Israel, Counter-Terrorism and the Perils of Policy Projection

From the beginning, Israel has fashioned its counter-terrorism policies as a military matter of strategy and tactics. Today, little has meaningfully changed in this orientation, and a disproportionate measure of attention and investment remains allocated to weapon system “hardware.”  At the same time, the small country’s national security decision-makers continue to ignore the much larger philosophical or behavioral aspects of effective counter-terrorism. Accordingly, though generally ignored or misunderstood, Israeli counter-terrorist planning ought to take account of a near-universal human search for personal immortality.

In what manner can such an esoteric and abstract search be suitably “operationalized” by terror-beleaguered states? To merely acknowledge the concept of power over death as singularly preeminent is deeply problematic. Conspicuously, it lies well beyond any tangible boundaries of science and logic.

Subsidiary questions should soon start to accumulate. How can one human being offer eternal life to another? How can a terrorism-opposing state ever build its core components of a functioning national security program upon an enemy’s “hunger for immortality?” A proper but still-distressing answer lies in the continuing attraction of human beings to non-rational explanation and to fear-based seductions of anti-reason. Ipso facto, it is always a grave mistake in counter-terrorist planning to project one’s own reason–based decision-making processes upon a terrorist adversary or upon “only” a state-adversary that promotes anti-Israel terror.

Even in this bewildering age of high technology, there is something in human beings that yearns not for rational persuasion, but for mystery and anti-reason. When confronting assorted terrorist ideologies that promise “the faithful” an eternity of life everlasting, counter-terrorist governments such as Israel must be wary of projecting their own beliefs in human rationality upon both state and sub-state enemies.  Projections of decision-making rationality do make sense across the “normal” geopolitical landscapes of world politics, but there are also pertinent instances of landscape “abnormality.” If Israel’s national decision-makers were to review the current landscape of global Jihadist terrorist organizations, the clarifying nexus between “martyrdom operations” and “life-everlasting” could become pragmatically purposeful.

In such time-urgent matters, there will be variously corresponding and converging elements of law. More particularly, those far-flung Jihadist insurgents who would seek to justify violent attacks on Israelis in the name of a purifying religious “martyrdom” would be acting contrary to authoritative international law. All insurgents, even those who most passionately claim “just cause,” must satisfy longstanding jurisprudential limits on permissible targets and levels of violence.

These legal matters are not inherently complicated or “opaque.” Under binding international law, even the allegedly “sacred” rights of insurgency must always exclude any intentional targeting of civilians or any gratuitous use of force to inflict suffering. Frequently cited witticisms notwithstanding, all is assuredly not “fair in war.”

Law and strategy are interrelated; still, they remain analytically distinct. In current matters of effective counter-terrorism, the specifically legal “bottom line” is plain: Violence becomes terrorism whenever politically-animated insurgents murder or maim noncombatants, whether with guns, knives, bombs or automobiles.  It is irrelevant whether the particular cause of terror-violence is just or unjust. In the law of nations, manifestly unjust means used to fight for arguably just ends is law-violating.

Always.

Martyrdom-seeking terrorist foes sometimes advance an historically-discredited legal argument known as tu quoque. This argument stipulates that because the “other side” is allegedly guilty of similar, equivalent or even                    greater criminality, “our” side is innocent of any wrongdoing. Jurisprudentially, any such argument is disingenuous and wrong. Reciprocally, tu quoque arguments can never be used as a valid justification by any nation-state’s counter-terrorist authorities.

There is more. For conventional armies and insurgent forces, the right to use armed force can never supplant the “peremptory” rules of humanitarian international law. Such primary or jus cogens rules (rules that permit “no derogation”) are normally referenced as the law of armed conflict or the law of war. These synonymous terms concern state and sub-state participants in any armed conflict.

Again and again, however, and without a scintilla of law-based evidence, supporters of terror-violence stubbornly insist that ends justify means. Leaving aside the ordinary ethical standards by which any such argument must be rejected, ends can never justify means.

For more than two thousand years, unassailable legal principles have stipulated that intentional violence against the innocent is always prohibited. This universal prohibition applies with equal validity to counter-terrorism operations, even to those claiming “higher” moral and legal foundations. Under no circumstances can any nation’s counter-terrorism authorities ever be permitted to disregard the ordinary standards of global human rights law. This is the case even when pertinent insurgent adversaries (individually or collectively) have been pre-designated as “terrorists.” No such preemptive pre-designation can be exculpatory with regard to collective or arbitrary arrest, inhumane prison conditions or the immutable human right to file legal appeals.

Neither empty witticisms nor witless banalities can ever create binding law. In such law, whether codified or customary, one person’s terrorist can never be another’s “freedom-fighter.” Though it is correct that certain insurgencies can sometimes be judged lawful or even law-enforcing (consider American revolutionaries of the 18th century or Jewish anti-British insurgents of the mid-20^th century), even allowable resorts to force must conform to the humanitarian laws of war.

Legal clarity already exists in such primary matters. Whenever an insurgent group resorts to unjust means, its actions constitute terrorism. Even if adversarial claims of a hostile “occupation” were plausibly acceptable (e.g., Israel and the Palestinians), corollary Arab claims of entitlement to “any means necessary” would remain false. As long-established under international law, most explicitly at Hague Convention No. IV: “The right of belligerents to adopt means of injuring the enemy is not unlimited.”

International law can never be shaped or articulated ad hoc. Always, it must have determinable form and content. It can never be casually invented and reinvented by terror groups or by “nonmember observer states” (e.g., the Palestinian Authority) to justify selective adversarial interests. This is especially the case wherever terror violence intentionally targets a prospective victim state’s most fragile and vulnerable civilian populations.

National liberation movements that fail to meet the test of just means can never be protected as lawful or legitimate. Even if relevant law were somehow to accept the questionable argument that certain terror groups had fulfilled all valid criteria of “national liberation,” (e.g., Iran-supported Hamas or Hezbollah), these groups could still not satisfy equally relevant legal standards of discrimination, proportionality, and military necessity. These enduringly critical standards were applied to insurgent or sub-state organizations by the common Article 3 of the four Geneva Conventions of 1949, and (additionally) by the two 1977 Protocols to these Conventions.

Standards of “humanity” also remain binding upon all combatants by virtue of broader norms of customary and conventional international law, including Article 1 of the Preamble to the Fourth Hague Convention of 1907. This rule, commonly called the “Martens Clause,” makes “all persons” responsible for the “laws of humanity” and for associated “dictates of public conscience.” There can be no exceptions based upon a presumptively “just cause.”

Under international law, even when inflicted by a “nonmember observer state” (e.g. Palestinian Authority), the ends can never justify the means. Reinforcing the case of war between states, every use of force by insurgents must be judged twice, once with regard to the justness of the objective and once with regard to the justness of the applied means. There are no exceptions.

Under world law, terrorist crimes mandate universal cooperation in both apprehension and punishment. Among other things, as punishers of “grave breaches” under international law, all states are expected to search out and prosecute (or properly extradite) individual terrorists. In no circumstances are states ever permitted to regard terrorist “martyrs” as law-supporting “freedom fighters.”

This is emphatically true for the United States, which incorporates international law as the “supreme law of the land” at Article 6 of the Constitution, and for Israel, which remains governed by timeless principles of a Higher Law. Fundamental legal authority for the American republic was derived from William Blackstone’s Commentaries, which in turn owes much of its clarifying content to peremptory or “jus cogens” principles of Torah.

Ex injuria jus non oritur. “Rights can never stem from wrongs.” Even if certain adversaries of Israel should continue to identify the most recalcitrant jihadist insurgents as “martyrs,” such treatment could have no exculpatory or mitigating effect on terrorist crimes. These Jihadist foes are animated by the most compelling form of power, the incomparable power of immortality or power over death. Inevitably, at least according to the decisional calculi of particular anti-Israel insurgents, power over death will continuously override all other kinds of power. This includes those “objective” kinds of power based on aircraft carriers, missiles or countless other advanced technology weapon systems.

For Jerusalem, a primary orientation of law-based engagement in counter-terrorism should always take account of enemy attractions to “power over death.” For some of these enemies, nothing is ever more real than what seemingly lies “beyond death.” At the same time, Israel ought never to presume that terrorist crimes automatically justify any achievable forms of tactical response. Always, in pragmatic national policy terms, the core task for Jerusalem must be to operationalize this obligation and limitation as unchallengeable. In refining its counter-terrorist calculations, Israel should never make the mistake of projecting reason-based orientations to rational decision-making upon aspiring terrorist “martyrs.”

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Louis René Beres was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with terrorism and international law. Emeritus Professor of International Law at Purdue, and a regular contributor to Horasis, Dr. Beres was born in Zürich, Switzerland at the end of World War II. He is a frequent contributor to Harvard National Security Journal (Harvard Law School); International Security (Harvard); The American Journal of International Law; American Political Science Review; JURIST; Case Western Reserve Journal of International Law; Air and Space Operations Review ((USAF); Yale Global Online; Indiana International and Comparative Law Journal (Indiana University); World Politics (Princeton); Bulletin of the Atomic Scientists; The War Room (Pentagon); The Strategy Bridge; Israel Defense (IDF); Modern War Institute (West Point); Parameters: Journal of the US Army War College (Pentagon); The Atlantic; The New York Times; The Jerusalem Post; and Oxford University Press. His latest and twelfth book is Surviving amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2^nd ed., 2018).  https://paw.princeton.edu/new-books/surviving-amid-chaos-israel%E2%80%99s-nuclear-strategy