Another Gaza War? Legal and Strategic Aspects of Israeli Counterterrorism

by Louis Rene Beres, Emeritus Professor of International Law at Purdue University

In its steadily escalating war on Palestinian terror, Israel has a law-based responsibility to limit harm to Arab populations and a concurrent responsibility not to bring war-related suffering to its own populations. To clarify these intersecting obligations, this essay will focus on pertinent legal issues of insurgency, counterterrorism, and humanitarian international law in the Middle East. As Israel and its assorted enemies could soon confront each other in a new Gaza war, Jerusalem should prepare to reacquaint itself with all related criteria of jurisprudential assessment and diplomatic remediation. In the final analysis, following Plato, justice here should represent a decipherable “contract” between the adversarial parties “neither to do nor to suffer wrong.”

Among other things, the latest news reveals expanding violence in the Palestinian territories between Israel, Hamas, and other Jihadist groups.  In this connection, Donald J. Trump’s self-serving “Abraham Accords” did nothing to minimize or control the long-standing Arab insurgency against Israel. These politically contrived agreements were designed solely for the former president’s domestic political benefit. Prima facie, they anger the Palestinians without providing either side with tangible security benefits.

Now, another Gaza engagement looms menacingly on the strategic horizon. Should such a conflict escalate to full-fledged war, Israel would have to defend itself against assorted charges of “disproportionality.” More or less inevitably, there would then emerge yet another “cycle of violence,” an unpredictable pattern that could sometime include direct Iranian military involvement.

Though too often overlooked, law and strategy are interrelated. Accordingly, there would be important legal questions to consider. What does international law have to say about these rapidly dissembling strategic circumstances? What are the authentic legal requirements of “proportionality” specified under the law of war or humanitarian international law? Looking ahead, these requirements ought never to be ignored or disregarded. Such expectations concern not just variously specific conflict issues in “Westphalian” world politics, but also  certain core matters of  binding jurisprudence,

In law, 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. This standard seeks to ensure that every belligerent’s resort to armed force remains limited to what is “necessary” to meet appropriate (law-based)  military objectives.

In these times, though we still speak narrowly of “international law,” identifiable belligerents include not only states but also insurgent and terrorist armed forces. This means that even where an insurgency is presumptively lawful – that is, where it seemingly meets the settled criteria of “just cause” – it must still satisfy all corollary expectations of “just means.” To the issue here at hand, even if Hamas and the Palestinian Authority would have a presumptive right to fight militarily against an Israeli “occupation,” that fight would still need 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 must always represent a crime of war.

In the second case, the pertinent crime is known formally as “perfidy.”

There is more. Under no circumstances does the principle of proportionality stipulate that either party to an ongoing conflict must impose only symmetrical or equivalent harms upon the enemy. If that sort of “common sense” suggestion were actually correct, there would be no modern historical analog to America’s flagrantly “disproportionate” attacks on European and Japanese cities during World War II. By that standard, Dresden, Cologne, Hiroshima, and Nagasaki would reasonably 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 belligerency against Israel, the vital legal background is glossed-over. Sometimes, Hamas, Fatah, Islamic Jihad, and related terror groups take conspicuous steps to ensure that Israeli reprisals will kill or injure Arab non-combatants. 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.

There is more. Any use of “human shields” represents substantially greater wrongdoing than simple immorality or visceral cowardice. It expresses a starkly delineated and punishable crime.  Perfidy is identified as a “grave breach” of 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 in 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 in 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 in Article 3, common to the four Geneva Conventions of 1949. It cannot be suspended or abrogated.

Ever.

At some point, Palestinian terror groups, especially in the aftermath of a disregarded or imposed peace settlement, could prepare to launch mega-terror attacks on Israel. Such aggressions, 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 sometime agree to transfer portions of its expanding inventory of nuclear materials to proxy terror groups, Israel could have to face Palestinian-directed nuclear terrorism. Also possible, though presently still implausible, is that residual ISIS-type surrogates could displace formal leadership cadres in “Palestine.” Israel and relevant allies would then have to face a more starkly insidious source of atomic terror.

What would happen then, when bewildered combatants find themselves in extremis atomic?

Earlier, though ISIS was effectively eliminated as a viable enemy organization, the underlying Jihadist ideology remained anything but defeated. Now, to best predict possible and probable outcomes, Israeli analysts and policy-makers will need to refine their relevant skills for dialectical reasoning. In the final analysis, effective counterterrorism must always be assessed as an intellectual activity. Over time, the true heroes of Israeli counterterrorism will more likely be the behind-the-scenes thinkers (physicists, mathematicians, philosophers, and political scientists) than glamorous Fauda-type fighters and special forces.

There are complementary concerns. However perilous the appearance of any particular perceived threat, Israel has sought to keep (and will plausibly continue to keep) counterterrorism operations consistent with applicable international law. For their part, Palestinian fighters remain in generally deliberate and persistent violation of virtually all recognizable rules of civilized military engagement. For them, insurgent warfare is always just a matter of “by any means necessary.” For them, it is always just a matter of what Sigmund Freud would have called “wish fulfillment,” not of legal obligation.

History should have some pride of place in these assessments. Terror violence launched from Gaza accelerated immediately after Israel left the area in 2005, a “disengagement” that Jerusalem had expected (or merely hoped) would produce less terror and greater intercommunal harmony. But hope is never a strategy and never ipso facto law supporting.

There are antecedent points to be made. From the standpoint of binding international law, terrorism is always much more than just bad behavior. Without exception, it represents a distinct crime under international law. Significantly, such crime can neither be minimized nor exonerated by any partisan intimations of “just cause” or “by any means necessary.”

Under international law, the ends can never justify the means: “Rights can never stem from wrongs.”

In the past, various manipulated expressions of jurisprudential reasoning notwithstanding, the Palestinian side bore full legal responsibility for most Arab civilian casualties in Gaza. Arguably, absent its pre-meditated attacks on Israeli civilian populations, there could have been no reciprocal Palestinian harm. Though Israeli military operations did kill and wound Arab noncombatants in every “cycle of violence,” these casualties were largely 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 permits a beleaguered state – any beleaguered state – to express an “inherent right of self-defense.” But when Arab terrorist organizations celebrate the explosive “martyrdom” of Palestinian civilians and when certain Palestinian leaders seek religious “redemption” through the mass murder of “unbelievers,” the wrongdoers have no residual legal claims to immunity or sanctuary.

Under international law, such criminals are called Hostes humani generis or “common enemies of humankind.”  Unambiguously, in law, this category of murderers invites punishment wherever wrongdoers 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 any wrongful allegations of Israeli “disproportionality.” Many Palestinian commanders who control terror-mayhem against Israel cower unheroically in safe towns and cities. Prima facie, heroic rhetoric notwithstanding, these commanders are not eager to become “martyrs” themselves.

International law is closely bound up with US law. Few Americans have ever even glanced at their 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.

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 evidence of 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 still 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 are based on frequently unverified or unverifiable allegations of Palestinian “perfidy.” Though verifying instances of Hamas perfidy would better immunize Israel from legal responsibility for any 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 accept Plato’s rudimentary definition of justice “neither to do nor to suffer wrong.” But even after Nuremberg, 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, carefully 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 jurisprudential disbelief.

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 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 serious intellectual and cosmopolitan thought.

Another Gaza war is not inevitable, but it is increasingly likely. Should such a conflict be made manifest, both sides ought to seek diplomatic guidance in Plato’s simple definition of justice: “…. a contract neither to do nor suffer wrong.” Any such definition would remain subject to various grievous forms of manipulation and refutation, but it would nonetheless remain Israel’s and “Palestine’s” last tangible chance for mutual survival. Before this change can be grasped, both sides will require a fundamental conceptual re-awakening, a powerful new awareness that the belligerent legal order born at Westphalia in 1648 is destined to fail.

Louis Rene Beres was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with nuclear strategy and world order reform. Dr. Beres, Professor Emeritus of International Law at Purdue, publishes at The New York Times; The Atlantic; Jewish Business News; Harvard National Security Journal (Harvard Law School); JURIST; Bulletin of the Atomic Scientists; Yale Global Online (Yale University); World Politics (Princeton); International Journal of Intelligence and Counterintelligence; Infinity Journal (Tel Aviv); BESA Perspectives (Israel); INSS Strategic Assessment (Tel Aviv); Modern War Institute (West Point); The War Room (Pentagon); Parameters: Journal of the US Army War College (Pentagon); Armed Forces and Society; global-e (University of California); Special Warfare (Pentagon); Horasis (Switzerland); Modern Diplomacy; JURIST; Brown Journal of World Affairs (Brown University); International Security (Harvard); Air-Space Operations Review (USAF); American Political Science Review; American Journal of International Law; Strategy Bridge; Strategic Review; and Middle East Review of International Affairs.

This article was first published in Jurist.