Israel And Hamas: A Legal Assessment of the Gaza War

by Prof. Louis René Beres

“An intentional act of injustice is an injury. A Nation has, therefore the right to punish it…. This right to resist injustice is derived from the right of self-protection.”-Emmerich de Vattel, The Law of Nations or the Principles of Natural Law 1758)

Understood in terms of 18th-century Swiss international law scholar Emmerich de Vattel, Israel’s “Swords of Iron” war against Hamas terrorism is grounded in the right of self-defense. This always-incontestable right is intended to benefit not only the particular state defending itself against terror crimes, but also international “society” (Vattel’s preferred term in The Law of Nations) as a whole, It follows, inter alia, that Israel’s Gaza War represents an undertaking of international law enforcement.

In law, this conclusion only concerns a “just war” (jus ad bellum). But what of the always-coinciding issues of “justice in war” (jus in bello)? Before Israel’s “Swords of Iron” operation could be labeled as cumulatively law-enforcing, its armed forces (IDF) would need to satisfy both “peremptory standards” of jurisprudential assessment.

Is this actually the case? The correct answers are discoverable in pertinent details. International criminal law is never something that can be interpreted or understood ex nihilo, out of nothing. It represents, rather, a compendium of complex rules and principles that have identifiable subject-matter boundaries and may require years of disciplined study.

With these fundamentals in mind, what are the clarifying Gaza War examples? For a start, authoritative jurisprudence underscores that schools and hospitals are protected areas in war, but that actual legal responsibility for civilian casualties in such normally immunized locales shifts if civilian populations are used as “human shields.” In law, the formal term for such evident and egregious criminality is “perfidy.”

There is more, The Gaza War represents an existential struggle for Israel, not immediately perhaps, but incrementally. Ultimately, what threatens Israel’s survival is not terrorism per se, but Iranian support of jihadist violence. More precisely, over time, Iran could confront Israel directly, a confrontation that would be of manifestly grave consequence even if the law-violating Islamic Republic were to remain non-nuclear.

Should such a direct engagement of military forces materialize, the two state adversaries (Israel and Iran) would assuredly struggle for “escalation dominance,” an inherently unpredictable struggle with potentially unprecedented human and material costs.

A systemic dynamic characterizes Israel’s obligatory war with Hamas. This intersectional dynamic obtains whether or not Iran becomes a direct adversary of Israel. To wit, seemingly singular strategic and legal matters could quickly become many-sided, force-multiplying or even “synergistic.” By definition, this last and plausible outcome would be a conflict “whole” that is greater than the simple sum of its “parts.”

Regarding relevant legal matters, international law represents an indissoluble part of every nation-state’s domestic normative order.Sir William Blackstone’s Commentaries, echoing 18th century Swiss jurist Emmerich de Vattel, explains: “Each state is expected to aid and enforce the law of nations, as part of the common law, by inflicting an adequate punishment upon offenses against that universal law….” Understood in terms of the Israel-Hamas Gaza War, this means that each state is obligated to join Israel in its punishment of jihadist criminality. Nullum crimen sine poena, “No crime without a punishment,” stipulate the peremptory Nuremberg Principles of 1950.

There is more. Israel is being subjected to protracted aggressions by willfully barbarous enemies. Endlessly, in the acrimonious Middle East, there have been charges and counter-charges. From the beginnings of the Arab-Israeli conflict in the late 1940s, a recurrent Palestinian response to easily verifiable accusations of “terrorism” has been an invented counter-charge of “disproportionality.”

But what does authoritative international law say about such a contrived response? What do variously codified and customary legal norms stipulate about such purported violations of the law of war? These are not flexible questions of subjective opinion. To the contrary, the correct answers are discoverable solely in certain objective legal rules.

There are various subsidiary questions. What are the comparative risks for each side? What are corresponding leadership responsibilities? And what is the contextual relevance of our traditional “Westphalian” system of international law?

A reciprocal question will also need to be raised. To the extent that Hamas, Islamic Jihad and their more-or-less recognizable sub-sta

te (insurgent) allies choose a policy of “human shields,” the Palestinian side would be guilty of “perfidy.” Any such policy is illegal on its face, and qualifies ipso facto as a “grave breach” of Geneva Conventions. The most critical legal effect of perfidy committed by Palestinian terror group leaders – an effect that Jerusalem continuously seeks to make evident to all observers – is that it immunizes Israel from any responsibility for inadvertent counterterrorist harms suffered by Arab civilians.

In law, even though the bombs killing Palestinian noncombatants may be fired by Israeli military forces the actual criminal perpetrators are those Palestinians who have committed perfidy. Under law, when Israel bombs a hospital or ambulance because it is being used by Palestinian terrorists to shield law-violating activities, noncombatant deaths and injuries are the responsibility of Palestinian terrorist leaders. Moreover, these perfidy-driven deaths and injuries are cynically exploited by Hamas and its allies for propagandistic purposes.

There are further specifics to clarify. 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 expressly 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 peremptory rules are also binding on the basis of customary international law, a jurisprudential source identified most conspicuously at Article 38 of the Statute of the International Court of Justice.

Now embroiled in yet another violent struggle with Hamas, Islamic Jihad and assorted kindred criminal groups, Israel will need to proceed diligently with its identification of proper legal arguments. Optimally, appropriate steps would best ensure that Palestinian war crimes not get in the way of Israel’s indispensable self-defense postures and its corollary obligations under humanitarian international law. Ultimately, though of no immediate concern, this obligation would become especially critical in circumstances where Sunni and/or Shiite terror attacks were to involve weapons of mass destruction.

It’s time for candor. Such circumstances are presently implausible, but they are nonetheless conceivable. “The worst,” reminds Swiss playwright Friedrich Durrenmatt, “Sometimes does happen.”

Though interpenetrating or intersecting, law and strategy ought always to be evaluated separately, as conceptually discrete elements of Israel’s unified military doctrine. In this connection, Israel should take clarifying measures to convince both its Palestinian insurgent foes and terrorist state patrons that perfidious terrorist aggressions will continuously be revealed in law and opposed in practice. In increments, these remedial or corrective measures could create an efficient “force multiplier” for Israel, one wherein the “whole” desired anti-insurgent effect would be greater than the decipherable sum of legal and military “parts.”

In law, considerations of distinction, proportionality and military necessity set defined limits on the use of armed force. Always, under the customary and codified expectations of the law of war, these three interpenetrating criteria remain unequivocally binding. When Israel’s terrorist enemies declare an IDF attack to be “disproportionate,” they wittingly ignore that the rule of proportionality does not demand tangibly equivalent military harms. It demands an amount of force that is militarily necessary.

For the most part, the key issues here are straightforward. Any gratuitous infliction of harms is illegal under the longstanding law of war, but pertinent harms need never be of determinably equivalent magnitude. If such equivalence were an actual 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 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 was exploited with some measure of tactical success by Hamas, but perhaps more importantly, with enduring propagandistic benefit. Today, while Hamas leaders live luxurious and safe lives in Qatar or other Gulf states, they urge their obedient followers to become “martyrs.”

On repeatedly choreographed occasions, the practice of “human shields” is being justified in terms of alleged Palestinian desperation. Though partially successful as Hamas propaganda, these justifications remain carefully concocted Palestinian claims.

In essence, they are premised upon irrelevant and intentional manipulations of acceptable legal definition. For example, when Palestinian insurgents claim the right to “any means necessary,” they adopt a seemingly compelling argument, but one that still remains illegal. Similarly, the battle cry of “Palestine from the River to the Sea” expresses nothing less than “intent to commit genocide.” Such criminal intent (mens rea) is already a part of both codified and customary international law.

International law regulates certain primary world system behaviors. In its particular manifestations in the law of war, international law requires every use of force (whether exercised by a uniformed army or by irregular/insurgent force) to meet the test of “proportionality.” Drawn in part from the rudimentary legal precept that “the means that can be used to injure an enemy are not unlimited,” this test of proportionality stipulates that every resort to armed force remain limited to what is presumed necessary for meeting legitimate military objectives.

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 at any time agree to suffering or imposing symmetrical harms. Nonetheless, this failure to understand pertinent international law remains widespread, and unjustly plays to the public relations advantage of Hamas and its sympathizers.

“Justice,” we may learn 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 or population, sub-state foes could sometime decide to escalate hostilities. Such manifestly dangerous terrorist escalations could eventually embrace mega-terror assaults on Israel. Over time, these assaults could include an actual use of destructive nuclear weapon technologies.

To best manage and inhibit such consequential enemy escalations, Jerusalem will have to choose between creating a maximally seamless web of national deterrence (ranging from narrowly conventional to broadly nuclear retaliatory attacks) and allowing certain enemy forces to proceed directly toward WMD terrorist capacities.

For now, such Israeli judgments will have to be made without “benefit” of relevant historical experience. In scientific terms, there can never be authentic assessments of probability without pertinent past events. Among other things, the persuasiveness of Israeli deterrent threats will require Israel’s time-sensitive foes to believe that Jerusalem is willing to launch appropriate military retaliations andis simultaneously capable of inflicting “unacceptable damage.” This basic requirement of capability would include perceived Israeli capacity to penetrate enemy active defenses.

There is more. Israel’s offensive military forces must stay at least “one step ahead” of a determined state enemy’s missile defense systems. If this tactical advantage were not present, Israel’s state enemy or enemies, no longer having to anticipate unacceptable reprisals, could sometimes feel sufficiently inclined to strike first itself. In such a scenario, by definition, Israeli deterrence could fail altogether.

Terrorism, like perfidy, is a codified and custom-based crime under authoritative 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 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 illegal per se. This is true even if one were to associate “just cause” with all or some of these terror groups’ commitment to violence.

In law, perfidious tactics are not “only” mala prohibita (“evil as prohibited”), but also malae in se (“evil in themselves”). This characterization also applies to “lone wolf” terrorist attackers. Many pre-Gaza War Palestinian terrorists identified by Israel were of this “lone wolf” variety.

In law, there is more to learn about deception. The terrorist crime of perfidy is not about deception as such. Under humanitarian international law, deception is never impermissible on its face. Some forms of deception are generally permitted to states and selectively to lawful insurgents; that is, to those with arguably “just cause.” Nonetheless, the specific practice of human shields is always illegal. Its universal prohibition extends to all operational combatants: state, sub-state, “hybrid,” and individual.

During Israel’s several Lebanon wars, Hezbollah, assisted by Syria and Iran, placed its weapons and fighters within carefully selected areas of Arab civilian population. In the past, ISIS employed a human shield strategy in its battle for Mosul (Iraq). This prohibited strategy was still useful at that time in providing ISIS with tangible tactical advantages.

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

Plausibly, sooner or later, certain of Israel’s Islamic terrorist enemies, perhaps under cover of perfidy, will initiate a quantum magnification of operational goals. Then, more or less systematically, these criminal adversaries will strive to exploit the particular methods and harms that already 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. Though unprecedented, the basic results of any such aggression are not difficult to fathom.

The dangers of mass destruction terrorism could be enlarged in the absence of ordinary strategic logic. Such dangers could become still more consequential if insurgent enemies of Israel and their allies would become more expressly oriented toward what French philosopher Albert Camus (The Rebel; 1956) called “crimes of passion.” Here, animated by the clarion call of jihad and operating outside of any ordinary rules of rationality – outside what Camus calls “crimes of logic” – these terrorists could sometimes opt for inflicting chemical, biological or (potentially) nuclear destruction upon Israel.

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

Writing about the species of fear that arises from tragedy, 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 clearly communicate to Hamas and related criminal foes that any contemplated excursions into higher-order forms of destruction would never elicit Israeli capitulations. To ensure that such communications have the best possible chance of success, it is most important that Israel’s terrorist enemies foresee no meaningful advantages to staging “perfidious” assaults. For the State of Israel, law and strategy must always be contemplated together as closely interdependent parts of a single coherent national security policy.

A few years past, Donald J. Trump pointed with ostentatious pride to the “Abraham Accords,” but these agreements negotiated via the former president’s “good offices” did nothing to reduce the likelihood or corrosiveness of anti-Israel terrorism. These accords may have marginally improved Israel’s relations with certain states that had never been anti-Israel belligerents, but they simultaneously angered both the Palestinians and Iran. In essence, “Abraham” represented a net security loss for Israel.

This assessment of Israeli counter-terrorism has been about complex considerations of law and strategy. The world is best studied as a system in legal and strategic terms. For example, if certain conventional nuclear firebreaks are crossed for the first time by Vladimir Putin in Ukraine, the consequences could be felt deeply in various other places, including the Middle East. It follows that Israel’s protracted war on terror will have to draw systematically upon a broad variety of intersecting legal insights and force-multiplying military operations.

To do otherwise could prove

lethal for Israel. Effective counter-terrorism is never a proper subject matter for “common sense” resolution. Its assorted and overlapping elements can never be suitably untangled by ordinary pundits or rented intellectuals.

Israeli counter-terrorism is a strategic/legal subject, one that should always be approached as a systemic and dialectical challenge. It follows, inter alia, that the most valuable “armaments” available to Israeli security planners will be disciplined thinkers of uncommonly high intellect. In a national and global society long accustomed to identifying its heroes with special operations forces, large guns, and heavy missiles, acknowledging such “softer armaments” will not come easily.

Recalling Emmerich de Vattel’s introductory comment on a “Nation’s” right to punish injury and exercise self-defense – a comment later reinforced by Sir William Blackstone’s Commentaries on the Laws of England – it is the obligation of each state in world politics to “aid and enforce” the law of nations. Regarding the particular issues at hand, this means a universal legal obligation to support Israel’s ongoing counter-terrorism operation in Gaza. Though it may first appear that this operation falls short of authoritative expectations of humanitarian international law, or jus in bello considerations, it is the Palestinian side’s “perfidy” that is responsible under law for virtually all noncombatant harms. Indeed, by its deliberate co-location of military facilities with schools and hospitals, Hamas has lawlessly imperiled not only its own civilian populations, but also the entire jurisprudential foundation of world legal order.

Prof. Louis 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.

This article was first published in Modern Diplomacy