Facing recurrent cycles of terror-violence in a “state of nature,” [1] Israel must defend itself in both law [2] and strategy. Though generally unacknowledged, this dual-level defense could prove gainful not just for Israel, but also for other “civilized nations” [3] in world politics. A patently core obligation, it is universal in scope and justice-seeking in objective. [4]
Multiple nuances will become evident. From the standpoint of legal philosophy and jurisprudence, this obligation reaffirms classical positions of Emmerrich de Vattel and William Blackstone. [5] In turn, these positions are drawn from variously accumulated visions of a “higher law,’” [6] visions with deep roots in Jewish thought and scripture.
Legal expectations of counter-terrorism are not narrowly particularistic in any way. Prima facie, they apply equally to all states in world politics. Among other things, these coinciding and intersecting expectations should become integral to every country’s national security doctrine. [7] In the final analysis, of course, considerations of law and strategy should always coalesce around conspicuously dignifying principles of justice.
Further details require presentation. There will need to be practical limitations on critical security preparations. In general, national security policy-makers are not philosophers of law or theoreticians of the avant-garde. [8] In Israel, as in the United States, there exists little public interest in philosophical or jurisprudential antecedents of counter-terrorism. This witting lack of intellectual interest could ultimately place Israel at significant points of adversarial disadvantage. These points could sometime become lethal and irremediable.
For Israel, apart from ongoing Iranian nuclearization, the threat of Palestinian terror-violence remains most persistently worrisome. Moreover, suggestions of Palestinian statehood as remedy miss key points entirely. In essence, a Palestinian state – any Palestinian state- would expand the terror threat to Israel. Ipso facto, it would never diminish or eliminate this existential threat. [9]
Even in the absence of full Palestinian sovereignty, formidable jihadist threats from Gaza, [ed: the West Bank], Syria, Lebanon, Iraq or elsewhere might not be detached from Iranian-inflicted harms. In foreseeable circumstances, these seemingly discrete threats could become intersectional or synergistic. In the case of synergies, by definition, the “whole” of tangible threats would be greater than the sum of its recognizable “parts.” [10]
Such complex national security matters can never be fathomed ex nihilo, “out of nothing.” Rather, Israeli policy-makers require more substantive forms of pertinent learning and erudition. The law of war or humanitarian international law addresses relevant questions of “military necessity.” Among the regularly contrived charges brought against Israel in Gaza is its alleged “disproportionality.”
But what does authoritative international law say about these deliberately misleading charges? Because accusations of disproportionality are not best left to ad hoc assessments of warring combatants (state and sub-state), it should be inquired of all concerned parties: “What do the codified and customary legal norms stipulate about Israel’s alleged violations?” Jurisprudentially, its a serious question, one that presumes prior intellectual efforts at obtaining “objective truth.”
A reciprocal question should also be asked. To the extent that Hamas, Palestinian Islamic Jihad, Hezbollah and other Islamist foes practice a tactic of “human shields,” the Palestinian side is guilty of “perfidy.” To claim that hospitals and mosques are always protected venues under international law ipso facto is not merely disingenuous. It also conveniently overlooks the basic humanitarian law obligation not to harbor active combatants in protected places.
For Israel and the Palestinians, there are many related particulars. All Palestinian terror has its foundational roots in the Palestinian National Covenant, a dissembling document that provides veneered doctrinal rationalizations of egregious terrorist practices. The PNC calls “officially” for sustained terror-violence against Israel without any regard for “just means.” From the standpoint of an alleged “occupation,” the Covenant was adopted in 1964, three years before the 1967 Six Day War and before any conceivable occupation. The PLO’s core guidance on terror was first published together with explicit references to the annihilation of Israel three years before there were any “Israel occupied territories.”
A core question arises: What exactly was the PLO seeking to “liberate?”
For the Palestinian Authority, derivative from PLO, the basic commitment to waging protracted war against Israel was part of a broader strategy to incorporate all of Israel into “Palestine.” Such irredentist incorporation had already been made plain on PA maps, but the most blatant Palestinian call for the “removal” of Israel as such remains the PLO’s “Phased Plan” of June 9, 1974. [11]
The crime of perfidy includes “human shields” broadly defined. It is identified as a “grave breach” at Article 147 of Geneva Convention IV. Under international law, deception can be acceptable in armed conflict, but The Hague Regulations 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, a jurisprudential source identified at Article 38 of the Statute of the International Court of Justice.
International law is meant to be more than just a self-serving invention of partisan diplomacy. As with domestic law, it always displays tangible form and content. Always, it warrants genuine examination and careful study. Ergo, when this law is expressly violated, crimes must be suitably punished. [12]
What is happening now? As expected, Israel has been vilified almost everywhere for the suffering of Palestinians and Gaza. Nonetheless, this suffering is the result of antecedent crimes of violence by Iran-supported Palestinian jihadists, not of any witting or willful Israeli wrongdoing. And while the precipitating Palestinian crimes of rape (males as well as females, children as well as adults); mutilation, torture and murder are intentionally criminal, Israeli military forces display no criminal intent (mens rea) in conducting their indispensable security operations.
Among other things, Israeli counter-terrorism operations in Gaza are needed to prevent Arab escalations to “higher order” weapons of mass destruction. In this connection, Iran is at least technically prepared to assist Hamas, Palestinian Islamic Jihad and others with radiation dispersal weapons. Ultimately, any terrorist use of such radiological weapons could spawn expanded Israeli military operations against Iran and – over time – an Israeli resort to authentic (not “merely” radiological) nuclear weapons. In all likelihood, that unprecedented scenario would stem from each side’s unavoidable search for “escalation dominance.” [13]
None of this is meant to suggest that Palestinian populations ought ever to be deprived of their peremptory human or political rights [14] as a matter of policy, but only to clarify that ends can never justify means under authoritative international law. [15]
Though intersecting, law and strategy should always be evaluated separately as constituent pillars of Israel’s military doctrine. Israel will need to take measures to convince its Palestinian foes and their state patrons [16] that perfidious terrorist aggressions would be revealed in law and opposed in practice. Such security measures could create an efficient “force multiplier” for Israel, one wherein the “whole” anti-terrorism effect would be greater than the sum of its legal and military “parts.”
On these matters, the settled jurisprudence is clear. In world law, considerations of distinction, proportionality and military necessity already set defined limits on any use of armed force. Always, under the customary and codified expectations of the law of war, these three interpenetrating criteria remain binding. Whenever Israel’s enemies declare an IDF attack to be “disproportionate,” they purposely ignore that the rule of proportionality does not demand equivalent military harms. It expects only a level of force that is “militarily necessary.” [17]
Still, on vigorously-choreographed occasions, the illegal practice of “human shields” has been justified by the Palestinian side in terms of combatting Israeli “disproportionality.” While arguably successful as propaganda, these justifications are never more than concocted adversarial claims. Such justifications are premised on legally irrelevant manipulations of correct definition. For example, whenever Palestinian terrorists claim the right to “any means necessary,” they adopt a stirringly rousing argument, but one that is nonetheless not law-based. [18]
In its more particular manifestations as the law of war, international law requires every use of force (whether exercised by a uniformed army or an insurgent force) to meet the test of “proportionality.” Drawn from the rudimentary legal precept that “the means that can be used to injure an enemy are not unlimited” (most notably per Hague Convention IV), this test stipulates that every resort to armed force be limited to what is presumed necessary for meeting legitimate military objectives. This peremptory or jus cogens principle of codified and customary jurisprudence applies to absolutely all judgments of military advantage and absolutely all planned retaliations. It does not mean that each side to an ongoing conflict must at any time agree to suffering or to imposing symmetrical harms.
This application exemplifies Platonic justice. “Justice,” as we may learn from The Republic, means “a contract neither to do nor to suffer wrong.” 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, not on the victimized state, sub-state foes could be encouraged to escalate hostilities. Eventually, for Israel, such dangerous escalations could embrace terrorist mega-assaults, up to and including the use of nuclear weapon technologies.
Terrorism, like perfidy, represents a specific violation of international law, but the discrete and component crimes are mutually reinforcing and not mutually exclusive. De jure, any human shields-based deceptions launched by anti-Israel terrorists would effectively add a second layer of illegality to already-underlying insurgent derelictions. Though frequently disregarded, minimized or disputed, Hamas, Islamic Jihad, Fatah, Hezbollah, etc. insurgencies are inherently illegal. This is because their expressed foundational principles represent undisguised celebrations of violence. This remains true even if the terrorists display “just cause.” [19]
In relevant law, perfidious tactics are not “only” mala prohibita (“evil as prohibited”), but also malae in se (“evil in themselves”). This distinction embraces even “lone wolf” terrorist attackers. Both before and during Israel’s “Swords of Iron” Gaza operation, some jihadi terrorists have been of this “lone wolf” variety.
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 to lawful insurgents; that is, to those with an arguably “just cause.”
During Israel’s several Lebanon wars, Hezbollah, then assisted by Syria and Iran, [20] placed weapons and fighters within areas of Arab civilian population. In the past, ISIS, which at some earlier point might have been able to confront Israel directly, employed a human shields strategy in its battle for Mosul, Iraq. At that time, a strongly prohibited strategy was still able to prove useful in providing ISIS with tactical advantages. Looking ahead, the fall of the al-Assad regime in Syria has occasioned reconfigurations and recalibrations among former ISIS terrorists, a development that though still in flux is already proving ominous for Israel.
What lessons should be learned in Jerusalem? To wage successful “war” against any Jihadist ideology, Israel’s primary battlefield should ultimately be analytic or intellectual.[21] In the ancient Greek and Macedonian worlds, this struggle was identified as one of “mind over mind.” [22] In this core identification, nothing has changed,
Sooner or later, certain of Israel’s terrorist enemies, perhaps under cover of perfidy, will begin to magnify their operational goals. These adversaries would 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. Hamas fired rockets at Dimona back in 2014; Saddam Hussein launched several Scud-B rockets from Iraq toward Israel during the 1991 Gulf War.
For the moment, any terrorist nuclear threat would likely be limited to a “dirty bomb” (radiation dispersal) attack, though it could extend, at least in principle, to conventional assaults on the Dimona reactor. It is possible and perhaps plausible that the selection of WMD terror against Israel would be detached from any rationally considered calculations of presumed geopolitical advantage. There exist, after all, no good historical reasons to expect only rational behavior in world politics. [23]
This point is unassailable.
What lessons emerge for Israel? Going forward, Israel should plainly communicate to its several jihadi foes that any contemplated excursions into higher-order destruction could never elicit an Israeli capitulation. To ensure that such communications have the best possible chances of success, it is 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; that is, as closely interdependent parts of a single coherent national security policy. [24]
There remains one last point concerning counter-terrorism links to US foreign policy. US President Donald J. Trump points with ostentatious pride to the “Abraham Accords,” [25] but these agreements did nothing to reduce the probability or intensity of Israel-jihadi conflict. In candor, they accomplished little more than superficially improved relations with Arab states that had never been actual anti-Israel belligerents.
To understand such clarifications, analysts ought now to inquire as follows: Should Israeli civilians sleep better knowing they no longer have to fear existential attacks launched from Morocco, Bahrain or the UAE? On its face, this is a silly question, little more than a theatre-of-the-absurd parody of meaningful diplomacy. When the UN General Assembly demanded in 2022 that Israel do away with its presumptive nuclear forces, all three “Abraham States” voted unapologetically against Israel.
Israel’s adversarial relationship with Hamas, Islamic Jihad and other newly emerging jihadi groups can never be improved by forging high-sounding agreements with secondary foes. Agreements such as the Abraham Accords effectively exacerbate Israel’s relations with Palestinian foes and do so without any reciprocal benefit. To get beyond protracted disagreements with jihadi enemies, Israeli diplomacy will need to be based on more comprehensively intellectual and law-based foundations. In this regard, Jerusalem’s primary objective should not be to avoid direct military engagements with Iran. This is because Israel could be better served by war with a still pre-nuclear Iran than by a temporary peace with uninterrupted Iranian nuclearization.
In the final analysis, Israel’s survival prospects amid bitterly hostile elements will be a matter of both law and strategy. Accordingly, decision-makers in Jerusalem should not only probe this matter as a coherent whole, but also examine those bewildering circumstances in which simultaneous maximization could not be reasonably expected. In the most difficult trade-off quandaries, the Jewish State could sometime have to make decisions involving the explicit threat or actual use of nuclear weapons. Though such prospects are still discussed only in whispers or sotto voce, they ought never to be dismissed out-of-hand.
Notes
[1] In political philosophy, this term signifies a world system that lacks central governance; that is, a system of structural anarchy. Per below, it is often described by legal scholars as “Westphalian.”
[2] International law remains a “vigilante” or “Westphalian.” system. This historical referent is to the Peace of Westphalia (1648), a treaty which concluded the Thirty Years War and created the now still-existing decentralized or self-help “state system.” See: Treaty of Peace of Munster, Oct. 1648, 1 Consol. T.S. 271; and Treaty of Peace of Osnabruck, Oct. 1648, 1., Consol. T.S. 119, Together, these two treaties comprise the Peace of Westphalia. For the authoritative sources of international law, see art. 38 of the Statute of the International Court of Justice: STATUTE OF THE INTERNATIONAL COURT OF JUSTICE, Done at San Francisco, June 26, 1945. Entered into force, Oct. 24, 1945; for the United States, Oct. 24, 1945. 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153, 1976 Y.B.U.N., 1052.
[3] The term is taken from Art. 38 of the UN Statute of the International Court of Justice.
[4] This obligation is also an explicit command of Torah: “Justice, Justice, You Shall Pursue,” Parashat Shoftim, Deuteronomy.
[5] See Emmerich de Vattel, The Law of Nations (1758), “The first general law, which is to be found in the very end of the society of Nations, is that each Nation should contribute as far as it can to the happiness and advancement of other Nations.” According to William Blackstone, echoing Vattel, each state and nation 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….” See: 2 William Blackstone, Commentaries on the Laws of England, Book 4, “Of Public Wrongs.”
[6] Under international law, the idea of a Higher Law is contained, inter alia, within the principle of jus cogens or “peremptory” norms. According to Article 53 of the Vienna Convention on the Law of Treaties: “…a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” It applies also to various sub-state actors and “heterogeneous” state-sub state actor combinations. According to William Blackstone’s Commentaries (Book IV, “Of Pubic Wrongs,” Chapter V): “All law results from those principles of natural justice in which all the learned of every nation agree….” In legal philosophy, the classic definition of Natural Law is given by Cicero in The Republic: “True law is right reason, harmonious with nature, diffused among all, constant, eternal….”
[7] In these security matters, doctrine is not the same as strategy. Doctrine “sets the stage” for pertinent strategy. It identifies various central beliefs that must subsequently animate any actual “order of battle.” Among other things, doctrine describes underlying general principles on how a particular war or counter-terrorism operation ought to be waged. The reciprocal task for strategy is to adapt as required to best support previously-fashioned doctrine.
[8] On the importance of avant garde elements in national strategy, see, by this author: Louis René Beres, “On the Need for an Avant Garde in Strategic Studies,” Oxford University Press, OUP Blog, July 4, 2011.
[9] See by this writer at JURIST: Louis René Beres, https://www.jurist.org/commentary/2023/12/palestinian-statehood-and-demilitarization-a-falsifying-conjunction/
[10] See, by this writer, at Harvard Law School: Louis René Beres, https://harvardnsj.org/2015/06/core-synergies-in-israels-strategic-planning-when-the-adversarial-whole-is-greater-than-the-sum-of-its-parts/ See also, by this writer, at West Point: Louis René Beres https://mwi.usma.edu/threat-convergence-adversarial-whole-greater-sum-parts/
[11] For earliest original writings by this author on the impact of a Palestinian state on Israeli security and survival, see: Louis René Beres, “Security Threats and Effective Remedies: Israel’s Strategic, Tactical and Legal Options,” Ariel Center for Policy Research (Israel), ACPR Policy Paper No. 102, April 2000, 110 pp; Louis René Beres, “After the `Peace Process:’ Israel, Palestine, and Regional Nuclear War,” DICKINSON JOURNAL OF INTERNATIONAL LAW, Vol. 15, No. 2., Winter 1997, pp. 301-335; Louis René Beres, “Limits of Nuclear Deterrence: The Strategic Risks and Dangers to Israel of False Hope,” ARMED FORCES AND SOCIETY, Vol. 23., No. 4., Summer 1997, pp. 539-568; Louis René Beres, “Getting Beyond Nuclear Deterrence: Israel, Intelligence and False Hope,” INTERNATIONAL JOURNAL OF INTELLIGENCE AND COUNTERINTELLIGENCE, Vol. 10., No. 1., Spring 1997, pp. 75-90; Louis René Beres, “On Living in a Bad Neighborhood: The Informed Argument for Israeli Nuclear Weapons,” POLITICAL CROSSROADS, Vol. 5., Nos. 1/2, 1997, pp. 143-157; Louis René Beres, “Facing the Apocalypse: Israel and the `Peace Process,'” BTZEDEK: THE JOURNAL OF RESPONSIBLE JEWISH COMMENTARY (Israel), Vol. 1., No. 3., Fall/Winter 1997, pp. 32-35; Louis René Beres and (Ambassador) Zalman Shoval, “Why Golan Demilitarization Would Not Work,” STRATEGIC REVIEW, Vol. XXIV, No. 1., Winter 1996, pp. 75-76; Louis René Beres, “Implications of a Palestinian State for Israeli Security and Nuclear War: A Jurisprudential Assessment,” DICKINSON JOURNAL OF INTERNATIONAL LAW, Vol. 17., No. 2., 1999, pp. 229-286; Louis René Beres, “A Palestinian State and Israel’s Nuclear Strategy,” CROSSROADS: AN INTERNATIONAL SOCIO-POLITICAL JOURNAL, No. 31, 1991, pp. 97-104; Louis René Beres, “The Question of Palestine and Israel’s Nuclear Strategy,” THE POLITICAL QUARTERLY, Vol. 62, No. 4., October-December 1991, pp. 451-460; Louis René Beres, “Israel, Palestine and Regional Nuclear War,” BULLETIN OF PEACE PROPOSALS, Vol. 22., No. 2., June 1991, pp. 227-234; Louis René Beres, “A Palestinian State: Implications for Israel’s Security and the Possibility of Nuclear War,” BULLETIN OF THE JERUSALEM INSTITUTE FOR WESTERN DEFENCE (Israel), Vol. 4., Bulletin No, 3., October 1991, pp. 3-10; Louis René Beres, ISRAELI SECURITY AND NUCLEAR WEAPONS, PSIS Occasional Papers, No. 1/1990, Graduate Institute of International Studies, Geneva, Switzerland, 40 pp; and Louis René Beres, “After the Gulf War: Israel, Palestine and the Risk of Nuclear War in the Middle East,” STRATEGIC REVIEW, Vol. XIX, No. 4., Fall 1991, pp. 48-55.
[12] At the Nuremberg Trials, the words used by the Court, “So far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished,” represented an authoritative reaffirmation of the peremptory principle of law known as Nullum crimen sine poena, “No crime without a punishment.” The earliest statement of Nullum crimen sine poena can be found in the Code of Hammurabi (ca. 1728-1686 BCE); the Law of Eshnunna (ca. 2000 BCE); the even-earlier Code of Ur-Nammu (ca. 2100 BCE); and – most significantly for Israel – the so-called Lex Talionis, or law of exact retaliation, which is presented in three separate passages of the Torah. For the ancient Hebrews, moreover, when a crime involved the shedding of blood, not only punishment, but also a punishment that involved a reciprocal bloodletting – was demanded. For the early Hebrew nation, shedding of blood was an abomination that must be expiated in kind: “For blood pollutes the land, and no expiation can be made for the land, for the blood that is shed in it, except by the blood of him who shed it” (Numbers: 35:33).
[13] See by this author, at BESA (Israel)): Louis René Beres, https://besacenter.org/wp-content/uploads/2024/09/207ENGweb-Beres-Israel-Escalation-Dominance-Iran-1.pdf
[14] Not every insurgency is terroristic. These rights may include the right of insurgency on behalf of “self-determination.” For a discussion of authoritative criteria that distinguish permissible insurgencies from impermissible ones, see: Louis René Beres, “The Legal Meaning of Terrorism for the Military Commander,” CONNECTICUT JOURNAL OF INTERNATIONAL LAW, Vol. 11., No. 1., Fall 1995, pp. 1-27
[15] In law, “Rights cannot derive from wrongs” (Ex injuria jus non oritur).
[16] To deter such state patrons, it is conceivable in extremis that Israel would need to involve a portion of its sea-based nuclear forces. See, in this connection: Louis René Beres and Admiral Leon “Bud” Edney, “Israel’s Nuclear Strategy: A Larger Role for Submarine-Basing,” The Jerusalem Post, August 17, 2014; and Professor Louis René Beres and Admiral Leon “Bud” Edney, “A Sea-Based Nuclear Deterrent for Israel,” Washington Times, September 5, 2014. Admiral Edney was NATO Supreme Allied Commander, Atlantic (SACLANT).
[17] The principle of “military necessity” is defined authoritatively as follows: “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] Under authoritative international law, states must judge every use of force twice: once with regard to the underlying right to wage war (jus ad bellum) and once with regard to the means used in conducting an actual war (jus in bello). Following the Kellogg-Briand Pact (1928) and the United Nations Charter (1945), there remains no defensible legal right to waging an aggressive war. However, the long-standing customary right of post-attack self-defense does remain codified at Article 51 of the UN Charter. Similarly, subject to conformance, inter alia, with jus in bello criteria, certain instances of humanitarian intervention and collective security operations may also be consistent with jus ad bellum standards. The law of war, the rules of jus in bello, comprise: (1) laws on weapons; (2) laws on warfare; and (3) humanitarian rules. Codified primarily at The Hague and Geneva Conventions, these rules attempt to bring discrimination, proportionality and military necessity into all (state and sub-state) belligerent calculations.
[19] Under 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. (Sup 1935) 435, 566 (quoting King V. Marsh (1615), 3 Bulstr. 27, 81 Eng. Rep 23 (1615) (“a pirate est Hostes humani generis”)).
[20] Regarding Iran, see Louis René Beres and John T. Chain (General/USAF/ret.), “Could Israel Safely Deter a Nuclear Iran”? The Atlantic, August, 2012; and also: Professor Louis René Beres and General Chain, “Israel and Iran at the Eleventh Hour,” Oxford University Press (OUP Blog), February 23, 2012. General Chain was Commander-in-Chief, U.S. Strategic Air Command (CINCSAC).
[21] This raises an antecedent question about determining a formal condition of war (belligerency) between states. Under international law, the question of whether or not a true “state of war” exists between states is generally ambiguous. Traditionally, it was held that a formal declaration of war was necessary before a true state of war could be said to exist. Hugo Grotius even divided wars into declared wars, which were legal, and undeclared wars, which were not. (See Hugo Grotius, The Law of War and Peace, Bk. III, Chs. III, IV, and XI.) By the start of the twentieth century, the position that war obtains only after a conclusive declaration of war by one of the parties was codified by Hague Convention III. This treaty stipulated that hostilities must never commence without a “previous and explicit warning” in the form of a declaration of war or an ultimatum. (See Hague Convention III Relative to the Opening of Hostilities, 1907, 3 NRGT, 3 series, 437, article 1.) Currently, declarations of war may be tantamount to admissions of international criminality, because of the express criminalization of aggression by authoritative international law, and it could therefore represent a clear jurisprudential absurdity to tie any true state of war to formal and prior declarations of belligerency. It follows that a state of war may now exist without any formal declarations, but only if there exists an actual armed conflict between two or more states, and/or at least one of these affected states considers itself “at war.”
[22] See, on such earlier identifications, F. E. Adcock, The Greek and Macedonian Art of War, 1962.
[23] See, by this writer, at Harvard Law School: Louis René Beres, https://harvardnsj.org/2015/06/core-synergies-in-israels-strategic-planning-when-the-adversarial-whole-is-greater-than-the-sum-of-its-parts/ See also, by this writer, at West Point: Louis René Beres https://mwi.usma.edu/threat-convergence-adversarial-whole-greater-sum-parts/ Expressions of decisional irrationality in world affairs could take different and overlapping forms. These 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 the internal dissonance generated by any structure of collective decision-making (i.e., assemblies of pertinent individuals who lack identical value systems and/or whose organizational arrangements impact their willing capacity to act as a single or unitary national decision maker).
[24] Regarding strategy, the efficacy of any Israeli counter-terrorism strategy could involve threats of deterrence directed against time-relevant state enemies. To be credible, such threats might need to include a declared wiliness to escalate toward some form of limited nuclear war. These issues have been examined by this author for many years, though usually in reference to more broadly theoretic or n on-specific nuclear threats. See, for example, Louis René Beres, The Management of World Power: A Theoretical Analysis (1972); Louis René Beres, Terrorism and Global Security: The Nuclear Threat (1979; second edition, 1987); Louis René Beres, Apocalypse: Nuclear Catastrophe in World Politics (1980); Louis René Beres, Mimicking Sisyphus: America’s Countervailing Nuclear Strategy (1983); Louis René Beres, Reason and Realpolitik: US Foreign Policy and World Order (1984); Louis René Beres, Security or Armageddon: Israel’s Nuclear Strategy (1986); and Louis René Beres, Surviving Amid Chaos: Israel’s Nuclear Strategy (2016).
[25] See https://www.state.gov/the-abraham-accords/ Also to be considered as complementary to these agreements are the Israel-Sudan Normalization Agreement (October 23, 2020) and the Israel-Morocco Normalization Agreement (December 10, 2020).
LOUIS RENÉ BERES (Ph.D., Princeton, 1971) is a frequent contributor to JURIST and the author of many books and articles dealing with war, terrorism and international law. His twelfth book is Surviving Amid Chaos: Israel’s Nuclear Strategy (2nd ed., 2018). Professor Beres’ published writings on law and strategy have appeared in Modern War Institute (West Point); BESA (Israel); JURIST; Yale Global; Parameters: The Journal of the US Army War College (Pentagon); Special Warfare (Pentagon); Israel Defense (Tel Aviv); The War Room (Pentagon); Modern Diplomacy; The Atlantic; International Journal of Intelligence and Counterintelligence; Conflict and Terrorism; The Hudson Review; The Bulletin of the Atomic Scientists; Israel Journal of Foreign Affairs; Horasis (Zürich); Armed Forces and Society; The New York Times; American Journal of International Law; Infinity Journal (Tel Aviv); Air and Space Operations Review (USAF); World Politics (Princeton); International Security (Harvard) and the Harvard National Security Journal (Harvard Law School). Dr. Beres was Chair of Project Daniel for PM Ariel Sharon in 2003-2004. He was born in Zürich at the end of World War II.
