Israel, Terrorism and Immortality: Hamas Attractions to “Power Over Death”

by Louis René Beres (Ph.D., Princeton, 1971)
Emeritus Professor of International Law, special to Jewish Business News

“An immortal person is a contradiction in terms.”
Emmanuel Levinas, God, Death and Time (2000)

Effective counter-terrorism is never just about strategy and tactics. For Israel, still at the start of Operation Swords of Iron, dealing effectively with Hamas and other criminal terror groups (e.g., Hezbollah, Islamic Jihad) calls for enhanced policy attention to enemy objectives. At the apex of such objectives is “power over death.” Though seemingly fanciful, jihadist attractions to “immortality” should be taken with great seriousness by Israel’s counter-terrorism planners.

What should be done to heighten Israeli policy attention to such underlying causes of terror-violence. To reply, there will be multiple nuances and overlapping details. Above all, Israel’s most important battlefield against terror-violence should be self-consciously conceptual and rigorously intellectual. Though intangible by definition, any presumptive “power over death” by terrorist foes could sometime prove determinative.

There will be numerous particulars. Subsidiary questions will need to be addressed. How should such hard-to-decipher power attractions be understood by Israel’s security planners? Are there identifiable operational implications of any such difficult and generally-ignored attraction? Who would be best suited to figure them out in time: career military strategists, technological experts, behavioral scientists or creative humanists?

For Israel, any promise of immortality offered to jihadist terrorists as an incentive or quid pro quo for “martyrdom” could prove sorely problematic or genuinely catastrophic. Among other complexities, any such promise would lie in a deeply irrational and insidious faith, in mythological belief systems that flourish beyond any recognizable boundaries of logic or ethics. A similar problem for Israel would arise vis-à-vis Iran, which at some point could choose to become an individual jihadist suicide bomber in macrocosm. Following any such lethal metamorphosis (a transformation based on overwhelming death fear), Iran’s “Supreme Leader” would link religious “redemption” for the Islamic Republic to “total victory” over “the Zionist entity.” The link would be announced with conspicuous pride.

What then? Both a conventional war against Iran and/or conventional terrorism against Israel could devolve into unconventional war. Examined in such unfamiliar historical terms (in logic, these scenarios would be sui generis), Israel’s foreseeable struggle against primal terror should be conceptualized, in large part, as an expression of much broader human struggle. This is the always-underlying struggle of reason against anti-reason.

There will be more to consider in Tel Aviv and Jerusalem. Israel’s pertinent counter-terrorist actions will need to stem from inchoate but deeply interrelated questions. Most plainly: How can one mortal human being meaningfully offer eternal life to another?

A reciprocal question will also need to be raised: How can a terrorism-opposing State of Israel operationally contend with a jihadist enemy’s “hunger for immortality?” What would happen if such “hunger” should vary from one state or sub-state enemy to another, and/or expand for any single enemy over time? And how could such variance impact the regional “balance-of-power”?

Though murky or even opaque, there are discoverable answers. Even in our dehumanizing age of ritualistic quantification and artificial intelligence, there will remain something darkly eternal in our species, a consuming human-desire that yearns not for science, measurement and logic but for mystery, mysticism and non-rational explanation.

In facing terrorist ideologies that promise the religiously faithful a “life everlasting,” Israeli governments should remain wary of projecting their own reason and rationality upon Hamas and Iran. Israeli counter-terrorism ought never to rely upon “introspection,” the projection of its own rational view of the world upon insistently irrational adversaries. This cautionary observation does not mean that all or many terrorist enemies necessarily draw their indiscriminate violence from hopes for life everlasting, but that such hopes are nonetheless distinctly palpable and policy-shaping.

Further clarifications will be needed immediately. Usually, projections of decision-making rationality by leaders in Jerusalem and Washington do make calculable military sense. Still, there will be enough significant exceptions to such projections that would temper or undermine any more usual theoretical generalizations.

If Israel’s national decision-makers were to survey the current configuration of jihadist terrorist organizations (Sunni and Shiite) from an augmented analytic standpoint, the nexus between “martyrdom operations” and eternality could come into sharper focus. At that point, among other things, Israel’s national security planners could begin to place themselves in a better operational position to deter or defeat Islamic enemies, both in microcosm (as individual terrorist perpetrators) and in macrocosm (as states like Iran that support segments of the terrorist microcosm).

There is more. In such time-urgent matters, there will be corresponding and converging elements of law. Unsurprisingly, those far-flung jihadist insurgents who seek to justify violent attacks on Israelis in the name of “martyrdom” would be acting contrary to peremptory international law. All insurgents, even those who would passionately and self-righteously claim “just cause,” need to satisfy longstanding jurisprudential limits on permissible targets and permissible levels of violence. As a settled matter of jurisprudence, such humane limits can never be justified by any contending claims of any religious doctrine.

Martyrdom-related matters are not inherently complicated or gratuitously bewildering. Under binding legal rules, even the established rights of insurgency must exclude the targeting of civilians or any use of force intended to inflict unnecessary suffering. This obligation is always binding. Now, following the recent Hamas attacks, it should finally be enforced.

Law and strategy are interrelated. But they are also analytically and conceptually distinct. In matters of effective Israeli counter-terrorism, the specifically legal “bottom line” is plain: Violence becomes terrorism whenever politically-animated insurgents murder or maim noncombatants, whether with rockets, guns, knives, bombs or automobiles.

In applicable law, the ends can never justify the means. It is irrelevant whether the underlying cause of terror-violence is presumptively just or unjust. Under the law of nations, unjust means used to fight for just ends remains unacceptable.
It is impermissible on its face.

It is never justified.

There are additional considerations. Sometimes, wittingly or unwittingly, Israel’s martyrdom-seeking terrorist foes will advance a spurious legal argument known as tu quoque. This argument, historically discredited, alleges that because the “other side” is guilty of similar, equivalent or greater criminality, “our” side is innocent of any wrongdoing.

Jurisprudentially, any such posture is immutably wrong and perpetually irrelevant, especially after the postwar tribunal judgments of the Nuremberg (Germany) and Far East (Japan). Tu quoque arguments can never be used as valid justification by any nation-state’s counter-terrorist authorities. To Israel’s credit, this fundamental prohibition is well understood by Jerusalem.

There is more. For both conventional armies and insurgent forces, the right to use military force can never supplant the peremptory rules of humanitarian international law. Such primary or jus cogens rules (rules that permit “no derogation”) are normally referenced as the “law of war.” These rules concern both state and sub-state participants in any armed conflict.

Repeatedly, however, and without a scintilla of law-based evidence, supporters of terror-violence against Israeli noncombatants insist that “the ends justify the means.” Leaving aside the ordinary ethical standards by which any such argument must be dismissed on its face, the “law of nations” makes clear that “Rights can never stem from wrongs.” This legal principle, ex injuiria jus non oritur, is axiomatic. One might even say, in this context, it is “sacred.”

For more than two thousand years, peremptory legal principles have stipulated that intentional violence against the innocent is prohibited. This universal and timeless prohibition applies with equal validity to any state’s counter-terrorism operations, even those holding moral and legal justifications for its adversarial actions.

Nonetheless, when the nation’s physical survival is actually at stake, the existential imperatives of counter-terrorism must become paramount. Recalling Cicero: “The safety of the People shall be the highest law.” Drawn ultimately from Natural Law, this “Ciceronian” standard lies beyond any conceivable counter-argument.

There is more. The banalities of any state’s politics ought never represent a correct basis for binding legal obligation. Despite certain political contrivances of law, both codified and customary, one person’s terrorist can never be another’s “freedom-fighter.” Though it is correct that particular insurgencies can sometimes be judged lawful or law-enforcing. even fully-allowable resorts to insurgent force must conform to humanitarian international law.

Always.

Relevant definitions are unambiguous. Whenever an insurgent group such as Hamas resorts to unjust means (e.g., hostage-taking, rape, targeting of non-combatants, co-locating civilians with military facilities) its actions constitute terrorism. Even if adversarial claims of a hostile “occupation” could somehow be acceptable (e.g., Israel and the Palestinians), corollary claims of entitlement to “any means necessary” would remain unequivocally false. As long-established under international law, most explicitly at Hague Convention No. IV: “The right of belligerents to adopt means of injuring the enemy is not unlimited.”

International law has identifiable form and content. It can never be casually invented or reinvented by terror groups in order to justify selective partisan interests. This is especially the case whenever terror violence intentionally targets a designated victim state’s most fragile and vulnerable civilians.

“National liberation movements” that fail to meet the test of just means can never be protected as lawful or legitimate in themselves. Even if designable law were to accept the questionable argument that terror groups had fulfilled all valid criteria of “national liberation,” (e.g., Iran-supported Hamas or Hezbollah), these groups would still not satisfy the applicable legal standards of discrimination, proportionality, and military necessity. These enduringly critical standards were explicitly applied to insurgent or sub-state organizations by the common Article 3 of the four Geneva Conventions of 1949, and (additionally) by the two 1977 Protocols to these Conventions.

On terrorism and international law, there are continuously core obligations of sincere learning. To wit, standards of “humanity” remain binding on all combatants by virtue of broader norms of customary and conventional international law, including Article 1 of the Preamble to the Fourth Hague Convention of 1907. This rule, commonly called the “Martens Clause,” makes “all persons” responsible for the “laws of humanity” and for associated “dictates of public conscience.” Significantly, apropos of Hamas terroir attacks on Israel, there can be no exceptions based upon presumptively “just cause.”

Hamas terrorists. Power Over Death 

Inter alia, under international law, terrorist crimes mandate universal cooperation in apprehension and punishment. As punishers of “grave breaches” under international law, all states must search out and prosecute or extradite individual terrorists. Under no circumstances are states permitted to regard terrorist “martyrs” as law-protected “freedom fighters.” Such terrorists’ criminality is not “merely” mala prohibita (“wrong because prohibited”), but also mala in se (“wrong in itself”).

All this is emphatically true for the United States, which incorporates international law as the “supreme law of the land” at Article 6 of the Constitution, and for Israel, which remains guided by unchangeable principles of a Higher Law. In essence, fundamental legal authority for the American republic was derived largely from William Blackstone’s Commentaries, which in turn owes much of its clarifying content to the peremptory or “jus cogens” principles of Torah.

Ex injuria jus non oritur. “Rights can never stem from wrongs.” Even if Israel’s adversaries or critics of Israel should continue to identify the most recalcitrant jihadist insurgents as “martyrs,” such treatment would have no exculpatory or mitigating effect on attendant terrorist crimes. In the final analysis, though ambiguously, these Jihadist foes are animated by the most compelling form of power imaginable. This is the promise of immortality.

For Israel, a primary orientation of law-based engagement in counter-terrorist doctrine and strategy should take closer account of jihadist attractions to “last things.” Though philosopher Emmanuel Levinas’ observation that “an immortal person is a contradiction in terms” lies beyond intellectual challenge, the jihadist promise of power over death remains authentically attractive among Israel’s most worrisome adversaries. It follows, going forward, that Israel’s counter-terrorist planners ought to focus more expressly, intensively and interpretively upon the determinable eschatology of enemy thought. This counsel does not imply that every terrorist or even every jihadist terrorist is animated by personal death fear but only that such fear could on occasion, drive insurgent policy.

Israel and “Palestine” are escalating their long and bitter conflict. For the Arab side, though generally overlooked, this conflict continues to draw much of its vitalizing dynamic from variously gratifying promises of “martyrdom.” For the Israeli side, success over enemy barbarism will require greater analytic attention to elemental forces of non-rationality and anti-reason in terrorist calculations.

Though this requirement ought to be apparent on its face, it presently appears that Israeli counter-terrorist strategists and tacticians remain too focused on traditional rules and expectations of deterrence and military engagement. Left unrevised, this traditional focus could become lethal to Israel on an unprecedented and potentially irremediable scale. It’s high time for Israeli defense and security planners to think beyond next generation high-technology weapon systems and to act as well upon fundamental understandings of “will.” Anyone who would doubt such counsel should be reminded that the horrors of October 7 Hamas attacks were inflicted by “low-tech” adversaries.

Philosopher Emmanuel Levinas observes that an immortal person is a “contradiction in terms.” Nonetheless, in matters of operational counter-terrorism, the only enemy reality that can be real in its consequences is perceived reality. For Israel, if a seemingly fearless jihadist adversary actually believes that he or she can become immortal through “martyrdom,” such an irrational belief could still become an existential threat. Accordingly, it is a long-underestimated adversarial belief with which Israeli defense and security planners should now become more deeply concerned. As is the case with all meaningful underpinnings of Israeli counter-terrorism, pertinent issues should be confronted as an intellectual problem, not just as an occasion for yet another massive military operation.

Counter-terrorism is an existential challenge for Israel. This challenge is not insurmountable, however, and can be met by a new generation of strategic planners who could recognize that unorthodox enemy thinking requires unorthodox counter-terrorist theorizing. Many years ago, Chinese strategist Sun-Tzu already understood the problem in its purest form: “In general,” says Sun-Tzu in The Art of War, “one engages with the orthodox and gains victory through the unorthodox.”

Ironically, this ancient counsel is more likely to be followed by Israel’s Jihadist foes than by Israel, a policy inversion that could leave Israel increasingly subject to “martyrdom” attacks. In a worst case scenario, such attacks could involve crude nuclear explosives and/or attacks upon an Israeli nuclear reactor. But even an entirely conventional or low-technology assault could bring uniquely grievous harm to Israeli civilian populations. It follows that Israeli counter-terrorist planners will need to reorient some of their long-established operational tactics so as to more reliably engage with the unorthodox and to gain victory through the unorthodox.

Any such reorientation could spawn obstructive variants of “cognitive dissonance” among strategic decision-makers in Jerusalem and Tel Aviv. Nonetheless, enemy terrorists who seek “power over death” above other objectives should ultimately be countered by imaginative infusions of unorthodox strategic thought. The argument that counter-terrorism orthodoxy has worked thus far for Israel and would therefore work for the indefinite future is already illogical at its core.

A similarly fallacious argument for Israel would concern the adequacy of nuclear deterrence. In essence, the dynamics of terrorism and nuclear attack are exceedingly complex, more-or-less unprecedented, increasingly indecipherable and potentially interrelated or synergistic. For Israel, no course of action could be less promising or more lethal than predicting adversarial behaviors on the basis of past circumstances, including even the most recent Hamas terror-violence.

The world of strategy and tactics is constantly changing; it is in continuous transformation. History can help Israeli policy planners as a general “guide,” but it can never substitute for the refined analytic skills of history-minded theorists. For Israeli counter-terrorist planners, the ultimate and immediate survival task must be to wage a coherent intellectual struggle against intermittent adversarial explosions of anti-reason. Whether Israel’s relevant enemies are (1) state or sub-state (terrorist) foes; or (2) state/sub-state “hybrids”), their cowardly search for “power over death” will mandate variously unorthodox remedies. To fathom and conceptualize such remedies in time already represents Israel’s most overriding existential challenge.

Louis René Beres was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with terrorism and international law. Emeritus Professor of International Law at Purdue, Dr. Beres was born in Zürich, Switzerland on August 31, 1945. He is a contributor to Harvard National Security Journal (Harvard Law School); International Security (Harvard); The American Journal of International Law; American Political Science Review; JURIST; Case Western Reserve Journal of International Law; Air and Space Operations Review ((USAF); Yale Global Online; Indiana International and Comparative Law Journal (Indiana University); World Politics (Princeton); Bulletin of the Atomic Scientists; The War Room (Pentagon); The Strategy Bridge; Israel Defense (IDF); Jewish Business News; Modern War Institute (West Point); Parameters: Journal of the US Army War College (Pentagon); The Atlantic; Horasis (Zürich); The New York Times; The Hill; The Jerusalem Post; Ha’aretz; and Oxford University Press. Professor Beres is a five-times contributor to the Oxford University Press Annual Yearbook on International Law and Jurisprudence and a member of its editorial advisory board. His latest and twelfth book is Surviving amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2nd ed., 2018). https://paw.princeton.edu/new-books/surviving-amid-chaos-israels-nuclear-strategy