In Israel’s no-choice war against Hamas and Iran, the death and injury of Palestinian noncombatants are the legal responsibility of “perfidious” jihadist enemies.
By LOUIS RENÉ BERES | SEPTEMBER 22, 2024
IDF SOLDIERS stand guard near damaged buildings in Gaza earlier this month. Though Israel’s bombardments of Gaza produce Palestinian casualties, legal responsibility for these harms lies entirely with Hamas and Iran, the writer asserts. (photo credit: AMIR COHEN/REUTERS)
Iran, Hamas, Hezbollah, the Houthis, and other jihadist foes of Israel are ultimately more focused on transcendent goals than on tactical or strategic advantages. This focus is “power over death.” How ought Israeli military planners to grasp and operationalize such an abstract notion?
While Israel’s attitude to counterterrorism is based on logic, science, and engineering, jihadist violence revolves around mystery, paradox, and witting self-delusion. Accordingly, a core question should now present itself in Jerusalem: In what usefully precise manner should jihadist beliefs in immortality be understood by Israel’s national security decision-makers?
There are pertinent particulars.
In facing jihadist ideologies that promise eternality to the faithful, Israel needs to be wary of projecting ordinary political and strategic preferences onto Hamas, Hezbollah, Palestinian Islamic Jihad (PIJ), the Houthis, and Iran. While enemy irrationality may not be uniform, certainly normative secular political preferences, such as self-determination, are generally secondary.
Though Israel’s immediate security concerns center on counterterrorism in Gaza, Judea and Samaria (West Bank), Lebanon, Syria, and Yemen, direct conflict with Iran is on the near horizon. What would be the longer-term implications of such a direct war – one that could become continuous and protracted?
If Israel’s national decision-makers were to survey the current configuration of global jihadist terrorist organizations (Sunni and Shi’ite) from an augmented analytic standpoint, the need to acknowledge the enemy philosophy of “power over death” (the nexus between “martyrdom operations” and “life-everlasting”) would be clear.
Jerusalem’s national security planners could then begin to place themselves in an improved operational position to deter Islamist murderers, hostage-takers, and suicide-bombers as individual terrorist-criminals and as enemy states that support the jihadist terrorist microcosm.
There are corresponding elements of law to be applied in such scenarios. In law, right can never stem from wrong.
Jihadist insurgents who seek to justify barbarous attacks on Israeli noncombatants in the name of martyrdom are acting contrary to international law. Insurgents’s intentional killing or maiming of noncombatants is always defined as terrorism. It is irrelevant whether the expressed cause of the terror-violence is presumptively just. Using unjust means to fight for allegedly just ends is never permissible.
Sometimes, martyrdom-seeking terrorist organizations such as Hamas or Hezbollah advance a supposedly legal argument known as tu quoque. This authoritatively discredited argument stipulates that because the other side is allegedly guilty of “similar, equivalent, or greater criminality,” the terrorist side is innocent of any wrongdoing. Jurisprudentially, any such argument is invalid – especially after the landmark postwar legal judgments of the Nuremberg and Tokyo Tribunals.
A no-choice war
In Israel’s no-choice war against Hamas and Iran, the death and injury of Palestinian noncombatants are the legal responsibility of “perfidious” jihadist enemies. Because Hamas and its Iranian state mentor place terror fighters in protected places (schools, hospitals, mosques), these places are no longer off-limits to defensive military action by Israel. For the Jewish state, enemy use of “human shields” is exculpatory of all necessary exertions of military force. In law, this is called “military necessity.”
Whenever an insurgent group resorts to unjust means, its actions constitute terrorism. Even if adversarial claims of a hostile controlling power could be taken as plausible, corollary claims to “any means necessary” would remain false. Recalling Hague Convention No. IV: “The right of belligerents to adopt means of injuring the enemy is not unlimited.”
Though Israel’s bombardments of Gaza produce Palestinian casualties, legal responsibility for these harms still lies entirely with Hamas/Iranian perfidy. While Israel-inflicted Palestinian casualties are unwanted, inadvertent, and unintentional, the killing and wounding of Israeli civilians are the verifiable result of Palestinian mens rea – criminal intent.
In law, there is a consequential difference between raping and murdering celebrants at a public music festival and the lethal consequences of a state’s self-defense operations. Insurgent movements that fail to meet the test of just means can never be defended as lawful or legitimate in themselves.
Even if relevant law was somehow to accept the argument that terror groups had fulfilled all valid criteria of “national liberation,” it would still not satisfy the equally significant legal standards of distinction, proportionality, and military necessity. These critical standards were applied to insurgent or armed sub-state organizations by the common Article 3 of the four Geneva conventions of 1949 and by the two 1977 protocols to these conventions.
Standards of “humanity” remain binding on all combatants by customary and conventional international law, including Article 1 of the Preamble to the Fourth Hague Convention of 1907. This rule, commonly called the Martens Clause, makes “all persons” responsible for the “laws of humanity” and associated “dictates of public conscience.” There can be no permissible exceptions to this universal responsibility.
Terrorist crimes mandate universal cooperation in apprehension and punishment. As punishers of “grave breaches” under international law, all states are required to “extradite or prosecute” individual terrorists. Under no circumstances are states permitted to treat terrorist “martyrs” as law-backed “freedom fighters.” International law is binding on all nations, including the United States and Israel.
Remarkably, legal authority for the American republic was largely derived from William Blackstone’s Commentaries, a magisterial work that owes much of its clarifying content to the principles of the Torah.
The writer is an emeritus professor of international law at Purdue University and the author of many books and scholarly articles on international law, nuclear strategy, nuclear war, and terrorism. His 12th and latest book is Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016; second edition, 2018).
@Adam
Your comment was only 260 words, so it wasn’t too long. I am not sure why it ran afoul of the system, but in any event, it is now rescued. Thanks for alerting me about it.
Peloni and Ted: I just posted a probably too long comment on professor Beres, article about terrorism and its illegitimacy. Could you please fish it out of electonic oblivion for me and post it in this comment spece? As you have done many times before.
An excellent analysis of the legal responsibilities of states to combat terrorists and the unjustifiable character of terrorism on behalf of a “just cause.”
Sill, I would argue that some terrorists are more evil and ill-intened than others. The IRA and Sinn Fein chiefs who waged a relentless war against the British and Irish Protestant forces in 1919-21 and against from 1968 through 2005 apparently made little or no money from their terroristic activities. It is said that they did not engage in the drug trade to finance their operations, and even cooperated with Britain and the Republic of Ireland, in fighting the drug traffickers, even while they were at war with Britain. Gerry Adams, the man who headed up Sinn Fein and the IRA for decades, apparently made no money at all from his “work.” He now supports himself by working as a field hand for his elederly uncle, who owns a small farm in the Rpublic of Ireland.
By contrast, the Heads of Hamas, Hezbollah and Iran are billionaires many times over. They are all deeply involved in the international drug trade, and make billions of dollars from it every year, both for themselves as individuals and for their organizations, which rely heavily on drug money for their terrorist operations.
But I guess all this means is that Irishmen, both Catholic and Protestant, are on the whole more decent people than most Muslims. Or at any rate, those who take their religion seriously. Islamic culture and even its holy books sanctions unlimited acts of terror against the “infedels.”