Institutionalizing criminal defilement: True meanings of Palestinian statehood

Louis René Beres (Ph.D., Princeton, 1971)

Emeritus Professor of International Law

Purdue University

lberes@purdue.edu

“…the Islamic Resistance Movement [Hamas] aspires to realize the promise of Allah, no matter how long it takes. The Prophet, Allah’s prayer and peace be upon him, says: `The hour of judgment shall not come until the Muslims fight the Jews, and kill them, so that the Jews hide behind trees and stones, and each tree and stone will say: `Oh Muslim, oh servant of Allah, there is a Jew behind me, come and kill him....”

Sahih Muslim, Book 41, Number 6985 (cited at The Charter of Hamas, 1988)

          At a moment when even “civilized nations”[1] are endorsing Palestinian statehood,[2] little serious attention is being directed toward pertinent international law. In essence, a Palestinian state, whether or not its contours were negotiated directly by Israel and authorized Arab parties, would display one overriding purpose. This is a presumptive religious obligation to (1) absorb “occupied Palestine” (i.e., the entire State of Israel) in calculated increments; and (2) expunge all Jews from the Dar al-Islam (the world of Islam).[3] Concerning this core purpose, there exists an immediate need for informed clarifications.

          Under international law, all “peoples” have an established right to “self-determination.”[4] Nonetheless, these allowances never include any correlative rights to inflict murderous harms upon an enemy’s civilian population. In such law, moreover, there is always a vital difference between harms that are inflicted inadvertently and harms that are perpetrated willfully. This critical difference centers on the determinative element of “criminal intent” or mens rea.

          Regarding jihadist terrorists and Israel, the planned rape, torture and murder of civilian hostages can never be legally equivalent to the unavoidable harms created by law-enforcing remediation. In law, terrorism is always criminal behavior per se.[5] Under binding international law, both codified and customary,[6] the au courant Palestinian call-to-arms – among other things, the self-justifying chant of “by any means necessary” – is jurisprudential nonsense.

          What about “revenge,” always a popular rationale glorified by Hamas, Fatah, Iran, etc.? Though all criminal law contains some version or other of the Biblical injunction “No crime without a punishment” (Nullum crimen sine poena), revenge as such can never be considered a permissible justification for terror-violence. When, in January 2023, Fatah leadership in Jenin screamed that “the war has begun in all of Palestine” and that this war would not stop “until there is revenge for every pure drop of blood of our righteous martyrs,”[7] the boast was not “merely” barbarous. It was law-violating on its face.

          The world has begun to make significant decisions on Palestinian statehood. What timely messages can be drawn from openly lawless Palestinian threats to inflict revenge and to do so without regard to obligations of distinction, proportionality and military necessity? Soon, the ongoing Gaza War could precipitate the start of a protracted and direct conflict between Israel and Iran. Ultimately, in a manifestly worst case, this could mean nuclear war. Even if Iran would remain non-nuclear – a patently overriding objective for Israel –  Jerusalem could sometime resort to nuclear weapons use (1) to ensure Israeli “escalation dominance;” and (2) to prevent a nuclear Iran.

           For Israel, a country less than half the size of America’s Lake Michigan, only a continuance of Israel-favored nuclear asymmetry would be tolerable.

          Among other things, the current Hamas-Iran war against Israel aims to elicit Israeli counter-attacks against Palestinian civilians. The Palestinian leadership, whether Hamas[8] or Fatah, has persistently sought to make “martyrs” of unwitting Gaza Palestinians for corrosively propagandistic benefit. At the same time, this leadership often lives its own comfortably secure existence in assorted Gulf state villas and luxury hotels.

          Regarding this bitter and shameless irony there are variously defiling details. For example, specifically, Jewish targets are being identified by jihadist terrorists elsewhere in the region, not just in Gaza. Whatever the jihadist-selected venues, civilian Arab populations are lauded once again as the hapless victims of an “heroic Palestinian uprising.”

          Taken as a whole, and whatever its nuanced particularities, the Palestinian plan for Israel produces a continuously lethal oscillation of Arab, Iranian and Israeli destructiveness. “Justice,” as we all should have all learned by now from Plato, represents  “a contract neither to do nor to suffer wrong.”[9] Nonetheless, by its obligatory war against orchestrated Palestinian terror, Israel is the only regional party to actually honor this timeless “contract.” For those who might too easily forget, Hamas criminals raped both male and female Israelis on October 7, 2023; children as well as adults. The victims were mutilated and tortured not because they stood in the way of Palestinian statehood (in ironic fact, many victim Israelis were peace-seeking “kibbutzniks”), but because they were Jews.

          There is more. In bewilderingly complex calculations for Israeli planners, law and strategy are deeply interrelated. For these thinkers and strategists, it is vital that all core legal questions be considered in tandem with military ones.

          What does international law really say about the Gaza War and still-impending Iranian aggressions? What are the authentic legal requirements of “proportionality” under humanitarian international law.[10] These peremptory requirements ought never to be ignored or disregarded;  first, however, they must be correctly understood.

          In law, words matter. The legally correct meaning of “proportionality” has nothing to do with maintaining equivalence or symmetry in the use of military force. Moreover, under authoritative international law, especially the law of war, the standard of proportionality is never just a consideration of intuition or “common sense.” Fundamentally, it is a matter of Reason,[11] an integral foundation of all codified and customary international law. This standard seeks to ensure that every belligerent’s resort to armed force (sub-state as well as state) remains limited to what is “necessary” to meet law-supported  military objectives.[12]

          Though scholars and policy-makers still speak narrowly of “international” law, identifiable belligerents plainly include not only states, but also insurgent/terrorist armed forces and “hybrid” (state/sub-state) foes.[13] 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 here at hand, even if Hamas, Fatah, Hezbollah and Iran would have a law-supportable right to fight against an alleged Israeli “occupation,”[14] that fight would still need to respect the legal limitations of “distinction,” “proportionality” and “military necessity.” Civilian hostage taking is always a crime of war. Any deliberate firing of rockets into Israeli civilian areas or placing of military assets amid Palestinian civilian populations similarly represents an egregious war crime. When such crime involves placing military assets and tunnels under hospitals, schools and mosques, the lawful responsibility for noncombatant harms falls squarely on the criminal-terrorist side, not on the side that is launching life-saving counter-terrorism operations.

          There is a precise name for the war crime being committed by Palestinian Hamas and other criminal insurgent forces. In formal jurisprudence, this crime is known as “perfidy.” In Gaza, the most unassailable legal effect of perfidious terrorist warfare waged against Israelis is to render Israel blameless for collateral harms brought upon Palestinian noncombatants. In law, such harms must be treated exactly as if they were created directly and intentionally by Palestinian terrorists.

           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 unequivocally “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. These earlier US attacks would reflect the modern world’s very worst violations of humanitarian international law.

          If there had been an International Criminal Court in August 1945, should that authoritative tribunal have issued criminal arrest warrants for Harry S. Truman and Winston Churchill?

          In the legally-baseless Palestinian belligerency against Israel, law-centered issues are deliberately glossed-over or grievously misrepresented. Sometimes, Hamas, Fatah and related terror groups take evident 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, and by placing Arab terror weapon systems into Palestinian civilian areas, Palestinian leaders – not Israeli defenders – are continuously violating the “peremptory” or “jus cogens” expectations of humanitarian international law.[15]

            There is more. Any use of “human shields” represents a much greater wrongdoing than simple immorality or visceral cowardice. It also 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.[16]

          All combatants, including Palestinian insurgents allegedly fighting for “self-determination,”[17] are bound by the law of  war. This basic requirement is found at Article 3, common to the four Geneva Conventions of 1949.[18] It cannot be suspended or abrogated. Common assertions such as “one man’s terrorist is another’s freedom fighter” have absolutely no basis in law. In short, they are empty witticisms.

          At some point, Palestinian terror groups, for whatever reason, could launch mega-terror attacks on Israel. Such aggressions, unprecedented and possibly in coordination with Iran and/or allied non-Palestinian jihadists, could include chemical or biological weapons of mass destruction. In the a near worst-case scenario, especially if Iran should previously have agreed to transfer portions of its expanding inventory of nuclear materials to proxy terror groups, Israel could have to face Palestinian nuclear terrorism..[19] This could include a non-nuclear terrorist attack on the Israeli nuclear reactor at Dimona[20] and also radiation dispersal weapons (“dirty bombs”).

           Though appearances may currently suggest otherwise, Israel has always sought to keep its counterterrorism operations consistent with applicable international law. For their part, however, recalcitrant Palestinian terrorists, supported by Iran, remain in deliberate and unapologetic violation of all recognizable rules of law-based military engagement. For Hamas, Fatah and various others, insurgent warfare represents a lawless free-for-all, a proudly uncivilized struggle “by any means necessary.” For these criminal forces, it is essentially a matter of what Sigmund Freud would have called “wish fulfilment.” For these Palestinian forces who seek self-determination and statehood, it is not any matter of legal obligation.

          History should assume pride of place in all pertinent law-based assessments. Insurgent violence originating from Gaza first accelerated after Israel left the area in 2005, a wishful “disengagement” that Jerusalem had expected would produce less terror and more intercommunal harmony.[21] But as Israelis and others now know full well, hope is never a gainful strategy and is never automatically law supporting.

           From the standpoint of binding international law, terrorism is always much more than deviant politics or bad behavior. Without exception, it represents a distinct and willful crime. Such barbarism can never be minimized or exonerated by any partisan intimations of “just cause” or contrived affirmations of “by any means necessary.” Under international law, the ends can never justify the means.

          In law, “Rights can never stem from wrongs.”[22] Ipso facto, a just and decent Palestinian state can never stem from Iran-assisted Palestinian terror. Whatever  its current expectations, what the world would plausibly receive from “Palestine” is codified and institutionalized defilement.

           International law is never a suicide pact. Even amid a long-enduring Westphalian anarchy,[23] such law offers an authoritative body of rules and procedures that permits any state to express an “inherent right of self-defense.” But when Arab terrorist organizations celebrate the explosive “martyrdom” of Palestinian civilians and when Palestinian leaders seek religious “redemption” through the mass-murder of “Jews,” the wrongdoers have no residual legal claims to immunity or sanctuary.[24]

          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 the wrongdoers are found. Concerning their required arrest and prosecution, jurisdiction is now termed (after Nuremberg (1945-46) “universal.” Also relevant is that the law-making Nuremberg Tribunal[25] strongly reaffirmed the ancient legal principle of Nullum crimen sine poena or “No crime without a punishment.”[26]

          For clarification, there remains one manifestly non-legal but still relevant point to these time-urgent assessments. Palestinian commanders who control terror-mayhem against Israeli civilians generally cower unheroically in safe towns and cities across the region and in Europe. Heroic rhetoric notwithstanding, these commanders are unwilling to become “martyrs” themselves. Conspicuously, that sort of “redemption” is for “others.”

          Why?

          There are more noteworthy interconnections. International law is closely bound up with US law. To be sure, few Americans have ever even glanced at their nation’s Constitution. Derivatively, 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 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),[27] validate this incorporation.

          This means that any consistent misuse of relevant international law represents a grievously wrongful interpretation of American Constitutional law. It is vital that America’s major political parties and leaders become better acquainted with the governing laws of war, and more conscientiously, apply these basic rules to complex instances of international armed conflict. In the final analysis, core global issues concerning humanitarian international law and the Gaza War are not about appearances or “epiphenomena,” but about Palestinian and Iranian “perfidy.”[28]

          There must be an evident ethical or humanitarian calculus in all jurisprudential circumstances. Though an ideal world legal order would contain “neither victims nor executioners,” such an arrangement of global power and authority is not yet on the real-world horizon.[29] Confronting what he once called “our century of fear,” Albert 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 killing has become illegitimate. This is a fine expectation of academic philosophy, but not one that can easily be harmonized with strategic or legal benefit.

          What next? As long as existing states such as Israel and aspiring states such as “Palestine” must coexist amid anarchy –  that is, in the decentralized system of international law originally bequeathed at the Peace of Westphalia in 1648 – conflicts such as the Gaza War will continue to be furiously adversarial. Until the world can finally progress meaningfully beyond such an inherently self-destructive ethos, the creation of states will remain subject to willful defilements.

          In this connection, grave responsibility will fall upon the American president and Congress to speak on behalf of a more patently law-enforcing orientation to international law. In specific reference to Israel, Hamas, Fatah, Iran and the 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” (perfidy) can be discovered.

          Truth is exculpatory. This is not yet the best of all possible worlds, but it is still the right time to make a refined start in that direction. Deliberate Hamas and Iranian rocket attacks on Israeli civilians are always unlawful and are never pardonable. Reciprocally, measured Israeli bombings of Gaza structures harboring jihadist terrorists or weapons are always lawful and law-enforcing where there is ample evidence of antecedent Palestinian crimes. Prima facie, with Israel’s ongoing discovery of thousands of Hamas tunnels and weapons, there has been no scarcity of such tangible evidence.

           Whatever the differences between them, all sides to this conflict have a coinciding and interdependent obligation to support humanitarian international law. To begin, it should be the de facto and de jure responsibility of the United States and other world powers to insist that Palestinian terror organizations finally meet this core obligation. In the end, such insistence could represent not “only” an accomplishment of ethical international conduct, but also one of “mind” or intellect-based[30] thought.

          As presently imagined, a Palestinian state – any Palestinian state – would offer a more opportunistic launching point for existential terror attacks and enemy state attacks against Israel. Based upon statements and documentary foundations of Palestinian state supporters, this vitriolic sovereignty would have no plausible interest in creating a peaceful Middle East.[31] Foreseeably, it’s more-or-less conspicuous program of expansion would involve incorporation of the Jewish State of Israel (“occupied Palestine”) into the new Arab state. In law, if such an incremental act of aggression were designed to coincide with direct Iranian military attacks on Israel,[32] the result could reveal “intent to commit genocide” or actual “genocide” (genocide as a fait accompli). Unlike the unintended suffering and dying of Palestinian non-combatants in present-day Gaza,[33] all victims of these Arab-Iranian inflicted crimes (Jews and non-Jews alike) would be the most credible outcome of  jihadist “criminal intent” (mens rea).

          Summing up, a Palestinian state – any Palestinian state – would represent a reward for criminal terrorism and institutionalize an ongoing source of criminal defilement. Accordingly, Palestinian statehood should be rejected on both legal and policy grounds by the civilized community of nations. True remedies for Palestinian sufferings and displacements can never lie in dismembering an existing state that has long preferred regional reconciliations to war.

          To remind: The State of Israel is smaller than America’s Lake Michigan.

          Even in world politics, let us finally be candid, absurdity has its limits.

———-

[1] For this expression in codified international law, see art. 38 (c), Statute of the International Court of Justice; https://www.un.org/en/about-us/un-charter/statute-of-the-international-court-of-justice.

[2] Note especially the May 2024 announced intentions of Ireland, Spain and Norway to support such statehood. Significantly, under the governing treaty on statehood, the Convention on the Rights and Duties of States (“Montevideo Convention”) (1933), authentic statehood can never be based on the recognition of other states. See, accordingly:  https://avalon.law.yale.edu/20th_century/intam03.asp

[3]For background, see: https://www.algemeiner.com/2024/05/22/the-history-of-palestinian-authority-rejectionism-towards-israel/

[4] 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).

[5] 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. (Supp. 1935) 435, 566 (quoting King v. Marsh (1615), 3 Bulstr. 27, 81 Eng. Rep 23 (1615) (“a pirate Est Hostes humani generis”)).

[6] International law includes rules of customary as well as codified nature. 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.”  59 Stat.  1031, T.S. No. 993 (June 26, 1945).  The norms of customary international law bind all states irrespective of whether a State has ratified the pertinent codifying instrument or convention.  International law compartmentalizes apparently identical rights and obligations arising both out of customary law and treaty law.  “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 (Nicaragua v. U.S.), 1986 I.C.J. Rep.  14, para. 178 (June 27).

[7] See PMW, Palestinian Media Watch, January 29, 2023.

[8] Originally identified in the 1988 Hamas Charter as the “Muslim Brotherhood in Palestine.”

[9] Plato, The Republic.

[10] 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 the actual conduct of belligerency.

[11] 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….”

[12] 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.

[13]Applying the laws of war to insurgent participant’s 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.

[14] Israel left Gaza (the “disengagement”) in 2005. The PLO, “parent” of Hamas, was created in 1964, three years before there could have even been any “occupied territories.”

[15] 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).

[16] 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.

[17] Doctrinally, Palestinian hostility to Israel is oriented to removal of the Jewish State by attrition and annihilation. This unhidden orientation has its doctrinal 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).

[18] 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.

[19] 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).

[20]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.

[21] 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.

[22] Ex injuria jus non oritur.

[23] 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).

[24]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 exemplary 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/

[25] 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.

[26] 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

[27] 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.'”).

[28] Such issues should be assessed not only in the context of a long-standing Westphalian anarchy, but also of a conceivably emerging chaos. Still, there are places wherein chaos is seen as much as a source of human betterment as one of declension. In the Hebrew Bible, 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.

[29] This phrase is taken from Albert Camus, Neither Victims nor Executioners (Dwight Mc Donald., ed., 1968)).

[30] 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.

[31] In this regard, Palestinian terror has early roots in the Palestinian National Covenant. Calling officially for sustained Arab violence against Israel, this document was adopted in 1964, three years before the 1967 Six Day War. This means that the PLO’s core guidance on terror was first published – together with its explicit references to the annihilation of Israel – three years before there were any “occupied territories,” For the Palestinian Authority and Hamas, the underlying and inherently lawless position of protracted war was part of a broader statehood strategy of incorporating Israel into “Palestine.” This irredentist incorporation has been codified on all PA and Hamas maps. The most unambiguous Palestinian call for the removal of Israel remains the PLO’s “Phased Plan” of June 9, 1974. In law, this Plan represents an unhidden commitment to carry out crimes against humanity.

[32] This raises the prospect of mutually reinforcing aggressions, or “synergies.”  See, on this prospect, Louis René Beres, at Harvard Law School:  https://harvardnsj.org/2015/06/02/core-synergies-in-israels-strategic-planning-when-the-adversarial-whole-is-greater-than-the-sum-of-its-parts/

[33] Though “unintended” by the Israeli side, such suffering and dying are often deliberately sought by Palestinian leaders. As very recently substantiated by the May 26 2024 Hamas rocket attack on Israeli civilians near Tel Aviv, the Palestinian side wants to elicit Israeli reprisals that kill Arab civilians. This criminal intent (mens rea) is exhibited by Hamas leaders who themselves live safely and sometimes luxuriously “out of range.”

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Louis René Beres, Emeritus Professor of International Law at Purdue, was educated at Princeton (Ph.D., 1971). He is the author of many books and articles dealing with war, terrorism and international law.  Chair of Project Daniel in Israel (PM Sharon, 2003-2004), his twelfth and latest book is titled Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016) (2nd ed., 2018).  https://paw.princeton.edu/new-books/surviving-amid-chaos-israel%E2%80% nuclear-strategy Professor Beres’ legal writings are published annually by Oxford University Press at the Oxford Yearbook of International Law and Jurisprudence. Louis René Beres was born in Zürich at the close of World War II.