“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)
Under authoritative international law, Israel’s obligatory war against jihadi terror stems from the universal right of self-protection. This “peremptory”[1] right intends to benefit not only a particular state defending against specific crimes, but also the wider “community of nations.” In formal jurisprudence, the intended benefit concerns issues of “just war” or jus ad bellum.[2]
Concurrently, international law is focused on issues of “justice in war” or jus in bello. For Israel in its always-changing war against Islamist terror, this focus signifies an expectation to act according to humanitarian international law (aka the law of armed conflict) whenever possible, but not to compromise essential self-defense when a state or sub-state adversary (1) shields military assets in civilian areas; or (2) transfers civilians to military zones. Inter alia, such an adversary is guilty of “perfidy,” and has no legal justification to blame Israel for any unavoidable or collateral harms.
In law, Hamas perfidy in Gaza is exculpatory for Israel. This is the case as long as Israel does not willfully violate core rules of “distinction,” “proportionality” or “military necessity.” By definition, any such willful violation would signify “criminal intent” or mens rea. For Israel, such signification would not “merely” be unproductive or counter-productive. It would also be irrational.
The December 2024 fall of Bashar al-Assad’s dictatorship signaled not just a weakening of Shiite terror group Hezbollah, but also coinciding reconfigurations of jihadist terror groups in Syria and Lebanon.[3] From the standpoint of universal jurisprudence, nothing concerning applicable legal rules has been modified or transformed. Schools and hospitals remain protected areas in variously connected theatres of conflict, but legal responsibility for civilian harms rests with “perfidious” jihadists and their identifiable state sponsors. The latter now include not only Iran, but also Qatar, Turkey, Sudan, Pakistan and Yemen.
In reference to Palestinian terrorism, Israel’s Gaza War focus has been shifting from Hamas to Fatah,[4] Houthi and other Islamist foes. Still, what ultimately threatens Israel’s physical survival as a state is not terrorism per se, but enemy state support of jihadi violence.[5] Over time, even a deeply-weakened Iran could confront Israel with an escalating belligerency that would be direct, indirect, or both, even if the Islamic Republic were to remain non-nuclear.[6] During any such conflict,[7] Israel and Iran would likely struggle for “escalation dominance.”[8] This could mean a drawn-out and unpredictable struggle.
On matters of war and peace, everything involves “system.”[9] Accordingly, a systemic dynamic now characterizes Israel’s war against jihadist terror. This dynamic obtains whether or not Iran ever becomes a nuclear adversary of Israel.[10] Whether suddenly or incrementally, strategic and legal[11] problems could become many-sided, force-multiplying and “synergistic.” This last outcome would represent a conflict “whole” that is greater than the sum of its “parts.”
Though not widely understood, even by presidents and prime-ministers, international law represents an integral part of every nation-state’s domestic legal order.[12] 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….”[13] In principle at least, this means that each state is obligated to support Israel in its mandated punishment of jihadist criminality. Nullum crimen sine poena, “No crime without a punishment,” stipulate the peremptory Nuremberg Principles (1950).[14]
From the beginning, Israel has been subjected to protracted aggressions by willfully barbarous enemies. Endlessly, in the acrimonious Middle East, there have been charges and counter-charges. From the start of the contemporary Arab-Israeli conflict in the late 1940s, a recurrent Palestinian response to verifiable accusations of terrorism has been an invented counter-charge of “disproportionality.”[15]
What does authoritative international law actually say about this contrived response? What do variously codified and customary[16] legal norms stipulate about such purported violations of the law of war? These are not flexible questions of subjective opinion or personal intuition. The correct answers are readily discoverable in objective legal rules.
Various subsidiary questions will warrant attention. What are the comparative risks for each side?[17] What are corresponding leadership responsibilities?[18] And what is the contextual relevance of our traditional “Westphalian” system of international law?[19]
A reciprocal question will also need to be raised. To the extent that Hamas, Islamic Jihad, Fatah, Houthi, Hezbollah and other terror groups choose a policy of “human shields,” that adversary[20] would be guilty of “perfidy.” Any such policy is illegal on its face,[21] and qualifies ipso facto as a “grave breach” of Geneva Conventions.[22] The most critical legal effect of perfidy committed by terror group leaders is that it immunizes Israel from responsibility for inadvertent counterterrorist harms.
In law, though the bombs killing Palestinian noncombatants may be fired by Israeli military forces,[23] the actual criminal perpetrators are those who have committed perfidy. When Israel bombs a hospital or ambulance because it is being used by Palestinian terrorists to shield law-violating activities, noncombatant deaths and injuries become the responsibility of Palestinian terrorist leaders. Prima facie, these perfidy-driven deaths and injuries are cynically exploited by Hamas and other jihadists for narrowly propagandistic purposes.
Further specifics now warrant clarification. Perfidy is identified as a “grave breach” at Article 147 of Geneva Convention IV. Deception can be legally acceptable in armed conflict, but The Hague Regulations expressly disallow any placement of military assets or personnel in populated civilian areas. Variously related prohibitions of perfidy can be found at Protocol I of 1977, additional to the Geneva Conventions of August 12, 1949. These peremptory rules are also binding on the basis of customary international law,[24]a jurisprudential source identified at Article 38 of the Statute of the International Court of Justice.[25]
Embroiled in persistent violent struggle with jihadist terror groups,[26] Israel needs to proceed diligently with its invocation of proper legal arguments. Optimally, appropriate steps would ensure that enemy war crimes not get in the way of Israel’s self-defense postures[27] or its corollary obligations under humanitarian international law.[28] Ultimately, though perhaps of no immediate concern, this obligation would become 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.[29] Israel should take clarifying measures to convince both its jihadi insurgent foes and terrorist state patrons that perfidious aggressions will 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-jihadist effect would be greater than the decipherable sum of both its legal and military “parts.”
In law, considerations of distinction, proportionality and military necessity[30] set defined limits on the use of armed force. Unequivocally, under customary and codified expectations of the law of war, these three interpenetrating criteria remain binding. When Israel’s terrorist enemies declare an IDF attack to be “disproportionate,” they wittingly ignore that the rule of proportionality never demands equivalent or symmetrical military harms. It demands only an amount of force that is militarily necessary.
Going forward, the key issues for Israel are straightforward. Any gratuitous infliction of harms is illegal under the longstanding law of war, but associated harms need never be of determinably equivalent magnitude. If such equivalence were an actual and 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 all of human history.
In the main, all governing jurisprudence in such complex counter-terrorism matters is unhidden. Inevitably, perfidy and perfidy-like behavior represent a very serious violation of the law of war (aka the law of armed conflict). During Israel’s several Gaza wars, perfidy was exploited with some measure of tactical success by Hamas, but more importantly, with enduring propagandistic benefit. Today, while a new generation of Jihadist leaders live luxurious and safe lives in Qatar or Turkey, they shamelessly urge their obedient followers to become “martyrs.”
The Palestinian practice of “human shields” is being justified in terms of alleged “desperation.” Though partially successful as Hamas propaganda, this justification remains a contrivance. Always, it is premised on intentional manipulations of legal definition. In law, the jihadist battle cry of “Palestine from the River to the Sea” expresses nothing less than open “intent to commit genocide.”[31] Such criminal intent (mens rea) is an established part of authoritative international law.
There is more. Such law regulates certain primary world system behaviors. Considered in its particular manifestations of the law of war, international law requires that every use of force (whether exercised by a uniformed army or irregular/insurgent force) 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,”[32] this test 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 military 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 rules remains widespread, and usually plays to the public relations advantage of the Islamist perpetrators.
“Justice,” we may learn from Plato’s Republic, means “a contract neither to do nor to suffer wrong.”[33]Unless there is greater understanding that perfidious or perfidious-type behavior by insurgents places direct legal responsibility for correlative harms on these insurgents and not on the victimized population, various sub-state foes could choose to escalate hostilities. Eventually, such presumptive terrorist escalations could embrace mega-terror assaults on Israel.[34] Over time, these assaults could include operational use of destructive nuclear weapon technologies.[35]
To best manage and inhibit such enemy escalations, Jerusalem will have to decide between creating a seamless web of national deterrence (ranging from narrowly conventional to broadly nuclear retaliatory attacks) and allowing certain enemy forces to proceed directly toward acquiring WMD terrorist capacities.[36]
For now, such Israeli judgments would have to be made without the “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 and simultaneously capable of inflicting “unacceptable damage.” Included in this second basic requirement would be a perceived Israeli capacity to penetrate an enemy’s active defenses.
There is more. Israel’s offensive military forces should 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 decide to strike first itself. In such a scenario, by definition, Israeli deterrence would fail altogether.[37]
Terrorism, like perfidy, is a codified and custom-based crime under authoritative international law, but its 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 prohibition. Though frequently disregarded, minimized or disputed, Hamas, Islamic Jihad, Fatah, Houthi, Hezbollah, etc. insurgencies are illegal per se. This is true even if one were to associate “just cause” with 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 same characterization applies to “lone wolf” terrorist attackers. Many Palestinian terrorists (both pre-Gaza War and intra-Gaza War) were of this “lone wolf” variety.
In law, there is still 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 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,[38] 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. In the future, jihadist terror groups under the HTS umbrella could utilize such a strategy in post-Assad Syria.
To wage successful war against a Jihadist ideology,[39] Israel’s primary “battlefield” should always be analytic or intellectual.[40] In the ancient Greek and Macedonian worlds, this form of struggle was identified as one of “mind over mind” rather than “mind over matter.”[41] For Israel, the earlier identification remains entirely valid.
Sooner or later, certain of Israel’s jihadist 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 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.[42] Though unprecedented,[43] the expected results of any such aggression[44] 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) calls “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, though, as we have just seen, it could already extend to conventional assaults on Israel’s Dimona nuclear reactor. It is at least possible that the selection of WMD terror would be detached from any rationally-considered calculations of geopolitical advantage. There certainly exists no compelling 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 emphasizes in Poetics that such fear “demands a person who suffers undeservedly” and be felt by “one of ourselves.” This fear, or terror, has little or nothing to do with private concerns for any impending misfortune to others, but rather with our own perceived resemblance to the victim. Terror is generally fear referred back to ourselves. Ominously, a credible threat of chemical, biological, or nuclear terrorism could sometime seem purposeful from the coinciding standpoints of enemy passion and enemy logic.
Looking ahead, Israel should more clearly communicate to jihadist foes that any contemplated excursions into higher-order forms of destruction would never elicit Israeli capitulation. To ensure that such communications have the best possible chance of success, it is most important that Israel’s terrorist enemies foresee no meaningful advantages to staging “perfidious” assaults. For the beleaguered State of Israel, law and strategy should be contemplated together, as closely interdependent parts of a single and coherent national security policy.[45]
US President Donald J. Trump still points with ostentatious pride to the “Abraham Accords,”[46] but these agreements negotiated during “Trump I” do nothing to reduce the likelihood or corrosiveness of anti-Israel-terrorism. Though the Accords may have marginally improved Israel’s relations with states that had never been actual anti-Israel belligerents, they gratuitously anger both Palestinians and Iran. In plausible cost-benefit terms, “Abraham” represents a net public relations gain for Donald Trump and a net security loss for Israel. While this conclusion is at odds with present-day conventional wisdom, it is nonetheless consistent with compelling expectations of history and logic. On this urgent matter, the conventional wisdom is assuredly unwise.
This assessment of Israeli counter-terrorism has been about complex considerations of law and strategy. In legal and strategic terms, the world is always best studied as a system. If certain conventional-nuclear firebreaks were crossed for the first time by Vladimir Putin in Ukraine, the consequences could be felt in other seemingly-distant places,[47] including the potentially chaotic Middle East.[48] Israel’s protracted war on jihadist 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. Effective counter-terrorism is never proper subject matter for “common sense” solution. Meaningful remedies could never be untangled by pundits, politicos or intellectuals-for-hire.
Israeli counter-terrorism is a strategic/legal subject, one that should be approached as both a systemic and dialectical[49] challenge.It follows that the most valuable “armaments” available to Israeli security planners will be disciplined thinkers of uncommonly high aptitude. In a national and global society long accustomed to identifying its heroes with spies, special forces and advanced weapon capabilities, acknowledging the primacy of intellectual power will not come easily.
This is the place for diligent summations. Recalling Emmerich de Vattel’s epigraphic comment on a “Nation’s right to punish injury” and exercise “self-protection” – a comment later reinforced by Sir William Blackstone’s Commentaries on the Laws of England[50] – it remains the peremptory obligation of every state to “aid and enforce the law of nations.” On issues here at hand, this signals a universal legal responsibility to support Israel’s necessary counter-terrorism operations wherever they are undertaken according to humanitarian international law. Though it may currently appear that these operations fall seriously short of meeting legal expectations, it is ultimately jihadi “perfidy” that is responsible for Palestinian noncombatant harms.
By deliberate co-location of military facilities with schools, homes and hospitals, Hamas and its kindred terror groups have imperiled civilian populations (both Palestinian and Israeli) and undermined the essential foundations of world legal order.[51] Under “Westphalian” international law, Israel is obliged not only to punish terror-crimes (“intentional acts of injustice”), but also to remind the global community of immutably binding differences. Regarding legal responsibilities for civilian suffering in Gaza, there is a valid distinction between the results of international law violations (jihadi terror-crimes) and the outcomes of international law enforcement (Israeli military remedies).
It is reasonable to assume that not every Israeli military action in Gaza has been law-enforcing, but it is also reasonable that Israel has been acting to punish intentional acts of injustice. In the final analysis, it is willful acts of “criminal intent” by jihadi terrorists that create Gaza’s facts on the ground. It follows, ipso facto, that the only promising way to alleviate the suffering of noncombatant Palestinians is for these jihadi-manipulated populations to openly oppose Islamist terror-violence. Though this proposal may seem unrealistic, it still represents the only plausible path to justice for Israelis and Palestinians.
[1] 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).
[2] See: https://thelawtoknow.com/2025/02/27/jus-ad-bellum/
[3] The leading jihadist terror group in Syria is Hay’at Tahrir-Sham, or HTS. For Israel, the fall of the Assad regime already appears to have been a mixed blessing. Though HTS and its reconfiguring allies present themselves as a united front against Iran, the associated “Sunni Axis” carries strong undercurrents of jihadism.
[4]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.
[5] Regarding such violence, its psychological roots lie in the human search for “belonging” and “power over death.” In his modern philosophical classic, Being and Time (1953), Martin Heidegger laments what he calls (in German) das Mann, or “The They.” Drawing fruitfully upon earlier seminal insights of Nietzsche, Kierkegaard, Jung and Freud, Heidegger’s “The They” represents the ever-present herd, crowd, horde or mass, an “untruth” (the term favored by Danish philosopher Soren Kierkegaard) that can all-too-quickly suffocate needed intellectual growth. Regarding Heidegger’s always-threatening “The They,” the crowning human untruth lies in (1) “herd” acceptance of immortality at institutional and personal levels; and in (2) herd encouragement of the notion that personal power over death is sometimes derivative from nation-states. History reveals that this can become an insidious notion. Presently, this notion can be associated with membership in such sub-state terror groups as Hamas, Islamic Jihad, Houthi, Fatah and Hezbollah.
[6] Regarding such a confrontation, a war-avoidance imperative can be found in Jewish religious law: “When thou comest near to a city to fight against it,” proclaims Deuteronomy 20:10, “then proclaim peace to it.” Maimonides calls for diplomatic solutions before hostilities begin even to milhemet mitzvah (a war commanded by the Torah or Pentateuch): “No war is declared against any nation before peace offers are made to it.” The biblical commentator Abrabanel (1437-1508) argues not to hurry to go to war. For more complete examinations of war in the Jewish tradition, consult Efraim Inbar, “War in Jewish Tradition,” The Jerusalem Journal of International Relations, Vol. 9, No. 2, June 1987, pp. 83-99. Prima facie, of course, Israel has made every conceivable effort to “proclaim peace” to Iran, and already satisfied these expectations of Jewish law,
[7] Regarding legality in an ongoing war begun by another state (Iran launched the initial direct military attack against Israel), we should recall the pertinent opinion of Hugo Grotius in COMMENTARY ON THE LAW OF PRIZE AND BOOTY: “…it is obvious that a just war can be waged in return, without recourse to judicial procedure, against an opponent who has begun an unjust war; nor will any declaration of that just war be required…. For as Aelian says, citing Plato as his authority–any war undertaken for the necessary repulsion of injury, is proclaimed not by a crier nor by a herald, but by the voice of Nature herself.” See H. Grotius, DE IURE PRAEDAE COMMENTARIUS, ed., by James Brown Scott, a translation of the original manuscript of 1604 by Gladys L. Williams, with the collaboration of Walter H. Zeydel, New York: Oceana Publications, Inc., 1964, p. 96.
[8] 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.
[9] More generally, on human affairs, see French Jesuit philosopher Pierre Teilhard de Chardin: “The existence of `system’ in the world is at once obvious to every observer of nature…Each element of the cosmos is positively woven from all the others…” (The Phenomenon of Man, 1955).
[10] An Israeli war against a pre-nuclear Iran could still be an “asymmetrical nuclear war.” Where both sides would be operationally nuclear, a resultant war could be a “symmetrical nuclear war.” This last term would apply even if Israel were verifiably “more powerful.”
[11] The laws of war pertain not only to Israel, but also to Hamas and all other jihadist 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.
[12] 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).
[13] 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.
[14] See: https://legal.un.org/ilc/texts/instruments/english/draft_articles/7_1_1950.pdf
[15] 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.”
[16] 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).
[17] 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.
[18] 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.
[19] 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).
[20] Such Palestinian terror has its contemporary 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/Fatah is allegedly “moderate.”
[21] “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)
[22]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.
[23] Sometimes, Palestinian civilians die at the hands of errant or misfired Hamas rockets.
[24] 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).
[25] 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.
[26]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 versus Marsh (1615), 3 Bulstr. 27, 81 Eng. Rep 23 (1615) (“a pirate est Hostes humani generis”)).
[27] These postures could include lawful preemptive strikes or “anticipatory self-defense.” The origins of such self-protectionin customary international law lie in The Caroline, a case that concerned the unsuccessful rebellion of 1837 in Upper Canada against British rule. Following this case, the serious threat of armed attack has generally justified certain militarily defensive actions. In an exchange of diplomatic notes between the governments of the United States and Great Britain, then U.S. Secretary of State Daniel Webster outlined a framework for self-defense that did not require an antecedent attack. Here, the jurisprudential framework permitted a military response to a threat so long as the danger posed was “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” See: Beth M. Polebaum, “National Self-defense in International Law: An Emerging Standard for a Nuclear Age,” 59 N.Y.U.L. Rev. 187, 190-91 (1984) (noting that the Caroline case had transformed the right of self-defense from an excuse for armed intervention into a legal doctrine). Still earlier, see: Hugo Grotius, Of the Causes of War, and First of Self-Defense, and Defense of Our Property, reprinted in 2 Classics of International Law, 168-75 (Carnegie Endowment Trust, 1925) (1625); and Emmerich de Vattel, The Right of Self-Protection and the Effects of the Sovereignty and Independence of Nations, reprinted in 3 Classics of International Law, 130 (Carnegie Endowment Trust, 1916) (1758). Also, Samuel Pufendorf, The Two Books on the Duty of Man and Citizen According to Natural Law, 32 (Frank Gardner Moore., tr., 1927 (1682).
[28]The ends can never justify the means under authoritative international law. The Palestinian terrorist defense of “by any means necessary” can never be deemed acceptable in law or justice. This defense is grounded in neither customary nor conventional law. At best, it is an empty witticism.
[29] 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.
[30]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.
[31] Though international law does not specifically advise particular penalties or sanctions for states that choose not to prevent or punish genocide committed by others, 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. Known commonly as “mutual assistance,” this civilizing norm was most famously identified within the classical interstices of international jurisprudence, most notably by eighteenth-century legal scholar, Emmerich de Vattel, in The Law of Nations (1758).
[32] 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.”
[33] See also, Philus in Bk III, Sec. 5 of Cicero, DE REPUBLICA.
[34] Such enemy assaults could involve a terrorist rocket attack against Israel’s reactor at Dimona. Both Saddam Hussein’s regime in Iraq and Hamas fired rockets at this nuclear facility. Though unsuccessful, Israel must remain wary of the consequences of any future attack that might prove more capable. For early and informed consideration of reactor attack effects in general, see: Bennett Ramberg, DESTRUCTION OF NUCLEAR ENERGY FACILITIES IN WAR (Lexington MA: Lexington Books, 1980); Bennett Ramberg, “Attacks on Nuclear Reactors: The Implications of Israel’s Strike on Osiraq,” POLITICAL SCIENCE QUARTERLY, Winter 1982-83; pp. 653 – 669; and 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] 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.
[36] 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: https://sectech.tau.ac.il/sites/sectech.tau.ac.il/files/PalmBeachBook.pdf This document contains a special postscript by General (USA/ret.) Barry McCaffrey.
[37] Reciprocally, Israel must ensure the durability of its own active defenses. Still, anti-missile deployments can never be “leak proof.” A deterioration could encourage false reassurances, and provide little if any soft-target protection. Earlier, 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.
[38] 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.
[39] 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.”
[40] 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.
[41] 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.
[42] 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.
[43] See: https://www.nytimes.com/2023/12/04/world/middleeast/militant-rocket-israel-oct-7.html
[44] 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.
[45] Israel could also consider various treaty-like pacts with pertinent terrorist group enemies, but still recognize that such pacts could contain the same sorts of dangers as 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.
[46] See, on the Abraham Accords: https://www.state.gov/the-abraham-accords/ To be considered as a complementary agreement, see also the Israel-Sudan Normalization Agreement (October 23, 2020) and Israel-Morocco Normalization Agreement (December 10, 2020).
[47] 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/
[48] See this writer’s latest book: Louis René Beres, Surviving Amid Chaos: Israel’s Nuclear Strategy https://paw.princeton.edu/new-books/surviving-amid-chaos-israels-nuclear-strategy
[49]Analysts 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.
[50] Blackstone’s Commentaries represent the core foundation of US domestic law.
[51] Ultimately, these foundations lie in “natural law.” The core idea of 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. This idea and 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. See also, more recently, Louis René Beres, “Natural Law and the United States Constitution: Still-Vital Connections,” JURIST (2021): https://www.jurist.org/commentary/2021/12/louis-rene-beres-natural-law-us-constitution/.
