Each state is expected to aid and enforce the law of nations, as part of the common law, by inflicting an adequate punishment upon offenders against that universal law.” Sir William Blackstone, Commentaries on the Laws of England
Reduced to its barest essentials, Israel’s war against Hamas terrorism is a no-choice war against “metastatic” criminality. The cancer metaphor is deliberate and purposeful. Though critics of Israel are quick to allege assorted “war crimes” and “disproportionality” in Gaza, this perpetually beleaguered state is actually undertaking essential efforts at international law enforcement.
There are pertinent but oft-ignored details. International criminal law is never something that can be interpreted or understood ex nihilo, out of nothing. Rather, it represents a compendium of complex rules and principles that have meaningful disciplinary boundaries and require years of intentionally thoughtful and capable study. This does not mean that interested laypersons have no right to offer legal opinions, but only that they do have a correlative obligation to ensure such assessments are grounded in tangible fact.
There are apt examples. Authoritative jurisprudence makes clear that schools and hospitals are normally protected or immunized areas in war, but that legal responsibility for civilian casualties in such immunized locales shifts whenever victim populations are used as “human shields.”
In law, the formal term for such unapologetic Hamas criminality is “perfidy.”
In these matters, including the ongoing Gaza War, strategic and legal issues are not separate or discrete. In various ways, they overlap and intersect. What exactly does international law say about Israel, Hamas and the ongoing Gaza War?
To begin, this war represents an existential struggle for Israel, not immediately, of course, but incrementally. Ultimately, what threatens Israel is not terrorism per se, but Iranian support of jihadist violence. More precisely, over time, Iran could confront Israel directly, a confrontation that would be of very grave consequence even if the Islamic Republic were to remain non-nuclear.
Should such a direct engagement of military forces materialize, the two state adversaries (Israel and Iran) would struggle for “escalation dominance,” an inherently unpredictable struggle with potentially unprecedented human and material costs.
There is more. A systemic dynamic characterizes Israel’s obligatory war with Hamas. This “order-of-battle” dynamic obtains whether or not Iran becomes a direct adversary of Israel. Here, seemingly singular strategic and legak matters could quickly become many-sided, force-multiplying or even “synergistic.” By definition, this last plausible outcome would be a conflict “whole” that is greater than the simple sum of its “parts.”
Regarding relevant legal matters, international law represents an indissoluble part of every nation-state’s domestic normative order. 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….”
Prima facie, Israel is subject to protracted aggressions by willfully barbarous enemies. Endlessly, in the acrimonious Middle East, there have been charges and counter-charges. From the beginnings of the Arab-Israeli conflict in the late 1940s, a recurrent Arab Palestinian response to easily verifiable accusations of “terrorism” has been an invented counter-charge of “disproportionality.”
What does authoritative international law say about such a manifestly contrived response? What do variously codified and customary legal norms stipulate about any such purported violations of the law of war? These are not questions of subjective opinion. To the contrary, the correct answers are solely discoverable in objective legal rules.
There are various subsidiary questions. What are the comparative risks for each side? What are the corresponding leadership responsibilities?And what is the contextual relevance of our traditional “Westphalian” system of international law?
A reciprocal question will also need to be raised. To the extent that Hamas, Islamic Jihad and their more-or-less recognizable sub-state (insurgent) allies choose a policy of “human shields,” the Palestinian Arab side would be guilty of “perfidy.” Any such policy is illegal on its face, and qualifies ipso facto as a “grave breach” of Geneva Conventions. The most critical legal effect of perfidy committed by Palestinian Arab terror group leaders – an effect that Jerusalem regularly seeks to make evident to all observers – is that it immunizes Israel from any responsibility for inadvertent counterterrorist harms suffered by Arab civilians.
This is a critical point concerning the current Gaza War. In law, even though the bombs killing Palestinian noncombatants may be fired by Israeli military forces, the actual criminal perpetrators are those Palestinians who have committed perfidy. Under law, when Israel bombs a hospital or ambulance because it is being used lawlessly by Palestinian Arab terrorists to shield their nefarious activities, noncombatant deaths and injuries are the responsibility of Palestinian Arab terrorist leaders.
There are further specifics to clarify. 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 peremptory rules[ are also binding on the basis of customary international law a jurisprudential source identified most conspicuously at Article 38 of the Statute of the International Court of Justice.
Now embroiled in yet another violent struggle with Hamas, Islamic Jihad and assorted kindred criminal groups,Israel will need to proceed diligently with its identification of proper legal arguments. Optimally, appropriate steps would best ensure that Palestinian Arab war crimes not get in the way of Israel’s indispensable self-defense postures and its corollary obligations under humanitarian international law. Ultimately, though of no immediate concern, this obligation would become especially 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 presently implausible, but they are nonetheless conceivable. “The worst,” reminds Swiss playwright Friedrich Durrenmatt, “Sometimes does happen.”
Though interpenetrating or intersecting, law and strategy ought always to be evaluated separately, as conceptually discrete elements of Israel’s unified military doctrine. In this connection, Israel should take clarifying measures to convince both its Palestinian insurgent foes and terrorist state patrons that perfidious terrorist aggressions will continuously be revealed in law and opposed in practice. In increments, 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, proportionality and military necessity 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 an amount of force that is militarily necessary.
For the most part, the key issues here are straightforward. Any gratuitous infliction of harms is illegal under the longstanding law of war, but pertinent harms need never be of 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 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 more importantly, with enduring propagandistic benefit. Today, while Hamas leaders live luxurious and safe lives in Qatar or other Gulf states, they urge their obedient followers to become “martyrs.”
On repeatedly-choreographed occasions, the practice of “human shields” is being justified in terms of alleged Palestinian Arab desperation. Though partially successful as Hamas propaganda, these justifications remain carefully concocted claims. In essence, they are premised upon irrelevant and intentional manipulations of acceptable legal definition. For example, when Palestinian Arab insurgents claim the right to “any means necessary,” they adopt a seemingly compelling argument, but one that still remains illegal. Similarly, the battle cry of “Palestine from the River to the Sea” expresses nothing less than “intent to commit genocide.” Such criminal intent (mens rea) is already a part of both codified and customary international law.
International law regulates certain primary world system behaviors. In its particular manifestations in 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,” this test of proportionality stipulates that every resort to armed force remain limited to what is presumed necessary for meeting legitimate military objectives.
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.
To best manage and inhibit 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.[24]
For now, such Israeli judgments will have to be made without “benefit” of 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, Israeli deterrence could fail altogether.
Terrorism, like perfidy, is a codified and custom-based 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 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 illegal per se. This is true even if one were to assume “just cause” in all or some of these terror groups’ unhidden commitment to violence.
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 pre-Gaza War Palestinian terrorists identified by Israel were of this “lone wolf” variety.
In law, 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, 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.
To wage successful war against any Jihadist ideology, Israel’s primary “battlefield” must always be analytic or intellectual.In the ancient Greek and Macedonian worlds, this form of struggle was identified as one of “mind over mind” rather than “mind over matter.” For Israel, the earlier identification remains valid.
Sooner or later, certain of Israel’s Islamic terrorist enemies, perhaps under cover of perfidy, will likely initiate 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 Though unprecedented, the basic results of any such aggression are not difficult to fathom.
The dangers of extraordinary unconventional terrorism could be enlarged in the absence of ordinary strategic logic. 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.
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. 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 Hamas and related criminal foes that any contemplated excursions into higher-order forms of destruction would never elicit Israeli capitulations. To ensure that such communications have the best possible chance 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.
There remains one last point concerning tangible links of Israeli counter-terrorism strategy to US foreign policy. A few years past, former President Donald J. Trump pointed with ostentatious pride to the “Abraham Accords,” 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 anti-Israel belligerents.
Israelis ought not sleep any better knowing that a surprise attack from Bahrain, UAE, Sudan or Morocco is less probable. But they should understand that the Abraham Accords strengthened a potentially nuclear Saudi Arabia and Egypt while gratuitously angering both Iran and the Palestinian Arabs. In essence, “Abraham” was not only useless to Israeli security; it proved to be tangibly harmful.
This assessment of Israeli counter-terrorism has been about complex considerations of law and strategy. In both legal and strategic terms, the world is best studied as a system. For example, if certain conventional-nuclear firebreaks are crossed for the first time by Vladimir Putin in Ukraine, the consequences would be felt deeply in various other places,including the Middle East. It follows that Israel’s protracted war on terror will have to draw systematically upon a broad variety of intersecting legal insights and force-multiplying military operations.
To do otherwise could prove lethal 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 or intellectuals-for-hire.
Israeli counter-terrorism is a strategic/legal subject, one that should always be approached as a systemic and dialectical challenge. It follows, inter alia, 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 its heroes with special operations forces, large guns and heavy missiles, acknowledging such “softer armaments” will not come easily.
Nonetheless, Israel is now fighting a just war against an inherently defiling terrorist criminality, and is obligated to wage this war with best available intellectual resources. Recalling Blackstone’s Commentaries (the cornerstone foundation of all US criminal law), it is now the reciprocal obligation of each state in world politics to “aid and enforce” the law supported by Israel’s “Swords of Iron” operation in Gaza.
To do otherwise would be to stand shoulder-to-shoulder with terrorist criminal offenders against the obligatory law of nations.
To do otherwise would be to side with terrorists who prefer rape (men and women), torture and murder to Palestinian Arab sovereignty and national self-determination.