web analytics
July 24, 2014 / 26 Tammuz, 5774
Israel at War: Operation Protective Edge
 
 
At a Glance
InDepth
Sponsored Post
IDC Advocacy Room IDC Fights War on Another Front

Student Union opens ‘hasbara’ room in effort to fill public diplomacy vacuum.



Religious Extremism And International Legal Norms Perfidy, Irrationality And Preemption (Second Of Three Parts)


Beres-Louis-Rene

Based upon the author’s March 30, 2007 lecture at a conference on ‘Sacred Violence, Religion And Terrorism’ held at: Case Western Reserve University, School of Law, Cleveland, Ohio.

By itself, violence is not necessarily irrational.

In the words of Rene Girard, whose book Violence And The Sacred should be the underlying text of all that we do here today, it sometimes “does have its reasons.”

Here is more of what Girard has to say − with his usual level of sophistication and extraordinary anthropological and literary insight.

“When unappeased, violence seeks and always finds a surrogate victim. The creature that excited its fury is abruptly replaced by another, chosen only because it is vulnerable and close at hand.”

What does this mean to us [here, at this conference]?

Consider the endlessly barbaric Palestinian insurgency against Israel. What happens when the Israelis build a wall and make the Palestinians’ sacrificial killings (suicide bombings) more difficult? The Palestinian Arabs slaughter each other − Hamas murders Fatah and Fatah murders Hamas, until they can reconcile, temporarily, whereupon they both resume the murder of Jews.

Among the Palestinians – and amidst the Arab/Islamic terrorist groups in general – “sacred violence” draws very heavily upon repressed or thwarted sexuality. It is hardly a coincidence that “sacred violence” is now most common in certain portions of the Arab/Islamic world, where repressed sexual desire accumulates a relentless energy that − sooner or later – must burst forth.

Most of the world watches the Jihadist orchestrations of terror, and believes that this “sacred violence” is essentially political or revolutionary. Nothing could be farther from the truth.

[This is a law school conference.] It is important, therefore, that we draw upon creative psychological, literary and anthropological insights to better understand “sacred violence,” but we also need to know more about jurisprudentially normative controls.

What are the vital connections? A number of major points need to be made:

First, international law obviously does permit various expressions of organized violence, including not only “just wars” (beginning with the Torah and Aristotle) but also certain forms of insurgency.

We have known for a long time that “national liberation” and “self-determination” are perfectly appropriate legal reasons for the assertion of insurgency (there is ample evidence for this in both codified and customary international law). At the same time, we must recall that every use of force in international law must always be judged twice: Once with regard to the justness of the cause; and once with regard to the justness of the means.

Here we must think in terms of humanitarian international law or the law of armed conflict.

Whatever authoritative sources we examine at Article 38 of the Statute of the International Court of Justice (and this should include Natural Law, which underlies all positive or codified international law) insurgents are expected to comply with the basic principles of the Martens Clause and the St. Petersburg Declaration (1868): “The means that can be used to injure an enemy are not unlimited.”

This means that no matter how just the cause of an insurgent group engaged in “sacred violence,” any resort to unjust means is automatically an incontestable indication of terrorism. Philosophically, the just cause problem here is international law’s mistaken emphasis on a collective self.

If our jurisprudence had sought to “determine” the self of the individual, not the aspiring nation-state (the “primal horde” of Freud; the “herd” of Nietzsche; the “crowd” of Kierkegaard) we would instead be on the gainful path to some serious resolution of terrorism and “sacred violence.” In this connection, the work of the Swiss psychologist Carl G. Jung as well as the American transcendentalists – especially Emerson and Thoreau – could actually be quite helpful.

The title of my remarks [this morning] includes the word “perfidy.”

Most of us already know that “perfidy” is a codified violation of the law of war, and has the effect of placing jurisprudential responsibility for pertinent non-combatant harms entirely upon the perfidious party. In other words, the legal effect of perfidy is exculpatory for the party that is actually inflicting the harms, so long as that party itself has just cause for its resort to force and seeks to minimize collateral harms within the bounds of “military necessity.”

A current example: IRAN.

The president of Iran has repeatedly called openly for genocide against the State of Israel (literally, in violation of the codified provisions of the Genocide Convention). At the same time, Iran is preparing to develop nuclear weapons.

Assuming that Israel would therefore have the right (customary international law) of anticipatory self-defense against Iran, what of the many Iranian civilians who might die in the Israeli preemptive strike against pertinent nuclear infrastructures?

As Iran has very purposefully moved noncombatants into areas with sensitive nuclear targets, and has very purposefully moved sensitive nuclear structures and assets into noncombatant residential areas, the full legal responsibility for any harms accruing from an essential act of Israeli anticipatory self-defense would fall entirely upon Iran.

In the case of Iran and Israel, “sacred violence” is what animates Iranian nuclearization.

In this case, Iranian “perfidy” (codified primarily at Geneva Law) could have the effect of deterring an Israeli preemption.

This would follow from Israeli concerns about injuring and killing Iranian noncombatants.

Nonetheless, from the standpoint of law, Israel would not need to be so deterred.

(To be continued)

Copyright, The Jewish Press, May 4, 2007. All rights reserved.

LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is the author of ten books and several hundred articles dealing with military strategy, counter-terrorism, international relations and international law. He was born in Zurich, Switzerland on August 31, 1945, and is Strategic and Military Affairs columnist for The Jewish Press.

About the Author: Louis René Beres, strategic and military affairs columnist for The Jewish Press, is professor of Political Science at Purdue University. Educated at Princeton (Ph.D., 1971), he lectures and publishes widely on international relations and international law and is the author of ten major books in the field. In Israel, Professor Beres was chair of Project Daniel.


If you don't see your comment after publishing it, refresh the page.

Our comments section is intended for meaningful responses and debates in a civilized manner. We ask that you respect the fact that we are a religious Jewish website and avoid inappropriate language at all cost.

If you promote any foreign religions, gods or messiahs, lies about Israel, anti-Semitism, or advocate violence (except against terrorists), your permission to comment may be revoked.

No Responses to “Religious Extremism And International Legal Norms Perfidy, Irrationality And Preemption (Second Of Three Parts)”

Comments are closed.

SocialTwist Tell-a-Friend

Current Top Story
Israel Air Force bombed a Hamas terrorist command center based in a hospital. The UN confirmed the hospital was evacuated before the raid.
3,400 Targets Hit by IDF So Far, Tunnels Remain Major Threat
Latest Indepth Stories
Rabbi Meir Kahane at the National Press Club ~ 1985

Rabbi Kahane spoke of transfer, because it was what the Torah spoke of.

Hamas terrorists in Gaza have been using human shields to protect them from the IDF as they launch rocket attacks against Israel.

There is much I can write you about what is going here, but I am wondering what I should not write. I will start by imagining that I am you, sitting at home in the Los Angeles area and flipping back and forth between the weather, traffic reports, the Ukraine, Mexican illegals and Gaza. No […]

Jews inside Paris synagogue surrounded by protesters throwing rocks, holding bats and chairs.

Should Jews in Europe take more responsibility in self-defense of community and property?

Map_of_the_Continent_of_Europe

Germany’s The Jewish Faith newspaper ominously noted, “We Jews are in for a war after the war.”

The truth is we seldom explore with kids what prayer is supposed to be about.

Almost as one, Jews around the world are acknowledging the day-to-day peril facing ordinary Jews in Israel and the extraordinary service of the IDF in protecting them.

So on the one hand Secretary Kerry makes no bones about who is at fault for the current hostilities: he clearly blames Hamas.

King Solomon said it long ago: “Cast your bread upon the waters” because you don’t know when you’ll hit something. Our job is to do.

The anti-Israel camp does not need to win America fully to its side. Merely to neutralize it would radically alter the balance of power and put Israel in great jeopardy.

We mourn the dead, wish a speedy recovery to the wounded, and pray that God guides the government.

Charges from the court of world public opinion and their refutations.

It is up to our government to ensure that their sacrifices were not made for short-term gains.

Supporting Israel, the only democracy in the Middle East, has become dangerous in Malmo.

Proportionality Doctrine:The greater the military gain the greater the justifiable collateral damage

More Articles from Louis Rene Beres
Louis Rene Beres

President Obama’s core argument on a Middle East peace process is still founded on incorrect assumptions.

Louis Rene Beres

Once upon a time in America, every adult could recite at least some Spenglerian theory of decline.

President Obama’s core argument is still founded on incorrect assumptions.

Specific strategic lessons from the Bar Kokhba rebellion.

Still facing an effectively unhindered nuclear threat from Iran, Israel will soon need to choose between two strategic options.

For states, as for individuals, fear and reality go together naturally.

So much of the struggle between Israel and the Arabs continues to concern space.

An undifferentiated or across-the-board commitment to nuclear ambiguity could prove harmful to Israel’s’s overall security.

    Latest Poll

    Do you think the FAA ban on US flights to Israel is political?






    View Results

    Loading ... Loading ...

Printed from: http://www.jewishpress.com/indepth/columns/louis-bene-beres/religious-extremism-and-international-legal-norms-perfidy-irrationality-and-preemption-second-of-three-parts/2007/05/02/

Scan this QR code to visit this page online: