“O my soul, do not aspire to immortal life,
but exhaust the limits of the possible.”
Pindar, Pythian iii
If only jihadists would heed Pindar’s timeless warning. By celebrating only “this life,” the classical Greek poet understood the hazards of seeking meanings beyond the grave. Much later, a similar warning was offered by philosopher Friedrich Nietzsche in Zarathustra. It too has gone unheeded.
Nietzsche’s admonition concerning “preachers of death” had no specific geographic boundaries, but the present-day locus of concern is the jihadist preaching of the Middle East.
From the beginning, sentiments of what Nietzsche called the “afterworldly” held sway in virtually all places and religions. The reason is not complicated. Humankind has aspired to immortal life.
Taken by itself, this hope for immortality is not inherently destructive. The problem arises when individuals or states link this hope to “martyrdom.” Today, in the Middle East, assorted jihadi terror groups seek such power and thereby threaten Israel with existential harms.
Israel has fashioned its counter-terrorism policies as a narrowly military matter of strategy and tactics. Its national security decision-makers wittingly ignore the deeper behavioral aspects of counter-terrorism. They should take far greater account of adversarial commitments to personal immortality. A terrorist enemy that identifies the mass-murder of Israelis as religious sacrifice can not be defeated by military means alone.
For Jerusalem, a key policy question is how to build a counter-terrorism program upon an enemy’s “hunger for immortality” (a phrase of Spanish philosopher Miguel De Unamuno’s Tragic Sense of Life), upon fear-centered seductions of anti-reason. It is always a grave mistake in counter-terrorist planning to project one’s own reason–based decision-making processes on a jihadi adversary (state or sub-state) that mentors anti-Israel violence.
Even in our 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 jihadi ideologies that promise the faithful an eternity of life everlasting, Israel’s planners should remain wary of projecting their own ideas of human rationality on their enemies. Projections of decision-making rationality usually make sense, but there are residual instances where a nexus between “martyrdom operations” and “life-everlasting” is obvious.
In such time-urgent cases, elements of law will surface. Prima facie, jihadi insurgents who seek to justify violent attacks on Israelis in the name of a purifying religious “martyrdom” are law-violating. Violent insurgents, even those Palestinians who passionately claim “just cause,” must always satisfy longstanding jurisprudential limits on acceptable targets and permissible levels of violence. If left uncontrolled, Hamas and its kindred terror allies could escalate to chemical, biological or nuclear (radiation-dispersal) weapons.
The legal “bottom line” is clear: Violence becomes terrorism whenever politically-animated insurgents murder or maim noncombatants. It is irrelevant whether the alleged cause of terror violence is just or unjust. In the law of nations, unjust means used to fight for arguably just ends is law-violating.
Terrorists sometimes stand on the historically-discredited legal argument of tu quoque. This argument stipulates that because the “other side” is allegedly guilty of similar, equivalent or greater criminality, “our” side is automatically innocent of any wrongdoing. In law, any such argument is invalid and disingenuous.
In principle, tu quoque arguments can never be used as justification by a defending state. This is not what is presently taking place in Gaza. Though Israeli actions against Hamas and other terrorists have produced many Palestinian casualties and fatalities, these outcomes are (1) the direct result of jihadi “perfidy” (shielding military-terror assets in schools and hospitals); and (2) collateral to law-based self-defense. Unlike jihadi terrorist foes, who openly display “criminal intent,” Israel’s security operations are conducted without mens rea, the intention to commit wrongdoing.
For conventional armies and insurgent forces, the right to use armed force can never supplant peremptory rules of humanitarian international law. Such primary or jus cogens rules (Vienna Convention rules that “permit no derogation”) are normally referenced as the law of armed conflict or law of war. These synonymous terms apply to both state and sub-state participants in any armed conflict.
Supporters of jihadi terror may claim that ends can justify means. Leaving aside ethical standards, relevant legal rules, both codified and customary, are clear: intentional violence against the innocent is always prohibited, but also that unintended harms are defensible when a belligerent party resorts to “perfidy.” In the Gaza war, the jihadi embrace of human shields remains exculpatory for Israel.
International law can never be shaped or articulated ad hoc. Always, it must have determinable form and content. Accordingly, it can never be invented and reinvented by terror groups or “nonmember observer states” (i.e., the Palestinian Authority) to selectively justify adversarial interests. This is especially the case when terror violence intentionally targets a 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. Even if pertinent law were somehow to accept the argument that certain terror groups had fulfilled all valid criteria of “national liberation,” (e.g., Hamas), these groups could still not satisfy the legal standards of distinction, proportionality, and military necessity. These 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 on 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.” Although there can be no exceptions based on any presumptively “just cause,” a combatant that seeks immunity from punishment via perfidy can have no law-based argument.
Under international law, ends can never justify the means. 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 can be no exceptions.
Under international 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 permitted to regard terrorist “martyrs” as law-based “freedom fighters.”
This is true for the United States, which incorporates international law as the “supreme law of the land” in Article 6 of the Constitution, and for Israel, which remains volitionally subject to 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 the peremptory or “jus cogens” principles of Torah.
Ex injuria jus non oritur. “Rights can never stem from wrongs.” Even if adversaries of Israel continue to identify insurgents as “martyrs,” this treatment would have no exculpatory or mitigating effect on terror crimes.
Hamas and its jihadi allies are animated by a compelling form of power, what the ancient poet Pindar called the lure of immortal life. Israel cannot fully defeat Hamas without addressing this ideology.
For Jerusalem, one way to take on the lure of immortal life is to insist on the application of the international law of war, to fight selective irrationality with universally accepted principles of law.
