Right of Self-Defense

Muslim Jihadi Terrorist enemies and the right of self-protection against them

Jihadi rocket fire and terror attacks are the relentless product of “criminal intent.”

Jihadi Terrorists in Gaza, waiting for an opportunity to kill

"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)

In legal terms, intentional acts of injustice call for self-protection. Now faced with multiplying jihadi foes, the State of Israel has a corollary obligation to punish terrorist offenders. In this connection, a basic difference exists between terror violence (the crime) and Israel’s military response (the punishment). As a matter of international justice, this core difference is legally determinative and politically important.

There are pertinent details. By definition, terrorism is a crime under international law. A vulnerable state’s self-protective actions against terror crimes are law-enforcing ipso facto. This assessment holds true as long as the terror-beleaguered state (here, Israel) responds with aptly-measured uses of force; i.e., measures consistent with the codified and customary limitations of humanitarian international law.

During the Gaza War, large numbers of Palestinian Arab civilian casualties seemingly implied Israeli departure from jus in bello legal rules of distinction, proportionality and military necessity. Nonetheless, whether Israel is operating against Shiite Hezbollah in Lebanon, Sunni Hamas in Gaza or any other jihadi fighting forces based in Iraq, Syria, Yemen, etc., its operations intend to serve legitimate military objectives with minimum civilian harms.

To be sure, noncombatant harms can never be prevented altogether, especially when a perfidious enemy is hiding behind “human shields,” but Jerusalem does what it can reasonably do to keep collateral harms in check. Most relevant to proper legal appraisal of Israeli counter-terrorism, Jerusalem - unlike its Islamist foes - displays no “criminal intent” (mens rea).

There is more. In its law-enforcing wars against jihadist terror, Israel acts on behalf of all law-observant countries. While this point has been difficult to acknowledge by those who focus only on the tangible effects of Israeli counter-terrorism, it is authoritatively supported by long-established global obligations. These are indispensable obligations of “mutual aid.”

By this fundamental principle, one known formally under international law as a jus cogens (“compelling law”) rule, each state is required to assist other states imperiled by terror-violence. The most important historical figures in creating and explaining this requirement were Swiss jurist Emmerich de Vattel (The Law of Nations, 1758) and English jurist William Blackstone (Commentaries on the Laws of England, 1765-1769). Subsequently, Blackstone’s Commentaries became the recognizable foundation of US criminal law.

There is more. Palestinian Arab terror crimes of October 7, 2023 - murder, rape and hostage-taking - represent “Nuremberg-level” violations of humanitarian international law. Under compelling or “jus cogens” rules, all states - not just Israel - have a many-sided obligation to punish such criminals. Jurisprudentially, this obligation is “sacred;” it can never be diminished or removed for geo-political or “practical” reasons.

Principle 1 of The Nuremberg Principles (1950) stipulates unambiguously, “No crime without a punishment.” Among other conclusions, there would have been no Gaza War and no Palestinian Arab casualties if Hamas had not launched its October 7, 2023 criminal assault against Israelis and nationals of other assorted states (e.g., Thai agricultural workers simply trying to feed their families back home.)

Here, Hamas barbarisms had nothing to do with any expectations of sovereignty, self-determination or statehood. In law, rights can never stem from wrongs: Ex iniuria non oritur actio.

Hamas and kindred jihadist crimes were not committed to foster Palestinian Arab statehood. These offenses had no political objectives. Rather, they were singularly lascivious and conspicuously primal.

What about Israeli “proportionality”? Under binding laws of war, and contrary to “common-sense” meanings, proportionality has nothing to do with inflicting symmetrical or equivalent harms. Instead, it derives from a more basic legal principle, namely that belligerent rights always have variously specific limitations. The declaration that insurgents are entitled to fight “by any means necessary” 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.” In essence, this narrowly propagandistic declaration is just an empty witticism.

Unlike Israel, which expressly laments the collateral damage of its self-defense operations in Gaza and elsewhere, jihadi rocket fire and terror attacks are the relentless product of “criminal intent.” By unhidden design, jihadists aim to maim and kill Israeli noncombatants. In Jerusalem, this overtly criminal aim should now be re-imagined in tandem with growing jihadi access to drone weapons and incrementally/eventually to weapons of mass destruction.

There is more. If a “common-sense” definition of proportionality was authentically law-based, there could never be any legitimate argument for America's "disproportionate" attacks on European and Japanese cities during World War II. By common-sense standards, Dresden, Cologne, Hiroshima and Nagasaki must represent the nadir of inhumane belligerency. Prima facie, these US attacks would express the modern world's utterly worst violations of humanitarian international law.

It’s time for further legal details. Deception can be lawful in armed conflict, but Hague Regulations disallow placement of military assets or personnel in 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 InterInational Court of Justice (1945).

All anti-Israel combatants, including Palestinian Arab insurgents alleging fighting for "self-determination," are bound by the law of war. Among other things, this basic requirement can be found at Article 3, common to the four Geneva Conventions of 1949. It can never be suspended or abrogated. Israel, too, is bound by the law of war, but its Gaza War actions that killed and injured Palestinian Arab civilians were without mens rea.

There is something markedly ironic. The alleged jihadi goal of Palestinian Arab “self-determination” is founded on an intended crime - that is, total “removal” of the Jewish State by attrition and annihilation. This explicitly 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 clarifying sequence of Palestinian Arab violence was specifically identified: FIRST, "to establish a combatant national authority over every part of Palestinian Arab 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 still remains the annihilationist plan of a more mainstream Palestinian Arab terror groups than Hamas.

At some still-indecipherable point, Hamas or other jihadi criminal forces could launch mega-terror attacks on Israel. Such potentially “perfidious” aggressions could include chemical, biological or radiological (radiation-dispersal) weapons. Foreseeable perils could also include a non-nuclear terrorist attack on the Israeli nuclear reactor at Dimona. There is already a documented history of enemy assaults against this plutonium-production facility, both by a state (Iraq, in 1991) and by a Palestinian terror group (Hamas, in 2014).

International law is not a suicide pact. Even amid a long-enduring world-system anarchy, such law offers a binding body of rules and procedures that permits a beleaguered state to express its inherent right to “self-protection.” But when jihadists celebrate the explosive "martyrdom" of manipulated Islamic civilians and when Islamist leaders seek "redemption" (i.e., “power over death”) through the mass-murder of "Jews,” the wrongdoers have no correct claims to immunity from law-based punishment.

There is more. Under international law, terrorists are considered hostes humani generis or "common enemies of humankind." Among other things, this most egregious category of criminality invites punishment wherever the wrongdoers can be found. Concerning their required arrest and prosecution, all pertinent jurisdiction is “universal.” Also relevant is that the universality-declaring Nuremberg Tribunal reaffirmed the ancient legal principle of "No crime without a punishment."

An extra-legal but still important observation concerns Hamas allegations of Israeli "disproportionality." To wit, many Palestinian Arab commanders who create terror-mayhem against Israel seek shelter in safe towns and cities outside of Gaza and "West Bank" (Judea/Samaria). But these self-declared commanders are never eager to become "martyrs" themselves.

Why? This is the question that every impacted Palestinian Arab should finally be asking. Matters will not be helped by US President Donald Trump’s recent agreements with Syria, Turkey and Qatar, especially those “mutual self-defense” provisions that could make it impossible for Israel to strike jihadists taking refuge in those countries.

What next? In law, all law, truth is exculpatory. Regarding the Gaza War, that conflict is anything but over, Hamas any other jihadist forces are already rearming and Trump’s so-called international stabilization force is effectively a protracted cover for Israel’s jihadi enemies. Taken as a whole, the American President’s “peace” is merely a bitter self-parody.

In the end, Hamas and other jihadists argue they are fighting a “just war” and entitled to employ “any means necessary.” Under authoritative international law, however, even if a war is determinably “just,” it must still be fought with determinably “just means.” In this binding jurisprudence, ends can never justify means. Under no circumstances can there ever be law-based justifications for terror-violence.

Recalling 18th century Swiss scholar Emmerich de Vattel’s still-valid declaration: “An intentional act of injustice is an injury. A nation has therefore the right to punish it….This right…is derived from the right of self-protection.”

https://www.israelnationalnews.com/news/418957