Though inconspicuous
and easily misunderstood, there is no conceivably greater
power in world politics than power over death. On its face,
this preeminent form of power is problematic (how, after all,
can one human being ever offer eternal life to another?) and
is contingent on an irrepressible “hunger of immortality.”
Nonetheless, if one were to survey the current landscape of
global Jihadist terrorist organizations – a landscape
made more worrisome by the recent US defeat in Afghanistan
and by expanding Sunni-Shiite polarities in the Middle East
– the nexus between “martyrdom operations”
and “life-everlasting” would appear firm.
For the United
States and Israel in particular, it is high time to understand
the following: Improved counter-terrorism is never just about
tangible strategy and tactics. In all such generally time-urgent
matters, there are corresponding and converging elements of
law. More precisely, those far-flung Jihadist insurgents who
would seek to justify violent attacks on Americans and/or
Israelis in the “purifying” name of religious
“martyrdom” are acting contrary to authoritative
international law. This is because all insurgents, even those
who very passionately claim a “just cause,” must
satisfy longstanding jurisprudential limits on permissible
targets and permissible levels of violence.
In pertinent jurisprudence,
these matters are not complicated. Under binding international
law, even the most “sacred” rights of insurgency
exclude the intentional targeting of civilians and/or the
use of force to inflict gratuitous suffering. Frequently quoted
witticisms notwithstanding, all is not “fair in war.”
Not at all.
As for “fairness
in love,” that is a separate issue. Accordingly, we
can leave the well-worn adages to others.
Still, the legal
“bottom line” is plain: Violence is terrorism
whenever politically-animated insurgents murder non-combatants,
whether with guns, knives, bombs or automobiles.
Sometimes, martyrdom-seeking
terrorist foes advance a 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 necessarily innocent of legal wrongdoing. Jurisprudentially,
any such disingenuous argument is always wrong and always
invalid, especially after the landmark postwar judgments of
the Nuremberg (Germany) and Far East (Japan) ad hoc tribunals.
Reciprocally, tu quoque arguments can never be used as a properly
valid justification by any nation-state’s counter-terrorist
authorities.
There is more.
For both 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. Moreover, these synonymous terms concern state
and sub-state participants in any armed conflict.
Endlessly, and
without a scintilla of law-based evidence, supporters of terror-violence
against non-combatants insist that “the ends justify
the means.” Leaving aside the ordinary ethical standards
by which any such argumentation must be dismissed prima facie
as corrupt or indecent, the ends can never justify the means
under binding international law. Further, there can be no
defensible ambiguity regarding this significant conclusion.
For more than
two thousand years, variously unassailable legal principles
have specified that intentional violence against the innocent
is always prohibited. This universal prohibition applies with
equal validity to counter-terrorism operations, even those
expressing manifestly moral and legal foundations. Under no
circumstances can any nation’s counter-terrorism authorities
be permitted to disregard the ordinary minimum standards of
global human rights law. This is the case even when pertinent
insurgent adversaries (individually or collectively) have
been pre-designated as “terrorists.”
Prima facie,
no such preemptive pre-designation can ever be exculpatory
with regard to collective or arbitrary arrest, inhumane prison
conditions, or the basically immutable human right to file
an appropriate legal appeal.
Empty witticisms
can never make binding law. In law, whether codified or customary,
one man’s (or woman’s) terrorist, can never be
another man’s (or woman’s) “freedom-fighter.”
Although it is certainly correct that 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-20th century), even allowable resorts
to force must conform to the humanitarian laws of war.
Always.
Whenever an insurgent
group resorts to manifestly unjust means, its actions constitute
terrorism. Even if adversarial claims of a hostile “occupation”
were to be accepted as entirely reasonable (e.g., Israel and
the Palestinians), corollary claims of entitlement to “any
means necessary” would remain patently false. As has
been 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 cannot be shaped or articulated ad hoc. Always, it has
specifically determinable form and content. It cannot be casually
invented and reinvented by terror groups or by “non-member
observer states” (the Palestinian Authority) to justify
selectively adversarial interests. This is especially the
case where terror violence intentionally targets a designated
victim state’s most fragile and vulnerable civilian
populations.
There is more.
National liberation movements that fail to meet the test of
just means can never be correctly protected as lawful or legitimate.
Even if relevant law were somehow to accept the questionable
argument that certain terror groups had fulfilled the 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 certain
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 the associated “dictates
of public conscience.” There can be no exceptions based
upon a presumptively “just cause.”
Under international
law, even when inflicted by a “non-member 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 actually applied means. There are no discernible
exceptions.
Under law, terrorist
crimes mandate universal cooperation in both apprehension
and punishment. Inter alia, as punishers of “grave breaches”
under international law, all states are expected to search
out and prosecute, or extradite, individual terrorists. In
no conceivable circumstances are states permitted to regard
terrorist “martyrs” as forgivable or exculpable
“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 which was formed by its Founding
Fathers according to timeless principles of Natural Law –
principles largely originating in the Hebrew Bible. Though
generally unrecognized, core legal authority for the American
republic was derived from William Blackstone’s justly
famous Commentaries.
Ex injuria
jus non oritur. “Rights can never stem from wrongs.”
Even if adversaries of the United States and Israel continue
to identify the most recalcitrant jihadist insurgents as “martyrs,”
such treatment could have no exculpatory or mitigating effect
on attendant terrorist crimes. These Jihadist foes are animated
by the most plainly compelling form of power, the power of
immortality or power over death. Inevitably, power over death
will trump all other kinds of power, including those tangible
forms based on aircraft carriers, missiles or variously other
advanced weapon systems.
Always,
for both Washington and Jerusalem, a primary orientation of
law-based engagement in counter-terrorism should coalesce
around enemy attractions to “power over death.”
For certain of these enemies, we have just seen, nothing is
conceivably more real than what is “eternal.”
At the same time, neither Israel nor the United States should
ever presume that egregious terrorist crimes automatically
justify absolutely any forms of response.
In correct legal
assessments of terrorism and counter-terrorism, the ends can
never justify the means. Going forward, the real task will
be to operationalize this primary understanding in both insurgent
and counter-insurgent calculations. This could happen, but
only if the persuasiveness of international legal norms can
first reinforce the incomparable promise of “power over
death.”
