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December 1, 2022 12:34 pm
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Israel Against Terrorism: The Primacy of Intellectual Struggle

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avatar by Louis René Beres

Opinion

An image from the “Knights of Al Aqsa” video game, in which players become Palestinian terrorists on a mission to kill Israelis. Image: Screenshot.

Facing new cycles of terror attacks, Israel must prepare to look far beyond traditional forms of counter-terrorism strategy. Rather than remain preoccupied with high-technology weapons and forces, the nation’s military and political communities need to look more intellectually at pertinent security challenges. Though these communities deserve credit for their many years of capable operations, the time has come to acknowledge something more enduringly primary — that the complex struggle against terror is preeminently a struggle of ideas, a contest of contending intellects, and a lethal competition of “mind over mind.”

Among Israeli defense planners, there is little interest in the philosophical or jurisprudential antecedents of counter-terrorism. This witting lack of intellectual interest could place Israel at severe points of adversarial disadvantage. One could concern variously damaging synergies, whether expected or unexpected.

Existential security hazards will need to be examined hierarchically, in some tangible rank-order. Aside from Iranian nuclearization, the undiminished threat of Palestinian terror-violence should remain most worrisome to Jerusalem. Still, formidable security threats from Iran and “Palestine” need not be viewed as mutually exclusive. Such threats could become intersectional or “force-multiplying.” By definition, these synergistic harms could create greater cumulative harms than the simple sum of their calculable “parts.”

Such intricate security matters can never be fathomed or sorted out ex nihilo, “out of nothing.” Instead, policy-makers will require certain challenging forms of learning or erudition. The law of war (a.k.a. humanitarian international law) addresses core questions of military obligation. Among the most incessantly contrived charges brought against Israel by Palestinian adversaries has been that of “disproportionality.”

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What does authoritative international law say about such deliberately misleading charges?

Prima facie, to the extent that Hamas, Islamic Jihad, and assorted insurgent allies resort to “human shields,” the Palestinian side is guilty of the crime of “perfidy.” Historically, Palestinian terror has roots in the Palestinian National Covenant, a document which provides theoretical underpinnings to ongoing terrorist practices in the region.

This document calls “officially” for sustained terror-violence against Israel without any regard for “just means.” It was adopted in 1964, three years before the 1967 Six-Day War. This means, inter alia, that the PLO’s core guidance on terror was first published — together with variously explicit references to the intended annihilation of Israel — three years before there were any “Israel occupied territories.”

What exactly was the PLO seeking to “liberate?”

For the Palestinian Authority (PA), the basic commitment to waging protracted war was always part of its broader strategy to incorporate all of Israel into “Palestine.” Such overtly irredentist incorporation has certain “official” cartographic antecedents. But the most consistently blatant Palestinian call for the “removal” of Israel as such remains the PLO’s “Phased Plan” of June 9, 1974.

Perfidy includes “human shields.” This is identified as a “grave breach” at Article 147 of Geneva Convention IV. Under law, deception can be 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, a jurisprudential source formally identified at Article 38 of the UN Statute of the International Court of Justice.

What happens next? Presently embroiled in yet another violent struggle with Hamas, Islamic Jihad, and kindred groups, Israel will need to proceed diligently in fashioning both its legal and strategic argumentation. Optimally, appropriate steps could meaningfully ensure that accelerating Palestinian war crimes would never get in the way of Israel’s self-defense, and that Israel could readily augment its national security by advantageous use of humanitarian international law. Ultimately, this key obligation could become most critical wherever Sunni and/or Shiite terror attacks would involve weapons of mass destruction.

None of this is meant to suggest that Palestinian populations ought ever to be deprived of their peremptory human or political rights, but only to clarify that such rights can never include any violent extensions of “self-determination” over Israel’s sovereign territory.

Though intersecting, law and strategy should always be evaluated separately as component elements of Israel’s military doctrine. Among other things, Israel should take prompt measures to convince its Palestinian insurgent foes and their state patrons that any perfidious terrorist aggressions would be revealed in law and opposed in practice. Operationally, such measures could create an efficient “force multiplier” for Israel, one wherein the “whole” anti-insurgent effect would be greater than the sum of its legal and military “parts.”

In world law, considerations of distinction (discrimination), proportionality, and military necessity set defined limits on any use of armed force, whether by state or sub-state actors. Always, under the customary and codified expectations of the law of war, these three interpenetrating criteria remain binding and overriding. To wit, whenever Israel’s enemies declare an IDF attack to be “disproportionate,” they willfully ignore that the rule of proportionality does not demand equivalent military harms. It expects only a level of force that is “militarily necessary.”

On multiple occasions, the practice of “human shields” has been justified by the Palestinian side in terms of combating Israeli “disproportionality.” Though arguably successful as propaganda, these justifications were never more than carefully manipulated adversarial claims. In essence, whenever Palestinian terrorists claim a right to “any means necessary,” they are relying on a nonexistent right.

International law requires every use of force to meet the test of “proportionality.” This test stipulates that every resort to armed force remain limited to what is presumed necessary for legitimate military purpose. It applies to all judgments of military advantage and to all planned reprisals or retaliations. It does not mean that each side to an ongoing conflict must agree to suffering or imposing symmetrical harms.

“Justice,” we may learn from Plato’s “Republic,” means “a contract neither to do nor to suffer wrong.” Unless there should be improved understanding that perfidious or perfidious-type behavior by insurgents places legal responsibility for correlative harms on that insurgency, sub-state foes could decide to escalate hostilities. For Israel, such potentially dangerous escalations could eventually embrace terrorist mega-assaults, up to and including use of nuclear weapons.

Under relevant law, perfidious tactics are not “only” mala prohibita (“evil as prohibited”), but also malae in se (“evil in themselves”). This distinction embraces “lone wolf” terrorist attackers. Many of the recent Palestinian terrorists identified by Israel were of this “lone wolf” variety.

At times, during Israel’s Lebanon wars, Hezbollah, assisted by Syria and Iran, placed weapons and fighters within specific areas of Arab civilian population. In the past, ISIS, which at some earlier point might have been inclined to confront Israel directly, employed a human shields strategy in its battle for Mosul, Iraq.

To wage successful “war” against any jihadist ideology, Israel’s primary battlefield should always be analytic or intellectual. In the ancient Greek and Macedonian worlds, this struggle was identified as one of “mind over mind.” It remains precisely such a “cerebral” struggle.

Sooner or later, certain of Israel’s terrorist enemies, perhaps under cover of perfidy, will begin to magnify their operational goals. These adversaries would then strive to exploit the particular methods and harms that lie latent in WMD violence. In one seldom-mentioned nuance of this threat, the enemy party, whether state or terror-organization, could aim its conventional rockets against Israel’s nuclear reactor at Dimona. Hamas fired rockets at Dimona back in 2014; Saddam Hussein launched several Scud-B rockets toward Israel during the 1991 Gulf War.

For the moment, any terrorist nuclear threat would likely be limited to a “dirty bomb” attack, although it could also extend to conventional assaults upon Israel’s Dimona reactor. It is also possible and perhaps even plausible that the selection of WMD terror against Israel would be detached from any rationally considered calculations of geopolitical advantage. There exist no persuasive historical reasons to expect only rational behavior in world politics.

One last point remains concerning counter-terrorism links to US foreign policy. Former President Donald J. Trump pointed with ostentatious pride to the “Abraham Accords,” but these faux remedies negotiated via America’s “good offices” did nothing to reduce the probability or intensity of Israel-terrorist conflict. Indeed, they accomplished little more than superficially improved relations with Arab states that had never been authentic anti-Israel belligerents. Analysts ought therefore to inquire: Should Israeli civilians sleep better now that they no longer have to fear attacks launched from Morocco, Bahrain or the UAE?

The question is self-parody. When the UN General Assembly recently demanded that Israel do away with its presumptive nuclear forces, these three “friendly states” voted against Israel. In actuality, disingenuous agreements like the Abraham Accords have only exacerbated Israel’s relations with its Palestinian state and sub-state enemies. To really get beyond such narrowly cosmetic “remedies,” Israeli diplomacy will need to be based upon more solid intellectual and legal foundations.

The author was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with war, terrorism and human rights. His latest and twelfth book is Surviving Amid Chaos: Israel’s Nuclear Strategy. A previous contributor to The Algemeiner, Professor Beres’ published writings on law and strategy have appeared in Modern War Institute (West Point); BESA (Israel); JURIST; Yale Global Online; Parameters: The Journal of the US Army War College (Pentagon); Special Warfare (Pentagon); Israel Defense (Tel Aviv); Horasis (Switzerland); The War Room (Pentagon); Modern Diplomacy; The Atlantic; and more. Dr. Beres was Chair of Project Daniel for Prime Minister Ariel Sharon in 2003-2004. He was born in Zürich at the end of World War II.

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