It’s not bewildering. Merely to be born augurs badly for eternal life. Still, in their desperation to live perpetually, some human societies and civilizations have embraced a panoply of faith-based promises exchanging “life everlasting” for “undying loyalty.”
What are the likely consequences? In world politics, such loyalty is transferred from faith to state, which then battles other states in what seems a secular “struggle for power,” but is waged as a “sacred conflict.” The promised advantage to being on “God’s Side” in this conflict – a struggle in which the “transferee” is a sub-state terror organization like Hamas – can be “immortality.”[1]
Taken by themselves, at least in scientific terms, hopes for power over death are vain but not necessarily destructive of others. In the Middle East, the problem of faith-based violence arises when states or individuals link these hopes to “martyrdom.” Increasingly, such linkages are fundamental to relevant calculations made by Israel’s jihadi foes. Nothing has been changed by Donald Trump’s 20-point peace plan except that Qatar and Turkey are being strengthened and released Hamas murderers will be able to re-join the “Holy War.”
There are meaningful details. What is the clarifying background of jihadi calculations? In essence, the problem of “power over death” challenges human security and international law. Though scholars and laypersons ordinarily identify power as a property of wealth, weapons or land, such traditional identifications fail to understand such assets as mere “reflections” (recall Plato’s The Republic) of what is authentically “true.” Today, in the Middle East, even after the “Trump Peace,” jihadi terror groups seek to acquire such power and imperil the Jewish State with still-escalating harms.
From the start, Israel has fashioned its counter-terrorism policies as a narrowly military matter of strategy and tactics. To its survival detriment, little seems to have changed in this “textbook” orientation. Conspicuously, a disproportionate measure of Israel’s defense investments remains allocated to weapon system hardware and associated intelligence infrastructures.
There is more. The small country’s national security decision-makers seemingly ignore much “deeper” philosophical and behavioral aspects of counter-terrorism. To prevent potentially existential harms, Israeli counter-terrorist planning will need to take greater account of adversarial commitments to “power over death.” For a country smaller than America’s Lake Michigan, a terrorist enemy that identifies mass-murder of Israelis as a religious sacrifice can never be defeated by exclusively military means.
For Jerusalem, subsidiary policy questions are steadily accumulating. By definition, Israel’s jihadi foes are not animated by science or logic. How, after all, could the murder of one particular human being (here, “The Jew”) offer eternal life to another?
Reciprocally, how could a terrorism-opposing state build the core components of its functioning national security program on an enemy’s “hunger for immortality” (a phrase of Spanish philosopher Miguel de Unamuno’s Tragic Sense of Life, 1921)? A correct but distressing answer lies in the continuing attraction of jihadists to non-rational explanation. Though overlooked by the “Trump Peace,” it is a grave mistake to project one’s own reason–based decision-making processes on a jihadi adversary (state or sub-state) that ritualistically favors anti-reason.
Further clarifications are available. Even in our bewildering age of high technology, there is something in human beings that may yearn not for evidence-based persuasion, but for mystery and deflection. When confronting jihadi terrorist ideologies that promise the “faithful” a “life everlasting,” Israel’s leaders should remain wary of projecting their own ideas of rational decision-making on certain enemies. While projections of decision-making rationality do generally make sense across all geopolitical landscapes, there are still many sources of “landscape abnormality.”
What happens then? If Israel’s national leaders were to review the current terrain of jihadi terrorist organizations, a nexus between “martyrdom operations” and “life-everlasting” would become more obvious. Prima facie, it could represent an eye-opening and life-saving discovery.
There is more. In such time-urgent security matters, variously corresponding and converging elements of law should surface. To wit, jihadi insurgents who justify violent attacks on Israeli noncombatants in the name of a purifying religious “martyrdom” are law-violating. Always.
Under law, harm-bent insurgents, even Palestinian insurgents who passionately claim “just cause,” must satisfy longstanding jurisprudential limits on targets and levels of violence. Left uncontrolled, Hamas and its terror group allies could at some point escalate to chemical, biological or nuclear (radiation-dispersal) weapons. Alternatively, these criminal organizations that tie “sacrifice” of “unbelievers” to “power over death” could launch non-nuclear rocket or drone attacks at Israel’s Dimona nuclear reactor in the Negev.
There is more. Law and strategy, though analytically distinct, are closely interrelated. On matters of effective counter-terrorism, the legal “bottom line” is clear: Violence becomes terrorism whenever politically-animated insurgents murder or maim noncombatants, whether with guns, knives, bombs or automobiles. It is irrelevant if the alleged cause of terror-violence is just or unjust. In the universally binding law of nations, any unjust means used to fight for arguably just ends is law-violating ipso facto.
Sometimes, martyrdom-seeking terrorist foes choose to stand on the legal argument known formally as tu quoque. This historically-discredited argument (see especially the Nuremberg Judgment following World War II) stipulates that because the “other side” is allegedly guilty of similar, equivalent or greater criminality, “our side” is automatically innocent of wrongdoing. In law, this argument is always disingenuous and always invalid.
In principle, tu quoque arguments can never be used as a correct justification by a defending state, but this is not what is taking place in Gaza. Though Israeli actions against Hamas and other terrorists have produced Palestinian civilian casualties and fatalities, these outcomes are the direct result of jihadi “perfidy” (shielding military-terror assets in schools and hospitals) and remain collateral to law-based efforts at self-defense. Unlike its jihadi terrorist foes who openly display “criminal intent” (mens rea), Israel’s security operations are conducted without such wrongdoing.
For conventional armies and insurgent forces, the right to use armed force can never supplant basic or “peremptory” rules of humanitarian international law. Such jus cogens rules (Vienna Convention rules that “permit no derogation”) are normally referenced as the law of armed conflict or the law of war. These synonymous terms concern both state and sub-state participants in any armed conflict.
Again and again, without a scintilla of law-based evidence, supporters of jihadi terror-violence insist that ends can justify means. Leaving aside the ordinary ethical standards by which such arguments should be rejected, there also exist binding legal rules. For more than two thousand years, unassailable legal principles have stipulated that intentional violence against the innocent is prohibited, but that unintended harms are defensible whenever a belligerent adversary resorts to “perfidy.” In the Gaza War, this means that the jihadi embrace of “human shields” has been exculpatory for Israel.
Under international law, whether codified or customary, one person’s terrorist can never be another’s “freedom-fighter.” Though correct that particular insurgencies can be judged lawful or law-enforcing (consider American revolutionaries of the 18th century or Jewish anti-British insurgents of the mid-20th century), even allowable resorts to sub-state force must conform to humanitarian rules of war.
Clarity exists in such jurisprudential matters. Whenever an insurgent group resorts to unjust means, its actions constitute terrorism. Even if adversarial claims of a hostile “occupation” were reasonably acceptable (e.g., Israel and the Palestinians), insurgent claims of entitlement to “any means necessary” remain false. Long-established under authoritative international law, most explicitly at Hague Convention No. IV, is an absolutely unchallengeable principle: “The right of belligerents to adopt means of injuring the enemy is not unlimited.”
There is more. International law can never be shaped or articulated ad hoc. Always, it must display determinable form and content. It can never be invented and reinvented by terror groups or “nonmember observer states” (here., the Palestinian Authority) to selectively justify adversarial interests. This is especially the case when terror violence intentionally targets a victim state’s fragile and vulnerable civilian populations.
National liberation movements that fail to meet the test of just means can never be protected as lawful. Even if pertinent law were somehow to accept the argument that terror groups had fulfilled all valid criteria of “national liberation,” (e.g., PA, Hamas, Palestinian Islamic Jihad et. al].), these groups would still not satisfy the legal standards of distinction, proportionality, and military necessity. These enduringly critical standards were applied to insurgent or sub-state organizations by the common Article 3 of the four Geneva Conventions of 1949, and (additionally) by the two 1977 Protocols to the Conventions.
Standards of “humanity” also remain binding on all combatants by virtue of broader norms of customary and conventional international law, including Article 1 of the Preamble to the Fourth Hague Convention of 1907. This rule, commonly called the “Martens Clause,” makes “all persons” responsible for the “laws of humanity” and for associated “dictates of public conscience.” Although there can be no exceptions based on a presumptively “just cause,” a combatant that seeks immunity from punishment via perfidy can claim no law-based argument.
Under international law, even when inflicted by a “nonmember observer state” (in the matter at hand, the Palestinian Authority), ends can never justify means. Reinforcing the case of war between states, every use of force by insurgents must be judged twice, once with regard to the justness of the objective and once with regard to the justness of applied means.
Under international law, terrorist crimes mandate universal cooperation in both apprehension and punishment. Among other things, as punishers of “grave breaches” under international law, all states are expected to search out and prosecute (or properly extradite) individual terrorists. In no circumstances are states permitted to regard terrorist “martyrs” as law-based “freedom fighters.”
True law can never be created by observation or witticism. This is emphatically true for the United States, which incorporates international law as the “supreme law of the land” at Article 6 of the Constitution, and for Israel, which remains volitionally subject to the timeless principles of a “Higher Law.” Fundamental legal authority for the American republic was derived from William Blackstone’s Commentaries, which (in turn) owes much of its content to peremptory principles of Torah.
Ex injuria jus non oritur. “Rights can never stem from wrongs.” Even if jihadi-adversaries of Israel continue to identify insurgents as “martyrs,” this treatment would have no exculpatory or mitigating effect in assessments of terror- crimes. In the end, Hamas and associated foes are animated by the most compelling form of power imaginable, that is, the promise of personal immortality.
Inevitably, at least according to the decisional calculi of anti-Israel insurgents, “power over death” will override other kinds of power. Donald Trump’s cobbled-together “peace” notwithstanding, Israel could never defeat Hamas without first defeating the jihadi group’s underlying ideology. Accomplishing such necessary defeat will be an intellectual task, not one based on bombast (in logic, the fallacy called argumentum ad baculum) and threats of “obliteration.”
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Louis René Beres was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with terrorism and international law. Emeritus Professor of International Law at Purdue, Dr. Beres was born in Zürich at the end of World War II. He is a frequent contributor to Harvard National Security Journal (Harvard Law School); International Security (Harvard); The American Journal of International Law; American Political Science Review; JURIST; Case Western Reserve Journal of International Law; Air and Space Operations Review ((USAF); Yale Global Online; Indiana International and Comparative Law Journal (Indiana University); World Politics (Princeton); Bulletin of the Atomic Scientists; The War Room (Pentagon); The Strategy Bridge; Israel Defense (IDF); Modern War Institute (West Point); Parameters: Journal of the US Army War College (Pentagon); The Atlantic; The New York Times; The Jerusalem Post; and Oxford University Press. His twelfth book is Surviving amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2nd ed., 2018). https://paw.princeton.edu/new-books/surviving-amid-chaos-israel%E2%80%99s-nuclear-strategy
[1] In the words of Jewish philosopher Emmanuel Levinas, “An immortal person is a contradiction in terms.” See: Being -Toward Death as the Origin of Time (1976).
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