Amid ongoing terror violence in Israel, the author — an expert in international law and regular JURIST contributor — argues that it is the responsibility of the United States and other world powers to insist that the governing Palestinian organizations meet the overriding obligation of supporting humanitarian international law…
In response to the October 7, 2023 Hamas attacks against Israeli civilians, Israel mounted Operation Swords of Iron. Although international law allows for certain limited uses of insurgent force, including uses directed toward “self-determination,”[1] these residual allowances do not include any rights of indiscriminate violence or of deliberate attacks on noncombatants. “Revenge,” of course, is never a permissible or law-based justification.
What specific legal insights can shed light on the latest Arab attacks against Israeli citizens? Prima facie, Hamas Operation Al-Aqsa Storm represents an “egregious” violation of international law. Under no valid legal standards does it define any acceptable plan for peace, justice or purposeful diplomacy. Instead, this latest Palestinian violence champions a cruelly visceral program for lethal harm against Israeli non-belligerents.
There are variously associated details. Human targets will be identified by terrorists elsewhere in the region, not just those originating from Gaza. Ironically, civilian Arab populations will likely constitute the majority of victims of Arab terror.
What will happen next? Will Syria and/or Iran enter into the hostilities? Will Shiite militia Hezbollah in the north join its Sunni counterparts presently assaulting noncombatants from Gaza? Whatever the nuances and particularities of this Palestinian-inflicted war, Israel will once again have to defend itself against contrived and false charges of “disproportionality.”
“The more things change, the more they remain the same.” In its necessary counter-terrorist operations, the IDF will have to engage Arab terrorists in civilian areas in order to immobilize further terror operations and to destroy large caches of terrorist weapons. Looking ahead, there will likely emerge increasingly unpredictable “cycles of violence,” spasms that could sometimes include direct Syrian and/or Iranian military involvement and much wider war.
Taken as a whole, the Palestinian plan for war against Israeli civilians creates a lethal oscillation of Arab and Israeli destructiveness. “Justice,” we have long known from Plato, has multiple dimensions. It represents “a contract neither to do nor to suffer wrong.”[2] From this authoritative standpoint, not only has Hamas inflicted variously unjust punishments, but Israel would be acting against justice if it left Hamas unpunished. Ipso facto, Operation Swords of Iron is an example of Israeli law enforcement.
There is more. In these bewilderingly complex calculations, law and strategy will always be interrelated. There will always be important legal questions to consider in tandem with important military questions. Still, to accomplish any such needed consideration, there would first have to be some tangible evidence of meaningful jurisprudential understanding.
What does international law have to say about rapidly dissembling circumstances in the Middle East? More specifically, what are the legal requirements of “proportionality” under the law of war or humanitarian international law.[3] These requirements ought never to be misunderstood, ignored or disregarded. Such key expectations concern not just general conflict issues in “Westphalian”[4] world politics, but also core matters of long-settled jurisprudence,
In international law, words always matter. The legally correct meaning of “proportionality” has nothing to do with maintaining equivalence in the use of military force. Proportionality has nothing to do with equivalency. Under international law, especially the law of war, the standard of proportionality is never just a consideration of intuition or “common sense.” Above all, it is always a matter of Reason,[5] an integral foundation of codified and customary international law.[6] This standard seeks to ensure that every belligerent’s resort to armed force always remains limited to what is “necessary” to meet law-based military objectives.[7]
Though we still speak narrowly of “international law,” identifiable belligerents include not only states but also insurgent and terrorist armed forces.[8] This means that even where an insurgency is presumptively lawful – that is, where it seemingly meets the settled criteria of “just cause” – it must still satisfy all corollary expectations of “just means.” To the issue at hand, even if Hamas and its associated combatants would have a presumptive right to fight against an Israeli “occupation,” that fight would still need to respect all legal limitations of “discrimination,” “proportionality” and “military necessity.”
Taking Israeli civilian hostages, deliberately firing rockets into Israeli civilian areas and/or placing military assets amid Palestinian civilian populations represents an “egregious” crime of war. Always. In the third example, the pertinent crime is known formally as “perfidy.” In all previous anti-terror wars against Hamas, Israel has had to deal with Palestinian perfidy.
There is more. Under no circumstances does the principle of proportionality stipulate that either party to an ongoing conflict must impose only symmetrical or equivalent harms upon the enemy. If that sort of “common sense” suggestion were correct, there would be no modern historical analogue to America’s “disproportionate” attacks on European and Japanese cities during World War II. By that standard, Dresden, Cologne, Hiroshima and Nagasaki would represent the documented nadir of inhumane belligerency. Indeed, these US attacks would reflect the modern world’s very worst violations of humanitarian international law.
All too often in the seemingly endless Palestinian belligerency against Israel, vital legal backgrounds are minimized or glossed-over. Sometimes, Hamas, Fatah, Islamic Jihad and related terror groups take conspicuous steps to ensure that Israeli reprisals kill or injure Arab noncombatants. By placing selected noncombatants in those areas from which Arab rockets are launched into Israeli homes, hospitals and schools, Palestinian leaders – not Israeli defenders – are violating the most fundamental expectations (more technically, “peremptory” or “jus cogens” expectations) of humanitarian international law.[9]
Any use of “human shields” represents much greater wrongdoing than simple immorality or visceral cowardice. It expresses a starkly delineated and punishable crime. 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 specifically disallow any placement of military assets or personnel in populated civilian areas. 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.[10]
All combatants, including Palestinian insurgents allegedly fighting for “self-determination,”[11] are strictly bound by the law of war. This core requirement is found at Article 3, common to the four Geneva Conventions of 1949.[12] It cannot be suspended or abrogated.
At some point, Palestinian Arab terror groups, most notably Hamas, could escalate mega-terror attacks on Israel. Such aggressions, unprecedented and possibly in cooperation with variously allied non-Palestinian Jihadists, could include chemical and/or biological weapons of mass destruction. In the worst-case scenario, especially if Iran should sometime agree to transfer portions of its expanding inventory of nuclear materials to proxy terror groups, Israel could have to face Palestinian-directed nuclear terrorism.[13] Also possible, though presently still implausible, is that residual ISIS-type surrogates could displace more civilized leadership cadres in “Palestine.” At that point, Israel and relevant allies could have to face a more starkly insidious source of atomic terror.[14]
What would happen then, when bewildered combatants find themselves in extremis atomicum?
Earlier, though ISIS was effectively eliminated as a viable enemy organization, the underlying Jihadist ideology remained anything but defeated.[15] Now, to best predict possible and probable outcomes, Israeli analysts and policy-makers will need to refine their relevant skills for dialectical reasoning. In the final analysis, effective counter-terrorism must always be assessed as an intellectual activity. Over time, the heroes of Israeli counter-terrorism could include behind-the-scenes thinkers (physicists, mathematicians, philosophers and political scientists) among more glamorous Fauda-type fighters and special operations forces.
There are complementary concerns. However perilous the appearance of any particular perceived threat, Israel has sought to keep (and will plausibly continue to keep) counterterrorism operations consistent with applicable international law. For their part, Palestinian fighters remain in generally deliberate and persistent violation of virtually all recognizable rules of civilized military engagement. For them, insurgent warfare remains a matter of “by any means necessary.” For them, it is always just a matter of what Sigmund Freud would have called “wish fulfilment,” not one of binding legal obligation.
History should have some pride of place in these assessments. Terror-violence launched from Gaza accelerated immediately after Israel left the area in 2005, a “disengagement” that Jerusalem had expected (or merely hoped) would produce less terror and greater intercommunal harmony.[16] But hope is never a strategy and is never law supporting per se.
There are certain antecedent points to be emphasized. From the standpoint of binding international law, terrorism is always more than just bad behavior. Without exception, it represents a distinct and serious crime under international law. Such evident crime can neither be minimized or exonerated by any partisan intimations of “just cause” or “by any means necessary.” Under international law, the ends can never justify the means: “Rights can never stem from wrongs”[17]
In the past, various manipulated expressions of jurisprudential reasoning notwithstanding, the Palestinian side bore full legal responsibility for most Arab civilian casualties in Gaza. Arguably, absent its pre-meditated attacks on Israeli civilian populations, there could have been no reciprocal Palestinian harms. Though Israeli military operations did kill and wound Arab noncombatants in every “cycle of violence,” these casualties were largely unavoidable and inadvertent. When Hamas rockets are launched against Israeli targets from Gaza, the acknowledged Palestinian intent is to kill and wound Israeli civilians.
In law, all law, criminal intent or mens rea is singularly important.
International law is not a suicide pact. Even amid long-enduring Westphalian anarchy,[18] it offers an authoritative body of rules and procedures that permits a beleaguered state – any beleaguered state – to express an “inherent right of self-defense.” But when Arab terrorist organizations celebrate the explosive “martyrdom” of Palestinian civilians and when certain Palestinian leaders seek religious “redemption” through the mass-murder of “unbelievers,” the wrongdoers have no residual claims to legal immunity or sanctuary.[19]
Under international law, such criminals are called Hostes humani generis or “common enemies of humankind.” Unambiguously, in law, this category of murderers invites punishment wherever wrongdoers are found. Concerning their required arrest and prosecution, jurisdiction is now termed, after Nuremberg (1945-46) “universal.” Also relevant is that the historic Nuremberg Tribunal strongly reaffirmed the ancient legal principle of Nullum crimen sine poena, or “No crime without a punishment.”[20]
There is a manifestly non-legal but still significant point that remains germane to any wrongful allegations of Israeli “disproportionality.” Many Palestinian commanders who control terror-mayhem against Israel cower unheroically in safe towns and cities. Heroic rhetoric notwithstanding, these commanders are never eager to become “martyrs” themselves. Quite the contrary.
International law is closely bound up with US law. Few Americans have ever even glanced at their nation’s Constitution. Derivatively, many US critics of Israel remain determinedly unfamiliar with the laws of war of international law. Just as seriously, they fail to recognize that these laws represent an integral and incorporated part of the domestic or municipal law of the United States. The US Constitution, especially Article 6 (the so-called “Supremacy Clause”) and several corollary Supreme Court decisions, particularly the Paquete Habana (1900),[21] codify this authoritative incorporation.
This means that consistent misuse of relevant international law represents inter alia a wrongful interpretation of American Constitutional law. It is especially vital that major political parties and leaders now become better acquainted with the governing laws of war, and conscientiously apply these basic rules with fairness to all instances of international armed conflict. In the final analysis, the core issue concerning humanitarian international law here is not about Israel and the Palestinians as such, but the willingness of all major states in world politics to sustain uniformly civilized standards of global military conduct. and conflict resolution.[22]
There must be an ethical or humanitarian calculus in all particular circumstances. Although an ideal world legal order would contain “neither victims nor executioners,” such an optimal arrangement of global power and authority is not yet on the horizon.[23] Confronting what he once called “our century of fear,” Camus asks his readers to be “neither victims nor executioners,” living not in a world in which killing has disappeared (“we are not so crazy as that”), but wherein wanton killing has become illegitimate. This is a very fine expectation of philosophy, but not one that can be harmonized with any strategic or jurisprudential realism.
For the moment, Hamas and its allies intentionally adhere to knowingly wrongful definitions of “proportionality,” that is, to narrowly manipulative definitions calling for “equivalence.” At the same time, Israel continually alleges an inherent right to broad targeting strategies that is based on frequently unverified or unverifiable allegations of Palestinian “perfidy.” Though verifying instances of Hamas perfidy would better immunize Israel from legal responsibility for any inadvertent IDF harms inflicted upon noncombatant Palestinian populations, such verification could also undermine tactical successes. In the best of all possible worlds, both Israel and Hamas would accept Plato’s rudimentary definition of justice “neither to do nor to suffer wrong.” But even after Nuremberg,[24] this “Westphalian” world is based less on abstract considerations of law and justice than on crudely zero-sum competitions for power and advantage.
What next? As long as states (e.g., Israel) and aspiring states (e.g., “Palestine”) exist in a world of international anarchy – that is, in the decentralized system of international law originally bequeathed at the Peace of Westphalia in 1648 – conflicts such as the Israel-Hamas war will continue to be treated as adversarial. Until the world can finally progress meaningfully beyond such an inherently self-destructive ethos, the enforcement of international law will depend largely upon the cooperative interactions of several major states, especially the United States.
In this connection, grave responsibility will fall upon the American president and Congress to speak on behalf of a conspicuously more law-enforcing orientation to international law. In specific reference to Israel, Hamas and the current Gaza War, this will mean an obligation to (1) abjure narrowly contrived definitions of “disproportionality;” and (2) acknowledge a broad Israeli right to self-defense against terror wherever Palestinian resort to “human shields” or perfidy can be verified.
Truth is exculpatory. This is not yet the best of all possible worlds, but it is the right time to make a refined start in that direction. Deliberate Hamas rocket attacks on Israeli civilians are always unlawful and never pardonable. Reciprocally, carefully measured Israeli bombings of Gaza structures harboring Hamas terrorists or weapons are always lawful and law-enforcing. Though meeting its legal obligation to gather evidence of Palestinian perfidy during an ongoing belligerency is necessarily problematic, dispensing with this obligation altogether could leave Israel suspended under a perpetual cloud of generalized suspicion and jurisprudential disbelief.[25]
Whatever the differences between them, all sides to this escalating conflict have a coinciding and interdependent obligation to support humanitarian international law. Among other things, it is the de facto and de jure responsibility of the United States and other world powers to insist that both Israel and governing Palestinian organizations meet this overriding obligation. In the end, such a complex task would represent not “only” a tangible accomplishment of ethical conduct, but also one of deeply serious intellectual[26] and cosmopolitan[27] thought.
References* [NB: JURIST typically does not use footnotes; however, for certain analyses in which footnotes, in and of themselves, are critical to an understanding of the author’s argument, we may opt to make exceptions to this rule.]
[1] See Louis René Beres, “Self-Determination, International Law and Survival on Planet Earth,” Arizona Journal of International and Comparative Law, Vol. 11, No.1., pp. 1-26. See also French political theorist Bertrand de Jouvenal, Sovereignty: An Inquiry into the Political Good (The University of Chicago Press, 1957).
[2] The Republic.
[3] The principle of proportionality is contained in both the rules governing the resort to armed conflict (jus ad bellum) and in the rules governing the actual conduct of hostilities (jus in bello). In the former, proportionality relates to self-defense. In the latter, it relates to conduct of belligerency. Proportionality is itself derivative from the more basic principle that belligerent rights are not unlimited (See notably Hague Convention No. IV (1907), Annex to the Convention, Section II (Hostilities), Art. 22: “The right of belligerents to adopt means of injuring the enemy is not unlimited”).
[4] The Peace of Westphalia (1648) concluded the Thirty Years War and created the still-existing 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.”
[5] The primal importance of reason to legal judgment was prefigured in ancient Israel. Jewish theory of law, insofar as it displays the influence of Natural Law, offers a transcending order revealed by the divine word as interpreted by human reason. In the words of Ecclesiastics 32.23, 37.16, 13-14: “Let reason go before every enterprise and counsel before any action…And let the counsel of thine own heart stand…For a man’s mind is sometimes wont to tell him more than seven watchmen that sit above in a high tower….”
[6] Article 38(1)(b) of the STATUTE OF THE INTERNATIONAL COURT OF JUSTICE describes international custom as “evidence of a general practice accepted as law.” The essential significance of a norm’s customary character is that the norms bind even those states that are not parties to the pertinent codification. Even where a customary norm and a norm restated in treaty form are apparently identical, these norms are treated as jurisprudentially discrete. During the merits phase of MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA, the International Court of Justice (ICJ) stated: “Even if two norms belonging to two sources of international law appear identical in content, and even if the States in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence.” See: MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA, Nicar. V. US., Merits, 1986 ICJ, Rep. 14 (Judgment of 27 June).
[7] The related 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.
[8]Applying the laws of war to insurgent participants’ dates back to the four Geneva Conventions of 1949. As more than codified treaties and conventions comprise the law of war, it is plain that the authoritative obligations of jus in bello (justice in war) are part of “the general principles of law recognized by civilized nations” (from Art. 38 of the Statute of the International Court of Justice) and bind all categories of belligerents. Additionally, Hague Convention IV of 1907 declares that even in the absence of a precisely published set of guidelines regarding “unforeseen cases,” the operative pre-conventional sources of humanitarian international law still obtain and govern all belligerency.
[9] 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.” See: Vienna Convention on the Law of Treaties, Done at Vienna, May 23, 1969. Entered into force, Jan. 27, 1980. U.N. Doc. A/CONF. 39/27 at 289 (1969), 1155 U.N.T.S. 331, reprinted in 8 I.L.M. 679 (1969).
[10] On the main corpus of jus in bello or humanitarian international law, see: Convention No. IV Respecting the Laws and Customs of War on Land, With Annex of Regulations, October 18, 1907. 36 Stat. 2277, T.S. No. 539, 1 Bevans 631 (known commonly as the “Hague Regulations:); Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Done at Geneva, Aug. 12, 1949. Entered into force, Oct. 21, 1950. 6 U.S.T. 3114, T.I.A.S. No. 3362, 75 U.N.T.S. 31; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Done at Geneva, Aug. 12, 1949. Entered into force, Oct. 21, 1950. 6 U.S.T. 3217, T.I.A.S. No. 3363, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War. Done at Geneva, Aug. 12, 1949. Entered into force, Oct. 21, 1950. 6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135; Convention Relative to the Protection of Civilian Persons in Time of War. Done at Geneva, Aug. 12, 1949. Entered into force, Oct. 21, 1950. 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287.
[11] Doctrinally, Palestinian hostility to Israel is oriented to removal of the Jewish State by attrition and annihilation. This unhidden orientation has its foundations in the PLO’s “Phased Plan” of June 9, 1974. In its 12th Session, the PLO’s highest deliberative body, the Palestinian National Council, reiterated the PLO aim as being “to achieve their rights to return, and to self-determination on the whole of their homeland.” The proposed sequence of violence is expressed as follows: FIRST, “to establish a combatant national authority over every part of Palestinian territory that is liberated” (Art. 2); SECOND, “to use that territory to continue the fight against Israel” (Art. 4); and THIRD, “to start a Pan-Arab War to complete the liberation of the all-Palestinian territory, i.e., to eliminate Israel” (Art. 8).
[12] According to the rules of international law, every use of force must be judged twice: once with regard to the right to wage war (jus ad bellum), and once with regard to the means used in conducting war (jus in bello). Today, in the aftermath of the Kellogg-Briand Pact of 1928, and the United Nations Charter, all right to aggressive war has been abolished. However, the long-standing customary right of self-defense remains, codified at Article 51 of the 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. The laws 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 (and known thereby as the law of The Hague and the law of Geneva), these rules attempt to bring considerations of discrimination, proportionality and military necessity into belligerent calculations.
[13] Professor Louis René Beres is author of one of the earliest books on the subject of nuclear terrorism: Terrorism and Global Security: The Nuclear Threat (Boulder, Colorado: Westview Press, 1979). For assessments of nuclear war consequences by this same author, see: Louis René Beres, Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016; 2nd. ed., 2018); 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 MA: Lexington Books, 1983); Louis René Beres, Reason and Realpolitik: US Foreign Policy and World Order (Lexington MA; Lexington Books, 1984); and Louis René Beres, ed., Security or Armageddon: Israel’s Nuclear Strategy (Lexington MA: Lexington Books, 1986).
[14] Such sources could include a non-nuclear terrorist attack on the Israeli reactor at Dimona. There is a documented history of enemy attempts against this Israeli plutonium-production reactor, both by a state (Iraq) in 1991, and by a Palestinian terror group (Hamas) in 2014. Neither attack was successful, but relevant precedents were established. For more on the specific threat to Israel’s nuclear reactor facilities, see: Bennett Ramberg, “Should Israel Close Dimona? The Radiological Consequences of a Military Strike on Israel’s Plutonium-Production Reactor,” Arms Control Today, May 2008, pp. 6-13. See also, by the same author: Bennett Ramberg, “The Next Chernobyl May Be Intentional,” Reuters, April 26, 2016.
[15] See, by Professor Louis René Beres at Oxford University Press: https://blog.oup.com/2016/11/isis-security-ideology/
[16] It would be similarly unrealistic for Israeli planners to count on some form of Palestinian – state “demilitarization.” See, by Professor Beres, “Demilitarizing Palestine,” at Oxford Yearbook of International Law, Oxford University Press, 2018, pp. 191-206. See also, with Israeli Ambassador Zalman Shoval: Louis René Beres and (Ambassador) Zalman Shoval, “Why a Demilitarized Palestinian State Would Not Remain Demilitarized: A View Under International Law,” Temple International and Comparative Law Journal, Winter 1998, pp. 347-363; and Louis René Beres and Zalman Shoval, “On Demilitarizing a Palestinian `Entity’ and the Golan Heights: An International Law Perspective,” Vanderbilt Journal of Transnational Law, Vol. 28, No. 5, November 1995, pp. 959-972.
[17] Ex injuria jus non oritur.
[18] This de facto condition of Westphalian anarchy stands in contrast to the jurisprudential assumption of solidarity between states. This law-based assumption concerns a presumptively common legal struggle against both aggression and terrorism. Such a “peremptory” expectation, known formally in law as a jus cogens assumption, was already mentioned in Justinian, Corpus Juris Civilis (533 CE); Hugo Grotius, 2 De Jure Belli ac Pacis Libri Tres, Ch. 20 (Francis W. Kesey., tr, Clarendon Press, 1925) (1690); and Emmerich de Vattel, 1 Le Droit Des Gens, Ch. 19 (1758).
[19]In the Arab Middle East, where theological doctrine divides carefully into the dar al-Islam (world of Islam) and the dar al-harb (world of war), acts of terror against unbelievers have long been taken as an expression of sacredness. Here, individual sacrifice derives, in large part, from a fervidly hoped-for conquest of personal death. By adopting such atavistic practice, the Jihadist terrorist expects to realize an otherwise unattainable immortality, not to mention other substantially seductive and corollary benefits. For Hamas, which ultimately seeks power in a new state of Palestine, there are certain obligatory aspects of sacrificial terror that must never be overlooked. These aspects, underscoring the two-sided nature of terror/sacrifice – that is, the sacrifice of “The Jew,” and the reciprocal sacrifice of “The Martyr” – is explicitly codified within the Charter of Hamas, as a “religious” problem.” See, by this author, Louis René Beres: https://scholarlycommons.law.case.edu/jil/vol39/iss3/2/
[20] This is also a “Higher Law” or “Natural Law” principle. In his DE OFFICIIS, Cicero wrote: “There is in fact a true law namely right reason, which is in accordance with nature, applies to all men and is unchangeable and eternal…. It will not lay down one rule at Rome and another at Athens, nor will it be one rule today and another tomorrow. But there will be one law eternal and unchangeable binding at all times and upon all peoples.” See also DE LEGIBUS, Bk. i, c, vii. Blackstone’s COMMENTARIES expressly recognize that all law “results from those principles of natural justice, in which all the learned of every nation agree….” See William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, adapted by Robert Malcolm Kerr (Boston; Beacon Press, 1962), Book IV, “Of Public Wrongs,” p. 62 (Chapter V., “Of Offenses Against the Law of Nations.”). Thomas Aquinas recalls Augustine as follows: “St. Augustine says: `There is no law unless it be just.’ So the validity of law depends upon its justice. But in human affairs a thing is said to be just when it accords aright with the rule of reason: and as we have already seen, the first rule of reason is the Natural Law. Thus all humanly enacted laws are in accord with reason to the extent that they derive from the Natural law. And if a human law is at variance in any particular with the Natural law, it is no longer legal, but rather a corruption of law.” See SUMMA THEOLOGICA, 1a 2ae, 95, 2; cited by D’ Entreves, supra, pp. 42 – 43
[21] In the words used by the U.S. Supreme Court in The Paquete Habana, “International law is part of our law, and must be ascertained by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.” See The Paquete Habana, 175 U.S. 677, 678-79 (1900). See also: The Lola, 175 U.S. 677 (1900); Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774, 781, 788 (D.C. Cir. 1984) (per curiam) (Edwards, J. concurring) (dismissing the action, but making several references to domestic jurisdiction over extraterritorial offenses), cert. denied, 470 U.S. 1003 (1985) (“concept of extraordinary judicial jurisdiction over acts in violation of significant international standards…embodied in the principle of `universal violations of international law.’”).
[22] Such standards may have to be assessed not only in the context of a long-standing Westphalian anarchy, but also in a conceivably emerging chaos. Nonetheless, there are still places wherein chaos is seen as much as a source of potential human betterment as one of declension. In the Hebrew Bible, for relevant example, chaos is regarded as that condition which prepares the world for all things, both peaceful and violent, both sacred and profane. Moreover, as its core etymology reveals, chaos represents the yawning gulf or gap wherein nothing is as yet, but also where civilizational opportunity must inevitably originate. The German poet Holderlin observed accordingly: “There is a desert, sacred and chaotic, which stands at the roots of the things and which prepares all things.” Even in the ancient pagan world, the Greeks regarded such a desert as logos, which indicates to us that it was then presumed to be anything but starkly random or without conceivable merit.
[23] This phrase is taken from Albert Camus, Neither Victims nor Executioners (Dwight Mc Donald., ed., 1968)).
[24] 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, p. 11.
[25] To wit: See: https://www.yahoo.com/news/ap-top-editor-calls-probe-1 63811444.html
[26] In the 17th century, French philosopher Blaise Pascal remarked prophetically in Pensées: “All our dignity consists in thought. It is upon this that we must depend…Let us labor then to think well: this is the foundation of morality.” Similar reasoning characterizes the writings of Baruch Spinoza, Pascal’s 17th-century contemporary. In Book II of Ethics, Spinoza considers the human mind or “intellectual attributes,” and drawing from René Descartes defines a comprehensive theory of human learning.
[27] According to Talmud: “The earth from which the first man was made was gathered in all the four corners of the world.”