Louis René Beres (Ph.D., Princeton, 1971)
Emeritus Professor of International Law
Purdue University
“An immortal person is a contradiction in terms.”
Emmanuel Levinas, God, Death and Time (2000)
At first glance, Iranian aggression and jihadist terrorism are about secular political goals. Still, if one looks carefully beyond contrived Hamas calls for “self-defense” and “self-determination,” the deeper origins of such violence lie in desperate hopes to avoid personal death. Though both state and sub-state jihadist crimes against Israel are seemingly about tangible policy objectives, they are more authentically about “saving” certain designated “believers.” In the final analysis, anti-Israel war and terror are better explained by religious considerations of eschatology (“last things”) than by strategic expectations of adversaries.
There are derivative lessons here for Jerusalem. Measures of Israeli counter-aggression and counter-terrorism are never just matters of strategy, tactics or doctrine.[1] For Israel, whatever a particular aggression’s operational particulars, national security planning should remain analytic and logic-centered. For Israel, a beleaguered mini-state in the Islamic Middle East – a state half the size of America’s Lake Michigan – this means a heightened conceptual awareness of personal death as it is embraced by jihadist foes. It means, inter alia, that Israel’s military planners should continuously bear in mind the primacy of one consistently overlooked form of adversarial power: power over death.
There will be variously pertinent details. This bewildering form of enemy power, abstract but incomparable, centers on mystery, paradox and self-delusion. Immortality, as we may be reminded by philosopher Emmanuel Levinas, “is a contradiction in terms.” But in what operationally precise manner ought jihadist beliefs in immortality be interpreted by Israel’s security policy decision-makers? For Israel, there could be no more important survival question.
Jihadist promises of immortality to soldiers or terrorists will always be problematic. By definition, any such assurances must lie far beyond any recognizable boundaries of science and logic. How should they be measured and evaluated by Israeli planners during the still-ongoing Gaza War, a conflict that will likely involve Iran directly?
What will be the longer term implications of an Israel-Iran war that becomes continuous and protracted? During any plausible Israel-Iran competition for “escalation dominance,” could Israel use its nuclear weapons to deter and limit Iranian conventional escalations? Or would these last-resort weapons be useful only against an already-nuclear enemy state?
There will be further questions. One underlying query would present as follows: How can a flesh-and-blood human being meaningfully offer eternal life to another? Reciprocally, it will need to be asked: How can any jihadist-opposing state like Israel construct defining elements of its national security program upon a determined enemy’s “hunger for immortality?”[2] This same question would have to be directed toward jihadist Iranians and jihadist terrorists.
But there will be discoverable answers. Even in this perplexing era of incessant quantification and measurement, there will remain something in our self-deceiving species that yearns not for reason, but for mystification and anti-reason. In facing jihadist ideologies that promise the “faithful” eternal life, Israel should remain wary of projecting ordinary human political preferences upon Hamas, Palestinian Islamic Jihad, Houthi, Hezbollah and Iran. This is not to suggest any uniform enemy irrationality, but rather to underscore that ordinary secular preferences will often be secondary or “reflective.” In formal philosophic terms, this should bring to mind Plato’s classic description of “shadows” in The Republic, a metaphor used to explain vital difference between what is authentically real and what is merely illusion.
What next for Israel? Usually, projections of decision-making rationality do make sense in world politics; nonetheless, there are enough significant exceptions to temper more abundant and hopeful generalities. If Israel’s national decision-makers were to survey the current 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, Jerusalem’s national security planners could begin to place themselves in an improved position to deter Islamist hostage-takers and suicide-bombers, both in microcosm (as individual terrorists) and in macrocosm (as enemy states like Iran that support the jihadist microcosm).
There is more. In all such time-urgent matters, there will be corresponding and converging elements of law. Those jihadist insurgents who seek to justify gratuitously barbarous attacks on Israelis in the name of “martyrdom” are acting contrary to codified and customary[3] norms of international law. All insurgents, even those who passionately claim “just cause,” must satisfy longstanding jurisprudential limits on permissible targets and law-based levels of violence.
Always.
Understood as a matter of binding law, humane limits can never be tempered by any contending claims of religious faith. In matters of law, such faith is never exculpatory.
According to authoritative jurisprudence, relevant legal matters are not necessarily complicated or bewildering. Under longstanding rules, even the allegedly “sacred” rights of insurgency must exclude any deliberate targeting of civilians or use of force intended to inflict unnecessary suffering. In law, the phrase “by any means necessary” is always nonsense.
Though law and strategy are interrelated, they are nonetheless analytically distinct. Regarding current matters concerning the Gaza War and counter-terrorism, the legal “bottom line” is unambiguous: Violence becomes terrorism whenever insurgents murder (intentionally kill) or maim noncombatants, whether with guns, knives, bombs or automobiles. Under law, it is irrelevant whether the expressed cause of terror-violence is presumptively just or unjust. In the codified and customary law of nations, unjust means that are used to fight for allegedly just ends are always law-violating.
Sometimes, martyrdom-seeking terrorist foes such as Hamas advance a supposedly legal argument known as tu quoque. This authoritatively discredited argument stipulates that because the “other side” is guilty of similar, equivalent or greater criminality, “our” side is innocent of any wrongdoing ipso facto. Jurisprudentially, any such argument is always wrong and always invalid, especially after the landmark postwar judgments of the Nuremberg (Germany)[4] and Far East (Japan) ad hoc tribunals.
Ordinarily, for both 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 generally referenced as the law of armed conflict, humanitarian international law or the law of war. These synonymous terms concern both state and sub-state participants in any armed conflict. Significantly, however, in the matter of Israel’s no-choice war against Iran proxy Hamas and Iran itself, the death and injury of Palestinian noncombatants has become the legal responsibility of jihadist enemy “perfidy.” This means that because Hamas and its Iranian state backer illegally place fighters in protected places (e.g., schools, hospitals, mosques), these places are no longer off-limits to defensive military action. In essence, for the Jewish State, enemy perfidy is exculpatory.
Always.
There is more. Repeatedly, 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 must be dismissed on its face, ends can never justify means in the law of armed conflict. There can be no defensible ambiguity regarding this conclusion.
Listening to protest slogans shrieked by jihadist supporters in certain United States universities, a core conclusion should emerge: Witless banalities can never be taken to represent meaningful expectations of international law. Under this universally binding law,[5] whether codified or customary, one person’s terrorist can never be another’s “freedom-fighter.” Though it is correct that insurgencies can sometimes be judged lawful or even law-enforcing, allowable resorts to insurgent force must still conform to humanitarian international law.
Always.
Whenever an insurgent group resorts to unjust means, its actions constitute terrorism. Even if adversarial claims of a hostile controlling power could be taken as plausible or acceptable (e.g., false Palestinian claims concerning an alleged Israel “occupation”), any corollary claims of entitlement to “any means necessary” would remain false. Recalling Hague Convention No. IV: “The right of belligerents to adopt means of injuring the enemy is not unlimited.”
But what about Israel and Gaza? To clarify any seeming contradictions, though Israel’s bombardments of Gaza are producing multiple Palestinian casualties, legal responsibility for these harms lies entirely with Hamas/Iranian “perfidy” (“human shields”). Noteworthy, in this connection, is that while all Israel-inflicted Palestinian casualties are unwanted, inadvertent and unintentional, Israel’s own extensive civilian deaths and injuries are the verifiable result of Palestinian criminal intent (“mens rea”).
Always.
Under compelling international law (“jus cogens”), there is a consequential difference between murdering innocent celebrants at an Israeli music festival and the unavoidably lethal consequences of Israel’s counter-terrorist operations.
International law is never a narrowly intuitive or subjective set of standards. Such law always has determinable form and decipherable content. It can never be casually invented or reinvented by enemy states or terror groups to justify selective interests. This is especially the case when inhumane terror-violence targets a designated victim state’s most fragile and vulnerable civilian populations.
Correspondingly, the use of rape and sexual violence as political policy (on October 7th and after, Hamas orchestrated the rape of Israeli males as well as females; of Israeli children as well as adults) is never permissible. This is not “just” an academic judgment. It should be obvious prima facie to every thinking human being, even “Free Palestine” protestors at US universities.
There is more. “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 somehow to accept the 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. More precisely, these enduringly critical standards were specifically applied to insurgent or armed 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.
Complex legal issues cannot be meaningfully raised by self-proclaimed “experts.” Pertinent 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 associated “dictates of public conscience.” There can be no permissible exceptions to this universal responsibility based upon “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 “extradite or prosecute” 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 states that routinely place their own presumed religious and geopolitical obligations above the common interests of binding law. Iran is a glaring case in point.
International law is emphatically binding for the United States, which incorporates this set of norms as the “supreme law of the land” at Article 6 of the Constitution, and also for Israel, which remains guided by immutably Jewish principles of a Higher Law. As a further matter of pertinent history, legal authority for the early American republic was derived in large part from William Blackstone’s Commentaries, which owes much of its clarifying content to the peremptory or “jus cogens” principles of Torah.
Ex injuria jus non oritur. “Rights can never stem from wrongs.” Even if the jihadist adversaries of Israel continue to identify the most recalcitrant fighters and insurgents as “martyrs,” such treatment would have no exculpatory or mitigating effect on 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 a presumed “power over death.”
For Israel, a primary orientation of law-based engagement in war-fighting and counter-terrorism should always take close account of enemy attraction to “last things.” Philosopher Emmanuel Levinas’ observation that “an immortal person is a contradiction in terms” lies beyond any reasonable intellectual challenge, but jihadist promises of “power over death” remain supremely attractive among Iranian and Hamas perpetrators. It follows, among other things, that Israeli national security planners ought to focus expressly upon the determinable eschatology of their Iran war and Gaza War adversaries.
Even if considered separately from Iranian mentorship and support, Hamas and Hezbollah “martyrs” present an incrementally existential threat to Israel. If these terror-criminals ever get their hands on usable fissile materials, this threat could become immediately existential. This does not mean that jihadist terrorists would require an authentic “chain-reaction” nuclear explosive, but only the more easily accessible ingredients for a radiation dispersal device. A similarly perilous nuclear scenario could involve jihadist non-nuclear rocket attacks against Israel’s Dimona nuclear reactor.[6]
A summary observation is warranted. In a near-worst case scenario, the use of a primitive nuclear device by Hamas or Hezbollah could spur Iran to enter into another direct but now protracted military conflict with Israel. At that inherently unpredictable point,[7] Israeli policy considerations of “last things” could become all-important and operationally determinative. For Israel, the primary “battlefield” should always be intellectual, not territorial. Conceptualized on this intangible battlefield, a jihadist enemy that links terror-violence to promises of immortality could sometime pose an irremediable threat.
An immortal person is a contradiction in terms. So, too, is an immortal nation- state.
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[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] 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.”
[3]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).
[4] 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.
[5] Universality brings to mind various philosophical and jurisprudential assertions of human “oneness.” In medieval western civilization, the world was conceived as a hierarchical order, extending from lowest to highest, and the earthly divisions of authority (always artificial or contrived) were reunited at the level of God. Below this divine stratum, the realm of humanity was to be considered as one, as all the world had been created solely for the purpose of backdrop for humankind’s salvation. Only in its relation to the universe itself was the world to be considered as part rather than whole. In the clarifying words of Dante’s De Monarchia (1312-1313): “The whole human race is a whole with reference to certain parts, and with reference to another whole, it is a part. Fir it is a whole with reference to particular kingdoms and nations, and it is a part with reference to the whole universe, as is manifest without argument.” To sum up the background of this “oneness” assumption (not a hypothesis), the conceptualized medieval universe was tidy, ordered and neatly arranged. Imagined in metaphoric fashion as an immense cathedral, it was so simply conceived that it was frequently represented in art by great painted clocks. At its center lay the earth, at once a mere part of God’s larger creation, but at the same time a single unified whole unto itself. For this fascinating history, literary as well as philosophic, see Anatole France, The Garden of Epicurus (1923).
[6]Both Saddam Hussein’s regime in Iraq and Hamas previously fired rockets at this Israeli nuclear facility. Though unsuccessful, Israel must remain wary of the consequences of any future attack that could 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.
[7] Regarding prediction, there could be no logic or science-based way to determine relevant probabilities. This is because meaningful assessments of probability must always be founded upon the determinable frequency of pertinent past events. Plainly, and sobering, the events under discussion here are unprecedented or sui generis.
Louis René Beres was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with war, terrorism and international law. Emeritus Professor of International Law at Purdue, Dr. Beres was born in Zürich, Switzerland on August 31, 1945. He is a contributor to Harvard National Security Journal (Harvard Law School); International Security (Harvard); The American Journal of International Law; American Political Science Review; JURIST; Case Western Reserve Journal of International Law; Air and Space Operations Review ((USAF); Yale Global Online; Indiana International and Comparative Law Journal (Indiana University); World Politics (Princeton); Jewish Website; Algemeiner (New York); Bulletin of the Atomic Scientists; The War Room (Pentagon); The Strategy Bridge; Modern War Institute (West Point); Parameters: Journal of the US Army War College (Pentagon); The Atlantic; The New York Times; BESA (Israel); INSS (Israel); The Hill; The Jerusalem Post; and Oxford University Press. His twelfth and latest book is Surviving amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2nd ed., 2018). https://paw.princeton.edu/new-books/surviving-amid-chaos-israel%E2%80%99s-nuclear-strategy