Jihadist criminality and law-enforcement
Navigating Hamas barbarism needs knowledge of what the law allows. And Israel's war is unequivocally within its rights.
Regarding Israel’s inherent right to survival and self-defense, pertinent law is fully clarifying and exculpatory. While the harms inflicted by Israeli counter-terrorism operations are collateral to international law-enforcement, the harms perpetrated on Israeli civilian hostages by Hamas and kindred jihadists are invariably the product of intentional law violation. Inter alia, it was improper for the International Criminal Court to issue coinciding arrest warrants for the Israeli prime minister and leaders of Hamas. On its face, this ICC-declared symmetry was political and contrived. It was not in any way jurisprudential.
In its current law-enforcing war against jihadist terror – whether in Gaza, Lebanon, Judea/Samar or elsewhere - Israel is acting on behalf of all nation-states. While this assessment has been difficult to acknowledge by observers who see only the most tangible effects of Israeli military counter-terrorism, it is entirely supported by authoritative legal standards and by long-established correlative principles of “mutual aid.” By this immutable principle (one known correctly as an instance of “jus cogens” or “compelling law”), each state is obligated to assist other states that are imperiled by aggression and/or terror-violence. Most important in explaining this civilizational obligation were scholars Emmerich de Vattel (The Law of Nations, 1758) and William Blackstone (Commentaries on the Laws of England, 1765-1769). Among other things, these two works of classical jurisprudence shaped the legal foundations of Israel’s principal ally, the United States.
There are additional and interrelated details specifically concerning Israel and Hamas. The “Islamic Resistance Movement” crimes of October 7, 2023 – indiscriminate murder, rape and hostage-taking – represent “Nuremberg-level” violations of humanitarian international law. Under “peremptory” or “jus cogens” international rules, all states – not just Israel – have both a codified and customary obligation to punish the terror-criminals. An integral part of Nuremberg Tribunal Principles (especially Principle 1), this obligation stipulates “No crime without a punishment,” or Nullun crimen sine poena.
Plainly, there would have been no Gaza War and no Palestinian Arab casualties if Hamas had not launched its barbarous criminal assault against Israelis, some of whom were under five years old, raped (male and female) and ceremoniously burned alive. For still enthusiastic Hamas supporters, whether in American universities or Palestinian Authority cities, it is high time to understand that Hamas actions of October 7, 2023 had nothing to do with expectations of sovereignty, self-determination or statehood. Instead, they were expressions of lasciviously primal urgings. An elucidating example would be the viscerally-driven boys in William Golding’s Lord of the Flies.
There is more. Among the jurisprudentially-illiterate charges leveled against Israel in its necessary Gaza War operations is “disproportionality.” But what exactly does this charge really mean? More precisely, what are the identifiable legal requirements of “proportionality” specified under humanitarian international law?
To answer correctly, proportionality has nothing to do with symmetrical or equivalent harms. The law-based obligations of “proportional combat” are contained in rules governing the resort to armed conflict (“justice of war”) and the operational conduct of hostilities (“justice in war.”) In the former, proportionality concerns various existential rights of national self-defense and survival. In the latter, proportionality concerns the manner in which a particular belligerency is being carried out.
Proportionality derives from the more basic legal principle that the belligerent rights of insurgent groups and nation-states always have specific limitations. The manipulative declaration that Hamas is entitled to fight “by any means necessary” directly contravenes 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.” Unlike Israel, which expressly regrets the collateral damage of its obligatory self-defense war in Gaza, Hamas rocket fire and terror attacks are the product of relentlessly criminal intent.
For informed legal judgments on what happens in the Gaza War, relevant principles, codifications and customs must be suitably identified and explained. Under humanitarian international law, every belligerent's resort to armed force remains limited to what is “necessary” to meet allowable military objectives. The related notion of "military necessity" is defined as follows: "Only that degree and kind of force, not otherwise prohibited by the law of armed conflict, required for the partial or complete submission of the enemy with a minimum expenditure of time, life, and physical resources may be applied."[1]
Observers still speak narrowly of “international” law, but actual belligerents include not only states, but also terrorist armed forces. This means that even where an insurgency is presumptively lawful – that is, where it seemingly meets the settled criteria of “just cause” – it must still satisfy all corollary expectations of “just means.” Even if Hamas and its sister terror groups would have a presumptive right to fight against an alleged Israeli “occupation,” that fight would still need to respect long-established limitations of “distinction,” “proportionality” and “military necessity.” Deliberately firing rockets into Israeli civilian areas and intentionally placing military assets amid civilian populations always represents a “perfidious” crime of war. And any taking of civilian hostages, whatever the alleged cause, represents unpardonable criminality.
Still, regarding Israel’s incontestable rights of self-defense, manipulations and misunderstandings continue. If a “common-sense” definition of proportionality was ever deemed binding, there could be no legitimate defense of America's "disproportionate" attacks on European and Japanese cities during World War II. By that standard, Dresden, Cologne, Hiroshima and Nagasaki would represent the documented nadir of inhumane and lawless belligerency. Expressed differently, these US attack histories would reveal the modern world's manifestly worst violations of humanitarian international law.
Perfidy represents a much greater wrongdoing than simple immorality or visceral cowardice. It expresses a starkly delineated and punishable crime. It is identified as a "grave breach" at Article 147 of Geneva Convention IV.
Deception can be lawful in armed conflict, but The Hague Regulations disallow any placement of military assets or personnel in populated civilian areas. Related prohibitions of perfidy can be found at Protocol I of 1977, additional to the Geneva Conventions of August 12, 1949. These rules are also binding on the basis of customary international law, a principal jurisprudential source identified at Article 38 of the Statute of the International Court of Justice.
All combatants, including Palestinian Arab insurgents supposedly fighting for "self-determination," are bound by the law of war. This rudimentary requirement is found at Article 3, common to the four Geneva Conventions of 1949. It cannot be suspended or abrogated. Israel, too, is bound by the law of war, but Gaza War actions that kill and injure Palestinian Are civilians are without mens rea. In law, all harms resulting from these actions become the responsibility of the perfidious belligerent. This means both Hamas terror-criminals who cower behind false narratives and “human shields” and the terror-supporting Islamic Republic of Iran.
There are additional facts. The alleged Hamas goal of Palestinian Arab “self-determination” is founded upon an intended crime – that is, the total “removal” of the Jewish State by attrition and annihilation. This genocidal orientation has its origins in the PLO's "Phased Plan" of June 9, 1974. In its 12th Session, the PLO's highest deliberative body, the Palestinian National Council, reiterated the terror-organization’s aim "to achieve their rights to return, and to self-determination on the whole of their homeland."
In its 1974 plan, a proposed sequence of Palestinian Arab violence was unambiguously identified: FIRST, "to establish a combatant national authority over every part of Palestinian territory that is liberated" (Art. 2); SECOND, "to use that territory to continue the fight against Israel" (Art. 4); and THIRD, "to start a Pan-Arab War to complete the liberation of the all-Palestinian territory” (Art. 8). Ironically, this was (and remains) the annihilationist plan of a more mainstream Palestinian Arab terror group than Hamas, an organization that Hamas has always considered too moderate.
For Israel, the existential threat is no longer from a “Pan-Arab War.” At some still-ambiguous point, Hamas or kindred jihadists (plausibly with Iranian support) could launch assorted mega-terror attacks on Israel. Such potentially perfidious aggressions, unprecedented and in cooperation with allied non-Palestinian Arab jihadists, could include chemical, biological or radiological (radiation-dispersal) weapons.
Readily foreseeable perils could also include a non-nuclear terrorist attack on the Israeli reactor at Dimona. There exists a documented history of enemy assaults against this Israeli plutonium-production facility, both by a state (Iraq) in 1991 and by a Palestinian Arab terror group (Hamas) in 2014. Though neither attack was successful, variously precedents were established.
International law is not a suicide pact. Even amid long-enduring world-system anarchy, such law offers a binding body of rules and procedures that permits a beleaguered state to express an "inherent right of self-defense." But when Hamas celebrates the explosive "martyrdom" of jihadi-manipulated Palestinian Arab civilians and when Palestinian Arab leaders seek "redemption" (i.e., presumed power over death) through the mass-murder of "Jews,” the wrongdoers have no supportable claims to immunity from punishment. Moreover, Hamas celebrations of “martyrdom” underscore the two-sided nature of Palestinian Arab terror/sacrifice - that is, the primal sacrifice of "The Jew" (not the “Zionist”) and the reciprocal sacrifice of "The Islamist Martyr." Significantly, such murderous reasoning is explicitly codified within the Charter of Hamas as a "religious problem."
Under international law, terrorists are considered hostes humani generis or "common enemies of humankind." Among other things, this category of criminals invites punishment wherever the wrongdoers can be found. Concerning their required arrest and prosecution, jurisdiction is “universal.”
There is an extra-legal but still important observation concerning Hamas allegations of Israeli "disproportionality." To wit, many Palestinian Arab commanders who control terror-mayhem against Israel unheroically seek shelter in safe towns and cities outside of Gaza. Theatrical rhetoric notwithstanding, these self-declared commanders are never eager to become "martyrs" themselves. Why? This is a question that every impacted Palestinian Arab should now be asking.
What next? In law, all law, truth is exculpatory. Regarding the unresolved Gaza War, pertinent truth is unambiguous. Once again, Israel is waging a necessary war against a determinedly exterminatory foe, this time a jihadist terrorist organization that seeks annihilation for Israel, eternality for its “martyrs” and safety for its openly criminal leaders. In assessing such bitter circumstances, the “international community” should finally take seriously the revealing truth of Hamas’ perfidy and the verifiable falsehoods of Israeli “disproportionality.”
In the end, Hamas and its wider Palestinian Arab populations believe that they are fighting a “just war” and are entitled to employ “any means necessary.” Jurisprudentially, however, rights can never stem from wrongs. Under no circumstances can there be any law-based justifications for terror-violence.
The Palestine Liberation Organization (PLO), forerunner of Hamas (Islamic Resistance Movement) and the Palestine Authority (PA) was formed in 1964. This formation took place three years before there were any "Israeli Occupied Territories." So what exactly were the Palestinian Arabs trying to "liberate”?
The answer is obvious, displays criminal intent and has never changed. It is everything “From the River to the Sea.”
Louis René Beres, Emeritus Professor of International Law at Purdue, was educated at Princeton (Ph.D., 1971). A frequent contributor to several major law and strategy journals in the United States, Europe and Israel, he is the author of twelve books and many monographs dealing with war, terrorism and jurisprudence. Professor Beres is a seven-times contributor to Oxford University Press Annual Yearbook on International Law and Jurisprudence and a member of the Oxford editorial advisory board for the Yearbook. An early recipient of the Bulletin of the Atomic Scientist’s Rabinowitch Prize, Dr. Louis René Beres was born in Zürich at the end of World War II.
[1] 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.
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