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International Law

Israel, Counter-Terrorism and International Law: Challenges of Systemic Analysis

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“The existence of `system’ in the world is obvious to every observer of nature, no matter whom.”-Pierre Teilhard de Chardin, The Phenomenon of Man (1959)

Whether conspicuous or obscure, terrorism presents itself as a systemic challenge. This means, inter alia, that seemingly singular strategic and legal[1] matters may actually be many-sided and interrelated. Regarding legal matters, though not ordinarily obvious or understandable, international law represents an indissoluble  part of every individual nation state’s domestic legal order.[2] To wit, William Blackstone’s Commentaries, echoing 18th century Swiss jurist Emmerich de Vattel, explains straightforwardly: “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….”[3]

               Lest anyone inquire about the special significance of William Blackstone, one need only to point out that his Commentaries (1760-1769) represents the original foundation of all United States law.

               Still, we are interested here in present-day Israel. Endlessly, in the acrimonious Middle East, there have been assorted charges and counter-charges. From the beginning of the Arab-Israeli conflict in the late 1940s, a recurrent Palestinian defense against Israeli denunciation  of “terrorism” has been a counter-charge of IDF “disproportionality.”[4]

               What does authoritative international law say about any such defense? More precisely, what do variously codified and customary[5] legal norms stipulate about such purported violations of the law of war? These are not merely questions of opinion. The correct answers are discoverable only in authoritative legal rules.

               There are also various subsidiary questions. What are the pertinent risks?[6] What are corresponding leadership responsibilities?[7] And what is the “contextual” relevance of our fragmented planet’s continuously “Westphalian” system of international law?[8]

               Soon, a reciprocal question will also need to be raised. To the extent that Hamas, Islamic Jihad and their more-or-less recognizable insurgent allies choose a policy form of “human shields,” the Palestinian side[9] is guilty of “perfidy.” Any such policy is illegal on its face,[10] and qualifies ipso facto as a conspicuously “grave breach” of relevant Geneva Conventions.[11] Easily the most critical legal effect of perfidy committed by Palestinian insurgent leaders – and an effect that Jerusalem ought to make more plainly evident to observers – is that it immunizes Israeli officials from any responsibility for inadvertent counterterrorist harms suffered by Arab civilians.

                There are many pertinent specifics available for competent study. 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 rules are also binding on the discrete but still-intersecting basis of customary international law,[12]a jurisprudential source identified at Article 38 of the Statute of the International Court of Justice.[13]

               Presently embroiled in yet another violent struggle with Hamas, Islamic Jihad and/or assorted kindred groups,[14] Israel will need to proceed diligently with its identification of proper legal arguments. Optimally appropriate steps would best ensure that Palestinian war crimes could never get in the way of Israel’s indispensable self-defense postures, and that Jerusalem could readily abide by all authoritative expectations of humanitarian international law.[15] Ultimately, though of no immediate concern, this obligation would become most 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 implausible, but they are still conceivable. “The worst,” reminds Swiss playwright Friedrich Durrenmatt, “Sometimes does happen.”

                Though interpenetrating or intersecting, law and strategy should always be evaluated separately, as conceptually discrete elements of Israel’s unified military doctrine.[16] In this connection, Israel must take prompt measures to convince both its Palestinian insurgent foes and its state patrons that perfidious terrorist aggressions would be revealed in law and opposed in practice. 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 (discrimination), proportionality and military necessity[17]  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 only an amount of force that ispresumptively militarily necessary.

               For the most part, the key issues here are clear and straightforward. Any gratuitous infliction of harms is illegal under the longstanding law of war, but pertinent harms need never be of any 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 legal 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 far more importantly, with considerable propagandistic benefit. This is the case primarily because the Israeli side has never been sufficiently clear in condemning the Palestinian terror group’s linguistic manipulations.

               On various carefully-choreographed occasions, the practice of “human shields” was justified by the Palestinian side in terms of alleged Israeli “disproportionality.” Though clearly successful as Hamas propaganda, these justifications were simply concocted Palestinian claims. In essence, they were premised upon irrelevant and intentional manipulations of acceptable legal definition. When Palestinian insurgents claimed the right to “any means necessary” against Israel, they adopted a powerful and compelling argument, but one that still remained immutably illegal.

               Contrary to oft-repeated Palestinian claims and the derivative claims of assorted insurgent supporters, the rule of “proportionality” under humanitarian international law does not obligate any intentional symmetry in the use of armed force. Yet, these claims continue to represent a markedly useful tactic in mobilizing world public opinion against Israel. All things considered, this tactic has represented a textbook example of Palestinian “lawfare” at its practical best and law-violating worst.

               International law always regulates world system behaviors. In its particular manifestation as 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,”[18] this test of proportionality stipulates that every resort to armed force remain limited to what is presumed necessary for meeting legitimate military objectives.

               Here, 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.

               “Justice,” we may learn originally from Plato’s Republic, means “a contract neither to do nor to suffer wrong.”[19]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. These assaults could sometime include an actual use of destructive nuclear weapon technologies.[20]

               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.[21]

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

               There is more. This means, in turn, that Israel’s offensive military forces must stay at least “one step ahead” of any determined enemy’s missile defense systems. If this tactical advantage were not present, Israel’s enemy or enemies, no longer having to anticipate unacceptable reprisals, could sometime feel sufficiently inclined to strike first itself. In such a scenario, by definition, critical Israeli deterrence could fail altogether.[22]

               Terrorism, like perfidy, is a codified 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 would 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 inherently illegal. This is true even if one were to assume “just cause” in all or some of these terror groups.

               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 of the most recent Palestinian terrorists identified by Israel were of this “lone wolf” variety.

               And 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 and individual.

               During Israel’s several Lebanon wars,[23] Hezbollah, assisted by Syria and Iran, placed its weapons and fighters in carefully selected areas of Arab civilian population. In the past, ISIS, which at some earlier point might have been inclined to confront Israel directly, openly employed a human shields strategy in its battle for Mosul (Iraq). At that time, this prohibited strategy was still useful in providing ISIS with tangible tactical advantages.

               Despite former US President Donald Trump’s reassurances years back that “ISIS has been defeated,” the Sunni terror group remained more-or-less active in various parts of the Sinai Peninsula. Not to be forgotten by Israel or its US ally is that the ISIS enemy was never so much a distinct group or organization of compartmentalized Islamic adversaries as it was an enemy ideology. Such an ideology can never be eliminated by sending in more and more bombs or missiles. America, one hopes, ought by now to have learned this same primary lesson in Afghanistan.

               To wage successful war against any Jihadist ideology,[24] Israel’s primary “battlefield” must be analytic or intellectual.[25] In the ancient Greek and Macedonian worlds, this form of struggle was identified as one of “mind over mind” rather than “mind over matter.”[26] For Israel, the earlier identification remains valid.

               Sooner or later, certain of Israel’s Arab/Islamic terrorist enemies, perhaps under cover of perfidy, will begin a quantum magnification of operational goals.  Then, more or less systematically, these 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.[27] Though unprecedented, the basic results of any such attack are not difficult to fathom.

                The dangers of extraordinary unconventional terrorism could be enlarged in the absence of ordinary strategic logic. Moreover, these 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 rules of rationality – outside what Camus calls “crimes of logic” – these terrorists could sometime opt for inflicting chemical, biological or (potentially) nuclear destruction upon Israel. In this connection, former Israeli Prime Minister Benjamin Netanyahu’s persistent threats of “unimaginable” reprisals against Hamas missed the point.

               Foreseeably, any terrorist nuclear threat would be limited to a “dirty bomb” attack, although it could already extend, at least in principle, to assorted 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. Plainly, 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 its insurgent foes that any contemplated excursions into higher-order forms of destruction could never elicit Israeli capitulations. To ensure that such communications have the best possible chances of success, it is most important that Israel’s terrorist enemies foresee no meaningful advantages to staging “perfidious” assaults. Always, for the State of Israel, law and strategy must be contemplated together, as closely interdependent parts of a single coherent national security policy.[28]

               There remains one last point concerning tangible links of Israeli counter-terrorism strategy to US foreign policy. A few years ago, former President Donald J. Trump pointed with ostentatious and self-congratulatory pride to the “Abraham Accords,”[29] but these agreements negotiated via America’s “good offices” did nothing to meaningfully reduce the probability or intensity of Israel-terrorist conflict. In essence, they did little more than marginally improve Israel’s relations with states that had never been real anti-Israel belligerents. Quite plainly, Israelis ought not sleep any better at night knowing that a surprise attack from Bahrain, UAE, Sudan or Morocco is now less likely.

               There is a connected and concluding observation. Israel’s adversarial relationship with Hamas, Islamic Jihad and other Palestinian insurgent groups can never be improved by forging national agreements with secondary-state foes.[30] Agreements like the Trump-brokered Abraham Accords were designed only for the former president’s domestic political benefit, and merely exacerbated Israel’s relations with its Palestinian foes. To finally get beyond its corrosively belligerent relations with the Palestinian side, Israel’s diplomacy will need to be based upon more authentically intellectual and legal foundations. In the interim, among other things, variously binding standards of international law should be acknowledged by all sides and by the wider global community. Before this can happen, however, all sides will likely be impacted by what happens in the Russian war against Ukraine, a uniquely barbarous post-World War II aggression[31] that harbors potentially nuclear elements.           

               This assessment of Israeli counter-terrorism has been about complex considerations of law and strategy. Accordingly, in legal and strategic terms, the world is always best studied as a system. If certain conventional-nuclear firebreaks are crossed for the first time by Vladimir Putin in Ukraine, the consequences will be felt widely and deeply in various other places,[32] including the Middle East. It follows that Israel’s ongoing and escalating war on terror will have to draw systematically upon a broad variety of nuanced insights and intersecting operations.

               To do otherwise could prove too costly for Israel. Effective counter-terrorism is never a proper subject matter for “common sense” resolution. Its multiple and overlapping elements can never be suitably untangled by pundits, opportunists or politicos.

               Israeli counter-terrorism is a strategic and legal subject, one that should always be approached as both a systemic and dialectical[33] challenge. It follows, going forward, that the most valuable “armaments” available to Israeli security planners will plausibly be disciplined thinkers of uncommonly high intellect. In a national and global society long accustomed to identifying heroes with large guns and heavy missiles, acknowledging these “softer” armaments will not come easily.

               Nonetheless, such acknowledgment will prove indispensable to effective and law-based security protections.


[1] The laws of war pertain not only to Israel, but also to its terror-group adversaries. Applying the laws of war to insurgent forces dates back to the four Geneva Conventions of 1949. Further, as more than codified treaties and conventions comprise the comprehensive law of war, authoritative obligations of jus in bello (justice in war) represent a fully-binding part of “the general principles of law recognized by civilized nations” (phrase from Art. 38 of the Statute of the International Court of Justice). Humanitarian international law binds all categories of belligerents. Hague Convention IV of 1907 further declares that in the absence of a precisely published set of guidelines regarding “unforeseen cases,” the operative pre-conventional sources of humanitarian international law still obtain and still govern all belligerency.

[2] The US Neutrality Act, 18 U.S.C. Sec. 960 (originally Sec. 25) (1794) was enacted in order to formally incorporate international law standards. Pertinent Congressional authority derived most specifically from article 1, Section 8, clause 10 of the U.S. Constitution. See also Talbot v. Jansen, 3 U.S. (3 Dall.) 133, 156 (1795) (Paterson, J). In the words of Mr. Justice Gray, delivering the judgment of the US Supreme Court in Paquete Habana (1900): “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction….” (175 U.S. 677(1900)) See also: Opinion in Tel-Oren vs. Libyan Arab Republic (726 F. 2d 774 (1984)).The more specific incorporation of treaty law into US municipal law is expressly codified at Art. 6 of the US Constitution, the so-called “Supremacy Clause.”  For pertinent earlier decisions by Justice John Marshall, see: The Antelope, 23 U.S. (10 Wheat.) 66, 120 (1825); The Nereide, 13 U.S. (9 Cranch) 388, 423 (1815); Rose v. Himely, 8 U.S. (4 Cranch) 241, 277 (1808) and Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).

[3] See: 2 William Blackstone, Commentaries on the Laws of England, Book 4, “Of Public Wrongs” (1765-1769). Most famously, in this regard, was the main Nuremberg Trial (IMT) following World War II:  See: “Trial of the Major War Criminals before the International Military Tribunal ” Nuremberg, 14 November 1944‑1 October 1946, 42 vols., IMT Secretariat, Nuremberg, 1947‑9. Cited by A.P. D’entreves, Natural Law 110 (1951).

[4] The principle of proportionality is contained in the rules governing the resort to armed conflict (jus ad bellum) and in the rules governing the actual conduct of hostilities (jus in bello).  In the former, proportionality relates to self-defense.  In the latter, it relates to conduct of belligerency. Proportionality is itself derivative from the more basic principle that belligerent rights are not unlimited See notably Hague Convention No. IV (1907), Annex to the Convention, Section II (Hostilities), Art. 22: “The right of belligerents to adopt means of injuring the enemy is not unlimited.”

[5] Article 38(1)(b) of the STATUTE OF THE INTERNATIONAL COURT OF JUSTICE describes international custom as “evidence of a general practice accepted as law.” The essential significance of a norm’s customary character is that the norms bind even those states that are not parties to the pertinent codification. Even where a customary norm and a norm restated in treaty form are apparently identical, these norms are treated as jurisprudentially discrete. During the merits phase of MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA, the International Court of Justice (ICJ) stated: “Even if two norms belonging to two sources of international law appear identical in content, and even if the States in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence.” See: MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA, Nicar. V. US., Merits, 1986 ICJ, Rep. 14 (Judgment of 27 June).

[6] Risks include decisional error and could take variously different and overlapping forms. Such forms include a disorderly or inconsistent value system; computational errors in calculation; an incapacity to communicate efficiently; random or haphazard influences in the making or transmittal of particular decisions; and internal dissonance generated by any authoritative structure of collective decision-making.

[7] Criminal responsibility of leaders under international law is not limited to direct personal action nor is it limited by official position.  On the 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. 7.

[8] For authoritative legal origins of this self-help system of international law (aka “Westphalian law”) see: Treaty of Peace of Munster, Oct. 1648, 1 Consol. T.S. 271; Treaty of Peace of Osnabruck, Oct. 1648, 1 Consol. T.S. 119. Together, these two treaties comprise the “Treaty of Westphalia.” The de facto condition of Westphalian anarchy stands in contrast to the jurisprudential assumption of solidarity between states. This law-based assumption concerns a presumptively common legal struggle against aggression. terrorism and genocide. Such a “peremptory” expectation, known formally in law as a jus cogens assumption, was already mentioned in Justinian, Corpus Juris Civilis (533 CE); Hugo Grotius, 2 De Jure Belli ac Pacis Libri Tres, Ch. 20 (Francis W. Kesey., tr, Clarendon Press, 1925) (1690); and Emmerich de Vattel, 1 Le Droit des Gens, Ch. 19 (1758).

[9] All such Palestinian terror has early roots in the Palestinian National Covenant. Calling officially for sustained Arab violence against Israel, this document was adopted in 1964, three years before the 1967 Six Day War. This means, significantly, that the PLO’s core guidance on terror was first published – together with its explicit references to the annihilation of Israel – three years before there were any “occupied territories,” For the Palestinian Authority, which until October, 2015, had still officially agreed to accept a “Two-State Solution,” the underlying and inherently lawless position of protracted war was part of a much broader strategy of incorporating Israel into “Palestine.” This irredentist incorporation was already codified on all PA maps. The most unambiguous Palestinian call for the removal of Israel remains the PLO’s “Phased Plan” of June 9, 1974. This Plan represents an unhidden commitment to carry out various certifiable crimes against humanity. In contrast to more militant Hamas (the Islamic Resistance Movement), the Palestinian Authority is allegedly “moderate.”

[10] “The presence of a protected person may not be used to render certain points or areas immune from military operations. Geneva Convention No. IV, Art. 28 (1949) Also: “The presence or movements of the civilian population or individual citizens shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favor or impede military operations.” Protocol Additional (No.1) to the Geneva Convention, Art. 51 (1977)

[11]The term “Grave Breaches” applies to certain 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, January 2, 1993, at Sec. 3., Art. 47.

[12] Article 38(1)(b) of the Statute of the International Court of Justice describes international custom as “evidence of a general practice accepted as law.”  59 Stat.  1031, T.S. No. 993 (June 26, 1945). 

[13] On the main corpus of jus in bello or humanitarian international law, see:  Convention No. IV Respecting the Laws and Customs of War on Land, With Annex of Regulations, October 18, 1907.  36 Stat. 2277, T.S. No. 539, 1 Bevans 631 (known commonly as the “Hague Regulations:); Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.  Done at Geneva, Aug. 12, 1949.  Entered into force, Oct. 21, 1950.  6 U.S.T. 3114, T.I.A.S. No. 3362, 75 U.N.T.S. 31; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea.  Done at Geneva, Aug. 12, 1949.  Entered into force, Oct. 21, 1950. 6 U.S.T. 3217, T.I.A.S. No. 3363, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War.  Done at Geneva, Aug. 12, 1949.  Entered into force, Oct. 21, 1950.  6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135; Convention Relative to the Protection of Civilian Persons in Time of War.  Done at Geneva, Aug. 12, 1949.  Entered into force, Oct. 21, 1950.  6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287.

[14]Under authoritative 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] None of this is meant to suggest that Palestinian populations ought ever to be deprived of their peremptory human and/or political rights, but only to clarify comprehensively that the ends can never justify the means under authoritative international law. For example, the popular Palestinian terrorist defense of “by any means necessary” can never be deemed acceptable to law and justice.

[16] Formal doctrine is the required framework from which proper strategic goals should be suitably extrapolated. Generically, in “standard” or orthodox military thinking, such doctrine describes the tactical manner in which national forces ought to fight in various combat situations, the prescribed “order of battle,” and variously assorted corollary operations. The literal definition of “doctrine” derives from Middle English, from the Latin doctrina, meaning teaching, learning, and instruction. Always, a central importance of codified military doctrine lies not only in the way it can animate, unify and optimize pertinent military forces, but also in the way it can transmit certain desired “messages” to an enemy.

[17]The principle of “military necessity” has been defined authoritatively by the United States: “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: United States, Department of the Navy, jointly with Headquarters, U.S. Marine Corps; and Department of Transportation, U.S. Coast Guard, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M, Norfolk, Virginia, October 1995, p. 5-1.

[18]  See especially, Hague Convention (No. IV); (1907); “Annex to the Convention,” Section II, “Hostilities,” Chapter 1, Art. 22., “The right of belligerents to adopt means of injuring the enemy is not unlimited.”

[19] See also, Philus in Bk III, Sec. 5 of Cicero, DE REPUBLICA.

[20] Regarding early writings by this author on nuclear terrorism, see:  Louis René Beres, Security Threats and Effective Remedies: Israel’s Strategic, Tactical and Legal Options, Ariel Center for Policy Research (Israel), Policy Paper # 102, April 2000, 110pp; Louis René Beres,  Terrorism and Global Security: The Nuclear Threat, second ed., (Boulder and London:  Westview Press,  1987);  and Louis René Beres,  “Confronting Nuclear Terrorism,”  The Hastings International and Comparative Law Review, Vol. 14,  No. 1.,  Fall 1990,  pp. 129 – 154;  Summer 1994.

[21] Israel’s nuclear strategy could have meaningful implications for U.S. national security. On these widely ignored connections, see Louis René Beres and (General/USA/ret.) Barry McCaffrey, ISRAEL’S NUCLEAR STRATEGY AND AMERICA’S NATIONAL SECURITY, Tel-Aviv University and Israel Institute for Strategic Studies, Tel-Aviv, December 2016: https://sectech.tau.ac.il/sites/sectech.tau.ac.il/files/PalmBeachBook.pdf

[22]  Reciprocally, Israel must ensure the durability of its own active defenses. Still, anti-missile deployments can never be “leak proof,” and could sometime resemble a refashioned Bar-Lev line. Such a deterioration would encourage false reassurances, and provide little if any soft-target protection. In the more existential case of Israeli space based defense against ballistic missiles, this refashioned Bar-Lev line could display “orbiting” characteristics. On Israel and Arrow, see: Louis René Beres and Major-General (IDF/ret.) Isaac Ben-Israel, “Think Anticipatory Self-Defense,” The Jerusalem Post, October 22, 2007; Professor Beres and Major-General Ben-Israel, “The Limits of Deterrence,” Washington Times, November 21, 2007; Professor Beres and MG Ben-Israel, “Deterring Iran,” Washington Tines, June 10, 2007; and Professor Beres and MG Ben-Israel, “Deterring Iranian Nuclear Attack,” Washington Times, January 27, 2009.

[23] See generally Louis René Beres, After the Falling Rockets from Lebanon: Interrelated

Commentaries on Israel’s Performance and Survival, 10 NATIV ONLINE(2006), available at

http://www.acpr.org.il/english-nativ/10-issue/beres-I 0.htm.

[24] In Man and Crisis (1958), 20th century Spanish philosopher Jose Ortega y’Gasset observes: “History is an illustrious war against death.” This comment is especially relevant in regard to present-day Jihadist terrorism. Ultimately, power over death represents the greatest conceivable form of terrorist power anywhere on earth; but acquiring such power in world politics can call for the killing of certain despised “others.”

[25]  Says Guillaume Apollinaire: “It must not be forgotten that it is perhaps more dangerous for a nation to allow itself to be conquered intellectually than by arms.” See: The New Spirit and the Poets, 1917.

[26] The core importance of thoughtful military doctrine – of attention to the complex intellectual antecedents of any actual battle – had been recognized by early Greek and Macedonian strategists and military planners. See, on this still-vital and increasingly urgent recognition, F.E. Adcock, The Greek and Macedonian Art of War (Berkeley, CA: University of California Press, 1962), especially Chapter IV.

[27] Hamas fired rockets at Dimona back in 2014, and Saddam Hussein launched several 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.

[28] Israel could also consider various formal treaty-like pacts with pertinent terrorist group enemies, but recognize, at the same time, that such pacts could contain the same sorts of lurking dangers as would treaties with state enemies. In law, terror group organizations may sometimes enter into valid agreements with states, but it need not follow that they would be any more likely than enemy states to comply. Regarding the purely legal aspects of such pacts, see: H. Lauterpacht, International Law: Collected Papers, Vol.1, 1975, pp. 494-495; and I. Brownlie, Principles of Public International Law, 4th ed., 1990, Part II, pp. 65-66.

[29] See, on the Abraham Accords: https://www.state.gov/the-abraham-accords/ To be considered as a complementary agreement, see the Israel-Sudan Normalization Agreement (October 23, 2020) and Israel-Morocco Normalization Agreement (December 10, 2020).

[30] Some current Israeli supporters of a Palestinian state argue that its prospective harms to Israel could be reduced or even eliminated by ensuring that state’s immediate “demilitarization.” For informed reasoning against this naive 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.

[31]See especially: RESOLUTION ON THE DEFINITION OF AGGRESSION, Dec. 14, 1974, U.N.G.A. Res. 3314 (XXIX), 29 U.N. GAOR, Supp. (No. 31) 142, U.N. Doc. A/9631, 1975, reprinted in 13 I.L.M. 710, 1974; and CHARTER OF THE UNITED NATIONS, Art. 51. Done at San Francisco, June 26, 1945. Entered into force for the United States, Oct. 24, 1945, 59 Stat. 1031, T.S. No. 993, Bevans 1153, 1976, Y.B.U.N. 1043.

[32] As reciprocal, however, it is also vital to consider an American president’s authority and capacity to initiate a nuclear strike. In this connection, see by this writer:  Louis René Beres, http://www.jurist.org/forum/2017/08/louis-rene-beres-trump-nuclear.php See also:  https://www.usnews.com/opinion/articles/2016-05-11/possible-trump-presidency-showcases-fatal-flaw-in-nuclear-command-safeguard. Professor Beres is the author of twelve published books dealing with nuclear command decisions, including Apocalypse: Nuclear Catastrophe in World Politics (The University of Chicago Press, 1980), and, in The Bulletin of the Atomic Scientists: https://thebulletin.org/2016/08/what-if-you-dont-trust-the-judgment-of-the-president-whose-finger-is-over-the-nuclear-button/

[33] Nuclear strategists should always approach their subject as a dialecticalseries of thoughts, one wherein each important idea presents a complication that moves onward to the next thought or idea. Central to this dialectic is the obligation to continue thinking, an obligation that can never be fulfilled altogether because of what the philosophers call an infinite regress problem. Still, it is an obligation that must be undertaken as fully and as competently as possible. The term “dialectic” originates from an early Greek expression for the art of conversation. A currently more common meaning is that dialectic is a method of seeking truth by correct reasoning. More precisely, it offers a method of refutation by examining logical consequences, and also the logical development of thought via thesis and antithesis to an eventual synthesis of opposites. In the middle dialogues of Plato, dialectic emerges as the quintessential form of proper philosophical/analytical method. Here, Plato describes the dialectician as one who knows how to ask, and then answer, questions. In the particular matter of Israeli nuclear strategy, this kind of knowledge must precede all other compilations and inventories of military facts, figures, force structures and power balances.

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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International Law

The Noble Nobel

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One of the most coveted awards in human history, the Nobel Prize was created by the last will and testament of Alfred Nobel, inventor of the “dynamite”. These are essentially personal awards from his private estate but has since evolved into something much larger. All the Nobel Prizes are awarded in Sweden except for the Peace Prize given in Norway. Alfred Nobel flourished during the Industrial Revolution, when the United Kingdoms of Sweden and Norway were still together, amassing his fortune making military weapons. Some argue that these prizes were posthumously conceived to improve his reputation.

Nobel Prizes are awarded in the fields of Chemistry, Physics, Medicine, Literature, and the most coveted, the Peace Prize. In his will, Alfred Nobel characterized the Peace Prize to be given “to the person who has done the most or best to advance fellowship among nations, the abolition or reduction of standing armies, and the establishment and promotion of peace congresses”.

More than a century later, has the Nobel Peace Prize lost its luster?

The Norwegian Nobel Committee, a five-member committee appointed by the Parliament of Norway chooses the recipient. Interestingly, despite being appointed by Parliament, the committee is a private body tasked with awarding a private prize. Unless the Committee becomes inclusive, it will lose its moral authority in an increasingly divided world.

Russian journalist, Dmitry Andreyevich Muratov, drew international headlines after auctioning off the Nobel Peace Prize he had won last year for a record $103.5 million to aid Ukrainian refugees.

In doing so, he showed a level of responsibility and moral leadership that has unfortunately been lacking in the institution of the Nobel Prize itself.  This auction presents a moment to reflect on the future of the prestigious award.

Since its inception, nearly every winner of the Nobel Prize for Science has been a “white” man – as almost no scientist that were female or of any other ethnicity were deemed worthy enough to win this illustrious award. Not only this, but only four of the 200 winners in the history of the Nobel Prize for Physics have been women. The committee’s nomination and selection processes are reflected by the institution’s lack of diversity, tainting the reputation of a prize intended to celebrate humanity. This matters especially today because moral leadership is needed more than ever.

In these testing times, when the global powers are wrestling against the climate crisis, terrorism, population growth, food insecurity, refugee crisis, religious violence, Islamophobia, racism, and conflicts like the Russia-Ukraine war and its repercussions on world peace, the Nobel committee must demonstrate moral leadership. And it can only do so by redressing its centuries’ old gender and racial disparities against nominees.

The Nobel Prize committee has been on shaky ground in recent times. In matters of war and peace, the stakes are higher. In retrospect, the last two times it selected a head of state were a disaster. In 2009, the committee selected then-President Barrack Obama at the beginning of his presidency. The award was given in the hope that President Obama might change the direction of his country after he had campaigned for the office in part of his opposition to previous heavy-handed military interventions in the Middle East – notably in Iraq. This anti-war sentiment was what the Nobel committee likely honed in on when selecting him for the award.

Yet, President Obama authorized a military surge in Afghanistan and the invasion of Libya. The botched Libya invasion did remove Muammar Gaddafi, but it also helped destabilize the Sahel region, instigating a state of instability and chaos that is still with us today.

The Nobel Committee was on firmer ground when it chose Muratov along with Filipino journalist Maria Ressa “for their efforts to safeguard freedom of expression, which is a precondition for democracy and lasting peace.”

Ressa is considered a brave journalist, but many in the Philippines will say otherwise and even wonder if the award was given erroneously.

Furthermore, in the case of Muratov, it is worth asking if the undisclosed bidder for his Nobel Peace Prize – was, in fact, the Norwegian government. What we know for sure is that Norway recently handed 4 million Euros worth of seized Russian media assets to Muratov.

Cordell Hull, who secured the Nobel Peace Prize in 1945 for his role in establishing the United Nations, was the same person who turned away Jewish refugees fleeing the Holocaust by redirecting their ships to the infamous concentration camps. On 5 June 1939, he returned a ship carrying 937 passengers. Over a quarter of them ended up dying in the Holocaust.

There have been some glaring omissions as well. At least one is worth noting. Indian leader Mahatma Gandhi, one of the most significant persons of our time. Even today he is a byword for peace activism. Yet even he failed to win the Nobel Peace Prize, despite being shortlisted five times. In 2006. the former director of the Nobel Institute, Geir Lundestad, said the most significant omission in the prize’s history was never awarding the peace prize to the Indian political activist Mahatma Gandhi. However, the committee’s Euro-centric inclinations kept him from receiving the prize.

The sad reality appears to be that the Nobel Peace Prize committee blurs the lines between being an independent institution guided by clear moral principles and one that is a realpolitik instrument of Norwegian foreign policy. It was only in 2017 that the committee prevented current members of the Norwegian parliament from serving on the committee. However, the membership of the committee is currently selected by Norway’s Parliament and perhaps not surprisingly includes four politicians. Two of whom are former government ministers.

With Russia invading Ukraine, China making its own bold land grab in the South China Sea, disinformation on the rise, and many democracies in OECD countries facing a populist if not putschist threat, clear moral leadership on the international stage is needed more than ever.

The Nobel Prize Committee, in this context should take several reforms designed to make the organization more representative.

Firstly, the organization should clearly establish itself as a civil society organization – not an arm of Norwegian foreign policy. The presence of former or current politicians on the committee should be limited if not removed entirely. More civil society leaders like human rights experts would go a long way here.

Second, the committee lacks diversity considering it is composed of entirely of people from white, Christian backgrounds and, of course, Norwegian. Why aren’t representatives of Norway’s immigrant communities or even the ethnic Sami people a key feature of its famed instrument of soft power?

Thirdly, the committee should not be afraid to revoke the Nobel Prizes given to individuals who later betray its principles.

Again, these are extraordinary times, and the Nobel Committee is an important institution whose peace prize is closely followed globally. With Western institutions under pressure, the Nobel Peace Prize is an entity worth saving. The choice is Norway’s.

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Regulate outer space before it is too late

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The war in Ukraine has reached outer space as Russia and the United States lock horns in flag-waving catfightsin the International Space Station, long heralded as the epitome of international co-operation. This is the second international conflict manifesting itself in space in just over a month. A few weeks ago, the collapse of the Kleo Connect joint venture between Europe and China, aimed at producing hundreds of Low-Earth Orbit satellites, highlighted the fragility of the space domain.

These developments are a timely reminder that the EU’s new multilateral space initiatives are not sufficient and need to be accompanied by a durable framework for cooperation and non-conflictual competition in space.

Outer space is a global commons, which means it is in everyone’s interest that new codes of conduct and treaties are implemented to ensure greater collaboration between states and private space actors. So how do we keep the peace in space while still encouraging healthy competition the fuels innovation? The key lies in smart regulation and strong multilateral consensus. Given the intimate connection between space security and terrestrial security, a simple yet compelling principle must guide space security and inter-state relations down here on Earth: if outer space becomes critically unsafe, it will be unsafe for everyone without exception. 


The rules, or lack thereof, that govern space today, are already directly impacting our relations here on Earth. The quest for space supremacy has catalysed the increasingly fraught relations between the U.S., China and Russia, as well as between the UK and the EU, as Brexit forced Britain to leave the EU’s Galileo system.


Competition in the space domain is crucial for the development and improvement of increasingly complex space technologies. However, this unchecked, and potentially conflictual competition, has come hand in hand with an increasingly insecure space frontier. The global race for ever more accurate satellite infrastructure has induced a rise of increasingly hostile cyber operations. The transmission of counterfeit signals, known as spoofing, the intentional interference of signals, known as jamming, hijacking and even direct kinetic attacks are likely to become more frequent as they given the cloak of national security. They are a growing concern for sustainable global security.


Despite its limitations, the Outer Space Treaty of 1967, established over half a century ago, remains the foundation of international space law and is the most important of the UN’s five major space treaties. The lack of a renewed treaty capturing all the technological advancements achieved over the last decades has created a vacuum in the space domain that has been filled by increasing anarchy and narrow unilateral geopolitical goals.


While the 1967 treaty critically prohibits the deployment of weapons of mass destruction in outer space, it does not prohibit the launch of ballistic missiles through space. It also does not prohibit the placement of non-nuclear weapons in space. In short, the treaty does not prevent all forms of escalation, and it leaves many issues unaddressed, particularly in the age of new weapons and cyber technologies. The unwillingness of the signatory parties to develop their space capacities exclusively for “peaceful purposes”, as stipulated in the treaty, has set a precedent for accepting militarised space use, which continues today.


While space infrastructure undoubtedly holds an important role in national defence and security, it also plays a pivotal role in our global economy. Our global communications systems powered by satellites allow us to closely monitor the trillions of dollars’ worth of goods being traded every day. We receive crucial intelligence regarding geological and meteorological developments through our satellites that allow us to thwart natural disasters saving trillions of dollars and thousands of lives in the process. Satellites now also play a decisive role in our ability to monitor and track worrying changes in our climate and environment. More resources need to be allocated into these crucial activities and away from reckless military escalation.


The use of the ISS for national propaganda and the collapse of the Kleo Connect joint venture illustrates that the trust and cooperation needed for rival countries to navigate the space economy are still in short supply. The EU’s new Space Traffic Management initiative aims to develop an EU strategy to ensure the safe and sustainable use of space while preserving the EU space industry’s competitiveness. It is a step in the right direction but it is not enough to defuse tensions in space. Given the critical role of outer space both for civilian and military purposes, a carefully managed, well-regulated and cooperative framework is indispensable moving forward. Gaps in space law, such as over space mining and debris and the role of private actors, will need to be addressed responsibly within international fora with legally binding agreements. Other neglected areas include space debris mitigation, situational awareness and space traffic management rules. The same ethos that spearheaded the successful Nuclear Non-Proliferation Treaty and the Partial Test Ban Treaty must steer our space relations. 

Our advanced societies are becoming increasingly and irreversibly overdependent on outer space in our daily activities. Therefore, any disruption or conflict in outer space, intentional or accidental, will be at the detriment of us all. Regulating space is an urgent priority for the global community – it is high time that it is treated as one.

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International Law

Endgame: Time, History and Alternative World Futures

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Hamm: “What time is it?”

Clov: “The same as usual.”

Samuel Beckett, Endgame

When studying history, it becomes difficult to distinguish endings from beginnings. Though it should be obvious to capable political scientists and historians that the time for Realpolitik[1] is already over, power politics[2] remains essentially unchecked. What still remains uncertain is (1) whether a catastrophic world-system ending would manifest itself suddenly or incrementally, and (2) whether it would augur “new beginnings” or just “the same as usual.”

               There is more for “experts” to consider. As is true for the questions, certain correct answers could be interrelated or synergistic. If the latter, a “whole” expected ending would actually be greater than the sum of its “parts.” That worrisome calculation would be true by definition.

               What then?

In such unstable matters, global policy imperatives would become clear and unambiguous. Going forward, world leaders would then be well-advised to recognize the inherent limitations of always seeking national security in a global threat system.[3] It follows, for these leaders, that now is the optimal time to identify more durable configurations of international relations and international law.[4]

This time represents planet earth’s “eleventh hour.”

And there could be no more urgent kinds of identification.

Any such identifications will have to besystematic. This means, above all, a process informed by creative intellectual imaginations and by variously plausible hypotheses. These imaginations and hypotheses should always proceed together, in tangibly judicious “tandem.”[5]

There is more. In science, which includes jurisprudence, every inquiry must begin with a hypothesis. Inter alia, the appropriate rules for conducting this process  should include useful descriptions of relevant analytic models and an exploration of these models by verifiable methods of empirical-scientific inquiry.[6]      

 What might first have seemed promising in the historic “state of nature” (the global condition of anarchy dating back to the Peace of Westphalia in 1648),[7] is still apt to prove injurious for humankind’s longer-term survival prospects.  Pertinent national and international harms could be experienced not merely as debits in any one country’s implicit national security calculus, but also as an irremediable set of intolerable costs. In the United States, such costs effectively defined the corrosive policy trajectory of former US President Donald J. Trump.[8]

                On national security matters, America’s most important task must be a far-reaching rejection of Realpolitik thinking. Substantially more will need to be accomplished on such conspicuously urgent matters.  To the point, it is high time for American leaders to think meaningfully beyond global power-politics.

               On such time and history-related subjects, it’s best to begin at the beginning. In the fashion of every other state, the United States is part of a much larger and interdependent world system.  This more comprehensive system has steadily diminishing chances for any sustainable success within the recalcitrant pattern of competitive sovereignties. What is the rationale, our decision-makers should finally inquire, of seeking a “qualitative military edge”[9] in a system that is inclined to “self-destruct?”[10]

               The basic issues here are not just narrowly scientific. They are also broadly philosophic. “What is the good of passing from one untenable position to another,” asks Samuel Beckett in Endgame, “of seeking justification always on the same plane?” Though the celebrated Irish playwright was not thinking specifically about world politics, his generalized query remains useful. For scholars of world politics and world law,[11] the “bottom line” must always be the primacy of intellect or “mind” as the basic font of a particular  nation-state’s variable power.[12]

                Truth is always exculpatory. Pain, worldwide, is always “deep.”[13] It can never be overridden by the visceral chanting of political nonsense or by substitution of empty witticisms for historical fact.

Prima facie, Realpolitik or balance of power world politics has never succeeded for longer than variously brief intervals.[14] In the future, this unsteady foundation could be further undermined by multiple systemic failures, failures that are sometimes mutually reinforcing or “synergistic.”[15] Moreover, these failures could sometime involve weapons of mass destruction.

               Most portentous, in this regard, would be nuclear weapons.

               There is more. By definition, any failure of nuclear Realpolitik could prove not “only” catastrophic, but also sui generis. This troubling assessment would obtain if any such failure were judged in the full or cumulative scope of its unprecedented declensions.

               For proper remediation, certain specific steps would need to be taken. Immediately, all states that depend upon some form of nuclear deterrence should begin to think more self-consciously about fashioning alternative systems of world politics; that is, about creating prospectively viable configurations that are reliably war-averse and simultaneously cooperation-centered. While any hint of interest in such speculative patterns of global integration will sound utopian or fanciful to “realists,”[16] an opposite interpretation could actually prove more plausible.

               At this tipping point in human evolution, it is more realistic to acknowledge that any traditional “every man for himself” ethos in world politics would be infinitely degrading. Accordingly, this rancor-based ethos is incapable of offering any serious survival reassurances. “The visionary,” reminds Italian film director Federico Fellini, “is the only realist.”

               Again and again – and at some point, perhaps irretrievably – “Westphalian” world systemic failures could become tangibly dire and potentially irreversible. In the final analysis, it will not be enough to tinker tentatively at the ragged edges of our current world legal order. At that decisive turning point, simply continuing to forge assorted ad hoc agreements between stubborn states or (as “hybridized” actors) between these states and various surrogate or sub-state organizations would prove conclusively wrongheaded.

               In the longer term, the only sort of realism that can make any sense for America and other leading states in world politics is a posture that points presciently toward some “higher” awareness of global “oneness”[17] and (however incrementally) toward greater world system interdependence.

               In its fully optimized expression, such a now-indispensable awareness — would resemble what the ancients had called “cosmopolitan.” For the moment, let us be candid the insightful prophets of a more collaborative “world city” civilization must remain few and far between,[18]  but this consequential absence would not be due to an intrinsic lack of need or a witting forfeiture. Rather, it would reflect a progressively imperiled species’ retrograde unwillingness to take itself seriously –  that is, to recognize that the only sort of loyalty that can ultimately rescue all states must first embrace a redirected commitment (both individual and national) to humankind.

               At its heart, this is not a bewilderingly complicated idea. To wit, it is hardly a medical or biological secret that the core factors and behaviors common to all human beings greatly outnumber those that unnaturally differentiate one from another. Unless the leaders of all major states on Planet Earth can finally understand that the survival of any one state must inevitably be contingent upon the survival of all, true national security will continue to elude every nation. This includes even the purportedly “most powerful” states, and especially those that fitfully declare themselves “first.”

               The bottom line? The most immediate security task in the global state of nature must be to become more collaboratively self-centered. Simultaneously, the leaders of all pertinent countries, especially the United States, must learn to understand that our planet always represents a recognizably organic whole, a fragile but variously intersecting “unity.”

               Incontestably, Westphalian anarchy now exhibits rapidly diminishing options for managing world power[19] or providing law-based mechanisms of successful war avoidance.[20]

               More precisely, to seize upon the disappearing opportunities for longer-term survival, our leaders must build sensibly upon certain foundational insights of Francis Bacon, Galileo, Isaac Newton,[21] and on the more contemporary observations of philosopher Lewis Mumford: “Civilization is the never ending process of creating one world and one humanity.”[22] These earlier names will mean  little or nothing to America’s present-day policy planners -but there will still likely be capable advisors who can draw properly upon the incomparable dignities of serious study and dialectical thought.[23]

               Even in present day America, erudition deserves some pride of place.

               There are always key matters of law. Jurisprudentially, no particular national leadership has any special or primary obligations in this regard, nor could it reasonably afford to build a nation’s most immediate security policies upon vaguely distant hopes. Nonetheless, the United States remains a key part of the interrelated community of nations, and must do whatever it can to detach a steadily wavering state of nations from the time-dishonored “state of nature.”

 Any such willful detachment should be expressed as part of a much wider vision for a durable and law-centered world politics.[24] Over the longer term, Washington will have to do its very primary part to preserve the global system as a whole. Immediately, “America Together,” not “America First,” must become our national mantra. However silly or impractical this imperative may sound at first, nothing could be more fanciful than continuing indefinitely on discredited course.

               For the moment, in this connection, there is no further need for detailing analytic or intellectual particulars.  There are bound to be many, but at least for now, only a more evident and dedicated awareness of this civilizational obligation need be expected.[25]

               In The Plague, Albert Camus instructs: “At the beginning of the pestilence and when it ends, there’s always a propensity for rhetoric…It is in the thick of a calamity that one gets hardened to the truth – in other words – to silence.” As long as the states in world politics continue to operate in narrowly zero-sum terms of engagement – that is, as grim archeologists of ruins endlessly-in-the-making – they will be unable to stop the next wave of terror attacks,[26] genocides[27] and/or catastrophic wars.[28]

               Until now, for various unsound reasons, the traditional expectations of Realpolitik have managed to appear fundamentally sensible. Accordingly, there are no good reasons for expressing any still-lingering or retrospective regrets. Nevertheless, from the overriding standpoint of improving our longer-term security prospects, both national and global, the American president must substantially expand his visionary imagination.

                By ignoring the complex interrelatedness of all peoples and all states, “America First” represented the literal opposite of what was most urgently needed.

               Nothing could have been more obvious.[29]

               Now more than ever, affirming the extremity of “everyone for himself” in world politics is a prescription not for realism, but for recurrent conflict and far-reaching despair. Should this perilous prescription be allowed to stay in place, the costs could sometime be nuclear.[30] At that hard-to-imagine point, it will already be too late to discover that “America First” was a law-violating and lethal presidential mantra.

 Before Americans can hope to survive as a nation under law, we will first have to survive as a species; that is, as a planet-wide civilization. In matters of world politics, this means, among other things, understanding vital differences between the traditional anarchy of “Westphalian” international relations and the more disruptive dynamics associated with “chaos.” When compared to “Westphalian” anarchy, an impending chaos could be more expressly primal, more starkly primordial, even self-propelled or palpably “lascivious.” For further elucidation, we should think here of the “state of nature” described in William Golding’s prophetic novel, Lord of the Flies. Long before Golding, the 17th century English philosopher Thomas Hobbes (see Ch. XIII of Leviathan) warned that in any such rabidly dissembling conditions, the “life of man” must be “solitary, poor, nasty, brutish and short.”

               Looking ahead, such fearsome warnings could become manifestly more plausible in circumstances where expanding threats of a nuclear war would coincide with expanding levels of pandemic. One potential source of optimism, however, is the paradoxical prospect of a beneficent or peace-guided chaos. Whether described in the Old Testament or in certain other sources of Western philosophy, chaos can represent as much a source of large-scale human improvement as one of decline. It is this prospectively positive side of chaos that is intended by Friedrich Nietzsche’s seemingly indecipherable remark in Thus Spoke Zarathustra (1883): “I tell you, ye have still chaos in you.”

               When expressed in more aptly neutral tones, chaos is that condition which prepares the world for all things, whether sacred or profane. More exactly, it represents that yawning gulf of “emptiness” where nothing is as yet, but where some still-remaining civilizational opportunity can still originate. As 18th century German poet Friedrich Hölderlin observes: “There is a desert sacred and chaotic, which stands at the roots of the things, and which prepares all things.”

               Insightfully, in the ancient pagan world, Greek philosophers thought of this “desert” as logos, as a primal concept which indicates that chaos is anything but starkly random or intrinsically without merit. Getting meaningfully beyond the former president’s retrograde impulse and its generic “template –  that is, beyond Realpolitik – will first require “fixing the microcosm.”[31] Before anyone can conceptualize a system of world politics that rejects the refractory mantra of “everyone for himself,” a far-reaching and prior re-conceptualization will have to take place at an  individual human level.[32]

               There is nothing to suggest that American leadership will expect anything more ambitious than transient national improvements in the short term, and little more for the long term. The “prize” should not be just another few years of planetary political life, but rather a more lastingly durable pattern of global survival.

               Always, worldwide security and renewal must be brought back to the individual human being. Building upon Dante’s De Monarchia (1310)[33] and the later cosmopolitanism of H.G. Wells, Lewis Mumford and J.W. von Goethe, 20th century French philosopher Pierre Teilhard de Chardin concludes helpfully in The Phenomenon of Man: “Each element of the cosmos is positively woven from all the others….”  Before an American leader can meaningfully oppose the traditional and crippling dominance of power politics in world affairs, an opposition that would inevitably outlast his own presidential tenure, he would first have to understand what Chardin calls “the idea of a worldwide totalization of human consciousness.”  

This is the incomparably key idea of the world as a single, organic, legal unity.

               Whatever its apparent differences and divergences, the world displays an ineradicable and eventually irrepressible “oneness.” All human beings are cemented to each other not by the nefarious aggregations of belligerent nationalism, but instead by their immutably basic likeness and by their inevitable interdependence. When Siddhartha listened attentively to the river, says Herman Hesse in his novel of the same name, “…he did not bind his soul to any one particular voice and absorb it is his Self, but heard them all, the Whole, the unity….”

               There is one last but indispensable observation, one that concerns various presumed connections between individual nation states and the divine.  Here, the German philosopher Georg F. Hegel had commented famously: “The State is the Divine Idea as it exists on earth….We must therefore worship the State as the manifestation of the Divine on earth, and consider that, if it is a difficult to comprehend Nature, it is harder to grasp the Essence of the State….The State is the march of God through the world….”[34] To date, this is an idea that is responsible for literally uncountable numbers of individual human deaths and collective disasters.

               This brings us all back to the connected phenomena of individual human death fears and belligerent nationalism. In the nineteenth century, as part of his posthumously published lecture on Politics (1896), Heinrich von Treitschke looked insightfully beyond the daily news. Citing to Johan Gottlieb Fichte, the German historian had opined prophetically: “Individual man sees in his own country the realization of his earthly immortality.”[35] Here, Fichte understood something of utterly uncommon and incomparable importance. It is that there can be no greater power on earth than power over death. [36] We may also be reminded by philosopher Emmanuel Levinas that “An immortal person is a contradiction in terms.”[37]

               For too long, a starkly illogical search for immortality has lain at the heart of human wrongdoing, wrongs including war, terrorism and genocide. This is because so many diverse civilizations have regarded death-avoidance as a necessarily zero-sum commodity, a goal that can be met only at the correlative expense of certain designated “others.” In such “traditional” calculations, the presumed prospects for success have typically been linked to the de facto degree of hatred expressed for despised “others.”

               The greater the hatred, the greater the justifications for killing, the greater the personal chances of living forever.

               Though absurd and perverse, this operational  calculus was captured by psychologist Ernest Becker’s paraphrase of  author Elias Canetti: “Each organism raises it head over a field of corpses, smiles into the sun, and declares life good.”[38]  Additionally, we may consider the explanatory reasoning of psychologist Otto Rank: “The death fear of the ego is lessened by the killing, the sacrifice, of the other; through the death of the other, one buys oneself free from the penalty of dying, of being killed.”[39]

               What next? Looking ahead, the United States must act together with other states on more firmly logical foundations than those supplied by variously recurrent myths of “sacrifice” and irrationality.[40] By discarding the toxic gibberish of Realpolitik or belligerent nationalism, cooperating states could finally affirm what ought to have been obvious from the beginnings of world legal order This is the obligatory replacement of “everyone for himself” calculations with affirmations of human oneness. The only alternative, as we may extrapolate from Russia’s ongoing aggressions[41] against Ukraine, is a sordid global future of war crimes, crimes against peace and crimes against humanity.[42]

               Realpolitik should end, but not without the simultaneous establishment of promisingly new global beginnings.  Such establishment, in turn, should begin with the individual human being, with the microcosm,[43] and build incrementally upon certain extraordinary acts of “will.”[44] Reciprocally, species solidarity or “oneness”  must represent the sine qua non for all new human beginnings.

                What increasingly draws near represents an end anda beginning. This is because termination and commencement are never discrete states of human development; more correctly, they represent complementary parts of a single civilizational process. This indispensable process must be ubiquitous and universal. To narrow or particularize it in any way would only cheapen both its attractions and its benefits. 

               In Samuel Becket’s Fin de Partie, first performed at London’s Royal Court Theater on April 3, 1957. Nell queries Nagg: “Why this farce, day after day?” The same question now needs to be asked about Realpolitik and America’s global future. Why, after all, should we continue to abide any system of world politics that has never succeeded and never even met humankind’s most minimal expectations?

               Could it be that we ought never expect answers to questions that have not been asked?


[1] A previous book by this author deals with these issues from an expressly American point of view. See: Louis René Beres, Reason and Realpolitik: US Foreign Policy and World Order (1984). Professor Beres is also the author of three earlier books dealing with alternative world futures: Reordering the Planet: Constructing Alternative World Futures (1974); Planning Alternative World Futures: Values, Methods and Models (1975); and People, States and World Order (1981).

[2] For political philosophy origins of such assumptions, see especially the terse comment of Thrasymachus in Bk. 1, Sec. 338 of Plato, The Republic: “Right is the interest of the stronger.”

[3] In his seventeenth-century classic of political philosophy, Leviathan, Thomas Hobbes points out interestingly that while the anarchic “state of nature” has likely never actually existed between individual human beings, it nonetheless defines the legal structures of world politics, patterns within which nations must coexist in “the state and posture of gladiators….” This uneasy “posture,” explains Hobbes famously, is a condition of “war.”

[4] In the words of Mr. Justice Gray, delivering the judgment of the US Supreme Court in Paquete Habana (1900): “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction….” (175 U.S. 677(1900)) See also: Opinion in Tel-Oren vs. Libyan Arab Republic (726 F. 2d 774 (1984)).The specific incorporation of treaty law into US municipal law is expressly codified at Art. 6 of the US Constitution, the so-called “Supremacy Clause.”

[5] Among other things, this means a Nietzsche-like “overcoming” of “Mass Man.”  Says Jose Ortega y’ Gasett in The Revolt of the Masses (1930): “The mass-man has no attention to spare for reasoning; he learns only in his own flesh.”

[6] Among the earliest books laying out such rules, see, by this author, Louis René Beres, Reordering the Planet: Constructing Alternative World Futures (1974); Louis René Beres, The Management of World Power: A Theoretical Analysis (1973); Louis René Beres, Transforming World Politics: The National Roots of World Peace (1975); Louis René Beres, Planning Alternative World Futures: Values, Methods and Models (1975); and Louis René Beres, People, States and World Order (1981).

[7] 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.

[8] This belligerent nationalismof Donald Trump stood in marked contrast to authoritative legal assumptions concerning solidarity between nation-states. These jurisprudential assumptions concern a presumptively common legal struggle against aggression, terrorism and genocide. Such a “peremptory” expectation, known formally in law as a jus cogens assumption, was already mentioned in Justinian, Corpus Juris Civilis (533 CE); in Hugo Grotius, 2 De Jure Belli ac Pacis Libri Tres, Ch. 20 (Francis W. Kesey., tr, Clarendon Press, 1925) (1690); and in Emmerich de Vattel, 1 Le Droit des Gens, Ch. 19 (1758). The Founding Fathers of the United States were most likely made aware of these expectations by Blackstone’s Commentaries on the Law of England (1765),a comprehensive classic work which quickly became the conceptual basis of subsequent United States law.

[9] This is an especially reasonable question to ask of Israeli leaders in Jerusalem (political) and Tel Aviv (military), where the only palpable issues are seemingly still drawn from immutable core assumptions of perpetual regional conflict.

[10] We may recall here the pertinent parable from Marcus Aurelius’ Meditations: “What does not benefit the entire hive is no benefit to the bee.” Unless we take meaningful steps to implement an organic and cooperative planetary civilization – one based on the irremediably central truth of human “oneness” –  there will be no civilization at all.

[11] According to William Blackstone’s Commentaries (Book IV, “Of Pubic Wrongs,” Chapter V): “All law results from those principles of natural justice in which all the learned of every nation agree….” In legal philosophy, the classic definition of Natural Law is given by Cicero in The Republic: “True law is right reason, harmonious with nature, diffused among all, constant, eternal….”

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

[13] In “The drunkard’s song,” a passage in Zarathustra, Nietzsche sums up such pain with unparalleled simplicity: “Tief ist ihr Weh” (“Deep is its pain”) says the philosopher about the world. This “lied” was put to music by Gustav Mahler in his Third Symphony, 4th Movement. https://www.youtube.com/watch?v=6aM9hezKudY&list=RDuPQSokfeQN8&index=2

[14] The concept of a balance of power – an idea of which the nuclear-age balance of terror is a more fearful variant – has never been more than facile metaphor. Further, it has never had anything to do with any calculable equilibrium. As such a balance is always a matter of individual and more-or-less subjective perceptions, adversary states may never be sufficiently confident that strategic circumstances are “balanced” in their favor. In consequence, as each side must perpetually fear that it will be “left behind,” the search for balance continually produces only widening insecurity and perpetual disequilibrium.

[15] Such synergies could shed light upon the entire world system’s state of disorder – a view that would reflect what the physicists call “entropic” conditions – and could become more-or-less dependent upon each pertinent decision-maker’s subjective metaphysics of time. For an early article by this author dealing with linkages obtaining between such a metaphysics and national decision-making, see: Louis René Beres, “Time, Consciousness and Decision-Making in Theories of International Relations,” The Journal of Value Inquiry, Vol. VIII, No.3., Fall 1974, pp. 175-186.

[16]Whenever the new Muses present themselves,” warned 20th century Spanish existentialist philosopher, José Ortega y’ Gasset, “the masses bristle.” See Ortega y’ Gasset, The Dehumanization of Art (1925) (Princeton: Princeton University Press, 1948, 1968), p.7.

[17] In medieval western civilization, the world was conceived as an hierarchical order, extending from lowest to highest, and the earthly divisions of authority (always artificial or contrived) were reunited at the level of God. Below this divine stratum, the realm of humanity was to be considered as one, especially because all the world had been created solely for the purpose of backdrop for humankind’s sought-after salvation. Only in its relation to the universe itself was the world to be considered as part rather than whole. In the clarifying words of Dante’s De Monarchia (1312-1313): “The whole human race is a whole with reference to certain parts, and with reference to another whole, it is a part. Fir it is a whole with reference to particular kingdoms and nations, and it is a part with reference to the whole universe, as is manifest without argument.” To sum up the background of this “oneness” assumption (not a hypothesis), the conceptualized medieval universe was tidy, ordered and neatly arranged. Imagined in metaphoric fashion as an immense cathedral, it was so simply conceived that it was frequently represented in art by great painted clocks. At its center lay the earth, at once a mere part of God’s larger creation, but at the same time a single unified whole unto itself. For this fascinating history, literary as well as philosophic, see Anatole France, The Garden of Epicurus (1923).

[18] The best studies of such modern world order “prophets” are still W. Warren Wagar, The City of Man (1963) and W. Warren Wagar, Building the City of Man (1971).

[19] See Louis René Beres, The Management of World Power (1973), op cit.

[20] Because war and genocide are not mutually exclusive, either strategically or jurisprudentially, taking proper systemic steps toward war avoidance would plausibly also reduce the likelihood of always-egregious “crimes against humanity.” Under international law, crimes against humanity are defined as “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population before or during a war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated….”  See Charter of the International Military Tribunal, Aug. 8, 1945, Art. 6(c), 59 Stat.  1544, 1547, 82 U.N.T.S.  279, 288

[21] Regarding science in such matters, Niccolo Machiavelli joined Aristotle’s plan for a more scientific study of politics generally with various core assumptions about geopolitics or Realpolitik. His best known conclusion, in this particular suggestion, focuses on the eternally stark dilemma of practicing goodness in a world that is generally evil. “A man who wishes to make a profession of goodness in everything, must necessarily come to grief among so many who are not good.”  See: The Prince, Chapter XV. Although this argument is largely unassailable, there exists a corresponding need to disavow “naive realism,” and to recognize that in the longer term, the only outcome of “eye for an eye” conceptions in world politics will be universal “blindness.”

[22] We may think also of the corresponding Talmudic observation: “The earth from which the first man was made was gathered in all the four corners of the world.”

[23] Dialectic formally originated in the fifth century BCE, as Zeno, author of the Paradoxes, had been acknowledged by Aristotle as its inventor. In the middle dialogues of Plato, dialectic, with its conceptual root in the Greek verb meaning “to converse,” emerges as the supreme form of philosophical/analytic method. Plato describes the dialectician as one who knows best how to ask and answer questions. This particular knowledge – how to ask, and to answer questions, sequentially – should now be usefully transposed to the improved study of American national security issues.

 

[24]Because US law is founded upon “the law of nature” (see US Declaration of Independence and US Constitution), this Trump-era opposition to human rights and freedom was in ipso facto opposition to Natural Law. Natural Law is based upon the acceptance of certain principles of right and justice that prevail because of their own intrinsic merit.  Eternal and immutable, they are external to all acts of human will and interpenetrate all human reason. It is a dynamic idea, and, together with its attendant tradition of human civility runs continuously from Mosaic Law and the ancient Greeks and Romans to the present day.  For a comprehensive and far-reaching assessment of the Natural Law origins of international law, see Louis René Beres, “Justice and Realpolitik:  International Law and the Prevention of Genocide,” The American Journal of Jurisprudence, Vol. 33, 1988, pp. 123-159.  This article was adapted from Professor Beres’ earlier presentation at the International Conference on the Holocaust and Genocide, Tel-Aviv, Israel, June 1982.

[25] International law, which is an integral part of the legal system of all states in world politics, assumes a reciprocally common general obligation of states to supply benefits to one another, and to avoid war at all costs. This core assumption of jurisprudential solidarity is known formally as a “peremptory” or jus cogens expectation, that is, one that is never subject to question. It can be found in Justinian, Corpus Juris Civilis, Hugo Grotius, The Law of War and Peace (1625) and Emmerich de Vattel, The Law of Nations or Principles of Natural Law (1758).

[26] 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”)).

[27] Neither international law nor US law specifically advises any particular penalties or sanctions for states that choose not to prevent or punish genocide committed by others. Nonetheless, all states, most notably the “major powers” belonging to the UN Security Council, are bound, among other things, by the peremptory obligation (defined at Article 26 of the Vienna Convention on the Law of Treaties) known as pacta sunt servanda, to act in continuous “good faith.” In turn, this pacta sunt servanda obligation is itself derived from an even more basic norm of world law. Commonly known as “mutual assistance,” this civilizing norm was most famously identified within the classical interstices of international jurisprudence, most notably by the eighteenth-century legal scholar, Emmerich de Vattel in The Law of Nations (1758).

 

[28] In broad legal terms, stopping such “waves” could be properly described as a “peremptory” obligation of states. 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).

[29] An irony of Trump-Era US-Russia relations is that although they remained seemingly adversarial, the US president was generally willing to be dominated by his Russian counterpart. In the presumptively worst case retrospective, US President Donald Trump acted as Vladimir Putin’s marionette, a sort of “Manchurian Candidate.” In the opinion of retired US Air Force Lt Col. Alexander Vindman, a former member of Trump’s National Security Council, the defiling American president had wittingly served as Putin’s “useful idiot.” See: https://news.yahoo.com/impeachment-witness-lt-col-alexander-153907783.html

[30] The cumulative costs could also be overwhelming and more-or-less unbearable. This references security costs, economic costs and even broadly “human costs.”

[31] This idea of “man as microcosm” was already developed in Francis Bacon’s Advancement of Learning as a model that took individual man as an accurate representation of
the entire world—that is, “….as if there were to be found in man’s body certain
correspondences and parallels which should have respect to all varieties of things….
which are extant in the greater world.”

[32] A properly antecedent question was raised earlier by Jose Ortega y’ Gasset in 1925: “Where,” the Spanish philosopher queried, “shall we find the material to reconstruct the world?” See Ortega’s The Dehumanization of Art (1925) (1968) by Princeton University Press, p. 129.

[33] Says Dante: “…the whole human race is a whole with reference to certain parts, and, with reference to another whole, it is a part. For it is a whole with reference to particular kingdoms and nations, as we have shown and it is a part with reference to the whole universe, as is manifest without argument.”

[34]  See: See: Wilhelm Friedrich Hegel, as quoted by Karl R Popper, The Open Society and its Enemies, 4th ed., 2 vols. (Princeton NJ: Princeton University Press, 1963), vol. 2, p. 31.

[35] One must consider the contra view of Spanish philosopher Jose Ortega y’ Gasset in The Revolt of the Masses (1932). Here, Ortega identifies the state not as a convenient source of immortality, but instead as the very opposite. For him, the state is “the greatest danger,” mustering its immense and irresistible resources “to crush beneath it any creative minority that disturbs it….” Earlier, in his chapter “On the New Idol” in Thus Spoke Zarathustra, Friedrich Nietzsche wrote similarly: “State is the name of the coldest of all cold monsters…. All-too-many are born – for the superfluous the state was invented.” Later, in the same chapter: “A hellish artifice was invented there (the state), a horse of death…. Indeed, a dying for many was invented there; verily, a great service to all preachers of death!” “The State,” says Nietzsche, “lies in all the tongues of good and evil; and whatever it says it lies – and whatever it has it has stolen. Everything about it is false…. All-too-many are born: for the superfluous, the State was invented.” (See: Friedrich Nietzsche, THUS SPOKE ZARATHUSTRA: ON THE NEW IDOL, in The Portable Nietzsche, 161 (Walter A. Kaufman, trans., 1954).

[36]How does killing in world politics hold out a promise of immortality for the perpetrator? According to Eugene Ionesco, “I must kill my visible enemy, the one who is determined to take my life, to prevent him from killing me. Killing gives me a feeling of relief, because I am dimly aware that in killing him, I have killed death. Killing is a way of relieving one’s feelings, of warding off one’s own death.” This comment from Ionesco’s JOURNAL appeared in the British magazine, ENCOUNTER, May 1966. See also: Eugene Ionesco, FRAGMENTS OF A JOURNAL (Grove Press, 1968).

[37] See God, Death and Time; originally Dieu, la mort et le temps (1993). See also, by Professor Louis René Beres, at Horasis (Switzerland): https://horasis.org/soaring-above-politics-death-time-and-immortality/

[38] See Ernest Becker, Escape from Evil, 2 (1975).

[39] See Otto Rank, Will Therapy and Reality 130 (1936; 1945).

[40] This is the key message of 20th century German philosopher Karl Jaspers’ Reason and Anti-Reason in our Time (1952). Jaspers writes, inter alia, of the overriding human obligation to rise above “the fog of the irrational.”

[41] For the crime of aggression under international law, see: Resolution on the Definition of Aggression, adopted by the UN General Assembly, Dec. 14, 1974. U.N.G.A. Res. 3314 (XXIX), 29 UN GAOR, Supp. (No. 31), 142, UN Doc A/9631 (1975) reprinted in 13 I.L.M., 710 (1974).

[42] Crimes against humanity are defined as “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population before or during a war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated….”  Charter of the International Military Tribunal, Aug. 8, 1945, Art. 6(c), 59 Stat.  1544, 1547, 82 U.N.T.S.  279, 288. In law, states must judge every use of force twice: once with regard to the underlying right to wage war (jus ad bellum) and once with regard to the means used in actually conducting war (jus in bello). Following the Kellogg-Briand Pact of 1928 and the United Nations Charter, there can be absolutely no right to aggressive war. However, the long-standing customary right of post-attack self-defense remains codified at Article 51 of the UN Charter. Similarly, subject to conformance, inter alia, with jus in bello criteria, certain instances of humanitarian intervention and collective security operations may also be consistent with jus ad bellum. The law of war, the rules of jus in bello, comprise: (1) laws on weapons; (2) laws on warfare; and (3) humanitarian rules. Codified primarily at The Hague and Geneva Conventions, these rules attempt to bring discrimination, proportionality and military necessity into all belligerent calculations.

[43] The American Founding Fathers expressed little faith in “The American People.” Nurtured by the philosophy of Thomas Hobbes and the religion of John Calvin, they began their Constitutional deliberations with the notion that every citizen must potentially be an unregenerate being, one who has to be continually and strictly controlled. Fearing popular participation as much as leadership tyranny, Elbridge Gerry spoke openly of democracy as “the worst of all political evils,” while William Livingston opined: “The people have been and ever will be unfit to retain the exercise of power in their own hands.” George Washington, as presiding officer at the Constitutional Convention, sternly urged delegates not to produce a document to “please the people,” while Alexander Hamilton – made newly famous by the currently popular Broadway musical – expressly charged America’s government “to check the imprudence of any democracy.”

[44] Modern philosophic origins of “will” are best discovered in the writings of Arthur Schopenhauer, especially The World as Will and Idea (1818). For his own inspiration, Schopenhauer drew freely upon Johann Wolfgang von Goethe. Later, Nietzsche drew just as freely and perhaps more importantly upon Schopenhauer. Goethe was also a core intellectual source for Spanish existentialist Jose Ortega y’Gasset, author of the singularly prophetic twentieth-century work, The Revolt of the Masses (Le Rebelion de las Masas;1930). See, accordingly, Ortega’s very grand essay, “In Search of Goethe from Within” (1932), written for Die Neue Rundschau of Berlin on the centenary of Goethe’s death. It is reprinted in Ortega’s anthology, The Dehumanization of Art (1948) and is available from Princeton University Press (1968).

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