Monday, January 17th | 16 Shevat 5782

April 25, 2018 8:03 am

International Law and WMD Attacks on Israel

avatar by Louis René Beres


A man is washed following an alleged chemical weapons attack in what is said to be Douma, Syria in this still image from video obtained by Reuters on April 8, 2018. Photo: White Helmets/Reuters TV via REUTERS.

In the years ahead, Israel could face the growing prospect of WMD terrorism, i.e., attacks involving chemical, biological, or even nuclear weapons. In this context, it is vital that Israeli officials do their utmost to prevent perfidious enemy manipulations of humanitarian international law. This is especially urgent with regard to the use of “human shields,” an illegal form of military deception that could be used to deter Israeli retaliation. This activity could originate with both state and sub-state foes, and could conceivably involve primitive nuclear devices such as “dirty bombs” — weapons that do not involve genuine chain reactions, but instead attach conventional explosives to fissile materials.

Under authoritative international law, the practice of moving civilians into designated military areas, or vice versa, moving military assets into civilian towns or villages — violates the law of war. This violation is generally regarded as a type of “perfidy,” but informally, it is more often referred to as the problem of “human shields.” Whatever one might prefer to call such barbarous behavior, Israel’s senior military planners must ensure that it will never get in the way of essential counterterrorism operations.

This obligation would be especially critical in circumstances involving terror attacks using WMDs. The most obvious current source of concern would be a terrorist force such as Hezbollah planning a WMD attack against Israel from somewhere in Lebanon or Syria, or even the Golan Heights. It would seek to protect its preparations from Israeli preemption by:

(1) Secreting pertinent military assets among vulnerable civilian populations.

(2) Placing portions of vulnerable civilian populations in designated military areas.

From Israel’s point of view, preemptive measures would be justified, inter alia, by the history of prior violations of humanitarian international law by Hezbollah and its state sponsors. It would also qualify as a permissible expression of “anticipatory self-defense.” This would stem unambiguously from Hezbollah’s antecedent commission of perfidy. Further, legal liabilities for civilian casualties caused by Israeli preemption would lie not with Jerusalem but with Hezbollah.

The pertinent jurisprudence is plain and unconcealed. Perfidy and perfidy-like behavior, such as the use of human shields, are always an “egregious” violation of the law of war. During Israel’s several Gaza wars, perfidy was used with some tactical success by Hamas, but perhaps more importantly with great propagandistic benefit.

When it is expressed as the law of armed conflict, international law requires that every use of force meet the test of “proportionality.” Drawn from the core legal precept that “the means that can be used to injure an enemy are not unlimited,” proportionality stipulates that every resort to armed force be limited to what is absolutely necessary for meeting appropriate military objectives. This principle of both codified and customary jurisprudence applies to all judgments of military advantage, and to all planned reprisals or retaliations.

But it does not mean that each side to a conflict must agree to suffer symmetrical or equivalent harm.

Unless there is greater understanding that perfidious behavior by terrorists places the legal responsibility for resulting harm directly on that insurgency and not on the victimized state, sub-state foes could decide to escalate their levels of violence. For Israel, such escalations could eventually include mega-terror assaults, up to and including the use of nuclear weapons.

Deception is not always impermissible. Rather, certain forms of deception are permitted to states and possibly also to lawful insurgents. The practice of using human shields, however, is always illegal.

In coming years, perfidious violations of the laws of war by Middle East terror groups could involve calculated placement of chemical, biological, or (ultimately) crude nuclear weapons in populated Arab/Islamic towns and cities. This practice could deter necessary Israeli acts of anticipatory self-defense. The use of human shields by terror groups could also expose Israel to increasingly large-scale levels of homeland destruction.

Sooner or later, some of Israel’s Arab/Islamic enemies, under cover of perfidy, will likely begin to magnify their terrorist goals and operations. These enemies can be expected to strive to exploit the particular forms of harm offered by WMD violence. It is also possible that the selection of WMD terror would be detached from any rationally considered calculations of presumed geopolitical advantage.

Israel must communicate to its most dedicated insurgent foes that Jerusalem will always remain prepared to dominate escalation and no contemplated terrorist excursion into higher-order destructiveness elicit Israeli capitulation. It is vital that Israel’s terrorist enemies see no foreseeable advantages to launching “perfidious” assaults upon the Jewish state.

“Just wars,” as we may learn from Hugo Grotius in The Law of War and Peace (1625), “arise from our love of the innocent.” International law is immutably oriented towards the protection of all states and peoples from extraordinary harm.

Above all, it is never a suicide pact.

Louis René Beres is Emeritus Professor of International Law at Purdue and the author of twelve books and several hundred articles on nuclear strategy and nuclear war. His newest book is Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016). BESA Center Perspectives Paper, such as this one, are published through the generosity of the Greg Rosshandler Family.

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