“The existence of `system’ in the world is obvious to every observer of nature, no matter whom.”
Pierre Teilhard de Chardin, The Phenomenon of Man (1959)
Whether conspicuous or obscure, terrorism generally presents itself as a systemic challenge. This means, inter alia, that seemingly singular strategic and legal [1] matters may actually be many-sided and interrelated. Regarding legal issues, though certainly not obvious, international law represents an indissoluble part of every nation-state’s domestic normative order. [2] To wit, William Blackstone’s Commentaries, echoing 18th century Swiss jurist Emmerich de Vattel, explains: “Each state is expected to aid and enforce the law of nations, as part of the common law, by inflicting an adequate punishment upon offenses against that universal law….” [3] Lest anyone inquire about the special significance of William Blackstone, one need only to point out that his Commentaries (1760-1769) represents the original foundation of all United States law.
We are interested here in present-day Israel. Endlessly, in the acrimonious Middle East, there have been assorted charges and counter-charges. From the beginning of the Arab-Israeli conflict in the late 1940s, a recurrent Palestinian defense against Israeli denunciation of “terrorism” has been a counter-charge of IDF “disproportionality.” [4]
What does authoritative international law say about any such defense? More precisely, what do variously codified and customary [5] legal norms stipulate about such purported violations of the law of war? These are not merely questions of opinion. The correct answers are discoverable only in authoritative legal rules.
There are also subsidiary questions. What are the pertinent risks? [6] What are corresponding leadership responsibilities? [7] And what is the “contextual” relevance of our fragmented planet’s continuously “Westphalian” system of international law? [8]
Soon, a reciprocal question will also need to be raised. To the extent that Hamas, Islamic Jihad and their more-or-less recognizable insurgent allies choose a policy form of “human shields,” the Palestinian side [9] would be guilty of “perfidy.” Any such policy is illegal on its face, [10] and qualifies ipso facto as a “grave breach” of relevant Geneva Conventions. [11] Easily the most critical legal effect of perfidy committed by Palestinian insurgent leaders – and an effect that Jerusalem ought to make more plainly evident to observers – is that it immunizes Israeli officials from any responsibility for inadvertent counterterrorist harms suffered by Arab civilians.
There are many pertinent specifics available for competent study. Perfidy is identified as a “grave breach” at Article 147 of Geneva Convention IV. Deception can be legally acceptable in armed conflict, but The Hague Regulations expressly disallow any placement of military assets or personnel in populated civilian areas. Variously related prohibitions of perfidy can be found at Protocol I of 1977, additional to the Geneva Conventions of August 12, 1949. These rules are also binding on the discrete but still-intersecting basis of customary international law, [12] a jurisprudential source identified at Article 38 of the Statute of the International Court of Justice. [13]
Presently embroiled in yet another violent struggle with Hamas, Islamic Jihad and/or assorted kindred groups, [14] Israel will need to proceed diligently with its identification of proper legal arguments. Optimally appropriate steps would best ensure that Palestinian war crimes could never get in the way of Israel’s indispensable self-defense postures, and that Jerusalem could readily abide by all authoritative expectations of humanitarian international law. [15] Ultimately, though of no immediate concern, this obligation would become most critical in circumstances where Sunni and/or Shiite terror attacks were to involve weapons of mass destruction.
It’s time for candor. Such circumstances are implausible, but they are still conceivable. “The worst,” reminds Swiss playwright Friedrich Durrenmatt, “Sometimes does happen.”
Though interpenetrating or intersecting, law and strategy should always be evaluated separately, as conceptually discrete elements of Israel’s unified military doctrine. [16] In this connection, Israel must take prompt measures to convince both its Palestinian insurgent foes and its state patrons that perfidious terrorist aggressions would be revealed in law and opposed in practice. These remedial or corrective measures could create an efficient “force multiplier” for Israel, one wherein the “whole” desired anti-insurgent effect would be greater than the decipherable sum of legal and military “parts.”
In law, considerations of distinction (discrimination), proportionality and military necessity [17] set defined limits on the use of armed force. Always, under the customary and codified expectations of the law of war, these three interpenetrating criteria remain unequivocally binding. When Israel’s terrorist enemies declare an IDF attack to be “disproportionate,” they wittingly ignore that the rule of proportionality does not demand tangibly equivalent military harms.
It demands only an amount of force that is militarily necessary.
For the most part, the key issues here are clear and straightforward. Any gratuitous infliction of harms is illegal under the longstanding law of war, but pertinent harms need never be of any determinably equivalent magnitude. If such equivalence were an actual authoritative expectation, the United States, following its August 1945 atomic attacks on Hiroshima and Nagasaki, would represent the single most egregious offender of “proportionality” standards in human legal history.
There is more. In the main, governing jurisprudence in such complex matters is unhidden. Inevitably, perfidy and perfidy-like behavior represent an especially serious violation of the law of war or law of armed conflict. During Israel’s several Gaza wars, perfidy was exploited with some measure of tactical success by Hamas, but perhaps far more importantly, with considerable propagandistic benefit. This is the case primarily because the Israeli side has never been sufficiently clear in condemning the Palestinian terror group’s linguistic manipulations.
On various carefully-choreographed occasions, the practice of “human shields” was justified by the Palestinian side in terms of alleged Israeli “disproportionality.” Though clearly successful as Hamas propaganda, these justifications were simply concocted Palestinian claims. In essence, they were premised upon irrelevant and intentional manipulations of acceptable legal definition. When Palestinian insurgents claimed the right to “any means necessary” against Israel, they adopted a powerful and compelling argument, but one that still remained immutably illegal.
Contrary to oft-repeated Palestinian claims and the derivative claims of assorted insurgent supporters, the rule of “proportionality” under humanitarian international law does not obligate any intentional symmetry in the use of armed force. Yet, these claims continue to represent a markedly useful tactic in mobilizing world public opinion against Israel. All things considered, this tactic has represented a textbook example of Palestinian “lawfare” at its practical best and law-violating worst.
International law always regulates world system behaviors. In its particular manifestation as the law of war, international law requires every use of force (whether exercised by a uniformed army or by irregular/insurgent force) to meet the test of “proportionality.” Drawn in part from the rudimentary legal precept that “the means that can be used to injure an enemy are not unlimited,” [18] this test of proportionality stipulates that every resort to armed force remain limited to what is presumed necessary for meeting legitimate military objectives.
Here, the peremptory or jus cogens principle of codified and customary jurisprudence applies to all judgments of military advantage and to all planned reprisals or retaliations. It does not mean that each side to an ongoing conflict must at any time agree to suffering or imposing symmetrical harms.
“Justice,” we may learn originally from Plato’s Republic, means “a contract neither to do nor to suffer wrong.” [19] Unless there should be substantially greater understanding that perfidious or perfidious-type behavior by insurgents places direct legal responsibility for correlative harms on that insurgency, and not on the victimized state or population, sub-state foes could sometime decide to escalate hostilities. Such manifestly dangerous terrorist escalations could eventually embrace mega-terror assaults on Israel. These assaults could sometime include an actual use of destructive nuclear weapon technologies. [20]
To best manage and inhibit such consequential enemy escalations, Jerusalem will have to choose between creating a maximally seamless web of national deterrence (ranging from narrowly conventional to broadly nuclear retaliatory attacks) and allowing certain enemy forces to proceed directly toward WMD terrorist capacities. [21]
For now, such Israeli judgments will have to be made without “benefit” of any relevant historical experience. In scientific terms, there can never be any authentic assessments of probability in the absence of pertinent past events. Among other things, the persuasiveness of Israeli deterrent threats will require Israel’s time-relevant foe to believe that Jerusalem is willing to launch appropriate military retaliations and is simultaneously capable of inflicting “unacceptable damage.” Included in this basic requirement of perceived capability would be the capacity to penetrate enemy active defenses.
There is more. This means, in turn, that Israel’s offensive military forces must stay at least “one step ahead” of any determined enemy’s missile defense systems. If this tactical advantage were not present, Israel’s enemy or enemies, no longer having to anticipate unacceptable reprisals, could sometime feel sufficiently inclined to strike first itself. In such a scenario, by definition, critical Israeli deterrence could fail altogether. [22]
Terrorism, like perfidy, is a codified crime under authoritative international law, but the discrete and component crimes are mutually reinforcing rather than mutually exclusive. De jure, any human shields-based deceptions launched by anti-Israel terrorists would effectively add a second layer of illegality to an already underlying insurgent dereliction. Though frequently disregarded, minimized or disputed, Hamas, Islamic Jihad, Fatah, and Hezbollah insurgencies are inherently illegal. This is true even if one were to assume “just cause” in all or some of these terror groups.
In law, perfidious tactics are not “only” mala prohibita (“evil as prohibited”), but also malae in se (“evil in themselves”). This characterization also applies to “lone wolf” terrorist attackers. Many of the most recent Palestinian terrorists identified by Israel were of this “lone wolf” variety.
And there is more to learn about deception. The terrorist crime of perfidy is not about deception as such. Under humanitarian international law, deception is never impermissible on its face. Some forms of deception are generally permitted to states and selectively to lawful insurgents; that is, to those with arguably “just cause.” Nonetheless, the specific practice of human shields is always illegal. Its universal prohibition extends to all operational combatants: state, sub-state and individual.
During Israel’s several Lebanon wars, [23] Hezbollah, assisted by Syria and Iran, placed its weapons and fighters in carefully selected areas of Arab civilian population. In the past, ISIS, which at some earlier point might have been inclined to confront Israel directly, employed a human shields strategy in its battle for Mosul (Iraq). At that time, this prohibited strategy was still useful in providing ISIS with tangible tactical advantages.
Despite former US President Donald Trump’s reassurances years back that “ISIS has been defeated,” the Sunni terror group remained more-or-less active in various parts of the Sinai Peninsula. Not to be forgotten by Israel or its US ally is that the ISIS enemy was never so much a distinct group or organization of compartmentalized Islamic adversaries as it was an enemy ideology. Such an ideology can never be eliminated by sending in more and more bombs or missiles. America, one hopes, ought by now to have learned this same primary lesson in Afghanistan.
To wage successful war against any Jihadist ideology, [24] Israel’s primary “battlefield” must be analytic or intellectual. [25] In the ancient Greek and Macedonian worlds, this form of struggle was identified as one of “mind over mind” rather than “mind over matter.” [26] For Israel, the earlier identification remains valid.
Sooner or later, certain of Israel’s Arab/Islamic terrorist enemies, perhaps under cover of perfidy, will begin a quantum magnification of operational goals. Then, more or less systematically, these adversaries will strive to exploit the particular methods and harms that already lie latent in WMD violence. In one seldom-mentioned nuance of this threat, the enemy party, whether state or terror-organization, could aim its conventional rockets against Israel’s nuclear reactor at Dimona. [27] Though unprecedented, the basic results of any such attack are not difficult to fathom.
The dangers of extraordinary unconventional terrorism could be enlarged in the absence of ordinary strategic logic. Moreover, these dangers could become still more consequential if insurgent enemies of Israel and their allies would become more expressly oriented toward what French philosopher Albert Camus (The Rebel; 1956) called “crimes of passion.” Here, animated by the clarion call of jihad and operating outside of any rules of rationality – outside what Camus calls “crimes of logic” – these terrorists could sometime opt for inflicting chemical, biological or (potentially) nuclear destruction upon Israel. In this connection, former Israeli Prime Minister Benjamin Netanyahu’s persistent threats of “unimaginable” reprisals against Hamas missed the point.
Foreseeably, any terrorist nuclear threat would be limited to a “dirty bomb” attack, although it could already extend, at least in principle, to assorted conventional assaults upon Israel’s Dimona reactor. It is even possible that the selection of WMD terror would be detached from any rationally considered calculations of geopolitical advantage. Plainly, there exists no good historical or intellectual reason to expect only rational behavior in world politics.
Writing about the species of fear that arises from tragedy, ancient Greek philosopher Aristotle emphasized in Poetics that such fear “demands a person who suffers undeservedly” and must also be felt by “one of ourselves.” This fear, or terror, has little or nothing to do with any private concerns for impending misfortune to others, but rather from our own perceived resemblance to the victim. Terror, therefore, is generally fear referred back to ourselves. The credible threat of chemical, biological, or nuclear terrorism could sometime prove purposeful from the jointly comprehensive standpoints of enemy passion and enemy logic.
Going forward, Israel should more clearly communicate to its insurgent foes that any contemplated excursions into higher-order forms of destruction could never elicit Israeli capitulations. To ensure that such communications have the best possible chances of success, it is most important that Israel’s terrorist enemies foresee no meaningful advantages to staging “perfidious” assaults. Always, for the State of Israel, law and strategy must be contemplated together, as closely interdependent parts of a single coherent national security policy. [28]
There remains one last point concerning tangible links of Israeli counter-terrorism strategy to US foreign policy. A few years ago, former President Donald J. Trump pointed with ostentatious and self-congratulatory pride to the “Abraham Accords,” [29] but these agreements negotiated via America’s “good offices” did nothing to meaningfully reduce the probability or intensity of Israel-terrorist conflict. In essence, they did little more than marginally improve Israel’s relations with states that had never been real anti-Israel belligerents. Quite plainly, Israelis ought not sleep any better at night knowing that a surprise attack from Bahrain, UAE, Sudan or Morocco is now less likely.
There is a connected and concluding observation. Israel’s adversarial relationship with Hamas, Islamic Jihad and other Palestinian insurgent groups can never be improved by forging national agreements with secondary-state foes. [30] Agreements like the Trump-brokered Abraham Accords were designed only for the former president’s domestic political benefit, and merely exacerbated Israel’s relations with its Palestinian foes. To finally get beyond its corrosively belligerent relations with the Palestinian side, Israel’s diplomacy will need to be based upon more authentically intellectual and legal foundations. In the interim, among other things, variously binding standards of international law should be acknowledged by all sides and by the wider global community. Before this can happen, however, all sides will likely be impacted by what happens in the Russian war against Ukraine, a uniquely barbarous post-World War II aggression [31] that harbors potentially nuclear elements.
This assessment of Israeli counter-terrorism has been about complex considerations of law and strategy. In both legal and strategic terms, the world is always best studied as a system. If certain conventional-nuclear firebreaks are crossed for the first time by Vladimir Putin in Ukraine, the consequences will be felt widely and deeply in various other places, [32] including the Middle East. It follows that Israel’s ongoing and escalating war on terror will have to draw systematically upon a broad variety of legal insights and intersecting operations.
To do otherwise could prove too costly for Israel. Effective counter-terrorism is never a proper subject matter for “common sense” resolution. Its multiple and overlapping elements can never be suitably untangled by pundits, opportunists or politicos.
Israeli counter-terrorism is a strategic and legal subject, one that should always be approached as both a systemic and dialectical [33] challenge. It follows that the most valuable “armaments” available to Israeli security planners will be disciplined thinkers of uncommonly high intellect. In a national and global society long accustomed to identifying heroes with special operations forces, large guns and heavy missiles, acknowledging these “softer” armaments will not come easily. Nonetheless, such acknowledgment (bolstered perhaps by the new movie “Oppenheimer”) will prove indispensable to effective and law-based Israeli security protections.
References: (NB: JURIST typically does not use footnotes; however, for certain analyses in which footnotes, in and of themselves, are critical to an understanding of the author’s argument, we may opt to make exceptions to this rule).
[1] The laws of war pertain not only to Israel, but also to its terror-group adversaries. Applying the laws of war to insurgent forces dates back to the four Geneva Conventions of 1949. Further, as more than codified treaties and conventions comprise the comprehensive law of war, authoritative obligations of jus in bello (justice in war) represent a fully-binding part of “the general principles of law recognized by civilized nations” (phrase from Art. 38 of the Statute of the International Court of Justice). Humanitarian international law binds all categories of belligerents. Hague Convention IV of 1907 further declares that in the absence of a precisely published set of guidelines regarding “unforeseen cases,” the operative pre-conventional sources of humanitarian international law still obtain and still govern all belligerency.
[2] The US Neutrality Act, 18 U.S.C. Sec. 960 (originally Sec. 25) (1794) was enacted in order to formally incorporate international law standards. Pertinent Congressional authority derived most specifically from article 1, Section 8, clause 10 of the U.S. Constitution. See also Talbot v. Jansen, 3 U.S. (3 Dall.) 133, 156 (1795) (Paterson, J). In the words of Mr. Justice Gray, delivering the judgment of the US Supreme Court in Paquete Habana (1900): “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction….” (175 U.S. 677(1900)) See also: Opinion in Tel-Oren vs. Libyan Arab Republic (726 F. 2d 774 (1984)). The more specific incorporation of treaty law into US municipal law is expressly codified at Art. 6 of the US Constitution, the so-called “Supremacy Clause.” For pertinent earlier decisions by Justice John Marshall, see: The Antelope, 23 U.S. (10 Wheat.) 66, 120 (1825); The Nereide, 13 U.S. (9 Cranch) 388, 423 (1815); Rose v. Himely, 8 U.S. (4 Cranch) 241, 277 (1808) and Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).
[3] See: 2 William Blackstone, Commentaries on the Laws of England, Book 4, “Of Public Wrongs” (1765-1769). Most famously, in this regard, was the main Nuremberg Trial (IMT) following World War II: See: “Trial of the Major War Criminals before the International Military Tribunal ” Nuremberg, 14 November 1944‑1 October 1946, 42 vols., IMT Secretariat, Nuremberg, 1947‑9. Cited by A.P. D’entreves, Natural Law 110 (1951).
[4] The principle of proportionality is contained in the rules governing the resort to armed conflict (jus ad bellum) and in the rules governing the actual conduct of hostilities (jus in bello). In the former, proportionality relates to self-defense. In the latter, it relates to conduct of belligerency. Proportionality is itself derivative from the more basic principle that belligerent rights are not unlimited See notably Hague Convention No. IV (1907), Annex to the Convention, Section II (Hostilities), Art. 22: “The right of belligerents to adopt means of injuring the enemy is not unlimited.”
[5] Article 38(1)(b) of the STATUTE OF THE INTERNATIONAL COURT OF JUSTICE describes international custom as “evidence of a general practice accepted as law.” The essential significance of a norm’s customary character is that the norms bind even those states that are not parties to the pertinent codification. Even where a customary norm and a norm restated in treaty form are apparently identical, these norms are treated as jurisprudentially discrete. During the merits phase of MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA, the International Court of Justice (ICJ) stated: “Even if two norms belonging to two sources of international law appear identical in content, and even if the States in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence.” See: MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA, Nicar. V. US., Merits, 1986 ICJ, Rep. 14 (Judgment of 27 June).
[6] Risks include decisional error and could take variously different and overlapping forms. Such forms include a disorderly or inconsistent value system; computational errors in calculation; an incapacity to communicate efficiently; random or haphazard influences in the making or transmittal of particular decisions; and internal dissonance generated by any authoritative structure of collective decision-making.
[7] Criminal responsibility of leaders under international law is not limited to direct personal action nor is it limited by official position. On the principle of command responsibility, or respondeat superior, see: In re Yamashita, 327 U.S. 1 (1945); The High Command Case (The Trial of Wilhelm von Leeb), 12 Law Reports of Trials of War Criminals 1 (United Nations War Crimes Commission Comp., 1949); see Parks, Command Responsibility for War Crimes, 62 MIL.L. REV. 1 (1973); O’Brien, The Law of War, Command Responsibility and Vietnam, 60 GEO. L.J. 605 (1972); U.S. Dept. of The Army, Army Subject Schedule No. 27 – 1 (Geneva Conventions of 1949 and Hague Convention No. IV of 1907), 10 (1970). The direct individual responsibility of leaders is also unambiguous in view of the London Agreement, which denies defendants the protection of the act of state defense. See AGREEMENT FOR THE PROSECUTION AND PUNISHMENT OF THE MAJOR WAR CRIMINALS OF THE EUROPEAN AXIS, Aug. 8, 1945, 59 Stat. 1544, E.A.S. No. 472, 82 U.N.T.S. 279, art. 7.
[8] For authoritative legal origins of this self-help system of international law (aka “Westphalian law”) see: Treaty of Peace of Munster, Oct. 1648, 1 Consol. T.S. 271; Treaty of Peace of Osnabruck, Oct. 1648, 1 Consol. T.S. 119. Together, these two treaties comprise the “Treaty of Westphalia.” The de facto condition of Westphalian anarchy stands in contrast to the jurisprudential assumption of solidarity between states. This law-based assumption concerns a presumptively common legal struggle against aggression. terrorism and genocide. Such a “peremptory” expectation, known formally in law as a jus cogens assumption, was already mentioned in Justinian, Corpus Juris Civilis (533 CE); Hugo Grotius, 2 De Jure Belli ac Pacis Libri Tres, Ch. 20 (Francis W. Kesey., tr, Clarendon Press, 1925) (1690); and Emmerich de Vattel, 1 Le Droit des Gens, Ch. 19 (1758).
[9] All such Palestinian terror has early roots in the Palestinian National Covenant. Calling officially for sustained Arab violence against Israel, this document was adopted in 1964, three years before the 1967 Six Day War. This means, significantly, that the PLO’s core guidance on terror was first published – together with its explicit references to the annihilation of Israel – three years before there were any “occupied territories,” For the Palestinian Authority, which until October, 2015, had still officially agreed to accept a “Two-State Solution,” the underlying and inherently lawless position of protracted war was part of a much broader strategy of incorporating Israel into “Palestine.” This irredentist incorporation was already codified on all PA maps. The most unambiguous Palestinian call for the removal of Israel remains the PLO’s “Phased Plan” of June 9, 1974. This Plan represents an unhidden commitment to carry out various certifiable crimes against humanity. In contrast to more militant Hamas (the Islamic Resistance Movement), the Palestinian Authority is allegedly “moderate.”
[10] “The presence of a protected person may not be used to render certain points or areas immune from military operations. Geneva Convention No. IV, Art. 28 (1949) Also: “The presence or movements of the civilian population or individual citizens shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favor or impede military operations.” Protocol Additional (No.1) to the Geneva Convention, Art. 51 (1977)
[11] The term “Grave Breaches” applies to certain infractions of the Geneva Conventions of 1949 and Protocol I of 1977. The actions defined as “Grave Breaches” in the four Conventions must be performed willfully or intentionally, and against the different groups of “protected person” identified by each Convention. The High Contracting Parties to the Geneva Conventions are under obligation “to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed,” a grave breach of the Convention. As defined at Art. 147 of Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (6 U.S.T. 3516, signed on Aug. 12 1949, at Geneva), Grave Breaches “shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. Reference to Grave Breaches can also be found in the INTERIM REPORT OF THE COMMISSION OF EXPERTS, UNITED NATIONS DOCUMENT, S/25274, January 2, 1993, at Sec. 3., Art. 47.
[12] Article 38(1)(b) of the Statute of the International Court of Justice describes international custom as “evidence of a general practice accepted as law.” 59 Stat. 1031, T.S. No. 993 (June 26, 1945).
[13] On the main corpus of jus in bello or humanitarian international law, see: Convention No. IV Respecting the Laws and Customs of War on Land, With Annex of Regulations, October 18, 1907. 36 Stat. 2277, T.S. No. 539, 1 Bevans 631 (known commonly as the “Hague Regulations:); Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Done at Geneva, Aug. 12, 1949. Entered into force, Oct. 21, 1950. 6 U.S.T. 3114, T.I.A.S. No. 3362, 75 U.N.T.S. 31; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Done at Geneva, Aug. 12, 1949. Entered into force, Oct. 21, 1950. 6 U.S.T. 3217, T.I.A.S. No. 3363, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War. Done at Geneva, Aug. 12, 1949. Entered into force, Oct. 21, 1950. 6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135; Convention Relative to the Protection of Civilian Persons in Time of War. Done at Geneva, Aug. 12, 1949. Entered into force, Oct. 21, 1950. 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287.
[14] Under authoritative international law, terrorist movements are always Hostes humani generis, or “Common enemies of mankind.” See: Research in International Law: Draft Convention on Jurisdiction with Respect to Crime, 29 AM J. INT’L L. (Supp 1935) 435, 566 (quoting King v. Marsh (1615), 3 Bulstr. 27, 81 Eng. Rep 23 (1615) (“a pirate est Hostes humani generis”)).
[15] None of this is meant to suggest that Palestinian populations ought ever to be deprived of their peremptory human and/or political rights, but only to clarify comprehensively that the ends can never justify the means under authoritative international law. For example, the popular Palestinian terrorist defense of “by any means necessary” can never be deemed acceptable to law and justice.
[16] Formal doctrine is the required framework from which proper strategic goals should be suitably extrapolated. Generically, in “standard” or orthodox military thinking, such doctrine describes the tactical manner in which national forces ought to fight in various combat situations, the prescribed “order of battle,” and variously assorted corollary operations. The literal definition of “doctrine” derives from Middle English, from the Latin doctrina, meaning teaching, learning, and instruction. Always, a central importance of codified military doctrine lies not only in the way it can animate, unify and optimize pertinent military forces, but also in the way it can transmit certain desired “messages” to an enemy.
[17] The principle of “military necessity” has been defined authoritatively by the United States: “Only that degree and kind of force, not otherwise prohibited by the law of armed conflict, required for the partial or complete submission of the enemy with a minimum expenditure of time, life, and physical resources may be applied.” See: United States, Department of the Navy, jointly with Headquarters, U.S. Marine Corps; and Department of Transportation, U.S. Coast Guard, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M, Norfolk, Virginia, October 1995, p. 5-1.
[18] See especially, Hague Convention (No. IV); (1907); “Annex to the Convention,” Section II, “Hostilities,” Chapter 1, Art. 22., “The right of belligerents to adopt means of injuring the enemy is not unlimited.”
[19] See also, Philus in Bk III, Sec. 5 of Cicero, DE REPUBLICA.
[20] Regarding early writings by this author on nuclear terrorism, see: Louis René Beres, Security Threats and Effective Remedies: Israel’s Strategic, Tactical and Legal Options, Ariel Center for Policy Research (Israel), Policy Paper # 102, April 2000, 110pp; Louis René Beres, Terrorism and Global Security: The Nuclear Threat, second ed., (Boulder and London: Westview Press, 1987); and Louis René Beres, “Confronting Nuclear Terrorism,” The Hastings International and Comparative Law Review, Vol. 14, No. 1., Fall 1990, pp. 129 – 154; Summer 1994.
[21] Israel’s nuclear strategy could have meaningful implications for U.S. national security. On these widely ignored connections, see Louis René Beres and special post-script by (General/USA/ret.) Barry McCaffrey, ISRAEL’S NUCLEAR STRATEGY AND AMERICA’S NATIONAL SECURITY, Tel-Aviv University and Israel Institute for Strategic Studies, Tel-Aviv, December 2016: https://sectech.tau.ac.il/sites/sectech.tau.ac.il/files/PalmBeachBook.pdf
[22] Reciprocally, Israel must ensure the durability of its own active defenses. Still, anti-missile deployments can never be “leak proof,” and could sometime resemble a refashioned Bar-Lev line. Such a deterioration would encourage false reassurances, and provide little if any soft-target protection. In the more existential case of Israeli space based defense against ballistic missiles, this refashioned Bar-Lev line could display “orbiting” characteristics. On Israel and Arrow, see: Louis René Beres and Major-General (IDF/ret.) Isaac Ben-Israel, “Think Anticipatory Self-Defense,” The Jerusalem Post, October 22, 2007; Professor Beres and Major-General Ben-Israel, “The Limits of Deterrence,” Washington Times, November 21, 2007; Professor Beres and MG Ben-Israel, “Deterring Iran,” Washington Tines, June 10, 2007; and Professor Beres and MG Ben-Israel, “Deterring Iranian Nuclear Attack,” Washington Times, January 27, 2009.
[23] See generally Louis René Beres, After the Falling Rockets from Lebanon: Interrelated
Commentaries on Israel’s Performance and Survival, 10 NATIV ONLINE (2006), available at
http://www.acpr.org.il/english-nativ/10-issue/beres-I 0.htm.
[24] In Man and Crisis (1958), 20th century Spanish philosopher Jose Ortega y’Gasset observes: “History is an illustrious war against death.” This comment is especially relevant in regard to present-day Jihadist terrorism. Ultimately, power over death represents the greatest conceivable form of terrorist power anywhere on earth; but acquiring such power in world politics can call for the killing of certain despised “others.”
[25] Says Guillaume Apollinaire: “It must not be forgotten that it is perhaps more dangerous for a nation to allow itself to be conquered intellectually than by arms.” See: The New Spirit and the Poets, 1917.
[26] The core importance of thoughtful military doctrine – of attention to the complex intellectual antecedents of any actual battle – had been recognized by early Greek and Macedonian strategists and military planners. See, on this still-vital and increasingly urgent recognition, F.E. Adcock, The Greek and Macedonian Art of War (Berkeley, CA: University of California Press, 1962), especially Chapter IV.
[27] Hamas fired rockets at Dimona back in 2014, and Saddam Hussein launched several Scud-B rockets toward Israel during the 1991 Gulf War. For an early and informed consideration of reactor attack effects, see: Bennett Ramberg, Destruction of Nuclear Energy Facilities in War (Lexington MA: Lexington Books, 1980); and Bennett Ramberg, “Attacks on Nuclear Reactors: The Implications of Israel’s Strike on Osiraq,” Political Science Quarterly, Winter 1982-83; pp. 653 – 669. More recently, see: Bennett Ramberg, “Should Israel Close Dimona? The Radiological Consequences of a Military Strike on Israel’s Plutonium-Production Reactor,” Arms Control Today, May 2008, pp. 6-13.
[28] Israel could also consider various formal treaty-like pacts with pertinent terrorist group enemies, but recognize, at the same time, that such pacts could contain the same sorts of lurking dangers as would treaties with state enemies. In law, terror group organizations may sometimes enter into valid agreements with states, but it need not follow that they would be any more likely than enemy states to comply. Regarding the purely legal aspects of such pacts, see: H. Lauterpacht, International Law: Collected Papers, Vol.1, 1975, pp. 494-495; and I. Brownlie, Principles of Public International Law, 4th ed., 1990, Part II, pp. 65-66.
[29] See, on the Abraham Accords: https://www.state.gov/the-abraham-accords/ To be considered as a complementary agreement, see the Israel-Sudan Normalization Agreement (October 23, 2020) and Israel-Morocco Normalization Agreement (December 10, 2020).
[30] Some current Israeli supporters of a Palestinian state argue that its prospective harms to Israel could be reduced or even eliminated by ensuring that state’s immediate “demilitarization.” For informed reasoning against this naive argument, see: Louis René Beres and (Ambassador) Zalman Shoval, “Why a Demilitarized Palestinian State Would Not Remain Demilitarized: A View Under International Law,” Temple International and Comparative Law Journal, Winter 1998, pp. 347-363; and Louis René Beres and Ambassador Shoval, “On Demilitarizing a Palestinian `Entity’ and the Golan Heights: An International Law Perspective,” Vanderbilt Journal of Transnational Law, Vo. 28., No.5., November 1995, pp. 959-972.
[31]See especially: RESOLUTION ON THE DEFINITION OF AGGRESSION, Dec. 14, 1974, U.N.G.A. Res. 3314 (XXIX), 29 U.N. GAOR, Supp. (No. 31) 142, U.N. Doc. A/9631, 1975, reprinted in 13 I.L.M. 710, 1974; and CHARTER OF THE UNITED NATIONS, Art. 51. Done at San Francisco, June 26, 1945. Entered into force for the United States, Oct. 24, 1945, 59 Stat. 1031, T.S. No. 993, Bevans 1153, 1976, Y.B.U.N. 1043.
[32] As reciprocal, however, it is also vital to consider an American president’s authority and capacity to initiate a nuclear strike. In this connection, see by this writer: Louis René Beres, http://www.jurist.org/forum/2017/08/louis-rene-beres-trump-nuclear.php See also: https://www.usnews.com/opinion/articles/2016-05-11/possible-trump-presidency-showcases-fatal-flaw-in-nuclear-command-safeguard. Professor Beres is the author of twelve published books dealing with nuclear command decisions, including Apocalypse: Nuclear Catastrophe in World Politics (The University of Chicago Press, 1980), and, in The Bulletin of the Atomic Scientists: https://thebulletin.org/2016/08/what-if-you-dont-trust-the-judgment-of-the-president-whose-finger-is-over-the-nuclear-button/
[33] Nuclear strategists should always approach their subject as a dialectical series of thoughts, one wherein each important idea presents a complication that moves onward to the next thought or idea. Central to this dialectic is the obligation to continue thinking, an obligation that can never be fulfilled altogether because of what the philosophers call an infinite regress problem. Still, it is an obligation that must be undertaken as fully and as competently as possible. The term “dialectic” originates from an early Greek expression for the art of conversation. A currently more common meaning is that dialectic is a method of seeking truth by correct reasoning. More precisely, it offers a method of refutation by examining logical consequences, and also the logical development of thought via thesis and antithesis to an eventual synthesis of opposites. In the middle dialogues of Plato, dialectic emerges as the quintessential form of proper philosophical/analytical method. Here, Plato describes the dialectician as one who knows how to ask, and then answer, questions. In the particular matter of Israeli nuclear strategy, this kind of knowledge must precede all other compilations and inventories of military facts, figures, force structures and power balances.
LOUIS RENÉ BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with war, terrorism, and human rights. His latest and twelfth book is Surviving Amid Chaos: Israel’s Nuclear Strategy. https://rowman.com/ISBN/9781442253254/Surviving-Amid-Chaos-Israel%27s-Nuclear-Strategy
Suggested citation: Louis René Beres, Israel, Counter-Terrorism, and International Law: The Analytic Challenges of ‘System,’ JURIST – Academic] Commentary, August 17, 2023, https://www.jurist.org/commentary/2023/08/Beres-analytic-challenges-system/.
This article was prepared for publication by Rebekah Yeager-Malkin, Deputy Commentary Managing Editor. Please direct any questions or comments to [your pronouns] at commentary@jurist.org
