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Israel, Hamas Terror and Power Over Death

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“I believe is the one great word against metaphysical fear.”-Oswald Spengler, The Decline of the West (1918)

Though misunderstood by Israel, there is no more compelling form of Jihadist[1] power than power over death. The perilous result of such Israeli misunderstanding is that the nation’s counter-insurgent strategies could remain detached from what is most important: Israel’s core struggle against diverse Palestinian foes is not about calculable material losses or body counts. It is about achieving creative victories of “mind over mind,” not “mind over matter.”[2]

                For Israel, complex problems concerning anti-terrorist operations are always about more than comparative weapon systems. Arrow and Iron Dome are manifestly efficient elements of Israel’s indispensable defense, but they deal narrowly with transient technological remedies. Looking ahead, as analysts must in any meaningful scientific inquiry, there will need to be more capably dedicated attention to root causes. Here, in the ritually adversarial Middle East, this suggests enhanced Israeli wariness about the Palestinian side’s faith based policies.

               Inter alia, this will mean a more comprehensive and intensive focus in Jerusalem/Tel Aviv on variable enemy searches for “martyrdom” and immortality. Conceptually, it will require a deeply intellectual look at Oswald Spengler’s thoughtful affirmations of “I believe,” primal declarations offered in a pleading response to humankind’s overriding “metaphysical fear.” In essence, to succeed longer-term against intermittent Palestinian insurgencies and wars, Israeli planners will need to pay greater attention to palpable enemy hopes for “power over death.”

               There is more. Israel’s basic counter-terrorism policies ought never be too centered on military tactics, military hardware or prospective “victory.” More correctly, these policies should be focused on enduring and potentially existential considerations. For Israel, all national strategic policy should flow purposefully from a broadly antecedent knowledge of science[3] and of human leadership preference orderings.[4]          

              In the end, all arguments to allow Israel to “finally defeat” Hamas via an “unleashed” IDF miss a much wider point. Also missing the point was the dissembling counsel of former US President Donald J. Trump and his breathtakingly vapid son-in-law. To wit, Jared Kushner, main architect of the Abraham Accords,[5] affirmed imperiously that Trump’s agreement exposed unceasing conflict with Hamas as “nothing more than a real-estate dispute between Israelis and Palestinians.”

     Hardly.

               There is more. Soon, Israel’s Ministry of Defense and IDF could learn more from Oswald Spengler and Sigmund Freud[6] than from Carl von Clausewitz[7] and Yehoshafat Harkabi.[8] This is not to suggest that Palestinian fighters in Gaza are necessarily or even singularly motivated by any all-consuming religious faith in “martyrdom,” but rather that the raison d’etre of their recurrent insurgent violence is partially determined by rigid zero-sum calculations. Assuredly, the secular political search for Palestinian sovereignty and self-determination[9] (statehood)[10] does represent a conspicuous incentive for Hamas and its allies, but this loudly-proclaimed incentive is also less primal.

                In vital national security matters, there exist variously convergent and divergent elements of law. On the one hand, prima facie, those far-flung jihadist insurgents who would seek to justify their attacks on Israeli civilians in the name of “martyrdom” are defilers of international law. Always, lawful insurgents, even those operating with some seemingly defensible “just cause,” must satisfy longstanding jurisprudential limits on permissible targets and permissible levels of violence.

               Even if the Palestinian side can be granted a “just cause” for their protracted insurgency against Israel, it can never be lawful for Hamas or allied forces to hurl rockets at Israel’s noncombatant populations. In such cases, unlike the reciprocal and retaliatory armed force used by Israel, there is plain and incontestable evidence of “criminal intent” or mens rea.

               Though appearances and manipulations can readily suggest otherwise, Israeli policies that are intended to thwart Jihadist terrorist indiscriminacy are generally supportive of international law. For Israel, unlike Hamas, there are no gratuitous attacks on civilians, For Israel, there is no mens rea.

                Israel remains under widespread criticism for presumed “disproportionality” in its use of force contra Hamas. But this criticism ignores the authoritatively legal content requirement of “proportionality.”[11] Under all applicable codified and customary law, this authentic requirement has absolutely nothing to do with equivalent force. Rather, it defines a particular and verifiable standard of “military necessity.”[12]

               Under always-binding rules, an insurgent force (here Hamas) is prohibited from placing its active military assets among noncombatant populations[13] (this war crime is known specifically as “perfidy”), while a counter-insurgent military force (here IDF) must be constrained by what is presumptively “necessary” to achieve operational success. For Jerusalem/Tel Aviv, there are no corresponding proportionality obligations to use equal or less violence than the Palestinian side, but only to take all needed steps to ensure that Israel’s use of force remain humanely bounded by “necessity.”

               Under authoritative international law, which is always a part of a state’s domestic law, even “sacred” rights of insurgency must exclude any deliberate targeting of civilians and/or force intended to inflict gratuitous suffering. Empty political witticisms aside, no insurgent force ever has a right to employ “any means necessary.” Shallow revolutionary slogans may prove politically useful in mobilizing popular support against Israel, but they still have no tangible jurisprudential content.

                In law, any insurgency that intentionally blurs the lines between combatant and non-combatant populations is impermissible. Irrespective of any apparent “just cause,” it is still “terrorism”[14] when insurgents murder noncombatants, whether by guns, bombs, knives or automobiles. In these recognizable matters, there can be  no proper legal exceptions[15] and no legal defense arguments based on presumably reciprocal wrongs.

               Tu quoque, an already-discredited legal position, stipulates that because the “other side” is guilty of similar, equivalent or allegedly greater kinds of criminality, “our side” is evidently free of legal wrongdoing. In law, significantly, an argument for tu quoque is inherently invalid, prima facie, especially after the landmark judgments handed down at the Nuremberg (Germany) and Far East (Japan) post-World War II ad hoc criminal tribunals.[16]

                For both IDF and Palestinian insurgent forces, the right to armed force[17] can never supplant the peremptory rules of humanitarian international law. Such primary or jus cogens rules (norms that permit “no derogation”[18]) are correctly referenced as either the law of armed conflict orthe law of war. Attentiveness to this basic law must remain an integral part of any civilized nation’s counter-terrorism operations. Historically and conceptually, this law has its doctrinal roots in the Hebrew Bible, the Law of Athens, and Roman Law (most notably Emperor Justinian’s Institutes).

               There is more. During the latest Gaza war, diversionary legal manipulations persist. Endlessly, it seems, supporters of Palestinian terror-violence against noncombatants still insist that “the ends justify the means.” Leaving aside the ordinary ethical standards by which any such argument must be clarified as indecent and incorrect, even the most noble ends can neverjustify inhumane means.

               It’s not really complicated. For more than two thousand years, core legal principles have specified that intentional violence against the innocent isprohibited. Always.

               Clichés do not make law. In relevant jurisprudence, one person’s terrorist can never be another’s “freedom-fighter.” Although it is certainly true that particular insurgencies can sometimes be judged lawful or law-enforcing (consider for example the American revolutionaries of the 18th century), even presumptively allowable resorts to force must conform to the settled laws of war. In law, every use of force must be judged not only in reference to its announced cause, but also to its adopted means.

               Always, these are discrete or separate judgments.

               By definition, whenever an insurgent group resorts to manifestly unjust or indiscriminate means, its actions constitute terrorism. Even if adversarial Palestinian claims of a hostile “occupation” were widely accepted to be reasonable, any corollary claims of entitlement to indiscriminate means would remain patently false and morally disfiguring.

                It’s not really complicated. International law cannot be invented and reinvented according to particular situations. It maintains very specific and determinable form and content. It cannot be defined and redefined by insurgent groups or insurgent patrons. This is especially the case when insurgent violence intentionally targets a designated victim state’s fragile and most vulnerable civilian populations. In those cases, ipso facto, insurgent violenceis terror-violence.

               There is more. National liberation movements that fail to meet the test of just means can never be protected as lawful or legitimate. Even if “compelling law” were somehow to accept the factually questionable argument that terror groups had fulfilled the broadly accepted criteria of “national liberation,” (e.g., Iran-supported Hamas), they would still not satisfy the equally germane legal standards of discrimination, proportionality, and military necessity. These standards are expressly applied to insurgent or sub-state armed forces by the common Article 3 of the four Geneva Conventions of 1949, and by the two 1977 Protocols to these key Conventions.

               Indisputably, all war and insurgency is governed by common standards of “humanity.”[19] These overarching criteria are binding upon all combatants by virtue of a still more comprehensive customary and conventional international law, including Article 1 of the Preamble to the Fourth Hague Convention of 1907. This foundational rule called the “Martens Clause” makes all persons responsible for upholding the “laws of humanity” and the associated “dictates of public conscience.”

                Under compulsory international law, terrorist crimes mandate universal cooperation in both apprehension and punishment. As punishers of “grave breaches” under international law,[20] all states are expected to search out and prosecute or extradite individual terrorists. In no conceivable circumstances, and whatever the presumed expectations of religious faith, are states permitted to regard terrorist “martyrs” as legitimate “freedom fighters.” In principle, this is also true for Israel, which was formed according to the inherently Jewish principles of Natural Law.

               In law, rights can never stem from wrongs.[21] Even if certain populations continue to insist on treating the most recalcitrant jihadist insurgents as “martyrs,” such treatment can have no exculpatory or mitigating effect on attendant terrorist crimes. Despite any alleged justness of cause, and this includes frequently-cited adversarial references to “sovereignty” and “self-determination,” nothing in international law can ever justify the deliberate targeting of non-combatant Israeli populations. In this connection there are notable ironies. During the extant Gaza War, such targeting has killed and injured not only Palestinians working in Israel, but also Thai agricultural laborers whose only interest is supporting their indigent families back home.

               In essence, Israel’s jihadist foes are in perpetual search for the preeminent form of power on planet earth. This means power over death. Accordingly, Jerusalem/Tel Aviv’s counter-terrorism policy-makers ought never lose sight of this power and its primal place in determining certain enemy decisional calculi. In the end, power over death could even trump every other more tangible form of power, including those forms that are based upon aircraft carriers, missiles or technologically advanced weapon systems. The true cause of this expectation lies at the heart of what it means to be human.

               Philosopher Alfred North Whitehead would argue that in all world politics, any deeply felt promise of immortality must be of utterly “transcendent importance.”[22]

               This signifies, among other things, that the primary Israeli orientation to wage battle in counter-terrorism must always focus on “mind over mind,” not just “mind over matter.” Whenever enemies assign an absolute primacy to the words “I believe,” it should immediately become an “automatic” signal to Jerusalem that the best Israeli response must be undertaken at a recognizably intellectual level.[23] Though intangible and not easily understood by ordinary politicians or planners, an enemy search for power over death can prove decisively all-important and plainly unresponsive to ordinary threats of military harm.

               What next? To blithely dismiss such a distressingly complex reality will be tempting for Israel, but that dismissal could prove catastrophic.[24] When a determined enemy is driven by presumptively existential notions of “I believe,” the Israeli arsenal of plausible counter-measures must be rendered correspondingly flexible. This analytic imperative would become even more obvious should that enemy become endowed (directly or indirectly) with nuclear or other weapons of mass-destruction.[25]

               Though such ominous endowment is presently implausible, it is by no means inconceivable. In this regard, in the longer term, strategic policy planners must bear in mind that acts of nuclear terrorism need not require authentic nuclear weapons, and could involve “only” conventional rocket attacks on Israel’s Dimona reactor.[26] In the final analysis, Israel’s deterrence posture will have to function as a seamless web,[27] allowing decision-makers to choose from an already-available range of purposeful policy options.

               Any such fateful choice could concern insurgent foes who seek not “merely’ sovereignty and self-determination,[28] but “power over death.”


[1] For scholarly discussion of Jihad, see Andrew G. Bostom, ed., THE LEGACY OF JIHAD: ISLAMIC HOLY WAR AND THE FATE OF NON-MUSLIMS (New York: Prometheus Books, 2005, 759 pp.). In the Middle East, where theological doctrine divides into the dar al-Islam (world of Islam) and the dar al-harb (world of war), acts of terror against unbelievers have generally been accepted as expressions of sacredness. In turn, individual sacrifice derives, in large part, from a very conspicuously hoped-for power over death. By adopting atavistic practice, the Jihadist terrorist expects to realize an otherwise unattainable immortality. For Hamas, which most openly seeks secular power as a new sovereign state of Palestine, certain obligatory aspects of sacrificial terror must never be overlooked. These aspects, underscoring the two-sided nature of terror/sacrifice – that is, the sacrifice of “The Unbeliever” (or “Apostate”) and reciprocal sacrifice of “The Martyr” – is codified within the Charter of Hamas, as a “religious” problem.” For authoritative details of the Hamas Charter, see:  Louis René Beres: https://scholarlycommons.law.case.edu/jil/vol39/iss3/2/

[2] In the 17th century, French philosopher Blaise Pascal remarked prophetically, in his aptly titled Pensées: “All our dignity consists in thought…It is upon this that we must depend…Let us labor then to think well: this is the foundation of morality.” Similar reasoning characterizes the writings of Baruch Spinoza, Pascal’s 17th-century Jewish contemporary. In Book II of his Ethics, Spinoza considers the human mind or the “intellectual attributes,” and – drawing additionally from René Descartes – defines an essential theory of learning and knowledge.

[3] “Science,” says philosopher Jose Ortega y’Gasset in Man and Crisis (1958), “by which I mean the entire body of knowledge about things, whether corporeal or spiritual – is as much a work of imagination as it is of observation…. the latter is not possible without the former….” But where exactly is there sufficient evidence of “imagination” in Israel’s counter-terrorist strategies?

[4]This brings to mind relevant considerations of human rationality and irrationality. More precisely, a state or insurgent-group actor is determinedly rational to the extent that its leadership always values collective survival more highly than any other conceivable preference or combination of preferences. An insurgent force such as Hamas might not always display such a “helpful” preference ordering.

[5]These agreements concern Arab states with which Israel has never actually been “at war.”

[6]See Sigmund Freud, The Future of an Illusion; Totem and Taboo; and Moses and Monotheism. At the end of Chapter VI in The Future of an Illusion, where he has been discussing the “psychical origin of religious ideas,” Freud concludes as follows: “We shall tell ourselves that it would be very nice if there were a God who created the world, and was a benevolent Providence, and if there were a moral order in the universe, and an after-life; but it is very striking fact that all this is exactly as we are bound to wish it to be. And it would be more remarkable still if our wretched, ignorant, and downtrodden ancestors had succeeded in solving all these difficult riddles of the universe.”

[7]To a point, the author of On War is correct in assigning permanent strategic primacy to the “political object,” but this assignment also needs a further broadening to include Oswald Spengler’s “metaphysical fear.”

[8] See Yehoshafat Harkabi, The Bar Kokhba Syndrome: Risk and Realism in International Politics (Chappaqua, New York: Rossel Books, 1983), p. 132.

[9] See Louis René Beres, “Self-Determination, International Law and Survival on Planet Earth,” ARIZONA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW, Vol. 11, No. 1., 1994, pp. 1-26. See also: Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations (The Principle of Equal Rights and Self-Determination of Peoples), G.A. Res. 2625, U.N. GAOR, 25th Sess., and Supp. No. 28 at 121, U.N. Doc. A/8028 (1970), reprinted in 9 I.L.M. 1292; Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514, U.N. GAOR, 15th Sess., Supp. No. 16, at 66, U.N. Doc. A/4684 (1960); Principles Which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the Information Called for Under Article 73e of the Charter, G.A. Res. 1541, U.N. GAOR, 15th Sess., Supp. No. 16, at 29, U.N. Doc. A/4684 (1960).

[10]Some Israeli supporters of Palestinian statehood argue that its prospective harms to Israel could be reduced or eliminated by ensuring that Arab state’s immediate “demilitarization.” For informed legal reasoning against this argument, see: Louis René Beres and (Ambassador) Zalman Shoval, “Why a Demilitarized Palestinian State Would Not Remain Demilitarized: A View Under International Law,” Temple International and Comparative Law Journal, Winter 1998, pp. 347-363; and Louis René Beres and Ambassador Shoval, “On Demilitarizing a Palestinian `Entity’ and the Golan Heights: An International Law Perspective,” Vanderbilt Journal of Transnational Law, Vo. 28., No.5., November 1995, pp. 959-972.

[11]The law of armed conflict is largely concerned with the principle of proportionality, which has its jurisprudential and philosophic origins in the Biblical Lex Talionis, the law of exact retaliation. The “eye for eye, tooth for tooth” can be found in three separate passages of the Jewish Torah, or Biblical Pentateuch. These Torah rules are likely related to the Code of Hammurabi (c. 1728- expression 1686 BCE) – the first written evidence of penalizing wrongdoing with exact retaliation. In matters concerning personal injury, the code prescribes an eye for an eye (# 196), breaking bone for bone (#197), and extracting tooth for tooth (#199). Among the ancient Hebrews, we must speak not of the Lex Talionis, but of several. The Lex Talionis appears in only three passages of the Torah. In their sequence of probable antiquity, they are as follows: Exodus 21: 22-25; Deuteronomy 19: 19-21; and Leviticus 24: 17-21. All have similarities to various other Near Eastern legal codes. These three passages address specific concerns: hurting a pregnant woman, perjury, and guarding Yahweh’s altar against defilement. See Marvin Henberg, Retribution: Evil for Evil in Ethics, Law and Literature, 59-186 (1990). In contemporary international law, the principle of proportionality can be found in the traditional view that a state offended by another state’s use of force, if the offending state refuses to make amends, “is then entitled to take `proportionate’ reprisals.” See Ingrid Detter De Lupis, The Law of War, 75 (1987). Evidence for the rule of proportionality can also be found in the International Covenant on Civil and Political Rights (1966) at Art. 4. Similarly, the American Convention on Human Rights allows at Art. 27(1) such derogations “in time of war, public danger or other emergency which threaten the independence or security of a party” on “condition of proportionality.” In essence, the military principle of proportionality requires that the amount of destruction permitted must be proportionate to the importance of the objective. In contrast, the political principle of proportionality states “a war cannot be just unless the evil that can reasonably be expected to ensure from the war is less than the evil that can reasonably be expected to ensue if the war is not fought.” See Douglas P. Lackey, THE ETHICS OF WAR A ND PEACE, 40 (1989).

[12]The principle of military necessity is defined most authoritatively 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.” ADAM ROBERTS & RICHARD GUELFF, DOCUMENTS ON THE LAWS OF WAR 10 (3rd ed. 2000) (quoting U.S. DEP’T OF THE NAVY ET AL., THE COMMANDER’S HANDBOOK ON THE LAW OF NAVAL OPERATIONS, NWP 1-14M, 6.2.6.4.2, (July 2007)). The term “military necessity” is found, inter alia, in the 1946 Judgment of the International Military Tribunal at Nuremberg: Extracts on Crimes Against International Law, in ADAM ROBERTS & RICHARD GUELFF, DOCUMENTS ON THE LAWS OF WAR 155 (1989). 

[13]Codified criteria for distinguishing between combatant and noncombatant populations were introduced for the first time under international law at the Fourth Geneva Convention of 1949. Convention Relative to the Protection of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV].  

[14] Under international law, terrorist movements are always Hostes humani generis, or “Common enemies of mankind.” See: Research in International Law: Draft Convention on Jurisdiction with Respect to Crime, 29 AM J. INT’L L. (Supp 1935) 435, 566 (quoting King v. Marsh (1615), 3 Bulstr. 27, 81 Eng. Rep 23 (1615) (“a pirate est Hostes humani generis”)).

[15] For a discussion of authoritative criteria to distinguish permissible insurgencies from impermissible ones, see: Louis René Beres, “The Legal Meaning of Terrorism for the Military Commander,” CONNECTICUT JOURNAL OF INTERNATIONAL LAW, Vol. 11., No. 1., Fall 1995, pp. 1-27.

[16] Also worth pointing out here is that the criminal responsibility of leaders under international law is not limited to direct personal action or to official position.  On the peertinent principle of command responsibility, or respondeat superior, see:  In re Yamashita, 327 U.S. 1 (1945); The High Command Case (The Trial of Wilhelm von Leeb), 12 LAW REPORTS OF TRIALS OF WAR CRIMINALS 1 (United Nations War Crimes Commission Comp., 1949); see Parks, COMMAND RESPONSIBILITY FOR WAR CRIMES, 62 MIL.L. REV. 1 (1973); O’Brien, THE LAW OF WAR, COMMAND RESPONSIBILITY AND VIETNAM, 60 GEO. L.J.  605 (1972); U S DEPT OF THE ARMY, ARMY SUBJECT SCHEDULE No. 27 – 1 (Geneva Conventions of 1949 and Hague Convention No. IV of 1907), 10 (1970).  The direct individual responsibility of leaders is also unambiguous in view of the London Agreement, which denies defendants the protection of the act of state defense.  See AGREEMENT FOR THE PROSECUTION AND PUNISHMENT OF THE MAJOR WAR CRIMINALS OF THE EUROPEAN AXIS, Aug. 8, 1945, 59 Stat.  1544, E.A.S.  No.472, 82 U.N.T.S.  279, art.

[17] This right must always be understood in terms of the continuously decentralized system of international law bequeathed at Westphalia in 1648. See: Treaty of Peace of Munster, Oct. 1648, 1 Consol. T.S. 271; and Treaty of Peace of Osnabruck, Oct. 1648, 1., Consol. T.S. 119. Together, these two treaties comprise the Peace of Westphalia.

[18] According to Article 53 of the Vienna Convention on the Law of Treaties: “…a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” See: Vienna Convention on the Law of Treaties, Done at Vienna, May 23, 1969. Entered into force, Jan. 27, 1980. U.N. Doc. A/CONF. 39/27 at 289 (1969), 1155 U.N.T.S. 331, reprinted in 8 I.L.M.  679 (1969).

[19]Underlying these common standards is a unifying concept of human “oneness.”  The history of western philosophy and jurisprudence contains many illustrious examples of such welcome cosmopolitanism. Most notable are Voltaire and Goethe. We need only recall Voltaire’s biting satire in the early chapters of Candide and Goethe’s oft-repeated comment linking the contrived hatreds of belligerent nationalism to declining stages of human civilization. We may also note Samuel Johnson’s famously expressed conviction that patriotism “is the last refuge of a scoundrel;” William Lloyd Garrison’s observation that “We cannot acknowledge allegiance to any human government…. Our country is the world, our countryman is all mankind;” and Thorsten Veblen (“The patriotic spirit is at cross-purposes with modern life.”) Of course, there are similar sentiments discoverable in Nietzsche’s Human, all too Human and in Fichte’s Die Grundzűge des gegenwartigen Zeitalters.” Finally, let the reader recall Santayana’s coalescing remark in Reason and Society: “A man’s feet must be planted in his country, but his eyes should survey the world.” The ultimate point of all these cosmopolitan remarks is that narrow-minded patriotism is inevitably “unpatriotic,” at least in the sense that it is not in the genuine long-term interests of citizens or subjects.

[20].The term “Grave Breaches” applies to certain serious infractions of the Geneva Conventions of 1949 and Protocol I of 1977. The actions defined, as “Grave Breaches” in the four Conventions must be performed willfully or intentionally, and against the different groups of “protected person” identified by each Convention. The High Contracting Parties to the Geneva Conventions are under obligation “to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed,” a grave breach of the Convention. As defined at Art. 147 of Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (6 U.S.T. 3516, signed on Aug. 12 1949, at Geneva), Grave Breaches  “shall be those involving any of the following acts, if committed against persons or property protected by the present Convention:  willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. Reference to Grave Breaches can also be found in the INTERIM REPORT OF THE COMMISSION OF EXPERTS, UNITED NATIONS DOCUMENT, S/25274, and January 2, 1993, at Sec. 3., Art. 47.

[21] Ex injuria jus non oritur.

[22] See Whitehead’s Religion in the Making (1926).

[23] In prophetic words of poet Guillaume Apollinaire (The New Spirit and the Poets, 1917): “It must not be forgotten that it is perhaps more dangerous for a nation to allow itself to be conquered intellectually than by arms.”

[24] This brings to mind the closing query of Agamemnon in The Oresteia by Aeschylus: “Where will it end? When will it all be lulled back into sleep, and cease, the bloody hatreds, the destruction”?

[25] For earlier looks at the expected consequences of specifically nuclear attacks, by this author, see: Louis René Beres, Apocalypse: Nuclear Catastrophe in World Politics (Chicago: University of Chicago Press, 1980); Louis René Beres, Mimicking Sisyphus: America’s Countervailing Nuclear Strategy (Lexington, Mass: Lexington Books, 1983); Louis René Beres, Reason and Realpolitik: U.S. Foreign Policy and World Order (Lexington, Mass: Lexington Books, 1984); and Louis René Beres, Security or Armageddon: Israel’s Nuclear Strategy (Lexington, Mass: Lexington Books, 1986). 

[26]Hamas fired rockets at Dimona back in 2014. Earlier, Saddam Hussein launched Scud-B rockets toward Israel during the 1991 Gulf War.  For an early and informed consideration of reactor attack effects, see:  Bennett Ramberg, Destruction of Nuclear Energy Facilities in War (Lexington MA:  Lexington Books, 1980); and Bennett Ramberg, “Attacks on Nuclear Reactors: The Implications of Israel’s Strike on Osiraq,” Political Science Quarterly, Winter 1982-83; pp. 653 – 669. More recently, see: Bennett Ramberg, “Should Israel Close Dimona? The Radiological Consequences of a Military Strike on Israel’s Plutonium-Production Reactor,”Arms Control Today,May 2008, pp. 6-13.

[27]See, by this author and former Israeli Ambassador Zalman Shoval, at West Point, Pentagon: https://mwi.usma.edu/creating-seamless-strategic-deterrent-israel-case-study/

[28]On this choice, ancient philosophy can be helpful. More precisely, Plato’s theory, offered in the fourth century B.C.E, seeks to explain all political choice in terms of epiphenomena, an unstable realm of half-truths and distorted perceptions.  In contrast to the uniformly stable realm of immaterial Forms, a realm from which all genuine knowledge must be derived, the political arena is dominated by myriad contradictions of the reflected world, contradictions that inevitably fail to account for “metaphysical fear.”

LOUIS RENÉ BERES (Ph.D., Princeton, 1971) is Emeritus Professor of International Law at Purdue. His twelfth and most recent book is Surviving Amid Chaos: Israel's Nuclear Strategy (2016) (2nd ed., 2018) https://paw.princeton.edu/new-books/surviving-amid-chaos-israel%E2%80%99s-nuclear-strategy Some of his principal strategic writings have appeared in Harvard National Security Journal (Harvard Law School); International Security (Harvard University); Yale Global Online (Yale University); Oxford University Press (Oxford University); Oxford Yearbook of International Law (Oxford University Press); Parameters: Journal of the US Army War College (Pentagon); Special Warfare (Pentagon); Modern War Institute (Pentagon); The War Room (Pentagon); World Politics (Princeton); INSS (The Institute for National Security Studies)(Tel Aviv); Israel Defense (Tel Aviv); BESA Perspectives (Israel); International Journal of Intelligence and Counterintelligence; The Atlantic; The New York Times and the Bulletin of the Atomic Scientists.

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Turkey’s Destruction of Cultural Heritage in Cyprus, Turkey, Artsakh

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The Mother See of Holy Etchmiadzin of the Armenian Apostolic Church has recently hosted a conference on international religious freedom and peace with the blessings of His Holiness Karekin II, the Supreme Patriarch and Catholicos of All Armenians.

Tasoula Hadjitofi, the founding president of the Walk of Truth, was one of the invited guests. She spoke about genocide and her own experience in Cyprus, warning of Turkey’s religious freedom violations. Hadjitofi also called for joint legal actions against continued ethnic cleansing and destruction of Christian cultural heritage in Cyprus, Turkey, Nagorno-Karabakh (Artsakh) and other places by the Turkish government and its regional allies including Azerbaijan.

During the two-day conference, access to places of worship in war and conflict zones, the protection of religious and ethnic minorities, and preservation of cultural heritage were among the topics addressed by many distinguished speakers.  The conference paid particular attention to the situation of historic Armenian monasteries, churches, monuments, and archeological sites in parts of Nagorno-Karabakh that have been under Azeri occupation since the 2020 violent war unleashed by Azerbaijan.

Hadjitofi presented about the situation of Cyprus, sharing her recent visit to the Cypriot city of Famagusta (Varoshia), making historic parallels between the de-Christianisation of Asia Minor, Cyprus and Nagorno-Karabakh by Turkey, and its allies such as Azerbaijan. See Hadjitofi’s full speech here.

Author of the book, The Icon Hunter, Hadjitofi spoke with passion about her recent visit to the ghost city of Famagusta, occupied by Turkey since 1974. Her visit coincided with the 47th anniversary of the occupation. She was accompanied by journalist Tim Neshintov of Spiegel and photographer Julien Busch as she made several attempts to visit her home and pray at her church of Timios Stavrou (Holy Cross).

Hadjitofi explained how her own human rights and religious freedoms, alongside the rights of tens of thousands of Cypriots, were violated when Turkey’s president Recep Tayyip Erdogan illegally entered her country and prayed at the newly erected mosque in her own occupied town whereas she was kneeling down in the street to pray to her icon in front of her violated Christian church. In comparison, her church was looted, mistreated and vandalized by the occupying forces.  

Hadjitofi reminded the audience of the historic facts concerning Turks discriminating against Christian Greeks, Armenians, and Assyrians. They also massacred these communities or expelled them from the Ottoman Empire and the modern Republic of Turkey, a process of widespread persecution which culminated in the 1913-23 Christian genocide. Hadjitofi then linked those genocidal actions with what Erdogan is doing today to the Kurds in Syria, and the Armenians in Nagorno-Karabakh by supporting Turkey’s wealthy friends such as the government of Azerbaijan.  She also noted that during her recent visit to her hometown of Famagusta, a delegation from Azerbaijan referred to Turkish-occupied northern Cyprus as “Turkish land” and a “part of Greater Turkey”. This is yet another sign of Turkish-Azeri historic revisionism, and their relentless efforts for the Turkification of non-Turkish geography.

Hadjitofi called for a series of legal actions against Turkey and its allies, reminding Armenians that although they signed the Rome Statute for the International Criminal Court (ICC), they have not ratified it. She noted that it must be the priority of Armenians if they want to seek justice. Azerbaijan and Turkey, however, neither signed or ratified the Rome Statute.

During her speech Hadjitofi also emphasized the need for unity amongst all Christians and other faiths against any evil or criminal act of destroying places of worship or evidence of their historical existence anywhere in the world. 

In line with this call, the Republic of Armenia instituted proceedings against the Republic of Azerbaijan before the International Court of Justice, the principal judicial organ of the United Nations, with regard to violations of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).

In its application, Armenia stated that “[f]or decades, Azerbaijan has subjected Armenians to racial discrimination” and that, “[a]s a result of this State-sponsored policy of Armenian hatred, Armenians have been subjected to systemic discrimination, mass killings, torture and other abuse”.

Hadjitofi said that “Armenia’s lawsuit against the government of Azerbaijan is a positive move in the right direction and more legal actions should be taken against governments that systematically violate human rights and cultural heritage. I’m also in the process of meeting members of the Armenian diaspora in Athens, London, and Nicosia to discuss further joint legal actions. But the most urgent action that Armenia should take is the ratification of Rome Statute of the ICC,” she added.

Other speakers at the conference included representatives of the main Christian denominations, renowned scholars and experts from around the globe, all of whom discussed issues related to international religious freedom and the preservation of the world’s spiritual, cultural and historical heritage.

Baroness Cox, a Member of the UK House of Lords and a prominent human rights advocate, was among the participants. She has actively defended the rights of the Armenians of Nagorno-Karabakh and Armenia through her parliamentary, charity and advocacy work.

Meanwhile, the organizing committee of the conference adopted a joint communiqué, saying, in part:

” We re-affirm the principles of the right to freedom of religion or belief, as articulated in the Universal Declaration of Human Rights and subsequent international and regional human rights treaties. We claim this right, equally, for all people, of any faith or none, and regardless of nation, history or political circumstances – including for those Armenian prisoners of war still illegally held in captivity by Azerbaijan, for whose swift release and repatriation we appeal and pray, and for the people of Artsakh/Nagorno-Karabakh whose rights to free and peaceful assembly and association necessarily implicate the sacred character of human life.”

On September 11, the delegates of the conference were received by the President of Armenia, Armen Sarkissian, in his palace in Yerevan where they were thanked. The guests also visited the Armenian Genocide Memorial-Museum (Tsitsernakaberd), where Hadjitofi was interviewed on Armenian national TV. She said:

“I read about the Armenian Genocide and I am glad that more countries recognize it as such but I am disappointed that politicians do not condemn actions of Turkey and its allies in their anti Christian attitude towards Cyprus and Nagorno-Karabakh. I see an interconnection between the genocide and the adopted politics of Azerbaijan, when the ethnic cleansing takes place, when cultural heritage is destroyed, gradually the traces of the people once living there are eliminated and that is genocide”. 

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Middle East

After 10 years of war in Syria, siege tactics still threaten civilians

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The future for Syria’s people is “increasingly bleak”, UN-appointed rights experts said on Tuesday, highlighting escalating conflict in several areas of the war-ravaged country, a return to siege tactics and popular demonstrations linked to the plummeting economy.

According to the UN Commission of Inquiry on Syria, the country is not safe for refugees to return to, after a decade of war.

The panel’s findings come amid an uptick in violence in the northwest, northeast and south of the country, where the Commissioners highlighted the chilling return of besiegement against civilian populations by pro-Government forces.

“The parties to the conflict continue to perpetrate war crimes and crimes against humanity and infringing the basic human rights of Syrians,” said head of the Commission of Inquiry, Paulo Pinheiro. “The war on Syrian civilians continues, and it is difficult for them to find security or safe haven.”

Scandal of Al Hol’s children

Professor Pinheiro also described as “scandalous” the fact that many thousands of non-Syrian children born to former IS fighters continue to be held in detention in dreadful conditions in Syria’s north-east.

“Most foreign children remain deprived of their liberty since their home countries refuse to repatriate them,” he told journalists, on the sidelines of the 48th session of the Human Rights Council in Geneva.

“We have the most ratified convention in the world, the Convention on the Rights of the Child, is completely forgotten. And democratic States that are prepared to abide to this Convention they neglect the obligations of this Convention in what is happening in Al Hol and other camps and prison places.”

Some 40,000 children continue to be held in camps including Al Hol. Nearly half are Iraqi and 7,800 are from nearly 60 other countries who refuse to repatriate them, according to the Commission of Inquiry report, which covers the period from 1 July 2020 to 30 June 2021. 

Blockades and bombardment

The rights experts also condemned a siege by pro-Government forces on the town of Dar’a Al-Balad, the birthplace of the uprising in 2011, along with “siege-like tactics” in Quineitra and Rif Damascus governorates.

“Three years after the suffering that the Commission documented in eastern Ghouta, another tragedy has been unfolding before our eyes in Dar’a Al-Balad,” said Commissioner Hanny Megally, in reference to the siege of eastern Ghouta which lasted more than five years – and which the commissioners previously labelled “barbaric and medieval”.

In addition to the dangers posed by heavy artillery shelling, tens of thousands of civilians trapped inside Dar’a Al-Balad had insufficient access to food and health care, forcing many to flee, the Commissioners said.

Living in fear

In the Afrin and Ra’s al-Ayn regions of Aleppo, the Commissioners described how people lived in fear of car bombs “that are frequently detonated in crowded civilian areas”, targeting markets and busy streets.

At least 243 women, men and children have been killed in seven such attacks over the 12-month reporting period, they said, adding that the real toll is likely to be considerably higher.

Indiscriminate shelling has also continued, including on 12 June when munitions struck multiple locations in Afrin city in northwest Syria, killing and injuring many and destroying parts of al-Shifa hospital.

Insecurity in areas under the control of the Syrian Democratic Forces (SDF) in northeast Syria has also deteriorated, according to the Commission of Inquiry, with increased attacks by extremist “remnants” and conflict with Turkish forces.

Division remains

The Commissioners noted that although President Assad controls about 70 per cent of the territory and 40 per cent of the pre-war population, there seems to be “no moves to unite the country or seek reconciliation. On the contrary.”

Despite a welcome drop in the level of violence compared with previous years, the Commission of Inquiry highlighted the dangers that continue to be faced by non-combatants

The senior rights experts also highlighted mounting discontent and protests amongst the population, impacted by fuel shortages and food insecurity, which has increased by 50 per cent in a year, to 12.4 million, citing UNFPA data.

“The hardships that Syrians are facing, particularly in the areas where the Government is back in control, are beginning to show in terms of protests by Syrians who have been loyal to the State,” said Mr. Megally. They are now saying, ‘Ten years of conflict, our lives are getting worse rather than getting better, when do we see an end to this?’”

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Middle East

IAEA Director General reaches agreement in Tehran, as Biden’s clock is ticking

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IAEA Director General Rafael Grossi at a press conference. Photo: IAEA/Dean Calmaa

A meeting to resolve interim monitoring issues was held in Tehran on 12 September between the head of Iran’s Atomic Energy Organization, Mohammad Eslami, and the Director General of the International Atomic Energy Agency (IAEA), Rafael Grossi. Grossi was on a visit to Tehran to fix roadblocks on the stalled monitoring of Iran’s nuclear program, which is ever more challenging in a context where there is no diplomatic agreement to revive or supersede the JCPOA. Grossi said in a press conference on 12 September that the IAEA had “a major communication breakdown” with Iran. But what exactly does that mean?


The IAEA monitoring equipment had gone three months without being serviced and Grossi said he needed “immediate rectification” of the issues. He was able to get the Iranian side to come to an agreement. The news from Sunday was that the IAEA’s inspectors are now permitted to service the identified equipment and replace their storage media which will be kept under the joint IAEA and AEOI seals in Iran. The way and the timing are now agreed by the two sides. The IAEA Director General had to push on the terms of the agreement reached in February 2020.

Grossi underlined on Sunday that the new agreement can’t be a permanent solution. Data from the nuclear facilities is just being stored according to what commentators call “the continuity of knowledge” principle, to avoid gaps over extended time periods but the data is not available to inspectors.

When it’s all said and done, basically, it all comes down to the diplomatic level. The American withdrawal from the JCPOA nuclear agreement in 2018 keeps undermining the Iran nuclear inspections on the technical level. All the inspection activities have been stalled as a result of the broken deal. The IAEA’s strategy in the interim is that at least the information would be stored and not permanently lost.

Everyone is waiting for the JCPOA to be restored or superseded. As Vali Nasr argued in the New York Times back in April this year, the clock is ticking for Biden on Iran. Iran diplomacy doesn’t seem to be on Biden’s agenda at all at the moment. That makes the nuclear inspectors’ job practically impossible.  Journalists pointed out on Sunday that the Director General’s visit found one broken and one damaged camera in one of the facilities. Grossi assured it has been agreed with Iran that the cameras will be replaced within a few days. The IAEA report notes that it was not Iran but Israel that broke the IAEA cameras in a June drone attack carried out by Israel. Presumably, Israel aimed to show Iran is not complying by committing the violations themselves.

Grossi’s visit was a part of the overall IAEA strategy which goes along the lines of allowing time for diplomacy, without losing the data in the meantime. He added that he thinks he managed to rectify the most urgent problem, which is the imminent loss of data.

The Reuters’s title of the meeting is that the agreement reached on Sunday gives “hope” to a renewed Iran deal with the US, after Iran elected a hardliner president, Ebrahim Raisi, in August this year, but that’s a misleading title. This is not the bit that we were unsure about. The question was never on the Iranian side. No one really expected that the new Iranian president would not engage with the IAEA at all. Earlier in November 2019, an IAEA inspector was not allowed on a nuclear cite and had her accreditation canceled. In November 2020, Iranian lawmakers passed a law that mandated the halt of the IAEA inspections and not to allow inspectors on the nuclear sites, as well as the resuming of uranium enrichment, unless the US sanctions are lifted. In January 2021, there were threats by Iranian lawmakers that IAEA inspectors would be expelled. Yet, the new Iranian President still plays ball with the IAEA.

It is naïve to think that Iran should be expected to act as if there was still a deal but then again, US foreign policy is full of naïve episodes. “The current U.S. administration is no different from the previous one because it demands in different words what Trump demanded from Iran in the nuclear area,” Khamenei was quoted to have said in his first meeting with President Raisi’s cabinet.

“We don’t need a deal – you will just act as if there was still a deal and I will act as if I’m not bound by a deal” seems to be the US government’s line put bluntly. But the ball is actually in Biden’s court. The IAEA Director General is simply buying time, a few months at a time, but ultimately the United States will have to start moving. In a diplomatic tone, Grossi referred on Sunday to many commentators and journalists who are urging that it is time.

I just don’t see any signs on Biden’s side to move in the right direction. The current nuclear talks we have that started in June in Vienna are not even direct diplomatic talks and were put on hold until the outcome of Iran’s presidential elections were clear. US hesitance is making Grossi’s job impossible. The narrative pushed by so many in the US foreign policy space, namely that the big bad wolf Trump is still the one to blame, is slowly fading and reaching its expiry date, as Biden approaches the one-year mark of his presidency.

Let’s not forget that the US is the one that left and naturally is the one that has to restart the process, making the parties come back to the table. The US broke the deal. Biden can’t possibly be expecting that the other side will be the one extending its hand to beg for forgiveness. The US government is the one that ruined the multi-year, multilateral efforts of the complex dance that was required to get to something like the JCPOA – a deal that Republicans thought was never going to be possible because “you can’t negotiate with Iran”. You can, but you need skilled diplomats for that. Blinken is no Kerry. Judging from Blinken’s diplomacy moves with China and on other issues, I just don’t think that the Biden Administration has what it takes to get diplomacy back on track. If he follows the same line with Iran we won’t see another JCPOA in Biden’s term. Several weeks ago, Biden said that there are other options with Iran if diplomacy fails, in a White House meeting with Israel’s new prime minister Bennett. I don’t think that anyone in the foreign policy space buys that Biden would launch a military attack on Iran’s nuclear facilities. But I don’t think that team Biden can get to a diplomatic agreement either. Biden and Blinken are still stuck in the 2000, the time when others would approach the US no matter what, irrespective of whose fault it was. “You will do as I say” has never worked in the history of US foreign policy. That’s just not going to happen with Iran and the JCPOA. To expect otherwise is unreasonable. The whole “Trump did it” line is slowly and surely reaching its expiry date – as with anything else on the domestic and foreign policy plane. Biden needs to get his act together. The clock is ticking.

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