Israel’s war against jihadist terror stems from the universal right of self-protection. This right is intended to benefit not only the state defending itself against terror, but also the wider community of nations.
International law is also focused on the idea of “justice in war”. For Israel, this implies an obligation to act according to humanitarian international law (that is, the law of armed conflict) whenever possible, but not to compromise its self-defense when a lawless adversary either shields military assets inside civilian areas or transfers civilians to military areas. A terrorist adversary who commits either of these acts is guilty of the crime of “perfidy” and has no legal claim against Israel for any harm that comes to the civilians his own actions have endangered. Under international law, the perfidy of Hamas in Gaza is exculpatory for the Jewish State.
The ultimate threat to Israel’s physical survival is not terrorism per se, but enemy state support of jihadist violence. Iran, though recently weakened, could still confront Israel with escalating belligerency over time. This could take both direct and indirect forms and could be extremely destructive, even if Iran were to remain non-nuclear. During any such conflict, Israel and Iran would struggle for “escalation dominance”, a prospect that could have significant human and material costs.
Though not widely understood, even by presidents and prime ministers, international law is an indissoluble part of every nation-state’s domestic legal order. Sir William Blackstone’s Commentaries explains: “Each state is expected to aid and enforce the law of nations, as part of the common law, by inflicting an adequate punishment upon offenses against that universal law….” Understood in terms of Israel’s struggle against orchestrated terror, this means that each state is obligated to join Israel in its mandated punishment of jihadist criminality.
Israel has been relentlessly subjected throughout its existence to aggression by barbarous enemies. From the start of the contemporary Arab-Israeli conflict in the late 1940s, the standard Palestinian response to accusations against it of terrorism has been the invented counter-charge of “disproportionality.”
What does international law say about this response? This is not a flexible question subject to opinion or intuition. The law’s answer is readily discoverable.
To the extent that Hamas, Islamic Jihad, Hezbollah, and other terror groups choose to employ a policy of “human shields,” they are guilty of “perfidy.” Any such policy is illegal on its face. Perfidy is identified as a “grave breach” in Article 147 of Geneva Convention IV. Deception can be legally acceptable in armed conflict, but the Hague Regulations expressly disallow any placement of military assets or personnel in populated civilian areas. The most critical legal effect of perfidy as committed by terror groups against Israel is that it immunizes Israel from any responsibility for the harm to civilians that may result.
In law, although bombs killing Palestinian noncombatants may be fired by Israeli military forces, the criminal perpetrators are those who committed perfidy. When Israel bombs a hospital or ambulance because it is being used by Palestinian terrorists to shield illegal activities, resulting civilian deaths and injuries are the legal responsibility of the terrorists. Inevitably, these deaths and injuries are cynically exploited by Hamas and other jihadists for propagandistic purposes.
Israel, which is embroiled in a violent struggle with jihadist terror groups, must clearly identify the legal arguments that support its actions. The enemy’s war crimes cannot be permitted to interfere with Israel’s ability to defend itself. While law and strategy do intersect, they should be evaluated separately as discrete elements of Israel’s unified military doctrine. Israel should take steps to convince both its jihadi insurgent foes and their terrorist state patrons that perfidious aggression will be exposed in law and opposed in practice. These measures could create a force multiplier for Israel wherein the anti-jihadist effect is greater than the sum of its legal and military parts.
In law, considerations of distinction, proportionality and military necessity set defined limits on the use of force. Under the codified laws of war, these criteria are binding. When Israel’s terrorist enemies declare an IDF attack to be “disproportionate,” they ignore the fact that the rule of proportionality never demands equivalent military harm. It only demands an amount of force that is militarily necessary. International law requires that the use of force (whether exercised by a uniformed army or by irregular/insurgent forces) meet the test of “proportionality”, but the test of proportionality stipulates that every resort to armed force remain limited to what is deemed necessary to meet legitimate military objectives.
Any gratuitous infliction of harm is illegal under the laws of war, but harms need never be of equivalent magnitude. Indeed, if such equivalence were an authoritative expectation, the United States, following its August 1945 atomic attacks on Hiroshima and Nagasaki, would represent the single most egregious offender of “proportionality” standards in human history.
Perfidy is a serious violation of the laws of war (aka the laws of armed conflict). During Israel’s Gaza war, perfidy was committed by Hamas with both tactical success and, perhaps more importantly, enduring propagandistic benefit. The Hamas practice of using human shields is justified by it as the product of alleged “desperation,” a form of propaganda that is premised on an intentional manipulation of legal definitions. The group’s battle cry of “Palestine from the river to the sea”, meanwhile, expresses nothing less than its intent to commit genocide, a criminal intent (mens rea) that is proscribed by international law.
Codified jurisprudence applies to all judgments of military advantage and planned retaliation. It does not stipulate that each side to a conflict must agree to either suffer or impose symmetrical harms. The widespread failure to understand this fact plays to the public relations advantage of the Islamist terrorists.
Until there is greater understanding that committing perfidy places direct legal responsibility for resulting harms on the perfidious actor, and not on the state or people they victimize, sub-state foes could decide to escalate hostilities. To inhibit enemy escalations, Jerusalem has to create a seamless web of national deterrence ranging from narrowly conventional to broadly nuclear retaliatory attacks. The persuasiveness of Israeli deterrent threats will require Israel’s foes to believe that Jerusalem is willing to launch appropriate military retaliations and simultaneously capable of inflicting “unacceptable damage.”
Terrorism, like perfidy, is a crime under international law. The use of human shields by terrorists thus effectively adds a second layer of illegality to their behavior. While humanitarian international law does not categorically disallow deception during wartime, the practice of using human shields is always illegal. The prohibition against it extends to all combatants: state, sub-state, “hybrid” and individual.
During Israel’s Lebanon wars, Hezbollah placed its weapons and fighters in areas containing Arab civilians. In the battle for Mosul in Iraq, ISIS used human shields. Though prohibited, this strategy provided both groups with tactical advantages. In the future, jihadist terror groups could utilize such a strategy in post-Assad Syria.
Sooner or later, some of Israel’s terrorist enemies, perhaps under cover of perfidy, will likely attempt a quantum leap forward in their operational goals, possibly to include the use of WMDs. Animated by the clarion call of jihad, these terrorists could try to inflict chemical, biological, or (potentially) nuclear destruction upon Israel. A terrorist nuclear threat would likely be limited to a “dirty bomb” attack, though it could extend to conventional assaults upon Israel’s Dimona nuclear reactor.
Israel should clearly communicate to its jihadist foes that it will never capitulate to any contemplated excursions into higher-order forms of destruction. For this message to be heard, Israel’s enemies must see that no meaningful advantage would accrue from their staging of perfidious assaults.
{Reposted from BESA}
