Israel And Hamas: A Legal Assessment of the Gaza War

The Gaza War represents an existential struggle for Israel, not immediately perhaps, but incrementally.

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

Understood in terms of 18th century Swiss international law scholar Emmerich de Vattel, Israel’s “Swords of Iron” war against Hamas terrorism is grounded in the right of self-defense. This always-incontestable right is intended to benefit not only the particular state defending itself against terror crimes, but also international “society” (Vattel’s preferred term in The Law of Nations) as a whole, It follows, inter alia, that Israel’s Gaza War represents an undertaking of international law enforcement.[1]

               In law, this conclusion concerns only the issue of a “just war” (jus ad bellum). But what of the always-coinciding issues of “justice in war” (jus in bello)? Before Israel’s “Swords of Iron” operation could be labeled as cumulatively law-enforcing, its armed forces (IDF) would need to satisfy both “peremptory standards”[2] of jurisprudential assessment.

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

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

               There is more, The Gaza War represents an existential struggle for Israel, not immediately perhaps, but incrementally.[3] Ultimately, what threatens Israel’s survival is not terrorism per se, but Iranian support of jihadist violence. More precisely, over time, Iran could confront Israel directly, a confrontation that would be of manifestly grave consequence even if the law-violating Islamic Republic were to remain non-nuclear.

                Should such a direct engagement of military forces materialize, the two state adversaries (Israel and Iran) would assuredly struggle for “escalation dominance,”[4] an inherently unpredictable struggle with potentially unprecedented human and material costs.

                A systemic dynamic characterizes Israel’s obligatory war with Hamas. This intersectional dynamic obtains whether or not Iran becomes a direct adversary of Israel. To wit, seemingly singular strategic and legal[5] matters could quickly become  many-sided, force-multiplying or even “synergistic.” By definition, this last and plausible outcome would be a conflict “whole” that is greater than the simple sum of its “parts.”

               Regarding relevant legal matters, international law represents an indissoluble part of every nation-state’s domestic normative order.[6] Sir William Blackstone’s Commentaries, echoing 18th century Swiss jurist Emmerich de Vattel, explains: “Each state is expected to aid and enforce the law of nations, as part of the common law, by inflicting an adequate punishment upon offenses against that universal law….”[7] Understood in  terms of the Israel-Hamas Gaza War, this means that each state is obligated to join Israel in its punishment of jihadist criminality. Nullum crimen sine poena, “No crime without a punishment,” stipulate the peremptory Nuremberg Principles of 1950.

               There is more. Israel is being subjected to protracted aggressions by willfully barbarous enemies. Endlessly, in the acrimonious Middle East, there have been charges and counter-charges. From the beginnings of the Arab-Israeli conflict in the late 1940s, a recurrent Palestinian response to easily verifiable accusations of “terrorism” has been an invented counter-charge of “disproportionality.”[8]

               But what does authoritative international law say about such a contrived response? What do variously codified and customary[9] legal norms stipulate about such purported violations of the law of war? These are not flexible questions of subjective opinion. To the contrary, the correct answers are discoverable solely in certain objective legal rules.

               There are various subsidiary questions. What are the comparative risks for each side?[10] What are corresponding leadership responsibilities?[11] And what is the contextual relevance of our traditional “Westphalian” system of international law?[12]

               A reciprocal question will also need to be raised. To the extent that Hamas, Islamic Jihad and their more-or-less recognizable sub-state (insurgent) allies choose a policy of “human shields,” the Palestinian side[13] would be guilty of “perfidy.” Any such policy is illegal on its face,[14] and qualifies ipso facto as a “grave breach” of Geneva Conventions.[15] The most critical legal effect of perfidy committed by Palestinian terror group leaders – an effect that Jerusalem continuously seeks to make evident to all observers – is that it immunizes Israel from any responsibility for inadvertent counterterrorist harms suffered by Arab civilians.

                In law, even though the bombs killing Palestinian noncombatants may be fired by Israeli military forces,[16] the actual criminal perpetrators are those Palestinians who have committed perfidy. Under law, when Israel bombs a hospital or ambulance because it is being used by Palestinian terrorists to shield law-violating activities, noncombatant deaths and injuries are the responsibility of Palestinian terrorist leaders. Moreover, these perfidy-driven deaths and injuries are cynically exploited by Hamas and its allies for propagandistic purposes.

                There are further specifics to clarify. Perfidy is identified as a “grave breach” at Article 147 of Geneva Convention IV. Deception can be legally acceptable in armed conflict, but The Hague Regulations expressly disallow any placement of military assets or personnel in populated civilian areas. Variously related prohibitions of perfidy can be found at Protocol I of 1977, additional to the Geneva Conventions of August 12, 1949.  These peremptory rules[17] are also binding on the basis of customary international law,[18]a jurisprudential source identified most conspicuously at Article 38 of the Statute of the International Court of Justice.[19]

               Now embroiled in yet another violent struggle with Hamas, Islamic Jihad and assorted kindred criminal groups,[20] Israel will need to proceed diligently with its identification of proper legal arguments. Optimally, appropriate steps would best ensure that Palestinian war crimes not get in the way of Israel’s indispensable self-defense postures and its corollary obligations under humanitarian international law.[21] Ultimately, though of no immediate concern, this obligation would become especially critical in circumstances where Sunni and/or Shiite terror attacks were to involve weapons of mass destruction.

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

                Though interpenetrating or intersecting, law and strategy ought always to be evaluated separately, as conceptually discrete elements of Israel’s unified military doctrine.[22] In this connection, Israel should take clarifying measures to convince both its Palestinian insurgent foes and terrorist state patrons that perfidious terrorist aggressions will continuously be revealed in law and opposed in practice. In increments, these remedial or corrective measures could create an efficient “force multiplier” for Israel, one wherein the “whole” desired anti-insurgent effect would be greater than the decipherable sum of legal and military “parts.”

               In law, considerations of distinction, proportionality and military necessity[23]  set defined limits on the use of armed force. Always, under the customary and codified expectations of the law of war, these three interpenetrating criteria remain unequivocally binding. When Israel’s terrorist enemies declare an IDF attack to be “disproportionate,” they wittingly ignore that the rule of proportionality does not demand tangibly equivalent military harms. It demands an amount of force that is militarily necessary.

               For the most part, the key issues here are straightforward. Any gratuitous infliction of harms is illegal under the longstanding law of war, but pertinent harms need never be of determinably equivalent magnitude. If such equivalence were an actual authoritative expectation, the United States, following its August 1945 atomic attacks on Hiroshima and Nagasaki, would represent the single most egregious offender of “proportionality” standards in human history.

                There is more. In the main, governing jurisprudence in such complex matters is unhidden. Inevitably, perfidy and perfidy-like behavior represent an especially serious violation of the law of war or law of armed conflict. During Israel’s several Gaza wars, perfidy was exploited with some measure of tactical success by Hamas, but perhaps more importantly, with enduring propagandistic benefit. Today, while Hamas leaders live luxurious and safe lives in Qatar or other Gulf states, they urge their obedient followers to become “martyrs.” 

               On repeatedly-choreographed occasions, the practice of “human shields” is being justified in terms of alleged Palestinian desperation. Though partially successful as Hamas propaganda, these justifications remain carefully concocted Palestinian claims. In essence, they are premised upon irrelevant and intentional manipulations of acceptable legal definition. For example, when Palestinian insurgents claim the right to “any means necessary,” they adopt a seemingly compelling argument, but one that still remains illegal. Similarly, the battle cry of “Palestine from the River to the Sea” expresses nothing less than “intent to commit genocide.” Such criminal intent (mens rea) is already a part of both codified and customary international law.

                International law regulates certain primary world system behaviors. In its particular manifestations in the law of war, international law requires every use of force (whether exercised by a uniformed army or by irregular/insurgent force) to meet the test of “proportionality.” Drawn in part from the rudimentary legal precept that “the means that can be used to injure an enemy are not unlimited,”[24] this test of proportionality stipulates that every resort to armed force remain limited to what is presumed necessary for meeting legitimate military objectives.

               The peremptory or jus cogens principle of codified and customary jurisprudence applies to all judgments of military advantage and to all planned reprisals or retaliations. It does not mean that each side to an ongoing conflict must at any time agree to suffering or imposing symmetrical harms. Nonetheless, this failure to understand pertinent international law remains widespread, and unjustly plays to the public relations advantage of Hamas and its sympathizers.

               “Justice,” we may learn from Plato’s Republic, means “a contract neither to do nor to suffer wrong.”[25]Unless there should be substantially greater understanding that perfidious or perfidious-type behavior by insurgents places direct legal responsibility for correlative harms on that insurgency, and not on the victimized state or population, sub-state foes could sometime decide to escalate hostilities. Such manifestly dangerous terrorist escalations could eventually embrace mega-terror assaults on Israel. Over time, these assaults could include an actual use of destructive nuclear weapon technologies.[26]

               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.[27]

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

               There is more. Israel’s offensive military forces must stay at least “one step ahead” of a determined state enemy’s missile defense systems. If this tactical advantage were not present, Israel’s state enemy or enemies, no longer having to anticipate unacceptable reprisals, could sometime feel sufficiently inclined to strike first itself. In such a scenario, by definition, Israeli deterrence could fail altogether.[28]

               Terrorism, like perfidy, is a codified and custom-based crime under authoritative international law,[29] but the discrete and component crimes are mutually reinforcing rather than mutually exclusive. De jure, any human shields-based deceptions launched by anti-Israel terrorists effectively add a second layer of illegality to an already underlying insurgent dereliction. Though frequently disregarded, minimized or disputed, Hamas, Islamic Jihad, Fatah, and Hezbollah insurgencies are illegal per se. This is true even if one were to associate “just cause” with all or some of these terror groups’ commitment to violence.

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

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

               During Israel’s several Lebanon wars,[30] Hezbollah, assisted by Syria and Iran, placed its weapons and fighters within carefully selected areas of Arab civilian population. In the past, ISIS employed a human shields strategy in its battle for Mosul (Iraq). At that time, this prohibited strategy was still useful in providing ISIS with tangible tactical advantages.

               To wage successful war against a Jihadist ideology,[31] Israel’s primary “battlefield” must always be analytic or intellectual.[32] In the ancient Greek and Macedonian worlds, this form of struggle was identified as one of “mind over mind” rather than “mind over matter.”[33] For Israel, the earlier identification still remains valid.

               Plausibly, sooner or later, certain of Israel’s Islamic terrorist enemies, perhaps under cover of perfidy, will initiate a quantum magnification of operational goals.  Then, more or less systematically, these criminal adversaries will strive to exploit the particular methods and harms that already lie latent in WMD violence.  In one seldom-mentioned nuance of this threat, the enemy party, whether state or terror-organization, could aim its conventional rockets against Israel’s nuclear reactor at Dimona.[34] Though unprecedented,[35] the basic results of any such aggression[36] are not difficult to fathom.

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

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

               Writing about the species of fear that arises from tragedy, ancient Greek philosopher Aristotle emphasized in Poetics that such fear “demands a person who suffers undeservedly” and must also be felt by “one of ourselves.”  This fear, or terror, has little or nothing to do with any private concerns for impending misfortune to others, but rather from our own perceived resemblance to the victim. Terror, therefore, is generally fear referred back to ourselves. The credible threat of chemical, biological, or nuclear terrorism could sometime prove purposeful from the jointly comprehensive standpoints of enemy passion and enemy logic.

               Going forward, Israel should more clearly communicate to Hamas and related criminal foes that any contemplated excursions into higher-order forms of destruction would never elicit Israeli capitulations. To ensure that such communications have the best possible chance of success, it is most important that Israel’s terrorist enemies foresee no meaningful advantages to staging “perfidious” assaults. Always, for the State of Israel, law and strategy must be contemplated together, as closely interdependent parts of a single coherent national security policy.[37]

               A few years past, Donald J. Trump pointed with ostentatious pride to the “Abraham Accords,”[38] but these agreements negotiated via the former president’s “good offices” did nothing to reduce the likelihood or corrosiveness of anti-Israel-terrorism. These Accords may have marginally improved Israel’s relations with certain states that had never been anti-Israel belligerents, but they simultaneously angered both the Palestinians and Iran. In essence, “Abraham” represented a net security loss for Israel.

               This assessment of Israeli counter-terrorism has been about complex considerations of law and strategy. In both legal and strategic terms, the world is best studied as a system. For example, if certain conventional-nuclear firebreaks are crossed for the first time by Vladimir Putin in Ukraine, the consequences could be felt deeply in various other places,[39] including the Middle East. It follows that Israel’s protracted war on terror will have to draw systematically upon a broad variety of intersecting legal insights and force-multiplying military operations.

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

               Israeli counter-terrorism is a strategic/legal subject, one that should always be approached as a systemic and dialectical[40] challenge. It follows, inter alia, that the most valuable “armaments” available to Israeli security planners will be disciplined thinkers of uncommonly high intellect. In a national and global society long accustomed to identifying its heroes with special operations forces, large guns and heavy missiles, acknowledging such “softer armaments” will not come easily.

               Recalling Emmerich de Vattel’s introductory comment on a “Nation’s” right to punish injury and exercise self-defense – a comment later reinforced by Sir William Blackstone’s Commentaries on the Laws of England[41] –  it is the obligation of each state in world politics to “aid and enforce” the law of nations. Regarding the particular issues here at hand, this means a universal legal obligation to support Israel’s ongoing counter-terrorism operation in Gaza. Though it may first appear that this operation falls short on authoritative expectations of humanitarian international law, or jus in bello considerations, it is the Palestinian side’s “perfidy” that is responsible under law for virtually all noncombatant harms. Indeed, by its deliberate co-location of military facilities with schools and hospitals, Hamas has lawlessly imperiled not only its own civilian populations, but also the entire jurisprudential foundation of world legal order.

[1] The most conspicuously barbarous Hamas criminality were the orchestrated rapes of both women and men on October 7, 2023 and of hostages (including children) in captivity. See:

[2] Standards that permit “no derogation.”

[3] One key factor here would be Palestinian statehood. Increasingly, argument is offered to minimize expectedly derivative existential threats to Israel via Palestinian “demilitarization.” For informed reasoning against this false 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.

[4] This struggle signifies a process of competitive risk-taking, a densely unfathomable process wherein each side seeks tangible strategic and tactical advantage without simultaneously incurring existential harms.

[5] The laws of war pertain not only to Israel, but also to Hamas and all other 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.

[6] 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).

[7] 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). 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 United States law.

[8] 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.”

[9] 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).

[10] 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.

[11] 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.

[12] 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).

[13] All such Palestinian terror has its 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.”

[14] “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)

[15]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.

[16] Sometimes, as we have seen, Palestinian civilians also die at the hands of errant or misfired Hamas rockets.

[17] According to the Vienna Convention on the Law of Treaties. art. 53: “…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, May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M.  679 (entered into force Jan. 27, 1980).

[18] 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). 

[19] 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.

[20]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”)).

[21] 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 in law and justice.

[22] 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.

[23]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.

[24]  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.”

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

[26] 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.

[27] Israel’s nuclear strategy could have meaningful implications for U.S. national security. On these widely ignored connections, see Louis René Beres, ISRAEL’S NUCLEAR STRATEGY AND AMERICA’S NATIONAL SECURITY, Tel-Aviv University and Israel Institute for Strategic Studies, Tel-Aviv, December 2016:

[28]  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.

[29] In part, it is because of this inherent criminality that any proposals for a “humanitarian cease fire” with Hamas in Gaza would be not merely inappropriate, but also law-violating. Following the peremptory norm of nullum crimen sine poena, or “no rime without a punishment,” there could be no law-based justification for any “deal” with a criminal organization. As an operational matter, any prolonged cease fire would be to the benefit of Hamas and would inevitably become the cause of additional terror crimes against Israeli citizens.

[30] 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 0.htm.

[31] 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 “normally” calls for the killing of certain expressly despised “others.”

[32]  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.

[33] 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.

[34] 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.

[35] See:

[36] See: 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.

[37] 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.

[38] See, on 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).

[39] 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, See also: 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:

[40] 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.

[41] Blackstone’s Commentaries represent the core foundation of US domestic law.

Prof. Louis René Beres
Prof. Louis René Beres
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) 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.