Israel? After the South Africa genocide lawsuit, did international law take a hit in terms of legitimacy?

Eugene: One must distinguish international institutions from international law. The UN likes to think every resolution the General Assembly passes is international law. In reality, there's a big difference between national law and international institutions. Political organizations like the ICJ and the UN are not sources of international law, per se.

There's a great deal of perfectly functioning international law, such as diplomatic immunity, trade issues, investor-state dispute resolution, and extradition. High-profile international institutions like the General Assembly are not legal institutions — they are political institutions. They are meetings of representatives from every country in the world (which tilt heavily toward non-democracies).

Why is everyone so obsessed with Israel? Israel is the lowest common denominator. It is a political issue around which Arab countries and European countries can unite. I documented this in a Wall Street Journal article.

Israel is described as an occupying power literally thousands of times more than all other countries combined. It was accused of violating legitimate conventions exponentially more than all countries combined, including Russia, China, and other bad actors.

Maybe it's coincidence that the one nation with which other nations of the world are so obsessed happens to be one with a majority population of a people — Jewish people — that the nations of the world also historically obsess about, despite their small numbers.

The majority of General Assembly member states are undemocratic, and they resent the West, the Judeo-Christian tradition, and freedom. They pass resolutions about America, but America is big enough to shrug them off. Most Americans are unaware that the United Nations regularly censures the U.S. for colonialism (Puerto Rico and District of Columbia) and apartheid (Indian reservations).

America is powerful enough not to care when negative General Assembly resolutions pass. America retaliates diplomatically against hostile countries. If you are anti-West, but America or Britain is too big a target, Israel is a perfect target because it's small, vulnerable, and unable to retaliate. It represents the same Western values, so it is an ideal proxy. It's like preying on the slow gazelle.

Ari: That same dynamic occurs in the US when progressive activists attack Israel.

Eugene: A common example is Israel's use of force in Gaza, which is far more restrained than any other country in the world fighting urban war in modern times. If Israel’s actions are a war crime, then every American war ever fought is a long list of war crimes. But you can’t boycott America to death.

Israel is a scapegoat for perceived sins of the West. Progressives won’t boycott America and defect to Cuba. It's not nice there. Instead, they live in America, reap the benefits of Western society, and do moral atonement for the West’s perceived sins.

Ari: Last year the Israeli government got in hot water for looking to institute judicial reform. Will it be revisited?

Eugene: Politicians of most parties say judicial reform is needed. The question is what shape it will take. The courts' power is even more entrenched now than before the judicial reform battle. They assert that they have the power to override constitutional amendments. There are no reins on the courts' power.

It's hard to know how to reform absolute power. The idea behind judicial reform was to accomplish it democratically. The broad perception now is that it needs to happen, but the court does not seem interested in compromise.

Ari: How does Israel’s move rightward impact its relationship with the US?

Eugene: This is an Israel-specific problem, true of progressives and conservatives — though more so of progressives. Progressives want to reshape the world in their image. They don’t like it when politicians with ideologies they do not embrace are elected in other countries. They’re hostile.

Progressive politicians in America and Europe don't like it when Hungarians, Polish, Indians, Argentines, or Japanese elect right-wing leaders. This is not an Israel-specific phenomenon, so why is Israel different? The difference is that Israel is particularly susceptible to pressure from the United States because of its delicate geopolitical situation.

Democrat presidents dislike right-wing Israeli leaders who implement meaningful conservative policies. They want them to implement progressive policies. Any Israeli Prime Minister who does not want a Palestinian state will conflict with any Democrat president.

Ari: Do you see a solution?

Eugene: The solution is to finally resolve the non-occupation issue, so Israel isn’t perpetually subject to pressure. All Israel's victories are defensive. The nth attempt to compel Israel to cede territory for creation of a Palestinian state is unsuccessful. Israel beats it off again.

A Trump administration would likely negotiate a regional peace deal to normalize relations with Arab countries which recognize that Israel need not create a Palestinian state and that Palestinians don't have a baseline sovereign entitlement to territory conquered by Jordan and Egypt in 1948.

The reason this conflict has never been resolved is that every time Palestinians reject another offer of statehood from Israel, the expectation is for a better offer next time. Donald Trump can change that calculus by clarifying that, next time, any offer is downgraded. He could solve this conflict in the next four years. Trump already solved the Jerusalem issue.

Ari: Do you agree that the divide between America's two options regarding Israel has never been larger?

Eugene: Trump can bring real peace to the Middle East in a way that does not require Israel making concessions which prove suicidal ten or twenty years after everyone has received their Nobel prizes.

The Biden administration implemented unprecedentedly hostile Israel policies. It sanctioned Israeli civil society organizations. Biden et al no longer sanction the Houthi terrorist organization, but they did sanction an Israeli protest movement opposing delivery of aid to Hamas, which was run by a mother of eight.

Biden tries to delegitimize any Israel positions he disagrees with. His administration treats Israel the way one should treat Yemen, with sanctions, asset freezes, and travel bans. This has never happened before.

Treatment of Israel will further deteriorate under Kamala Harris. She will significantly undermine Israel’s security. She was against Israel invading Rafah, claiming it would not be possible to invade Rafah without massive civilian casualties. In fact, civilian casualties were extraordinarily low, and the invasion significantly changed the tide of the war.

Joe Biden said Israel's response to Oct. 7 was “over the top.” However, Joe Biden is still anchored in an earlier democratic tradition of pro-Israel politics. Kamala Harris is not. From the Israeli perspective, the contrast is extremely stark. Of course, American Jews believe everybody should vote based on their sectoral interests, except American Jews.