Triggering Hezbollah pager explosions was likely a useful tactic against the terror organization, but not if the victims are subsequently declared “martyrs” by authoritative mullahs in Lebanon or Iran. This is because such declarations could immediately or incrementally undermine any expected deterrence benefits for Israel.
The latest news concerns Israel’s expanding war against Shiite Hezbollah, Iran’s jihadist proxy in Lebanon and Syria. At the same time, among other sub-state adversaries and venues, the Jewish State continues its no-choice war against Hamas, Iran’s Sunni surrogate in Gaza, Judea and Samaria. No matter the variable particulars, however, these incessant struggles will need to be waged on intellectual grounds as well as tangible territorial battlefields.
How precisely should Israeli military planners grasp and operationalize the idea of such intellectual competition? Unlike Israel’s usual orientation to counter-terrorism – one that centers on logic, science and engineering issues – jihadist orientations to terror violence revolve around mystery, paradox and “power over death.” Israel’s ultimate security problem is not with eternity-seeking Iranian surrogates, but with a near-nuclear Iran that clings to similarly delusionary ideals.
What are the long term implications of a direct Israel-Iran 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?
Could these Israeli weapons prove cost-effective only against an already-nuclear Iran?
And how could a flesh-and-blood human being (Islamist terror leader) offer eternal life to another mortal?
How could Israel base defining elements of its national security strategy on a murderous enemy’s “hunger for immortality?”
In facing jihadist ideologies that promise eternality to the “faithful,” Israel will need to remain wary of always projecting ordinary political/strategic preferences upon Hamas, Hezbollah, Palestinian Islamic Jihad, Houthi fighters and Iran. This is not to suggest uniform enemy irrationality, but rather to underscore that ordinary secular political preferences (e.g., “self-determination “) would generally prove secondary.
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 acknowledging “power over death,” the nexus between “martyrdom operations” and “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, both 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. Jhadist insurgents who seek to justify gratuitously barbarous attacks on Israeli noncombatants in the name of “martyrdom” are acting contrary to international law. In law, all insurgents, even those who passionately claim “just cause,” must satisfy longstanding limits on permissible targets and law-based levels of violence. Regarding such limits, religious faith is never exculpatory. In law, all law, rights can never stem from wrongs.
For Israel, the relevant legal matters are not complicated. 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, Hamas supporters in American and European universities should finally understand, the phrase “by any means necessary” is literally nonsense.
Though law and strategy are interrelated, they are also 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. They are always law-violating.
Sometimes, martyrdom-seeking terrorist foes such as Hamas or Hezbollah advance a supposedly legal argument known as tu quoque. This authoritatively discredited argument stipulates that because the “other side” is allegedly guilty of similar, equivalent or greater criminality, “our” side is innocent of any wrongdoing. Jurisprudentially, any such argument is always wrong and always invalid, especially after the landmark postwar legal 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 are the legal responsibility of “perfidious” jihadist enemies. This means that because Hamas and its Iranian state mentor place terror-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. In law, this need is called “military necessity.”
What about universities around the world? To begin, the problem is not that pro-Hamas college protestors are not international law scholars, but rather that they don’t want to know anything of substance. Expectedly, therefore, these easily manipulated supporters of terror-violence insist – with pretend jurisprudential gravitas – that “the ends justify the means.” But the ends never justify the means under humanitarian international law.
Listening to the protest slogans shrieked by jihadist supporters in United States universities, a core conclusion should emerge: Witless banalities can never represent the meaningful expectations of international law. Under this universal law, whether codified or customary, one person’s terrorist can never be another one’s “freedom-fighter.” Though it is correct that insurgencies can sometimes be judged lawful or even law-enforcing, they must still conform to discoverable 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 Arab claims concerning an alleged Israeli “occupation”), corollary claims of entitlement to “any means necessary” would remain false. Hague Convention No. IV states: “The right of belligerents to adopt means of injuring the enemy is not unlimited.”
What about Israel and Gaza at this grievous moment in time? To clarify any seeming contradictions, though Israel’s bombardments of Gaza are still producing multiple Palestinian casualties, the legal responsibility for these harms still lies entirely with Hamas/Iranian “perfidy” (“human shields”). In law, there is an ineradicably consequential difference between raping and murdering innocent celebrants at a public music festival and the lethal consequences of a state’s indispensable self-defense operations.
International law is never just a narrowly intuitive 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 most notable when inhumane jihadist terror-violence targets a designated victim state’s fragile civilian populations.
Even if relevant law were to accept the argument that the 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 binding legal standards of distinction, proportionality, and military necessity. These enduringly critical standards were expressly applied to insurgent or armed sub-state organizations by the common Article 3 of the four Geneva Conventions of 1949, and 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 barbarous killers as “martyrs,” such assessment could have no exculpatory effect on associated crimes.
Still, as a practical or operational problem for Israel, these faith-driven terrorists are animated by the most compelling form of power imaginable, and will need to be “de-linked” from any jihadist promises of immortality. For Israel, this obligation will represent an intellectual challenge of the highest order.