by Prof. Louis René Beres
“Justice is a contract neither to do nor to suffer wrong.”-Plato, Republic
Abstract: This essay will focus upon current issues of insurgency, counterterrorism, and Humanitarian International Law in the Middle East. As Israel and Hamas now confront each other in another Gaza war, both should correctly identify and accept only proper criteria of jurisprudential assessment. Accordingly, the legal argument here will not be intentionally for or against any particular Arab or Israeli policies, but to underscore an unceasing global requirement to apply uniformly correct standards of pertinent international law. In the final analysis, following Plato, justice in this urgent matter must be a “contract” between parties “neither to do or to suffer wrong.”
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It is time for candor. Former US President Donald J. Trump’s “Abraham Accords” did nothing to confront the long-standing Palestinian insurgency against Israel. On the contrary, these contrived agreements were designed only for Trump’s domestic political benefit, and angered the Palestinians without providing either side tangible benefits. Jerusalem, therefore, must continue to defend itself against assorted charges of “disproportionality.” Now, more or less inevitably, there will emerge yet another unpredictable “cycle of violence.”
What does international law say about these rapidly dissembling circumstances? What are the legal requirements of “proportionality” under the Law of War or Humanitarian international Law. Looking ahead, these requirements ought never to be ignored or disregarded. In essence, these concern not merely specific adversarial issues in an anarchic world politics, but core matters of a long-settled jurisprudence,
In law, especially, words matter. The legally correct meaning of “proportionality” has nothing to do with maintaining equivalence in the use of military force. Under authoritative international law, especially the Law of War, the standard of proportionality is never just a consideration of intuition or “common sense.” Above all, it is a matter of Reason, an integral foundation of all codified and customary international law.Among other things, this standard seeks to ensure that every belligerent’s resort to armed force remain limited to what is “necessary” to meet appropriate military objectives.
In these times, though we still speak narrowly of “international law,” every identifiable belligerent includes not only states, but also insurgent and terrorist armed forces. This means, inter alia, that even where an insurgency is presumptively lawful – that is, where it seemingly meets the criteria of a “just cause” – it must still satisfy all corollary expectations of “just means.” To the issue here at hand, even if Hamas and Palestinian Authority have a presumptive right to fight militarily against an Israeli “occupation,” that fight still needs to respect the legal limitations of “discrimination,” “proportionality” and “military necessity.” More precisely, deliberately firing rockets into Israeli civilian areas and/or placing military assets amid Palestinian civilian populations always represents a crime of war.
In the second case, the pertinent crime is formally known as “perfidy.”
There is more. Under no circumstances does the principle of proportionality suggest that either party to an ongoing conflict must impose only symmetrical harms upon the enemy. If that sort of “common sense” suggestion were actually correct, there would be no modern historical equivalent to America’s flagrantly “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 US attacks would represent the modern world’s very worst violations of Humanitarian International Law.
All too often, in the seemingly endless Palestinian belligerencyagainst Israel, background is merely glossed-over. Sometimes, Hamas, Fatah, Islamic Jihad and related terror groups, take verifiable steps to ensure that Israeli reprisals willkill or injure Arab noncombatants. To wit, by placing selected noncombatants in those areas from which Arab rockets are launched into Israeli homes, hospitals and schools, Palestinian leaders – not Israeli defenders – are violating the most fundamental expectations (more technically, “peremptory” or “jus cogens” expectations) of humanitarian international law.
Any use of “human shields” represents substantially greater wrongdoing than simple immorality or cowardice. It 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.
All combatants, including Palestinian insurgents allegedly fighting for “self-determination,” are bound by the law of war. This core requirement is found at Article 3, common to the four Geneva Conventions of 1949. It cannot be suspended or abrogated.
Some Palestinian terror groups, especially in the aftermath of a disregarded or imposed peace settlement, may seek to prepare for launching mega-terror attacks on Israel. Such aggressions, plausibly unprecedented and possibly in cooperation with variously allied non-Palestinian Jihadists, could include chemical and/or biological weapons of mass destruction. In the worst-case scenario, especially if Iran should agree to transfer portions of its expanding inventory of nuclear materials to proxy terror groups, Israel could sometime have to face Palestinian-directed nuclear terrorism. Also possible, though presently still implausible, is that residual ISIS-type surrogates could displace a formal leadership cadre in “Palestine,” and that Israel (and relevant allies) could then have to face a more starkly insidious source of atomic terror.
What happens then, when combatants find themselves in extremis atomicum?
There is more. Though former US President Donald Trump was likely correct that ISIS had already been effectively eliminated as an organization, the underlying Jihadist ideology was anything but removed or defeated. To best predict possible outcomes, analysts and policy-makers will need to continuously refine their skills for capably dialectical reasoning.
Always, however perilous a perceived threat, Israel has sought to keep its essential counterterrorism operations consistent with applicable law. For their part, however, Palestinian fighters remain in generally deliberate and persistent violation of virtually all recognizable rules of civilized military engagement. Significantly, terror-violence launched from Gaza accelerated immediately after Israel left the area in 2005, a “disengagement” that Jerusalem had expected (or hoped) to produce greater intercommoned harmony.
From the standpoint of international law, terrorism is more than just bad behavior. It is a distinct crime under international law. Such crime is neither minimized or exonerated by partisan intimations of “just cause.”
Various manipulated expressions of jurisprudential reasoning notwithstanding, the Palestinian side must bear full legal responsibility for most Arab civilian casualties in Gaza. Arguably, absent their pre-meditated attacks on Israeli civilian populations, there would be no reciprocal Palestinian harms. Though Israeli military operations do kill and wound Arab noncombatants in every “cycle of violence,” these casualties are unavoidable and inadvertent. When Hamas rockets are launched against Israeli targets from Gaza, the acknowledged Palestinian intent is to kill and wound Israeli civilians.
In law, all law, criminal intent or mens rea is singularly important.
International law is not a suicide pact. Even amid long-enduring Westphalian anarchy, it offers an authoritative body of rules and procedures that clearly permits a beleaguered state – any beleaguered state – to express an “inherent right of self-defense.” But when certain Arab terrorist organizations celebrate the explosive “martyrdom” of Palestinian civilians and when certain Palestinian leaders seek religious “redemption” through mass-murder of “unbelievers,” the wrongdoers have no residual legal claims to sanctuary.
There is more.Under international law, such criminals are called Hostes humani generis or “common enemies of humankind.” Unambiguously, in law, this category of murderers must invite punishment wherever they are found. Concerning their required arrest and prosecution, jurisdiction is now termed, after Nuremberg (1945-46) “universal.” Also relevant is that the historic Nuremberg Tribunal strongly reaffirmed the ancient legal principle of Nullum crimen sine poena, or “No crime without a punishment.”
There is a manifestly non-legal but still significant point that remains germane to wrongful allegations of Israeli “disproportionality.” Many Palestinian commanders who control terror-mayhem against Israel cower unheroically in safe towns and cities. Prima facie, these commanders are not eager to become “martyrs” themselves.
Few Americans have even glanced at the nation’s Constitution. Derivatively, many 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 domestic or municipal 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), codify this authoritative incorporation.
Inter alia, this means that consistent misuse of relevant international law represents inter alia a wrongful interpretation of American Constitutional law. It is especially vital that major political parties and leaders now become better acquainted with the governing laws of war, and conscientiously apply these basic rules with fairness to all instances of international armed conflict. In the final analysis, the core issue concerning Humanitarian International Law here is not about Israel and the Palestinians per se, but instead the willingness of all major states in world politics to sustain uniformly civilized standards of global military conduct. and conflict resolution.
There must be evident an ethical or humanitarian calculus in all these particular circumstances. Although an ideal world order would contain “neither victims nor executioners,” such an optimal arrangement of global power and authority is not yet on the horizon. Confronting what he once called “our century of fear,” 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 per se illegitimate. This is certainly a fine expectation of philosophy, but not one that can be harmonized with strategic or jurisprudential realism.
For the moment, Hamas and its allies continue to adhere to knowingly wrongful definitions of “proportionality,” that is, manipulative definitions calling for “equivalence.” At the same time, Israel continually alleges an inherent right to broad targeting strategies that is based on frequently unverified or unverifiable allegations of Palestinian “perfidy.” Though verifying instances of Hamas perfidy would better immunize Israel from legal responsibility for inadvertent IDF harms inflicted upon noncombatant Palestinian populations, such verification could also undermine tactical successes. In the best of all possible worlds, both Israel and Hamas would simply accept Plato’s rudimentary definition of justice “neither to do nor to suffer wrong,” but this “Westphalian” world is still based less on abstract considerations of law and justice than on crudely zero-sum competitions for power and advantage.
What next? As long as states (e.g., Israel) and aspiring states (e.g., “Palestine”) exist in a world of international anarchy – that is, in the decentralized system of international law originally bequeathed at the Peace of Westphalia in 1648 – conflicts such as the Israel-Hamas Gaza War will continue to be treated as adversarial. Until the world can finally progress meaningfully beyond such an inherently self-destructive ethos, the enforcement of international law will depend largely upon the cooperative interactions of several major states, especially the United States. In this connection, great responsibility will fall upon the American president and Congress to speak on behalf of a conspicuously more law-enforcing orientation to international law. In specific reference to Israel, Hamas 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” or perfidy can be suitably verified.
Truth is exculpatory. This is not yet the best of all possible worlds, but it is assuredly the right time to make a refined start in that direction. Deliberate Hamas rocket attacks on Israeli civilians are always unlawful and never pardonable. Reciprocally, measured Israeli bombings of Gaza structures harboring Hamas terrorists or weapons are always lawful and law-enforcing, but only in those cases where Jerusalem can supply convincing evidence of Palestinian “perfidy.” Though meeting such a legal obligation to gather verifiable evidence of Palestinian perfidy during an ongoing belligerency is ipso facto problematic, dispensing with this obligation altogether could leave Israel suspended under a perpetual cloud of generalized suspicion and disbelief.
What is to be done now? Whatever the differences between them, all sides to this still-escalating conflict have a coinciding and interdependent obligation to support Humanitarian International Law. Among other things, it is the de facto and de jure responsibility of the United States and other world powers to insist that both Israel and the pertinent Palestinian organizations meet this overriding obligation. In the end, such a complex task would represent not “only” matters of ethical and dignified behavior, but also ones of seriously intellectual and cosmopolitan thought.
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
This article was first published in Modern Diplomacy