Israel, America's Presidential Election and the Law of Armed Conflict
Louis René Beres
Rabbi Eleazar quoted Rabbi Hanina, who said: "Scholars build the structure of peace in the world."
-- The Babylonian Talmud, Order Zera'im, Tractate Berakoth, IX.
Already, back in 2014, US Senator Bernie Sanders fancied himself an informed scholar on the complex laws of war. Then as now, however, the Senator's seat-of-the-pants judgments concerning Israeli counterterrorism were evidently contrived and woefully incorrect. Whether wittingly or unwittingly, this recurrent American presidential aspirant, by accusing Israel of using "disproportionate force" against Palestinians, still ignores the (1) critical regional context of Israel's self-defense responses to terrorism, and (2) the authentic legal meaning of "proportionality."[i]
In essence, though seemingly unknown to Senator Sanders, this meaning has nothing to do with (3) creating any tangible equivalence in the use of military force; or (4) meeting any presumptively corollary Israeli legal obligation to match military reprisals to expressed levels of Palestinian armed conflict.
In all proper jurisprudential domains, admissible rules of conduct are never simply ad hoc. Under international law, of which the laws of war are plainly an integral and indispensable part, the standard of proportionality is never merely a matter of "common sense." It is, rather, an established norm of long-settled, codified and customary international law.
More precisely, this authoritative rule stipulates, among other things, that absolutely every belligerent's resort to armed force be purposely limited to what is considered necessary to meet fully appropriate military objectives.[ii]
Today, moreover, "every belligerent" necessarily includes insurgent and terrorist armed forces.
Under no circumstances, does this binding principle suggest that each party to an ongoing conflict must intentionally seek to impose only symmetrical harms upon the enemy. If that sort of "common sense" suggestion were correct, there would then be no modern historical equivalent to America's grievously "disproportionate" attacks on European and Japanese cities during World War II. By that inapplicable standard, Dresden, Cologne, Hiroshima and Nagasaki would represent the documented nadir of inhumane belligerency; unassailably, the modern world's very worst violations of the law of war.
In all war, whether fully blown world wars or regional counter-terrorist operations, legal judgments need not be made in an historical vacuum.
In all war, background "counts."
Somehow, in the seemingly endless Palestinian Jihad against Israeli noncombatants, background is too conveniently glossed-over. Significantly, Hamas, Fatah, Islamic Jihad, and related terror groups, operating from Gaza, "normally" take steps to ensure that Israeli reprisals will in fact kill or injure Arab noncombatants. To wit, by carefully placing certain elderly women and young children in those very areas from which Arab rockets are most routinely launched into Israeli homes, hospitals and schools, Palestinian leaders - not Israeli defenders - openly violate the most fundamental expectations (more technically, "peremptory" or "jus cogens" expectations) of humanitarian international law.
There is more. In pertinent law, any use of "human shields" represents substantially more than simple immorality or cowardice. It expresses a starkly delineated crime. The correct legal name for this readily identifiable "delict" is “perfidy.”
Scholarship matters. Perfidy is identified as a "grave breach" at Article 147 of Geneva Convention IV. To be sure, deception can often be legally acceptable in armed conflict, but the Hague Regulations specifically disallow any placement of military assets or personnel in populated 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 discrete but still-intersecting basis of customary international law, [iii] a jurisprudential source identified properly at Article 38 of the Statute of the International Court of Justice.[iv]
Senator Sanders and others, please take note. All combatants, including Palestinian insurgents allegedly fighting for "self-determination,"[v] are bound by the law of war. This core requirement is found at Article 3, common to the four Geneva Conventions of 1949. [vi]
Also, worth considering is that some Palestinian terror groups, at least eventually, seek to prepare for full-fledged mega-terror attacks on Israel. Such aggressions, plausibly unprecedented and possibly in cooperation with certain allied non-Palestinian Jihadists, could include chemical and/or biological weapons of mass destruction. Over time, especially if Iran should agree to transfer portions of its still-substantial inventory of nuclear materials to assorted proxy terror groups, Israel could have to face Palestinian-directed nuclear terrorism.[vii] Also still possible is that ISIS-type surrogates would sometime displace a formal leadership in "Palestine," and that Israel (and its allies) could then have to face a more starkly insidious source of atomic terror.[viii]
Even if US President Donald Trump is correct that ISIS has been effectively eliminated as an organization, the underlying Jihadist ideology is anything but defeated.[ix]
Always, however perilous a perceived threat, Israel has sought to keep its essential counterterrorism operations consistent with applicable law. For their part, however, Palestinian fighters remain in deliberate and persistent violation of virtually all relevant rules of civilized military engagement. Terror-violence launched from Gaza only accelerated after Israel left the area in 2005, a "disengagement" Jerusalem had initially expected to produce greater intercommoned harmony or even "peace." [x]
Senator Sanders and others, kindly take note. Terrorism is far more than just bad behavior. Terrorism is a distinct crime under international law.
Senator Sander's jurisprudential reasoning notwithstanding, the Palestinian side must bear full legal responsibility for Arab civilian casualties in Gaza. Absent their pre-meditated attacks on Israeli civilian populations, there would be no reciprocal Palestinian harms.
International law, Senator Sanders and others, is not a suicide pact. Meaningfully, it offers an authoritative body of rules and procedures that very clearly permits a beleaguered state - any beleaguered state - to express its "inherent right of self-defense." When certain Arab terrorist organizations cheerfully celebrate the explosive "martyrdom" of Palestinian children and when certain Palestinian leaders seek a religious "redemption" through the mass-murder of "unbelievers," the terrorists have no valid legal claim to "sanctuary."
Under international law, these criminals are called Hostes humani generis or "Common enemies of humankind." Unambiguously, in law, such a category of murderers must be punished severely and wherever they are found. Concerning their required arrest and prosecution, jurisdiction is now termed, after Nuremberg (1945-46) “universal.” Also relevant is that the historic Nuremberg Tribunal strongly reaffirmed the ancient legal principle of Nullum crimen sine poena, or "No crime without a punishment."
There is a manifestly non-legal but still significant point that is germane to Senator Sanders' wrongful assessment of Israeli "disproportionality." Predictably, those Palestinian commanders who directly control terror-mayhem against Israel cower unheroically in their own towns and cities, taking meticulous care to discover personal safety amid densely packed and PA/Hamas-exploited local Arab populations. Too often, it seems, these commanders, not particularly eager to become "martyrs" themselves, manage to escape Israeli self-defense reprisals, but only because Israel insists upon very close adherence to a long-codified "Purity of Arms."
Senator Sanders' unrevised and unrefined comments notwithstanding, there is no army on earth that adheres more strictly than the IDF to self-limiting moral expectations.
US Senator Bernie Sanders and others remain determinedly unfamiliar with the laws of war of international law. Just as seriously, he also fails to recognize that these laws represent an integral and incorporated part of the domestic or municipal law of the United States. This is the case by virtue of the Constitution, especially Article 6 (the so-called "Supremacy Clause"), and because of several corollary Supreme Court decisions, particularly the Paquete Habana (1900).[xi]
This means that Senator Sanders' consistent misuse of relevant international law represents inter alia a wrongful interpretation of American Constitutional law. Now, as the United States proceeds toward the 2020 presidential election, it is vital that both major parties become better acquainted with the governing laws of war and learn to apply these basic rules with appropriate fairness to all ongoing instances of international armed conflict. In the final analysis, the core issue concerning humanitarian international law here is not about Israel per se, but rather the willingness of all major states in world politics to sustain a uniformly civilized standard of global military conduct.
[i] The principle of proportionality is contained in both the rules governing the resort to armed conflict (jus ad bellum) and in the rules governing the actual conduct of hostilities (jus in bello). In the former, proportionality relates to self-defense. In the latter, it relates to conduct of belligerency. Proportionality is itself derivative from the more basic principle that belligerent rights are not unlimited (See notably 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").
[ii] The specific principle of "military necessity" has been defined authoritatively as follows: "Only that degree and kind of force, not otherwise prohibited by the law of armed conflict, required for the partial or complete submission of the enemy with a minimum expenditure of time, life, and physical resources may be applied." See: United States, Department of the Navy, jointly with Headquarters, U.S. Marine Corps; and Department of Transportation, U.S. Coast Guard, The Commander's Handbook on the Law of Naval Operations, NWP 1-14M, Norfolk, Virginia, October 1995, p. 5-1.
[iii] Article 38(1)(b) of the Statute of the International Court of Justice describes international custom as "evidence of a general practice accepted as law." 59 Stat. 1031, T.S. No. 993 (June 26, 1945). Norms of customary international law bind all states irrespective of whether a State has ratified the pertinent codifying instrument or convention. International law compartmentalizes apparently identical rights and obligations arising both out of customary law and treaty law. "Even if two norms belonging to two sources of international law appear identical in content, and even if the states in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence." See Military and Paramilitary Activities (Nicaragua v. U.S.), 1986 I.C.J. Rep. 14, para. 178 (June 27).
[iv] On the main corpus of jus in bello or humanitarian international law, see: Convention No. IV Respecting the Laws and Customs of War on Land, With Annex of Regulations, October 18, 1907. 36 Stat. 2277, T.S. No. 539, 1 Bevans 631 (known commonly as the "Hague Regulations:); Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Done at Geneva, Aug. 12, 1949. Entered into force, Oct. 21, 1950. 6 U.S.T. 3114, T.I.A.S. No. 3362, 75 U.N.T.S. 31; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Done at Geneva, Aug. 12, 1949. Entered into force, Oct. 21, 1950. 6 U.S.T. 3217, T.I.A.S. No. 3363, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War. Done at Geneva, Aug. 12, 1949. Entered into force, Oct. 21, 1950. 6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135; Convention Relative to the Protection of Civilian Persons in Time of War. Done at Geneva, Aug. 12, 1949. Entered into force, Oct. 21, 1950. 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287.
[v] Ultimately, Palestinian hostility to Israel is openly oriented to removal of the Jewish State by both attrition and annihilation. This orientation has its doctrinal foundations 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 PLO aim as being "to achieve their rights to return, and to self-determination on the whole of their homeland." The proposed sequence of violence is expressed as follows: FIRST, "to establish a combatant national authority over every part of Palestinian 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, i.e., to eliminate Israel" (Art. 8).
[vi] According to the rules of international law, every use of force must be judged twice: once with regard to the right to wage war (jus ad bellum), and once with regard to the means used in conducting war (jus in bello). Today, in the aftermath of the Kellogg-Briand Pact of 1928, and the United Nations Charter, all right to aggressive war has been abolished. However, the long-standing customary right of self-defense remains, codified at Article 51 of the Charter. Similarly, subject to conformance, inter alia, with jus in bello criteria, certain instances of humanitarian intervention and collective security operations may also be consistent with jus ad bellum. The laws of war, the rules of jus in bello, comprise (1) laws on weapons; (2) laws on warfare; and (3) humanitarian rules. Codified primarily at the Hague and Geneva Conventions (and known thereby as the law of the Hague and the law of Geneva), these rules attempt to bring discrimination, proportionality and military necessity into belligerent calculations.
[vii] Professor Beres is author of one of the earliest books on the subject of nuclear terrorism: Terrorism and Global Security: The Nuclear Threat (Boulder, Colorado: Westview Press, 1979).
[viii] Such sources could include a non-nuclear terrorist attack upon the Israeli reactor at Dimona. Already, there is a history of enemy attempts against this Israeli plutonium-production reactor, both by a state (Iraq) in 1991, and by a Palestinian terror group (Hamas) in 2014. Neither attack was successful, but a relevant precedent has been established. For more on the specific threat to Israel's nuclear reactor facilities, see: Bennett Ramberg, "Should Israel Close Dimona? The Radiological Consequences of a Military Strike on Israel's Plutonium-Production Reactor," Arms Control Today, May 2008, pp. 6-13. See also, by the same author: Bennett Ramberg, "The Next Chernobyl May Be Intentional," Reuters, April 26, 2016.
[ix] See, by Professor Beres at Oxford University Press: https://blog.oup.com/2016/11/isis-security-ideology/
[x] It would be similarly unrealistic for Israeli planners to count on some form of Palestinian - state "demilitarization." See, by Professor Beres, "Demilitarizing Palestine," at Oxford Yearbook of International Law, Oxford University Press, 2018, pp. 191-206.
[xi] In the words used by the U.S. Supreme Court in The Paquete Habana, "International law is part of our law, and must be ascertained by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations." See The Paquete Habana, 175 U.S. 677, 678-79 (1900). See also: The Lola, 175 U.S. 677 (1900); Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774, 781, 788 (D.C. Cir. 1984)(per curiam)(Edwards, J. concurring)(dismissing the action, but making several references to domestic jurisdiction over extraterritorial offenses), cert. denied, 470 U.S. 1003 (1985)("concept of extraordinary judicial jurisdiction over acts in violation of significant international standards...embodied in the principle of `universal violations of international law.'").