Prof. Louis Rene Beres,
a specialist on matters of international law, jurisprudence, and world politics, discusses the ongoing violence involving Israel and Palestine…
Now facing further rounds of terror attacks, Israel must prepare itself along the intersecting dimensions of law and strategy. Law, the first dimension, is universal. It applies to all combatants, everywhere. Strategy, the second dimension, is integral to the creation and maintenance of any single state’s national security policies.
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From the beginning, a recurrent Palestinian defense against Israeli charges of “terrorism” has been IDF “disproportionality.” But what does authoritative international law say about such a defense? More precisely, what do various codified and customary legal norms stipulate about such alleged violations of the law of war?
A reciprocal question should also be raised. To the extent that Hamas, Islamic Jihad and their insurgent allies routinely practice a form of “human shields,” the Palestinian side is guilty of “perfidy.” Additionally, all Palestinian terror has its early roots in the Palestinian National Covenant. Calling officially for sustained Arab violence against Israel, this document was adopted in 1964, three years before the 1967 Six Day War. This means, inter alia, that the PLO’s core guidance on terror was first published—together with explicit references to the annihilation of Israel—three years before there were any “Israel occupied territories.”
For the Palestinian Authority, the underlying position of waging protracted war was part of a broader strategy to incorporate Israel into “Palestine.” This irredentist incorporation was already evident on early PA maps. Still, the most blatant Palestinian call for “removal” of Israel remains the PLO’s “Phased Plan” of June 9, 1974.
Regarding “human shields,” 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. 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, Islamic Jihad and assorted kindred groups, Israel must proceed diligently with fashioning its proper legal arguments. Optimally appropriate steps would best ensure that Palestinian war crimes could never get in the way of Israel’s indispensable self-defense and that Israel can readily abide by all authoritative expectations of humanitarian international law. Ultimately, this obligation could become most critical in those circumstances where Sunni and/or Shiite terror attacks would involve weapons of mass destruction.
None of this is meant to suggest that Palestinian populations ought ever to be deprived of their peremptory human and/or political rights, but only to clarify that ends can never justify means under international law.
Though intersecting, law and strategy should be evaluated separately as discrete elements of Israel’s unified military doctrine. 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. These measures could create an efficient “force multiplier” for Israel, one wherein the “whole” desired anti-insurgent effect would be greater than the sum of its legal and military “parts.”
In world law, considerations of distinction (discrimination), proportionality and military necessity set defined limits on any use of armed force. Always, under the customary and codified expectations of the law of war, these three interpenetrating criteria remain binding. When Israel’s enemies declare an IDF attack to be “disproportionate,” they wittingly ignore that the rule of proportionality does not demand equivalent military harms. It expects only a tangible amount of force that is militarily necessary.
On various-choreographed occasions, the practice of “human shields” was justified by the Palestinian side in terms of alleged Israeli “disproportionality.” Though arguably successful as propaganda, these justifications were merely concocted adversarial claims. In essence, they were premised upon several irrelevant and intentional manipulations of legal definition. When Palestinian insurgents claim the right to “any means necessary,” they adopt a compelling argument, but nonetheless one that must remain illegal.
In its more particular manifestation as the law of war, international law requires every use of force (whether exercised by a uniformed army or 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” (most notably per Hague Convention IV), this test stipulates that every resort to armed force 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 all planned reprisals or retaliations.
It does not mean that each side to an ongoing conflict must at any time agree to suffering or imposing symmetrical harms.
“Justice,” we may 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 at some time decide to dangerously escalate hostilities. For Israel, such escalations could eventually embrace terrorist mega-assaults, up to and including actual use of nuclear weapon technologies.
Terrorism, like perfidy, is a specific violation of international law, but the 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, minimized or disputed, Hamas, Islamic Jihad, Fatah and Hezbollah insurgencies are inherently illegal. This is true, moreover, even if one were to assume “just cause” for all or some of these terror groups.
In relevant law, perfidious tactics are not “only” mala prohibita (“evil as prohibited”), but also malae in se (“evil in themselves”). This meaningful distinction embraces even “lone wolf” terrorist attackers. Significantly, many of the most recent Palestinian terrorists identified by Israel were of this specific “lone wolf” variety.
The terrorist crime of perfidy is not about deception as such. Under humanitarian international law, deception is never impermissible on its face. Rather, some forms of deception are generally permitted to states and to lawful insurgents; that is, to those with an arguably “just cause.”
During Israel’s 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.
To wage successful war against any core Jihadist ideology, Israel’s primary “battlefield” must always be analytic or intellectual. In the ancient Greek and Macedonian worlds, this struggle was identified as one of “mind over mind.”
Sooner or later, certain of Israel’s Arab/Islamic terrorist enemies, plausibly under cover of perfidy, will begin to magnify their operational goals. 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. Hamas fired rockets at Dimona back in 2014; Saddam Hussein launched several Scud-B rockets toward Israel during the 1991 Gulf War.
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 possible and perhaps even plausible that the selection of WMD terror against Israel would be detached from any rationally considered calculations of presumed geopolitical advantage. Prima facie, there exist no good historical reasons to expect only rational behavior in world politics.
Going forward, Israel should more plainly communicate to its Palestinian insurgent foes that any contemplated excursions into higher-order forms of destruction could never elicit capitulations. To 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 national security policy.
There remains one last point concerning tangible counter-terrorism links to US foreign policy. Former President Donald J. Trump pointed with ostentatious pride to the “Abraham Accords,” but these agreements negotiated via America’s “good offices” did nothing to reduce the probability or intensity of any Israel-terrorist conflict. Indeed, they accomplished little more than marginally improve relations with those Arab states that had never really been anti-Israel belligerents.
There is more. Israel’s adversarial relationship with Hamas, Islamic Jihad or other Palestinian insurgent groups can never be improved by forging national agreements with secondary foes. Agreements like the Abraham Accords have merely exacerbated Israel’s already-corrosive relations with its Palestinian foes. To get beyond its still-substantial disagreements with the Palestinian side, Israeli diplomacy will now need to be based upon more authentically intellectual and legal foundations. In the interim, variously binding standards of international law should be acknowledged by all sides.
One final observation. Before this can happen, all sides will be impacted by what happens in Russia’s war against Ukraine, a criminal war involving aggression and genocide.
Louis Rene 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.
This article was first published in Jurist