by Prof. Louis Rene Beres
On its face, the Hamas terror attack on October 7, 2023, was beyond legal or ethical justification. Nonetheless, though Israel has every conceivable right to respond with military force, a significant segment of world public opinion is demanding greater “proportionality” between the precipitating Hamas crime and the necessary Israeli response to protect its citizens. But what precisely is meant by this inherently vague standard? As both an ethical and operational matter, how can anyone fairly assess the proportionality of Israel’s “Swords of Iron” response?
Significantly, from the standpoint of authoritative international law, Israel’s response is not merely an expression of retributive justice (“an eye for an eye”), but of indispensable self-defense.
We should begin at the beginning. The legal obligations of proportional combat are contained in assorted rules governing resort to armed conflict (“justice of war”) and the operational conduct of hostilities (“justice in war”). In part, in the “justice of war” assessment, proportionality concerns rights of national self-defense. Regarding Israel and the current Gaza War, these rights have genuinely existential importance.
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Regarding the “justice in war” assessment, proportionality relates to the manner in which a particular belligerency is carried out. Taken as a whole, the proportionality standard is derivative from the foundational legal principle that belligerent rights have variously specific constraints. Hague Convention No. IV (1907), stipulates: “The right of belligerents to adopt means of injuring the enemy is not unlimited.” To wit, any acts by insurgent/terrorist groups that involve rape, murder, and/or hostage-taking are prohibited.
Always.
The popular terror-group phrase “by any means necessary” has no validity in law. Aside from its considerable propagandistic value, this venal phrase represents an utterly empty witticism, much like the equally invalid assertion that “one man’s terrorist is another man’s freedom fighter.” By authoritative definition, Hamas insurgents are terrorists; they are not freedom fighters.
In order to make informed legal judgments on what is happening in the current Gaza War, further details and particularities must be identified. Though generally misunderstood, the legally correct meaning of proportionality has nothing to do with equivalence in the use of military force. Equivalence or symmetry is never a requirement of the law of war.
There is more. Under the law of war, the proportionality standard is never just a matter of intuition or “common sense.” It is always a matter of Reason, an integral element of codified and customary international law.
Above all, this standard seeks to ensure that every belligerent’s resort to armed force remains limited to what is “necessary” to meet law-based military objectives. The related principle of “military necessity” is correctly defined as follows: “Only that degree and kind of force, not otherwise prohibited by the law of armed conflict, required for the partial or complete submission of the enemy with a minimum expenditure of time, life, and physical resources may be applied.” (See the US Navy’s “The Commander’s Handbook on the Law of Naval Operations.”)
Today, though we still speak narrowly of “international” law, 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 associated terror groups do have a presumptive right to fight against an Israeli “occupation,” that fight still needs to respect the law-based limitations of “discrimination,” “proportionality” and “military necessity.” Deliberately firing rockets into Israeli civilian areas and/or placing military assets amid Palestinian civilian populations does not display such respect. These acts always represent a perfidious crime of war.
In law, the correct term for the crime of “human shields” is “perfidy.” In law, the current sufferings of Gaza Palestinians are the incontestable result of Hamas perfidy, not Israeli counter-terrorism operations. Jurisprudentially, there can be no more clarifying observation.
Still, misunderstandings remain far-reaching and widespread. Under no circumstances does the principle of proportionality stipulate that a party to an ongoing conflict must impose only symmetrical or equivalent harms upon the enemy. If that sort of “common sense” argument were acceptable, 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 represent the documented nadir of inhumane and lawless belligerency. Expressed differently, these US attacks would represent the modern world’s very worst violations of humanitarian international law.
There is more. Perfidy represents greater wrongdoing than simple immorality or visceral cowardice. It expresses a starkly delineated and punishable crime. Among other things, it is identified as a “grave breach” at Article 147 of Geneva Convention IV.
Deception can be lawful in armed conflict, but the Hague Regulations 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 based on 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. Ever.
Prima facie, the alleged Hamas goal of Palestinian self-determination is founded upon an openly-planned crime; that is, a total removal of the Jewish State by attrition and annihilation.
This legally impermissible orientation has its doctrinal basis in the Palestine Liberation Organization (PLO)’s “Phased Plan” of June 9, 1974. In its 12th Session, the PLO’s highest deliberative body, the Palestinian National Council, reiterated the PLO aim as being “to achieve their rights to return, and to self-determination on the whole of their homeland.”
The proposed sequence of Palestinian terror-violence is expressed as follows: First, “to establish a combatant national authority over every part of Palestinian territory that is liberated” (Art. 2); second, “to use that territory to continue the fight against Israel” (Art. 4); and third, “to start a Pan-Arab War to complete the liberation of the all-Palestinian territory” (Art. 8).
Not to be ignored, this is the annihilationist plan of a more mainstream Palestinian terror group than Hamas, an organization that Hamas itself considers too moderate.
At some point, Hamas (with tangible Iranian support) could prepare to launch mega-terror attacks on Israel. Such perfidious aggressions, unprecedented and in plausible cooperation with certain allied non-Palestinian jihadists (e.g., Shiite Hezbollah), could include chemical, biological, or radiological (radiation-dispersal) weapons. What then?
Perils could also include a non-nuclear terrorist attack on the Israeli reactor at Dimona. There is a documented history of enemy attempts against this Israeli plutonium-production facility, both by a state (Iraq) in 1991 and by a Palestinian terror group (Hamas) in 2014. Neither attack was successful, but variously fearful precedents were established.
International law is not a suicide pact. Even amid long-enduring world-system anarchy, it offers an authoritative body of rules and procedures that permits a beleaguered state to express an “inherent right of self-defense.”
But when Hamas celebrates the explosive “martyrdom” of Palestinian civilians and when Palestinian leaders seek “redemption” or power over death through the mass-murder of “Jews” or “Zionists,” the wrongdoers have no residual claims to immunity from civilian harms.
Hamas celebrations of “martyrdom” underscore the two-sided nature of Palestinian terror/sacrifice — that is, the sacrifice of “the Jew” and the reciprocal sacrifice of “the Martyr.” Revealingly, such reasoning is codified within the Charter of Hamas as a “religious” problem.
There is more. Under international law, terrorists are considered hostess humani generis or “common enemies of humankind.” Among other things, this category of criminals invites punishment wherever the wrongdoers can be found. Concerning their required arrest and prosecution, jurisdiction is now “universal.” The universality-clarifying Nuremberg Tribunal strongly reaffirmed the ancient legal principle of Nullum crimen sine poena, or “no crime without a punishment.”
What next? In all law, truth is exculpatory. Regarding the current Gaza War, the pertinent truth is unambiguous. Israel is once again waging a necessary war against a determinedly exterminatory foe—this time, a jihadist terrorist organization that seeks genocide for Israel. In assessing such bitter circumstances, the “international community” should finally take more seriously the unavoidably core truth of Hamas’ perfidy and reciprocal falsity of Israeli “disproportionality.”
Prof. Luise Rene Beres was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with war, terrorism and human rights. His latest and twelfth book is Surviving Amid Chaos: Israel’s Nuclear Strategy. A previous contributor to The Algemeiner, Professor Beres’ published writings on law and strategy have appeared in Modern War Institute (West Point); BESA (Israel); JURIST; Yale Global Online; Parameters: The Journal of the US Army War College (Pentagon); Special Warfare (Pentagon); Israel Defense (Tel Aviv); Horasis (Switzerland); The War Room (Pentagon); Modern Diplomacy; The Atlantic; and more. Dr. Beres was Chair of Project Daniel for Prime Minister Ariel Sharon in 2003-2004. He was born in Zürich at the end of World War II.
