Israel versus Hamas: Proportionality, Perfidy and the Law of War

by Louis Rene Beres, professor emeritus of international law at Purdue

“It must not be forgotten that it is perhaps more dangerous for a nation to allow itself to be conquered intellectually than by arms.”

-Guillaume Apollinaire, The New Spirit and the Poets (1917)

Whenever Israel finds itself in the midst of major conflict with Hamas, each side seeks to defend itself in military and legal terms. From one Gaza war to the next, a recurrent charge from the Palestinian side has concerned alleged IDF “disproportionality.” But what does codified and customary international law actually say about such purported violations of the Law of War? What are the pertinent risks and corresponding leadership responsibilities? And what is the “contextual” relevance of our world’s continuously decentralized or “Westphalian” system of international law?

A reciprocal question must also be raised. To the extent that Hamas and its insurgent allies routinely practice a form of “human shields,” the Palestinian side is guilty of “perfidy.” Any such practice is illegal prima facie, and qualifies as a conspicuously “grave breach” of relevant Geneva Convention. The most critical legal effect of perfidy committed by Palestinian insurgent leaders is to immunize Israel from any responsibility for inadvertent counterterrorist harms done to Arab civilians.

There would be no such “immunization” if Palestinian authorities did not purposely co-locate terrorist operations with high-rise residential buildings, but that nefarious link remains stubbornly-plain and firmly-established.

There is more. Perfidy is identified as a “grave breach” at Article 147 of Geneva Convention IV. To be sure, 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. Variously 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.

Presently embroiled in yet another violent struggle with Hamas, Israel must proceed diligently with identifying justifiable legal “armaments.” Inter alia, appropriate steps should best ensure that Palestinian war crimes will never get in the way of Israel’s basic self-defense and that Jerusalem can readily abide by authoritative expectations of Humanitarian International Law. Ultimately, though of no immediate concern, this obligation would become most critical in circumstances where Sunni and/or Shiite terror attacks were to involve weapons of mass destruction.

Prima facie, such circumstances are implausible but still conceivable. “The worst,” reminds Swiss playwright Friedrich Durrenmatt, “Sometimes does happen.”

Though interpenetrating, law and strategy must always be evaluated separately as discrete elements of any country’s unified military posture. In this connection, Israel must take prompt measures to convince its Palestinian insurgent foes and their state patrons that perfidious terrorist aggressions would be revealed in law and opposed in practice. Significantly, these measures could create an efficient “force multiplier” for Israel, one wherein the “whole” desired anti-insurgent effect would actually be greater than the sum of legal and military “parts.”

In law, considerations of distinction (discrimination), proportionality and military necessity set variously defined limits on any use of armed force. Always, under customary and codified expectations of the law of war, these three interpenetrating criteria remain unequivocally binding. When Israel’s enemies declare an IDF attack on a Gaza high-rise building to be “disproportionate,” they wittingly ignore ipso facto that the rule of proportionality does not demand any tangibly equivalent infliction of military harms, but only an amount of force that is militarily necessary.

Any gratuitous infliction of harms is patently illegal under longstanding law of war, but pertinent harms need never be of determinably equivalent magnitude.

If such equivalence were an authoritative expectation, the United States, following its August 1945 atomic attacks on Hiroshima and Nagasaki, would represent the single most egregious offender of “proportionality” standards in human history.

There is more. In the main, governing jurisprudence in all such complex matters is unhidden. Inevitably, perfidy and perfidy-like behavior represent an especially serious violation of the law of war or law of armed conflict. During Israel’s several Gaza wars, perfidy has been exploited with some measure of tactical success by Hamas, but more importantly, with considerable propagandistic benefit. This is primarily true because the Israeli side was never sufficiently clear in condemning the Palestinian terror group’s linguistic manipulations.

On various carefully-choreographed occasions, the practice of “human shields” was extravagantly justified by the Palestinian side in terms of alleged Israeli “disproportionality.” Though successful as Hamas propaganda, these were wholly concocted Palestinian claims. In essence, they were premised upon irrelevant and intentional manipulations of any conceivably acceptable legal definition. When Palestinian insurgents claim a corresponding right to “any means necessary,” they adopt a powerful and compelling argument, but one that remains immutably illegal.

Contrary to oft-repeated Palestinian claims and the derivative claims of insurgent supporters, the rule of “proportionality” under humanitarian international law does not obligate any discernible symmetry in the use of armed force. Still, these claims have proven to be a useful tactic in mobilizing world public opinion against Israel. All things considered, this tactic has represented a textbook example of Palestinian “lawfare” at its practical best and lawless worst.

In its particular manifestation as the law of war, international law requires every use of force (whether exercised by a uniformed army or irregular/ insurgent force) to meet the test of “proportionality.” Drawn from the rudimentary legal precept that “the means that can be used to injure an enemy are not unlimited,” this test stipulates that every resort to armed force must remain limited to what is presumed necessary for meeting legitimate military objectives. Here, the peremptory or jus cogens principle of codified and customary jurisprudence applies to all judgments of military advantage and to all planned reprisals or retaliations. It does not mean that each side to an ongoing conflict must anytime agree to suffering and/or imposing symmetrical harms.

“Justice,” we learn originally from Plato’s Republic, means “a contract neither to do nor to suffer wrong.” Unless there should be substantially greater understanding that perfidious or perfidious-type behavior by insurgents places direct legal responsibility for correlative harms on that insurgency, and not on the victimized state, sub-state foes could sometime decide to dangerously escalate hostilities. For Israel, such terrorist escalations could eventually embrace mega-assaults, up to and including an actual use of destructive nuclear technologies.

To best manage and inhibit such consequential enemy escalations, Jerusalem will have to choose between creating a more-or-less seamless web of national deterrence (ranging from narrowly conventional to broadly nuclear) or allowing certain enemy forces to proceed directly toward WMD terrorist capacities before threatening them with reciprocally massive kinds of retaliation.

For now, such Israeli judgments will have to be made without any “benefit” of relevant historical experience. In scientific terms, there can never be any authentic assessments of probability in the absence of pertinent past events. The persuasiveness of Israeli deterrent threats will always require Israel’s time-relevant foe to believe that Jerusalem is willing to launch appropriate military retaliations and capable of inflicting “unacceptable damage.”

Included in the core requirement of perceived capability would be the capacity to adequately penetrate enemy active defenses.

This means, in turn, that Israel’s offensive military forces must always stay at least “one step ahead” of any determined enemy’s missile defense systems. If this tactical advantage were not present, Israel’s enemy or enemies, no longer having to anticipate unacceptable reprisals, could sometime feel more-or-less inclined to strike first. In such a scenario, by definition, critical Israeli deterrence could fail altogether.

Terrorism, like perfidy, is a codified crime under authoritative international law, but discrete and component crimes are mutually reinforcing rather than mutually exclusive. De jure, any human shields-based deceptions launched by anti-Israel terrorists would effectively add a second layer of illegality to an already underlying insurgent dereliction. Though frequently disregarded or minimized, Hamas, Islamic Jihad, Fatah, and Hezbollah insurgencies are inherently illegal. This is true even if one were to assume “just cause” in all or some of these groups.

In law, perfidious tactics are not “only” mala prohibita (“evil as prohibited”), but also malae in se (“evil in themselves”).

There is more. Operationally, Hamas, which still seeks to bring fighting into Israel proper, maintains steadily expanding armaments in Gaza and routinely prepares for a greater variety of multi-pronged attacks. In part, at least, and with considerable irony, this endlessly expanding Palestinian animus was revived by the Trump administration’s unilateral declaration of Jerusalem as the capital of Israel. Immediately after the initial US announcement of its planned embassy move to Jerusalem, the Palestinian Authority’s Grand Mufti warned that this move will lead to “disasters of wars” (sic.). This was because it will be perceived worldwide as an “attack on all Muslims.”

At the time of the US declaration, the PA Ministry of Foreign Affairs had expressly called the US embassy move “a direct aggression towards our people.” This is not to claim that the US embassy move was inherently wrong – it was correct and justifiable – but only that its net security costs to Israel are now apt to exceed its net gains. Though Jerusalem still assumes that the American act was inherently gainful, that assumption ignores that Washington acted without any generalized law-making authority and that the acting American president displayed an unprecedented lack of personal moral authority. In essence, the world legal community had ample reasonable cause to question a president who stood openly for white supremacy, called various neo-Nazis “very fine people,” urged street-fighting “Proud Boys” to “stand by” and later inspired a violent insurrection against his own country and Constitution.

There is more. The terrorist crime of perfidy is not about deception as such. Under humanitarian international law, deception is never prima facie impermissible. Forms of deception are permitted to states and sometimes even to certain lawful insurgents (those with an arguably “just cause”). Nonetheless, the practice of human shields is always illegal. This prohibition, notably universal, extends to all operating combatants, both state and sub-state.

During Israel’s several Lebanon wars, Hezbollah, assisted by Syria and Iran, placed its weapons and fighters in specific areas of Arab civilian population. In the past, ISIS, which at some earlier point might have been inclined to confront Israel directly, employed a human shields strategy in its battle for Mosul, Iraq. At that time, a strongly prohibited strategy was still useful in providing ISIS with tangible tactical advantages.

Despite former US President Donald Trump’s reassurances that “ISIS has been defeated,” the Sunni terror group remains prospectively active in parts of the Sinai Peninsula and could sometime re-constitute as a “main sector”  fighting front. Never to be forgotten by Israel is that the ISIS enemy was not so much a distinct group or organization of compartmentalized Islamic adversaries as a latently durable ideology. Such an enemy can never be eliminated by sending more and more bombs or missiles. America, one hopes, ought to have learned this primary lesson in Afghanistan.

To wage successful war against any core Jihadist ideology, Israel’s primary “battlefield” must be analytic or intellectual. In the ancient Greek and Macedonian worlds, this struggle was identified as one of “mind over mind” rather than a more crudely basic “mind over matter.” For Israel, the earlier identification remains valid.

Sooner or later, certain of Israel’s Arab/Islamic terrorist enemies, perhaps under cover of perfidy, could begin to magnify their operational goals.  More or less systematically, these adversaries would strive to exploit the particular methods and harms that lie latent in WMD violence.  In one seldom-mentioned nuance of this threat, the enemy party, whether state or terror-organization, could aim its conventional rockets against Israel’s nuclear reactor at Dimona.

Plausibly, the dangers of unconventional terrorism could be enlarged in the absence of ordinary strategic logic. These dangers might become still more consequential if insurgent enemies of Israel and their allies would become more expressly oriented toward what philosopher Albert Camus in The Rebel (1956) calls “crimes of passion.”  Here, animated by the clarion call of jihad and operating beyond any recognizable rules of rationality – beyond what Camus calls “crimes of logic” – these terrorists could sometime opt for inflicting chemical, biological, or (potentially) nuclear destruction upon Israel. In this connection, Israeli Prime Minister Benjamin Netanyahu’s current threats of “unimaginable” reprisals against Hamas miss the intellectual point.

Because the Hamas adversary is now largely motivated by passion rather than logic, the Prime Minister’s threats are not merely futile, they are simultaneously injurious and prospectively counter-productive.

What then?

Any terrorist nuclear threat would likely be limited to a “dirty bomb” attack, although it could also already extend, at least in principle, to conventional assaults upon Israel’s reactor at Dimona. It is even possible that the selection of WMD terror would be entirely detached from any rationally considered calculations of presumed geopolitical advantage.  Indeed, there exists no good historical or intellectual reason to expect only rational behavior in world politics.

Writing about the species of fear arising from tragedy, the ancient Greek philosopher Aristotle emphasized in Poetics that such fear “demands a person who suffers undeservedly,” and must also be felt by “one of ourselves.”  This fear, or terror, has little or nothing to do with any private concerns for impending misfortune to others, but rather from our own perceived resemblance to the victim. Terror, therefore, is generally fear referred back to ourselves. The credible threat of chemical, biological, or nuclear terrorism could sometime prove purposeful from the jointly comprehensive standpoints of enemy passion and enemy logic.

Going forward, Israel should more plainly communicate to its Palestinian insurgent foes that any contemplated excursions into higher-order forms of destruction would never elicit any Israeli capitulations. To best ensure that such communications have the best possible chances of success, it is most important that Israel’s terrorist enemies foresee no meaningful advantages to staging any “perfidious” assaults. Always, for the State of Israel, law and strategy must be contemplated together, that is, as closely interdependent parts of a single coherent security policy.

There remains one last point concerning tangible links to US foreign policy. Former President Donald J. Trump pointed with ostentatious and self-congratulatory pride to the “Abraham Accords,” but these agreements negotiated via America’s “good offices” did nothing to meaningfully reduce the probability or intensity of Israel-Hamas conflict. In essence, they did little more than improve relations among states that had never even been true anti-Israel belligerents. Israelis ought not sleep any better knowing that a surprise attack from Bahrain, UAE, Sudan or Morocco is now less likely. To further clarify the pertinent ironies, any such reassurance would resemble America’s reduced freedom from fear from attack by Grenada after President Ronald Reagan’s October 1983 US invasion of that tiny Caribbean island nation.

Assuredly, Americans do not fear military attack from Grenada, but this “freedom” is plainly nothing more than palpable parody.

There is a connected and concluding observation. Israel’s adversarial relationship with Hamas and other Palestinian insurgent groups can never be improved by forging national agreements with secondary-state foes. Agreements like the Trump-brokered Abraham Accords, designed only for the former president’s domestic political benefit, have exacerbated Israel’s relations with Palestinian foes. To finally get beyond its corrosively belligerent relations with the Palestinian side, Israeli diplomacy will need to be based upon more authentically intellectual foundations. In the interim, variously binding standards of international law should be openly acknowledged by all sides and by wider global authority. This means especially the conspicuously universal and time-urgent standards regarding crimes of perfidy and rules of proportionality.

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 Jurist