On its face,
the Hamas terror attack on October 7, 2023, was beyond legal
or ethical justification. Nonetheless, though Israel has
every conceivable right to respond with military force,
a significant segment of world public opinion is demanding
greater “proportionality” between the precipitating
Hamas crime and the necessary Israeli response to protect
its citizens. But what precisely is meant by this inherently
vague standard? As both an ethical and operational matter,
how can anyone fairly assess the proportionality of Israel’s
“Swords of Iron” response?
Significantly, from the standpoint of authoritative international
law, Israel’s response is not merely an expression
of retributive justice (“an eye for an eye”),
but of indispensable self-defense.
We should begin
at the beginning. The legal obligations of proportional
combat are contained in assorted rules governing resort
to armed conflict (“justice of war”) and the
operational conduct of hostilities (“justice in war”).
In part, in the “justice of war” assessment,
proportionality concerns rights of national self-defense.
Regarding Israel and the current Gaza War, these rights
have genuinely existential importance.
Regarding the
“justice in war” assessment, proportionality
relates to the manner in which a particular belligerency
is carried out. Taken as a whole, the proportionality standard
is derivative from the foundational legal principle that
belligerent rights have variously specific constraints.
Hague Convention No. IV (1907), stipulates: “The right
of belligerents to adopt means of injuring the enemy is
not unlimited.” To wit, any acts by insurgent/terrorist
groups that involve rape, murder, and/or hostage-taking
are prohibited.
Always.
The popular
terror-group phrase “by any means necessary”
has no validity in law. Aside from its considerable propagandistic
value, this venal phrase represents an utterly empty witticism,
much like the equally invalid assertion that “one
man’s terrorist is another man’s freedom fighter.”
By authoritative definition, Hamas insurgents are terrorists;
they are not freedom fighters.
In order to
make informed legal judgments on what is happening in the
current Gaza War, further details and particularities must
be identified. Though generally misunderstood, the legally
correct meaning of proportionality has nothing to do with
equivalence in the use of military force. Equivalence or
symmetry is never a requirement of the law of war.
There is more.
Under the law of war, the proportionality standard is never
just a matter of intuition or “common sense.”
It is always a matter of Reason, an integral element of
codified and customary international law.
Above all, this
standard seeks to ensure that every belligerent’s
resort to armed force remains limited to what is “necessary”
to meet law-based military objectives. The related principle
of “military necessity” is correctly defined
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 the US Navy’s “The
Commander’s Handbook on the Law of Naval Operations.”)
Today, though
we still speak narrowly of “international” law,
belligerents include not only states, but also insurgent
and terrorist armed forces. This means that even where an
insurgency is presumptively lawful — that is, where
it seemingly meets the settled criteria of “just cause”
— it must still satisfy all corollary expectations
of “just means.” To the issue here at hand,
even if Hamas and associated terror groups do have a presumptive
right to fight against an Israeli “occupation,”
that fight still needs to respect the law-based limitations
of “discrimination,” “proportionality”
and “military necessity.” Deliberately firing
rockets into Israeli civilian areas and/or placing military
assets amid Palestinian civilian populations does not display
such respect. These acts always represent a perfidious crime
of war.
In law, the
correct term for the crime of “human shields”
is “perfidy.” In law, the current sufferings
of Gaza Palestinians are the incontestable result of Hamas
perfidy, not Israeli counter-terrorism operations. Jurisprudentially,
there can be no more clarifying observation.
Still, misunderstandings
remain far-reaching and widespread. Under no circumstances
does the principle of proportionality stipulate that a party
to an ongoing conflict must impose only symmetrical or equivalent
harms upon the enemy. If that sort of “common sense”
argument were acceptable, there would be no modern historical
analog to America’s flagrantly “disproportionate”
attacks on European and Japanese cities during World War
II. By that standard, Dresden, Cologne, Hiroshima and Nagasaki
would represent the documented nadir of inhumane and lawless
belligerency. Expressed differently, these US attacks would
represent the modern world’s very worst violations
of humanitarian international law.
There is more.
Perfidy represents greater wrongdoing than simple immorality
or visceral cowardice. It expresses a starkly delineated
and punishable crime. Among other things, it is identified
as a “grave breach” at Article 147 of Geneva
Convention IV.
Deception can
be lawful in armed conflict, but the Hague Regulations 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 based on
customary international law, a jurisprudential source identified
at Article 38 of the Statute of the International Court
of Justice.
All combatants,
including Palestinian insurgents allegedly fighting for
“self-determination,” are bound by the law of
war. This core requirement is found at Article 3, common
to the four Geneva Conventions of 1949. It cannot be suspended
or abrogated. Ever.
Prima facie,
the alleged Hamas goal of Palestinian self-determination
is founded upon an openly-planned crime; that is, a total
removal of the Jewish State by attrition and annihilation.
This legally
impermissible orientation has its doctrinal basis in the
Palestine Liberation Organization (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 Palestinian terror-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” (Art.
8).
Not to be ignored,
this is the annihilationist plan of a more mainstream Palestinian
terror group than Hamas, an organization that Hamas itself
considers too moderate.
At some point,
Hamas (with tangible Iranian support) could prepare to launch
mega-terror attacks on Israel. Such perfidious aggressions,
unprecedented and in plausible cooperation with certain
allied non-Palestinian jihadists (e.g., Shiite Hezbollah),
could include chemical, biological, or radiological (radiation-dispersal)
weapons. What then?
Perils could
also include a non-nuclear terrorist attack on the Israeli
reactor at Dimona. There is a documented history of enemy
attempts against this Israeli plutonium-production facility,
both by a state (Iraq) in 1991 and by a Palestinian terror
group (Hamas) in 2014. Neither attack was successful, but
variously fearful precedents were established.
International
law is not a suicide pact. Even amid long-enduring world-system
anarchy, it offers an authoritative body of rules and procedures
that permits a beleaguered state to express an “inherent
right of self-defense.”
But when Hamas
celebrates the explosive “martyrdom” of Palestinian
civilians and when Palestinian leaders seek “redemption”
or power over death through the mass-murder of “Jews”
or “Zionists,” the wrongdoers have no residual
claims to immunity from civilian harms.
Hamas celebrations
of “martyrdom” underscore the two-sided nature
of Palestinian terror/sacrifice — that is, the sacrifice
of “the Jew” and the reciprocal sacrifice of
“the Martyr.” Revealingly, such reasoning is
codified within the Charter of Hamas as a “religious”
problem.
There is more.
Under international law, terrorists are considered hostess
humani generis or “common enemies of humankind.”
Among other things, this category of criminals invites punishment
wherever the wrongdoers can be found. Concerning their required
arrest and prosecution, jurisdiction is now “universal.”
The universality-clarifying Nuremberg Tribunal strongly
reaffirmed the ancient legal principle of Nullum crimen
sine poena, or “no crime without a punishment.”
What next? In
all law, truth is exculpatory. Regarding the current Gaza
War, the pertinent truth is unambiguous. Israel is once
again waging a necessary war against a determinedly exterminatory
foe—this time, a jihadist terrorist organization that
seeks genocide for Israel. In assessing such bitter circumstances,
the “international community” should finally
take more seriously the unavoidably core truth of Hamas’
perfidy and reciprocal falsity of Israeli “disproportionality.”
