“The Safety of the People shall be the Highest Law.”
Cicero
Eschatology is about certain end-of-life expectations, about “last or final judgments, about death, about God’s judgment and the human “soul.” But what possible connections could link such metaphysical or religious expectations with Israel’s current struggle against jihadist terror? Are there any pertinent legal connections?
To begin, law-based counter-terrorism is never just about strategy, tactics or doctrine.[1] Whatever an insurgency’s operational specifics, this area of national security planning should remain intellect-based and logic-centered.[2] For Israel in the Islamic Middle East, this means an ongoing awareness of those concepts of death embraced by its most recalcitrant enemies. It means, inter alia, that Israel’s counter-terrorism planners should continuously bear in mind the primacy of one consistently under-examined form of geopolitical power.
There are signature details. This form of power, abstract but unequaled, is immortality or “power over death.” In what manner ought such an ambiguous primacy be understood by Israel’s security policy decision-makers?
By definition, any promise of immortality to terrorists must be densely problematic. Plainly, any such promise must lie beyond any tangible boundaries of science, logic and law. How should it be assessed by Israel during the still-escalating Gaza War?
Any such inquiry should begin with certain questions. The principal query must be as follows: How can one human being meaningfully offer eternal life to another? Reciprocally, it must also be asked: How can any terrorism-opposing state construct foundational components of its national security program upon a determined enemy’s “hunger for immortality?”[3]
Though difficult to ascertain, there are discoverable and law-clarifying answers. Even in our age of incessant quantification and verification, there is something in our unreflective species that yearns not for reason-based assessment but for mystery and faith. In facing jihadist terrorist ideologies that promise the “faithful” an eternity of life, Israel should remain wary of projecting ordinary human rationality upon Hamas, Palestinian Islamic Jihad, Hezbollah and assorted others. For Israel, there could be no more compelling counter-terrorism counsel.
What next? Ordinarily, projections of decision-making rationality do make sense in world politics, but there are also enough significant exceptions to temper more hopeful generalities. If Israel’s national decision-makers were to survey the prevailing configuration of global Jihadist terrorist organizations (Sunni and Shiite) from an augmented analytic standpoint, the nexus between “martyrdom operations” and “life-everlasting” could become more conspicuous. At that point, Israel’s national security planners could begin to place themselves in a much better position to deter murderous hostage-takers and suicide-bombers, both in microcosm (as individual human terrorists) and in macrocosm (as law-violating states that support the terrorist microcosm).
In such time-urgent matters, there will be variously corresponding and converging elements of law. Those Jihadist insurgents who would seek to justify gratuitously violent attacks on Israelis in the name of “martyrdom” are acting contrary to codified and customary[4] international law. All insurgents, even those who passionately claim “just cause,” must still satisfy longstanding jurisprudential limits on permissible targets and permissible levels of violence.
As a matter of binding law, such humane limits can never be tempered by any contending claims of religious faith.
There is more. According to authoritative jurisprudence, relevant legal matters are not inherently complicated or bewildering. Under longstanding rules, even the allegedly “sacred” rights of insurgency must always exclude any deliberate targeting of civilians or any intentional use of force to inflict unnecessary suffering.
In these urgent matters, law and strategy are interrelated. At the same time, they are analytically distinct. Regarding the Gaza War and effective counter-terrorism, the legal “bottom line” is unambiguous: Violence becomes terrorism whenever politically-animated insurgents murder or maim noncombatants, whether with guns, knives, bombs or automobiles. It is irrelevant whether the expressed cause of terror-violence is just or unjust. In the “Law of Nations,” any manifestly unjust means used to fight for allegedly just ends are law-breaking.
Sometimes, martyrdom-seeking terrorist foes such as Hamas advance a supposedly legal argument known as tu quoque. This historically discredited argument stipulates that because “the other side” is guilty of similar, equivalent or greater criminality, “our” side is necessarily innocent of any wrongdoing. Jurisprudentially, any such disingenuous argument is always wrong and is always invalid, especially after the landmark legal judgments of the Nuremberg (Germany)[5] and Far East (Japan) ad hoc tribunals.
For conventional armies and insurgent forces, the right to use military force can never supplant the “peremptory” rules of humanitarian international law. Such primary or jus cogens rules (rules that permit “no derogation”) are correctly referenced as the law of armed conflict, humanitarian international law or the law of war. Significantly, these synonymous terms concern both state and sub-state participants in any armed conflict.
Repeatedly, however, and without a scintilla of law-based evidence, supporters of Hamas terror-violence against Israeli noncombatants insist that “the ends justify the means.” Leaving aside the ordinary ethical standards by which any such argument should be dismissed on its face, ends can never justify means in the law of armed conflict. There can be no defensible ambiguity regarding such a conclusion.
There is more. The witless banalities of politics ought never be taken to represent any actual expectations of binding law. In such universal law, whether codified or customary, one person’s terrorist can never be another’s “freedom-fighter.” Though it is correct that certain insurgencies can sometimes be judged lawful or even law-enforcing. allowable resorts to force must always conform to humanitarian international law.
Whenever an insurgent group resorts to unjust means, its actions constitute terrorism. Even if adversarial claims of a hostile controlling power could be plausible or acceptable (e.g., relentless Palestinian claims concerning an Israeli “occupation”), corollary claims of entitlement to “any means necessary” would still remain false. Recalling Hague Convention No. IV: “The right of belligerents to adopt means of injuring the enemy is not unlimited.”
What about Israeli attacks on Gaza? Though Israel’s ongoing bombardments of Gaza are producing multiple Palestinian casualties, the legal responsivity for these harms lies entirely with Hamas “perfidy,” or what is more colloquially called Hamas’ “human shields.” Also noteworthy is that while Palestinian casualties are unwanted, inadvertent and unintentional, Israeli civilian deaths and injuries are always the result of Palestinian terrorist criminal intent or “mens rea.”
International law is not an intuitive or subjective set of standards. Such law has determinable form and content. It can never be casually invented and reinvented by terror groups in order to justify certain selective adversarial interests. This is especially the case when inhumane terror violence intentionally targets a designated victim state’s most fragile and vulnerable civilians.
“National liberation” movements that fail to meet the test of just means can never be protected as lawful or legitimate in themselves. Even if relevant law were to accept the questionable argument that relevant terror groups had fulfilled all valid criteria of “national liberation,” (e.g., Iran-supported Hamas or Hezbollah), these groups could still not satisfy the equally significant legal standards of distinction, proportionality, and military necessity. These enduringly critical standards were specifically applied to insurgent or sub-state organizations by the common Article 3 of the four Geneva Conventions of 1949, and (additionally) by the two 1977 Protocols to these Conventions.
There is more. Standards of “humanity” remain binding upon all combatants by virtue of the broader norms of 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 for associated “dictates of public conscience.” There can be no exceptions to this universal responsibility based upon a presumptively “just cause.”
Under international law, terrorist crimes mandate universal cooperation in both apprehension and punishment. As punishers of “grave breaches” under international law, all states are expected to search out and prosecute or extradite individual terrorists. Under no circumstances are states permitted to regard terrorist “martyrs” as law-supporting “freedom fighters.” This point ought to be kept in mind by various states in world politics that routinely place their own presumed religious and geopolitical obligations above the glaringly common interests of binding law.
This is emphatically true for the United States, which incorporates international law as the “supreme law of the land” at Article 6 of the Constitution, and for Israel, which also remains guided by the immutable principles of a Higher Law. Fundamental legal authority for the American republic was derived largely from William Blackstone’s Commentaries, which in turn owes much of its clarifying content to peremptory or “jus cogens” principles of Torah.
Ex injuria jus non oritur. “Rights can never stem from wrongs.” Even if jihadist adversaries of Israel should continue to identify the most recalcitrant insurgents as “martyrs,” such treatment could have no exculpatory or mitigating effect on attendant terrorist crimes. As a “practical” problem, of course, these faith-driven foes are animated by the most compelling form of power imaginable. This is the power of immortality or “power over death.”[6]
For Israel, a primary orientation of law-based engagement in counter-terrorism should always take close account of enemy attractions to “last things.” It follows, among other things, that Israeli counter-terrorist planners ought to focus more expressly upon the determinable eschatology of its Gaza War adversaries. With such an expanded and more penetrating focus, the country would be better-positioned to meet ongoing and future terror threats.
For the foreseeable future, Hamas “martyrs” present an incrementally existential threat to Israel. If these barbarous criminals should ever get their hands on usable fissile materials, however, this threat could become more immediately existential. This does not mean that Hamas would require an authentic “chain-reaction” nuclear explosive,[7] but only the essential ingredients for a radiation dispersal device.[8]
In a worst case scenario, Hamas or Hezbollah use of radiation dispersal against Israel could spur Iran into direct military conflict with Israel. At that unpredictable point, Israeli policy considerations of “last things” could become all-important. For Israel, a jihadist enemy that links terror-violence against the innocent to faith-based hopes of immortality poses a potentially incomparable threat. To suitably reduce this extraordinary threat, Israeli national security planners will have to examine both its strategic and legal dimensions.
Louis René Beres was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with terrorism and international law. Emeritus Professor of International Law at Purdue, and a regularly featured contributor to JURIST, Dr. Beres was born in Zürich, Switzerland on August 31, 1945.
References
[1] Doctrine is the framework from which national security goals should be extrapolated. In standard or orthodox military thinking, doctrine describes the core manner in which armed forces are expected to fight in assorted combat situations, the prescribed “order of battle” and various corollary operations. The standard definition of “doctrine” derives from Middle English, from the Latin doctrina, meaning teaching, learning and instruction. A central function of codified military doctrine lies not only in the way it can animate, unify and optimize pertinent military forces, but also in the fashion that it can transmit desired “messages” to an enemy.
[2] 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
[3] This illuminating phrase is taken from Spanish (Basque) philosopher Miguel de Unamuno’s classic treatise: Tragic Sense of Life (originally, Del Sentimiento Tragico De La Vida; 1921). Unamuno, however, would never have been sympathetic to the twisted idea of a murderous faith-based “martyrdom.”
[4]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, Nicaragua. V. US., Merits, 1986 ICJ, Rep. 14 (Judgment of 27 June).
[5] See: AGREEMENT FOR THE PROSECUTION AND PUNISHMENT OF THE MAJOR WAR CRIMINALS OF THE EUROPEAN AXIS POWERS AND CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL. Done at London, August 8, 1945. Entered into force, August 8, 1945. For the United States, Sept. 10, 1945. 59 Stat. 1544, 82 U.N.T.S. 279. The principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal were affirmed by the U.N. General Assembly as AFFIRMATION OF THE PRINCIPLES OF INTERNATIONAL LAW RECOGNIZED BY THE CHARTER OF THE NUREMBERG TRIBUNAL. Adopted by the U.N. General Assembly, Dec. 11, 1946. U.N.G.A. Res. 95 (I), U.N. Doc. A/236 (1946), at 1144. This AFFIRMATION OF THE PRINCIPLES OF INTERNATIONAL LAW RECOGNIZED BY THE CHARTER OF THE NUREMBERG TRIBUNAL (1946) was followed by General Assembly Resolution 177 (II), adopted November 21, 1947, directing the U.N. International Law Commission to “(a) Formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal, and (b) Prepare a draft code of offenses against the peace and security of mankind….” (See U.N. Doc. A/519, p. 112). The principles formulated are known as the PRINCIPLES OF INTERNATIONAL LAW RECOGNIZED IN THE CHARTER AND JUDGMENT OF THE NUREMBERG TRIBUNAL. Report of the International Law Commission, 2nd session, 1950, U.N. G.A.O.R. 5th session, Supp. No. 12, A/1316,
[6] In world politics, “power over death” has more typically been linked to celebrations of belligerent nationalism. In his posthumously published lecture on Politics (1896), for example, German historian Heinrich von Treitschke observed: “Individual man sees in his own country the realization of his earthly immortality.” Earlier, German philosopher Georg Friedrich Hegel opined, in his Philosophy of Right (1820), that the state represents “the march of God in the world.” The “deification” of Realpolitik, a transformation from mere principle of action to a sacred end in itself, drew its originating strength from the doctrine of sovereignty advanced in the sixteenth and seventeenth centuries. Initially conceived as a principle of internal order, this doctrine underwent a specific metamorphosis, whence it became the formal or justifying rationale for international anarchy – that is, for the global “state of nature.” First established by Jean Bodin as a juristic concept in De Republica (1576), sovereignty came to be regarded as a power absolute and above the law. Understood in terms of modern international relations, this doctrine encouraged the notion that states lie above and beyond any form of legal regulation in their interactions with each other.
[7] For early accounts by this author of nuclear war effects, see: Louis René Beres, Apocalypse: Nuclear Catastrophe in World Politics (Chicago: University of Chicago Press, 1980); Louis René Beres, Mimicking Sisyphus: America’s Countervailing Nuclear Strategy (Lexington, Mass., Lexington Books, 1983); Louis René Beres, Reason and Realpolitik: U.S. Foreign Policy and World Order (Lexington, Mass., Lexington Books, 1984); and Louis René Beres, Security or Armageddon: Israel’s Nuclear Strategy (Lexington, Mass., Lexington Books, 1986). Most recently, by Professor Beres, see: Surviving Amid Chaos: Israel’s Nuclear Strategy (New York, Rowman & Littlefield, 2016; 2nd ed. 2018).
[8] An alternate nuclear terrorism scenario would involve a terrorist rocket attack against Israel’s reactor at Dimona. Both Saddam Hussein’s regime in Iraq and Hamas previously fired rockets at this nuclear facility. Though unsuccessful, Israel must remain wary of the consequences of any future attack that might prove more capable. For early and informed consideration of reactor attack effects in general, see: Bennett Ramberg, DESTRUCTION OF NUCLEAR ENERGY FACILITIES IN WAR (Lexington MA: Lexington Books, 1980); Bennett Ramberg, “Attacks on Nuclear Reactors: The Implications of Israel’s Strike on Osiraq,” POLITICAL SCIENCE QUARTERLY, Winter 1982-83; pp. 653 – 669; and 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.
