Lebanon Hezbollah missiles
(January 2007) This four-part series by Professor Louis Rene Beres (Ph.D., Princeton 1971) is adapted from ACPR Policy Paper No, 166; The Ariel Center for Policy Research, Shaarei, Tikva, Israel; January 2007; with a special Foreword by Ambassador Zalman Shoval. Ambassador Shoval’s Foreword concludes as follows: “One can only hope that this analysis by Professor Beres will be diligently studied by Israel’s strategic planners.”
Louis René Beres
Law, Strategy, Reason and Death
A major issue in the last Lebanon War was the alleged “excessiveness” of Israel’s use of armed force. What can we learn about these allegations from the standpoint of international law? Humanitarian international law continues to correctly require that every use of force by an army or insurgent group meet the test of “proportionality”. Going back to the basic legal principle (St. Petersburg Declaration, 1868) that “the means that can be used to injure an enemy are not unlimited,” proportionality stipulates (among other things) that every exercise of armed force be limited to the minimum application needed for operational success. Indeed, this ancient principle of customary international law applies to all judgments of military advantage and to all planned reprisals.
But properly legal determinations of proportionality can never be made or judged in a vacuum. Rather, these decisions must always take into account the extent to which an adversary has committed prior or ongoing violations of the law of war. In the case of both the Hamas/Islamic Jihad/Fatah terrorists in Gaza and the Hizbullah terrorists in Lebanon, there is today ample and essentially incontestable evidence that these belligerents are/were manifestly guilty of “perfidy”.
Deception can be legally acceptable in armed conflict, but the Hague Regulations clearly disallow the placement of military assets or military personnel in heavily populated civilian areas. Further prohibition of perfidy can be found in Protocol I of 1977, additional to the Geneva Conventions of 1949. It is widely recognized that these rules are also binding on the basis of customary international law.
Perfidy represents an especially serious violation of the law of war, one even identified as a “grave breach” in Article 147 of Geneva Convention No. IV.
The critical legal effect of perfidy committed by Palestinian or Hizbullah terrorists – especially their widespread resort to “human shields” – is to immunize Israel from any responsibility for inadvertent counter-terrorist harms done to Arab civilians. Even if Hamas and Islamic Jihad and Fatah and Hizbullah did not deliberately engage in perfidy, any terrorist-created link between civilians and insurgent warfare would always give Israel full and unassailable legal justification for its defensive military actions. This is not to suggest that Israel would have carte blanche in its applications of armed force, but that the reasonableness of these applications would have to be appraised in the context of enemy perfidy.
To be sure, viewed against the background of extensive and unapologetic terrorist perfidy in both Gaza and Lebanon, Israel was certainly not guilty of “disproportionality”. Let critics of Israel recall that all combatants, including all insurgents in Gaza and Lebanon, are bound to comply with the law of war of international law. This requirement derives not only from what is known in jurisprudence as the “Martens Clause”, which makes its first appearance in the Preamble to the 1899 Hague Convention No. II on land warfare, but also from Article 3, common to the four Geneva Conventions of August 12, 1949. It is found also in the two protocols to these Conventions.
It is easy for those who are altogether unfamiliar with international law to lash out unfairly at Israel with charges of “disproportionality”. Yet, legal scholars must always understand the vital significance of context. Authoritative judgments under international law are not made in isolation from other pertinent factors. In this connection, it is apparent that any seemingly disproportionate use of force by the Israel Defense Forces in the Lebanon War of 2006 was actually the outcome of antecedent perfidy by its criminal enemies in both Gaza and Lebanon (terrorism is a codified crime under international law). Were it not for these egregious violations of the law of war by terrorist adversaries, Israel would not have been obliged to wage war in a fashion that inevitably creates civilian casualties.
Equally untenable is the charge that Israel was committing “aggression” in Lebanon. At Lebanon’s insistence, not Israel’s, a formal state of war has continued to exist between the two countries since the beginning; that is, since the Jewish state originally came into existence in May 1948. Only an armistice agreement exists between Israel and Lebanon. Signed on March 23, 1949, this is not a war-terminating agreement, but merely a pledge (still not honored by Lebanon) to cease hostilities temporarily in an ongoing conflict. Legally, it is simply not possible for Israel to commit aggression against Lebanon, as the latter already considers itself in a formal condition of belligerency.
International law is not a suicide pact. Faced with enemies on several fronts who still make no secret of their genocidal intentions, Israel always displays remarkable respect for the law of armed conflict. In distinctly marked contrast to the conscious indiscriminacy of its terrorist adversaries in both Gaza and Lebanon, Jerusalem always adheres scrupulously to the law of war of international law. It follows that all intimations and accusations of Israeli “disproportionality” in counter-terrorist warfare are unfounded.
Those who place hope in outside protection for Israel, primarily from the United States, assume – more or less – a continuation of traditional international relations. Yet, it is altogether likely that we now live in an era of total fragmentation and disunity, a worldwide anarchy that will give new meaning to “Westphalian” international relations and reinforce, rather than reduce, the self-help imperative. Hence, if this presumption of further global disintegration is to be taken seriously by Israeli planners, they will have to accept, however reluctantly, the obligation to face overriding dangers alone. After Israel’s Lebanon War of summer 2006, one should be reminded of
“The Second Coming”, the poem by the great Irish poet William Butler Yeats:
Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the center cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned; The best lack all conviction, while the worst Are full of passionate intensity.
Following the Israeli war against Hizbullah in 2006, steady Iranian nuclearization is now correctly at the forefront of Israeli public attention.
Exceptionally small, Israel fully understands that the Iranian president’s incessant bluster about wiping the Jewish state “off the map” is far more than mere posturing. It is, rather, an unambiguous declaration of criminal intent to commit genocide.
Genocide, like terrorism, is a codified crime under international law. To survive into the future, Israel’s leaders and allies now recognize that Iran’s explicitly exterminatory intent is being augmented by a developing capacity. Left to his own devices, free of any preemptive interference with the Islamic Republic’s planned atomic arsenal of bombs and missiles (an interference that would certainly be a proper expression of “anticipatory self defense”), Iran’s president might not be deterred by any threats of Israeli and/or American retaliation. This possible failure of nuclear deterrence could be the result of a presumed lack of threat credibility or even of a willful Iranian indifference to existential harms. Iran, after all, could conceivably become the individual “suicide”1 bomber in macrocosm, a nuclear-armed state willing to “die” as a collective “martyr”. To be sure, such a prospect is not very likely, but – at the same time – it is by no means unimaginable.
How should Israel respond to such a dire set of circumstances? One important part of the answer has to do with core questions of Tel Aviv’s targeting doctrine. More precisely, Israel’s security from future Iranian mass-destruction attacks will depend considerably upon the Defense Ministry’s determined targets and on the precise extent to which these targets have been openly identified. Contrary to conventional wisdom, it is not enough that Israel simply has “The Bomb”. Instead, the adequacy of Israel’s nuclear deterrence and preemption policies will inevitably depend largely upon the presumed destructiveness of these nuclear weapons and on where, exactly, these weapons are authoritatively thought to be directed.
A nuclear war in the Middle East is not out of the question. Indeed, there are a number of different scenarios that could result in an Israeli use of nuclear weapons. Israel will need to choose prudently between what are called “assured destruction” strategies and “nuclear war-fighting” strategies. Assured destruction strategies are also sometimes termed “counter-value” strategies or “mutual assured destruction” (MAD). These are strategies of deterrence/preemption in which a country primarily targets its strategic weapons on the other side’s civilian populations and/or on its supporting civilian infrastructures. Nuclear war-fighting strategies, on the other hand, are called “counterforce” strategies. These are systems of deterrence/preemption wherein a country primarily targets its strategic nuclear weapons on the other side’s major weapon systems and on its supporting military infrastructures.
For nuclear weapons countries in general, and for Israel in particular, there are very serious survival implications for choosing one strategy over the other. It is also possible that a country would opt for some sort of “mixed” (counter-value/counter-force) strategy. In the case of Israel, however, any policy that might actually encourage nuclear war-fighting – any counterforce nuclear doctrines – should be rejected out-of-hand.
Human psychology has much to do with current world politics. Whichever deterrence/preemption strategy Israel might choose, what ultimately really matters is what an enemy country perceives. In strategic matters, the only pertinent reality is perceived reality. Nothing else matters.
In choosing between the two basic strategic alternatives, Israel should opt for nuclear deterrence/preemption based upon assured destruction. This seemingly insensitive recommendation will surely elicit opposition in certain publics, but, in fact, it is substantially more humane. Further, a counter-value targeting doctrine would appear to create an enlarged risk of “losing” any nuclear war that might still arise. This is because counter-value-targeted nuclear weapons would not destroy military targets. Yet, a counterforce targeting doctrine would be less persuasive as a nuclear deterrent, especially to societies where leaders would willingly sacrifice entire armies and military infrastructures as “martyrs”. And if Israel were to opt for nuclear deterrence/preemption based upon identified and projected counterforce capabilities, its Arab/Islamic enemies could feel especially threatened. For many reasons, this condition could then actually heighten the prospect of WMD aggression against Israel and of a subsequent nuclear exchange.
Israel’s decisions on counter-value versus counterforce doctrines should depend, in part, on prior investigations of: (1) enemy country inclinations to strike first; and (2) enemy country inclinations to strike all-at-once or in stages. Should Israeli strategic planners assume that certain enemy countries that are in process of “going nuclear” are apt to strike first and to strike in an unlimited fashion (that is, to fire all of their nuclear weapons right away), Israeli counterforce-targeted warheads – used in retaliation – would likely hit only empty silos/launchers. In such circumstances, Israel’s only rational application of counterforce doctrine would be to strike first itself. If, for whatever reason, Israel were to reject still available preemption options, there would be no reason to opt for a counterforce strategy. From the standpoint of persuasive intra-war deterrence, a counter-value strategy would prove vastly more appropriate.
Should Israeli planners assume that the enemy countries “going nuclear” are apt to strike first and to strike in a limited fashion – holding some significant measure of nuclear firepower in reserve for follow-on strikes – Israeli counterforce-targeted warheads could have some damage-limiting benefits? Here, counterforce operations could appear to serve both an Israeli nonnuclear preemption, or, should Israel decide not to preempt, an Israeli retaliatory strike. However, the underlying assumption here about enemy behavior is implausible.
Should an Israeli first-strike be intentionally limited, perhaps because it would be coupled with an assurance of no further destruction in exchange for an end to hostilities, counterforce operations could seemingly serve an Israeli counter-retaliatory strike. This is because Israel’s attempt at intra-war deterrence could fail, occasioning the need for follow-on strikes to produce badly needed damage-limitation. Nonetheless, the overall argument for Israeli counterforce options is founded upon a complex illusion. The prospective benefits to Israel of maintaining any counterforce targeting options are greatly outweighed by the prospective costs.
It is plain that regional nuclear war is a distinct possibility for Israel, and that adequate preparations now need to be made to prevent such a war. These preparations will require, immediately, a clear awareness of how a nuclear war might start in the Middle East, and an informed identification of the best strategic doctrine currently available to Israel. To protect itself against a nuclearizing Iran, Israel’s very best course may still be to seize the conventional preemption option as soon as possible. Simultaneously, Israel should reject even any hint of counterforce targeting doctrine, and focus instead upon massive counter-value reprisals.
International law is not a suicide pact. Every state has the established right to defend itself and its people against aggression, especially where these attacks would involve mass-destruction weapons. Israel, now facing a verifiably clear and undisguised risk of genocidal war from Iran, would assuredly never consider the first use of nuclear weapons. But should Iranian atomic genocide ever be unleashed against Israel’s cities, the Islamic Republic’s leaders should understand fully and in advance that Israel would respond with considerably more than parallel destructiveness.
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All world politics, and all global strategy, move in the midst of death. To truly understand calculations of war, deterrence and defense, Israeli planners need to understand (1) enemy orientations to death, both individual and collective; and (2) Israeli orientations to death, both individual and collective. This is especially obvious in the course of recent Islamic aggressions toward Israel from Hizbullah in Lebanon and from Hamas and Islamic Jihad in Judea/Samaria/Gaza.
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Heinrich von Treitschke, in his published lectures on politics, cites approvingly to Fichte: “Individual man sees in his country the realization of his earthly immortality.” Such “seeing” among Israel’s current Islamic enemies is a source of particular, even existential, danger. The danger is exacerbated by lack of symmetry with “individual man” in Israel, who generally sees such “realization” much less in his own country.
It is easy to feel sorry for the Palestinians in Gaza. Televised and print images of their apparently unrelieved misery would appear to suggest Israeli cruelty in the use of armed force. Exactly the opposite is true. By deliberately placing elderly women and young children in areas from which lethal rockets are launched into Israeli homes and schools, it is only the Palestinian leaders who openly violate the law of war. Their insidious practice of “human shields” – the same practice recently witnessed in Hizbullah-controlled areas of Lebanon – is far more than an expression of cowardice. It also represents a specific crime under international law. This crime, as we already know, is called “perfidy”.
Several Palestinian terror groups including both Hamas and the “moderate” Palestinian Authority are now actively planning for mega-terror attacks upon Israel. These unprecedented attacks, probably in close cooperation with elements of al-Qai`dah, would use chemical and/or biological weapons of mass destruction. Over time, if Iran should begin to transfer portions of its growing inventory of nuclear materials to terror groups, Israel could also face Palestinian-directed nuclear terrorism. Thanks to former Prime Minister Sharon’s policy of “disengagement”, these insidious preparations are already underway in Gaza.
What government on earth could be expected to sit back passively and render its population vulnerable to unprecedented levels of instantaneous mass-slaughter? Would we, in the United States, sit quietly by as rockets rained down upon American cities from terrorist sanctuaries somewhere on our northern or southern borders? Would we allow such carnage to continue with impunity? Would capitulation and surrender be the proper or excusable reaction of a sovereign state sworn to protect its populations?
Quite remarkably, although always unrecognized and unacknowledged, Israel has been willing to keep its essential counterterrorism operations in Gaza consistent with the established standards of humanitarian international law. Palestinian violence, however, is persistently in violation of all civilized rules and principles of engagement. And all this after Israel very painfully “disengaged” from Gaza on the presumption that the Palestinians – finally – would put an end to their relentless barrage of terror.
Terrorism is more than just bad behavior. Terrorism, we have noted, is a distinct and codified crime under international law. When terrorists represent populations that enthusiastically support such attacks, which is certainly well-documented among the Palestinian community, and where these terrorists also find easy refuge among hospitable populations, full responsibility for ensuing counterterrorist harms lies exclusively with the criminals. Understood in terms of still-ongoing Palestinian terrorism and Israeli self-defense, this means that the Palestinian side alone must now bear legal responsibility for Arab civilian casualties in Gaza.
International law is not a suicide pact. Rather, it correctly offers an authoritative body of rules and procedures that always permits states to express their “inherent right of self-defense”. When terrorist organizations openly celebrate the explosive “martyrdom” of Palestinian children, and when Palestinian leaders unashamedly seek religious redemption through the mass-murder of Jewish children, the terrorists have absolutely no legal right to demand sanctuary. Anywhere. Under international law they are hostes humani generis, “Common enemies of humankind”. Such murderers must be punished severely wherever they are found. For their arrest and prosecution, jurisdiction is incontestably “universal”.
Palestinian terrorism, even during its occasional “slow” periods, has become all-too familiar. Using bombs filled with nails, razor blades and screws dipped in rat poison, the killers proceed to maim and burn Israeli civilians with only cheers and blessings from the leading Islamic clergy. As for those “commanders” who control the suicide-bombers’ mayhem, they cower in their towns and cities, always taking care to find personal safety amidst densely-packed Arab populations. Special IDF counterterrorism and commando units then attempt to identify and target only the terrorist leaders and to minimize collateral harms. Sometimes, however, such harms simply can’t be avoided, even by the IDF, which follows its code of “Purity of Arms” far more stringently than any other nation’s army.
International law is not a suicide pact. All combatants, including Palestinian terrorists, are bound by the Law of War. This requirement is found in Article 3, common to the four Geneva Conventions of August 12, 1949, and at the two protocols to these Conventions. Protocol I applies humanitarian international law to all conflicts fought for “self-determination”, the stated objective of all Palestinian fighters. A product of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (1977), this Protocol brings all irregular forces within the full scope of international law. In this connection, the terms “fighter” and “irregular” are generous in describing Palestinian terrorists, fanatical criminals who normally target only civilians and whose characteristic mode of “battle” is not military engagement, but primal religious sacrifice.
Israel has both the right and the obligation under international law to protect its citizens from criminal acts of terrorism. Should it ever decide to yield to Palestinian perfidy in its indispensable war against escalating terror violence,
Israel would surrender this important right and undermine this fundamental obligation. The clear effect of such capitulation would be to make potential victims of us all.
In 1936, on the occasion of a speech by the nationalist general Millan Astray at the University of Salamanca in Spain, the hall thundered with the general’s favorite motto: Viva La Muerte! “Long live death.” When the speech was over, Miguel de Unamuno, rector of the University, rose and said: “Just now I heard a necrophilious and senseless cry…this outlandish paradox is repellent to me.” Yet, this very same repellent cry is, today, the lurid rallying cry of Islamic “suicide” terrorists. Again and again, we hear from Hizbullah, and Hamas andand al-Qai`dah and also Fatah, “We love death.”
Why do we put the word “suicide” in quotation marks? Islamic “lovers of death” certainly do not commit suicide in any ordinary fashion. As they believe that acts of “martyrdom” always assure a blissful immortality, their “suicide” makes a mockery of any morbid affection. As they commit “suicide” only to assure eternal life, their pretended heroism is never more than a furiously voluptuous act of cowardice.
There are subtle complications. The self-proclaimed Islamic “lover of death” also fears continuation of his life on earth. This life is almost always devoid of any felt opportunity to do something rewarding and almost always prohibits, inhibits and disdains the most compelling needs of his inborn human sexuality. Thwarting both meaning and eros, elements of Islamic society continue to prod thousands of young males to “martyr” themselves in the killing of “infidels”. The explosive link between suicide terror violence and repressed male sexuality is still widely unrecognized. On female suicide bombers, the jury is still out.
September 11th had nothing really to do with politics. These terror attacks were not produced by Islamic anger about certain allegedly objectionable features of American foreign policy. Such feeble explanations were merely the predictable ventings of certain misguided academics and journalists.. What animated September 11th was the tangibly ecstatic promise of personal salvation through distinctly “sacred” acts of killing.
The “suicide” killing of American men, women and children on that day stemmed from the very same sentiments that continue to produce “suicide” killings of Israeli noncombatants. Consider the ominously characteristic statement by one Jamal Abdel Hamid Yussef, explaining operations of the Izzedine al-Qassam Brigades (military wing of Hamas in Gaza): “Our suicide operations are a message…that our people love death. Our goal is to die for the sake of God, and if we live we want to humiliate Jews and trample on their necks.” Hamas, which was loudly overjoyed at the murders of September 11th, promises all Islamic “suicides” nothing less than Freedom from Death.
By “dying” in the divinely-mandated act of killing “Jews” or “Americans” (it makes no difference that these are not mutually exclusive categories;
Islamic terrorists are interested in blood sacrifice, not formal logic), the “suicide” terrorist believes that he conquers death. In his clerically-promised eternal life, there will be rivers of honey and seventy-two virgins. None of this is mere metaphor. These are the literal and very palpable rewards for “dying” in a mandated and glorious fight against the most despised enemies of The One True Faith.
With Allah on his or her side, the Islamic “suicide” terrorist sees absolutely nothing suicidal about his willful murder of Jews, or Americans. For him or for her, a plain coward immobilized by fear of both death and life, “suicide” is just a momentary inconvenience on the fiery trajectory into heaven. Now the insufferable death fear of ego is lessened by sacrifice of the infidel. It is expressly through the burning and maiming of defenseless men, women and children that the terrorist seeks to buy himself free from personal death.
We are left to deal with an apparent paradox. What shall we do about a “suicide” that does not intend to end the murderer’s own life, but to extend it forever? For Israel, for America, there is now little point to deterring the determined murderers with threats of death. Such threats, after all, would be received not only without apprehension, but also with a delirious cry of joy and a collective moan of fulfillment.
To deter the Islamic “suicide” terrorists, Israel and America must now offer the aspiring mass-murderers a tangible threat of real suicide. Violence and the sacred are presently inseparable for the Islamic “suicide” terrorist. But Israel and America should immediately think in terms of “desacrilizing” his/her grotesque inversion of holiness.
Now it must be our prompt task to convince the would-be mass-terrorist that divine reward will never follow his sacrificial logic, and that murders in the name of Allah will lead not to paradise, but to the grave.
* * *
There is great danger for Israel in presuming too much Reason in enemy decision-making and world affairs. Today the use of violence within and between states is often self-propelled and self-rewarding, effectively supplanting Clausewsitz with De Sade. The argument has been made most convincingly by Milan Kundera, in his book, The Art of the Novel. Describing a sheer force of violence that wills to assert itself as force, he talks about this force as “naked, as naked as in Kafka’s novels… The aggressivity of force is thoroughly disinterested; unmotivated; it wills only its own will; it is pure irrationality.” If Kundera is correct, what is Israel to do about its enemies? What shall it assume about enemy decision-making processes? Should not Israeli planners throw out the handbooks of political scientists and strategic theorists in favor of Kafka and Kundera? And what, exactly, can they learn from the “fiction” writers?
* * *
The great Romanian (French) playwright, Eugene Ionesco, died in April 1994. In his only novel, The Hermit, Ionesco claims: “People kill and are killed in order to prove to themselves that life exists.” Although a broad philosophical reflection, rather than an immediately useful strategic maxim, it says much about the endlessly murderous intentions of Israel’s Islamic enemies and, by extension, about Israel’s prospective responses.
Louis René Beres was educated at Princeton (Ph.D., 1971), and is Emeritus Professor of International Law at Purdue. His twelfth book, Surviving Amid Chaos: Israel’s Nuclear Strategy, was published in 2016. His other writings have been published in Harvard National Security Journal; Yale Global Online; World Politics (Princeton); Bulletin of the Atomic Scientists; Israel Defense; Parameters: Journal of the US Army War College; Special Warfare; Oxford University Press; The Jerusalem Post; Infinity Journal; BESA Perspectives; US News & World Report; The Hill; and The Atlantic.
His Terrorism and Global Security: The Nuclear Threat (Westview, first edition, 1979) was one of the first scholarly books to deal specifically with nuclear