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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 (Ph.D., Princeton, 1971) is professor of political science and international law at Purdue University and the author of many books and articles dealing with international relations and strategic studies.


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