Israel and “Last things”

Louis René Beres (Ph.D., Princeton, 1971)
Emeritus Professor of International Law
Purdue University
lberes@purdue.edu

Examined historically, war and terror against Israel are better explained by eschatology (the study of “last things”) than by enemy hopes for “self-defense” or “self-determination.” In essence, this means that Iran, Hamas and other jihadist foes are ultimately focused on something greater than strategic advantage. This less tangible but much deeper focus is “power over death.”

How should Israeli planners grasp such an abstract notion? Unlike their usual orientation – one that centers on logic, science and engineering issues – enemy hopes for power over death revolve about mystery, paradox and self-delusion.  A core question now presents itself: In what operationally precise manner could jihadist beliefs in immortality be understood and utilized by Israel’s national security decision-makers?  

Though Israel’s immediate security concerns are about counter-terrorism and the Gaza War, a direct conflict with Iran is on the horizon. What are the longer term implications of such a direct war, one that could become continuous and protracted? During any plausible Israel-Iran competition for “escalation dominance,” could Israel use its nuclear weapons to deter and manage Iran’s conventional escalations? Or could these Israeli weapons prove cost-effective only against an already-nuclear Iran?

There would be further questions. How can a flesh-and-blood human being offer eternal life to another? Also: How could a jihadist-opposing Israel base certain defining elements of its national security strategy on a mystery-seeking enemy’s “hunger for immortality?”[1] This same question would need to be directed toward jihadist state Iran and jihadist sub-state Hamas or Hezbollah..

In this era of ecstatic mystifications, there will arise force-multiplying claims that yearn not for reason, but for anti-reason. In facing jihadist ideologies that promise eternality to the “faithful,” Israel will need to remain wary of projecting ordinary political/strategic preferences upon Hamas, Hezbollah, Palestinian Islamic Jihad, Houthi fighters and Iran. This is not to suggest any uniform enemy irrationality, but rather to underscore that ordinary secular preferences would generally prove secondary or reflective.

For the most part, projections of decision-making rationality do make sense in world politics. Nonetheless, there are enough significant exceptions to temper any more abundant and hope-based 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 a “life-everlasting” would become more conspicuous. At that point, Jerusalem’s national security planners could begin to place themselves in an improved operational position to deter Islamist murderers, hostage-takers and suicide-bombers, in microcosm (as individual terrorist-criminals) and in macrocosm (as enemy states that support the jihadist terrorist microcosm).

There will be corresponding and converging elements of law. Prima facie, jihadist insurgents who seek to justify their gratuitously barbarous attacks on Israeli noncombatants in the name of “martyrdom” are acting contrary to international law. All insurgents, even those who passionately claim “just cause,” must satisfy longstanding jurisprudential limits on permissible targets and on law-based levels of violence. Regarding such binding limits, religious faith could never be exculpatory.

There is more. Here, relevant legal matters would not necessarily be complicated or bewildering. Under longstanding rules, even the allegedly “sacred” rights of insurgency 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 a contrivance.

Though law and strategy are interrelated, they are also analytically distinct. Violence becomes terrorism whenever insurgents 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 never permissible. Always, they are 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 is always invalid, especially after the landmark postwar judgments of the Nuremberg and Tokyo 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 properly 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 an armed conflict.

In the matter of Israel’s, no-choice war against Hamas and Iran, the death and injury of Palestinian noncombatants has become the legal responsibility of “perfidious” jihadist enemies. 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 by Israel.  For the Jewish State, enemy perfidy in Gaza (which is incontestable) is exculpatory for all needed exertions of Israeli military force.

What about the United States? Pro-Palestinian college protestors are not international law scholars. Accordingly, these easily manipulated supporters of Hamas terror-violence insist – with a pretend jurisprudential gravitas – that “the ends justify the means.” Leaving aside ordinary ethical standards by which any such argument should be dismissed on its face, the ends can never justify means under humanitarian international law.

There is more. Listening to the protest slogans shrieked by jihadist supporters in United States universities, a core conclusion emerges: Witless banalities never represent the meaningful expectations of international law. Under this universal law, whether codified or customary, one person’s terrorist can never be another person’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 rules of humanitarian international law.

          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 Israeli “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 at this moment in time? To clarify any seeming contradictions, though Israel’s bombardments of Gaza are producing multiple Palestinian casualties, the legal responsibility for these harms lies entirely with Hamas/Iranian “perfidy” (“human shields”). Also noteworthy, in this connection, is that while Israel-inflicted Palestinian casualties are unwanted, inadvertent and unintentional, Israel’s extensive civilian deaths and injuries are the verifiable result of Palestinian criminal intent (“mens rea”). In law, there is an ineradicably consequential difference between murdering innocent celebrants at a public music festival and the lethal consequences of a state’s unavoidable/indispensable counter-terrorist operations.

And there is more. 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 variously selective interests. This is especially the case when inhumane jihadist terror-violence targets a designated victim state’s most fragile civilian populations.

The unimaginable ugliness of Iran-supported Hamas crimes on October 7^th has been conveniently minimized or overlooked. Any use of rape and sexual violence as political policy (on October 7^th and after, Hamas orchestrated the rape of Israeli males as well as females; of Israeli children as well as adults) represents a primal barbarism. This is not “merely” a legal judgment. It should be inherently obvious to every thinking and feeling human being.

“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. 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.

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 authoritative international law, terrorist crimes mandate universal cooperation in apprehension and punishment. As punishers of “grave breaches” under international law, all states are required to search out and “extradite or prosecute” individual terrorists. Under no circumstances are states permitted to regard terrorist “martyrs” as lawful “freedom fighters.”

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 history, legal authority for the early American republic was derived in large part from William Blackstone’s Commentaries, a magisterial work that 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 Israel’s state and sub-state jihadist adversaries continue to identify their most recalcitrant killers as “martyrs,” such assessment could have no exculpatory or mitigating effect on pertinent crimes. As a “practical” problem, these faith-driven terrorist foes are animated by the most compelling form of power imaginable. This is the presumed power of immortality, or “power over death.

           For Israel, war planning and counter-terrorism should now take much closer account of enemy attraction to “last things.”

For Israel, the primary “battlefield” against jihadist adversaries should be intellectual, not territorial.

————-

[1] 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 notion of a murderous faith-based “martyrdom.”

————-

Louis René Beres was educated at Princeton (Ph.D., 1971) and is author of many books and articles on war, terrorism and international law. Emeritus Professor of International Law at Purdue, Dr. Beres was born in Zürich 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); Bulletin of the Atomic Scientists; The War Room (Pentagon); 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; Jewish Website; and Oxford University Press. His latest book is Surviving amid Chaos: Israel’s Nuclear Strategy,