“Oh ship of state, new waves push you out to sea….”
Horace, Odes
From the beginning, Israel’s ship of state has had to navigate rough waters. Today, the force-multiplying “seas” of jihadi terrorism and Iranian nuclearization constitute an existential threat. To keep Israel from “sinking,” Jerusalem’s strategic thinkers should fashion their assessments in both legal (international law) and military terms.
For the moment, operational geography is specific. Gaza remains center stage and Gaza Palestinians remain unfortunate victims. Though the suffering and death of so many Gaza noncombatants does seem difficult to reconcile with humanitarian international law, Hamas and its kindred terror groups continuously embrace a wittingly barbarous orientation to armed conflict. This jihadi orientation centers on “criminal intent” (mens rea).
For Hamas, Hezbollah, Fatah, Houthis and other Islamist foes, mens rea is manifest and unhidden. For Israel, on the other hand, criminal intent is non-existent. Though Gaza’s civilians do not deserve to endure harms of Israeli military action, the legal responsibility for such Israeli action does not lie with the Jewish State. It lies instead with Palestinian leadership cadres that insidiously place military terror assets within normally-protected civilian spaces.
International law is not a suicide pact. As is the case for every state in world politics, Israel has an incontestable right to survive. In order to protect itself against the sorts of lascivious harms perpetrated on October 7, 2023 – assaults that had nothing to do with gaining Palestinian sovereignty or affirming “self-determination” – Jerusalem has not only the right but the obligation to “stay alive.” Moreover, this obligation is primary (in law, the formally correct term is “peremptory”) and extends beyond Israel to the wider community of nations.
Regarding its law-enforcing war against jihadist terror – in Gaza, but also in Yemen, Lebanon, Sudan, Syria, Judea/Samaria (West Bank) and other places – Israel is acting on behalf of all “at risk” states. While this fact has been hard to acknowledge by those who see only the televised effects of Israeli counter-terrorism, it is fully supported by all applicable legal standards, especially “mutual aid.” By this “peremptory” principle, each state in world politics is obligated to assist other states imperiled by terror-violence. Portentously, it is only a matter of time before state-supported jihadi criminals resort to chemical, biological or nuclear terrorism.
What happens then?
Per authoritative legal history, the most significant classical jurists promoting “mutual aid” were Emmerich de Vattel (The Law of Nations, 1758) and William Blackstone (Commentaries on the Laws of England, 1765-1769). Among other things, their magisterial works of jurisprudence shaped the core foundations of United States domestic law.
There are additional details concerning Israel and Hamas. To wit, the “Islamic Resistance Movement” crimes of October 7, 2023 – murder, rape and hostage-taking – represent “Nuremberg-level” violations of humanitarian international law. Under peremptory or jus cogens rules, all states – not just Israel – have a codified and customary obligation to punish terror-criminals.
Under binding international law (especially art. 38 of the Statute of the International Court of Justice), “international custom” can have co-equal (with codified rules) law-making authority. The Nuremberg Principles stipulate “No crime without a punishment.” Prima facie, there would have been no Gaza War and no Palestinian casualties if Hamas had not launched its October 7, 2023 criminal assault.
A recurrent charge leveled against Israel in Gaza concerns “proportionality.” But under the law of armed conflict, proportionality has nothing to do with any obligation to inflict only symmetrical or equivalent harms. To clarify, relevant obligations of “proportional combat” are contained in the codified and customary rules governing initiation of armed conflict (“justice of war”) and operational elements of armed conflict (“justice in war”). On the former or jus ad bellum issue, proportionality concerns irrevocable rights of national self-defense. On the latter or jus in bello question, proportionality references the particular manner in which a belligerency is being conducted.
Proportionality is a derivative principle. In law, it can be extrapolated from the more basic idea that belligerent rights of insurgent groups and sovereign states have fixed limitations. The “stirring” declaration that Hamas is entitled to fight “by any means necessary” contravenes 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.”
Unlike Israel, which regrets any collateral damage of its obligatory self-defense war, Hamas rocket fire and other terror attacks (including civilian hostage-taking) are the defiling product of “criminal intent.” Recently, displays of mens rea by Hamas have been most conspicuous in the terror group’s calculated sabotage of Gaza aid deliveries. In part, these have been displays of ordinary rather than political criminality.
There is still more. Unlike Israel, Hamas intentionally seeks to target, maim and kill noncombatants. Hamas leaders also encourage the mass dying of Palestinian noncombatants by Israeli military action, an ironic objective ipso facto, but one that creates useful “martyrs” and keeps jihadist masterminds safe and wealthy in Qatar, Egypt, UAE, Saudi Arabia and Turkey.
For informed appraisals of what is happening in the Gaza War – appraisals that look behind indecipherable television images – legal principles, codifications and customs will need to be identified. Under humanitarian international law, a belligerent’s use of armed force is always limited to what is “necessary” to meet allowable military objectives. The related legal notion of “military necessity” is defined 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.”[1]
We generally speak of “international” law, but belligerents include not only nation-states, but also insurgent and terrorist armed forces. This means that even where an insurgency is presumptively lawful – that is, where it seemingly meets settled criteria of “just cause” – it must still satisfy corollary expectations of “just means.” It follows that even if Hamas and its sister terror groups would have a presumptive right to fight against an Israeli “occupation,” that fight would need to respect the established limitations of “distinction,” “proportionality” and “military necessity.” Deliberately firing rockets into Israeli civilian areas and intentionally placing military assets amid civilian populations represents a “perfidious” crime of war. Any taking of civilian hostages represents unpardonable criminality.
Nonetheless, regarding Israel, jihadi manipulations continue. If a “common-sense” definition of proportionality would ever be deemed appropriate, there would be no legitimate defense for America’s “disproportionate” attacks on European and Japanese cities during World War II. By that intuitive standard, Dresden, Cologne, Hiroshima and Nagasaki would represent the nadir of inhumane and lawless belligerency. Incontestably, these US attack histories would represent the modern world’s worst violations of humanitarian international law.
The very worst.
Deception can be lawful in armed conflict, but The Hague Regulations 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 basis of customary international law, a principal jurisprudential source identified at Article 38 of the Statute of the International Court of Justice.
All combatants, including Palestinian insurgents allegedly fighting for “self-determination,” are bound by the law of war. This requirement is found at Article 3, common to the four Geneva Conventions of 1949. It cannot be suspended or abrogated.
Israel, too, is bound by the law of war, but its Gaza conflict is necessary to national survival and its associated military actions impact Palestinian civilians without Israeli mens rea. Under law, it follows that all unintentional harms resulting from Israel’s actions are the responsibility of the perfidious jihadi belligerent and its state supporters. Tangibly, this identifies both the Hamas terror-criminals who cower behind “human shields” and the steadily-nuclearizing Islamic Republic of Iran.
The Hamas goal of Palestinian “self-determination” is expressly founded on an intended crime – that is, “removal” of the Jewish State by attrition and annihilation. This literally genocidal orientation has its origins 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 terror-organization’s aim “to achieve their rights to return, and to self-determination on the whole of their homeland.”
In its 1974 plan, a proposed sequence of Palestinian violence was plainly identified: 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” (Art. 8). Ironically, this was and remains the annihilationist plan of a more “mainstream” Palestinian terror group than Hamas, an organization that Hamas has always considered as too moderate.
For Israel, the core existential threat is no longer “Pan-Arab War.” At some still-ambiguous point, Hamas and other jihadi forces (plausibly, with Iranian support) could prepare to launch mega-terror attacks on Israel. Such potentially perfidious aggressions, unprecedented and in cooperation with allied non-Palestinian Jihadists (e.g., Shiite Hezbollah) could include chemical, biological or radiological (radiation-dispersal) weapons.
Foreseeable perils could also include a non-nuclear terrorist attack on the Israeli reactor at Dimona. There is a documented history of enemy assaults against this Israeli plutonium-production facility, both by a state (Iraq in 1991) and by a Palestinian terror group (Hamas in 2014). Neither attack was successful, but variously fearful precedents were established.
International law is not a suicide pact. Even amid long-enduring world-system anarchy, it offers a binding body of rules and procedures that permits any beleaguered state to accept its “inherent right of self-defense.” But when Hamas celebrates the explosive “martyrdom” of manipulated Palestinian civilians and Palestinian leaders seek “redemption” (i.e., a presumed power over death) through the mass-murder of “Jews” (sometimes “Zionists”), the wrongdoers have no rightful claims to immunity. Moreover, Hamas celebrations of “martyrdom” underscore the two-sided nature of Palestinian terror/sacrifice – that is, primal sacrifice of the reviled “Jew” and reciprocal sacrifice of the sacred “martyr.” Significantly, this murderous reasoning is codified within the Charter of Hamas as a “religious problem.”
Under international law, terrorists are considered hostes humani generis or “common enemies of humankind.” This category of criminals invites punishment wherever the wrongdoers can be found. Concerning their required arrest and prosecution, jurisdiction is now unambiguously “universal.” Correspondingly relevant is that the universality-declaring Nuremberg Principles reaffirm the ancient legal principle of “No crime without a punishment.”
In law, truth is exculpatory. Regarding the ongoing Gaza War, the pertinent truth is clear. Yet again, Israel is waging mandatory war against an exterminatory foe, this time a jihadist terrorist organization that seeks annihilation for Israel, eternality for its “martyrs” and luxury-laden safety for its leaders. In assessing these circumstances, the international community should finally take more seriously the evident truth of jihadi perfidy and the legal falsehood of Israeli “disproportionality.”
The Palestine Liberation Organization (PLO), forerunner of Hamas (Islamic Resistance Movement) and Palestinian Authority (PA) was formed in 1964. This formation was three years before there were any “Israeli Occupied Territories.” So the question should finally be raised: What exactly were the Palestinians planning to “liberate”?
[1] 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.