By the fundamental principle known formally under international law as a jus cogens (“compelling law”) rule, each state is required to assist other states imperiled by terror-violence. The most important historical figures in creating and explaining this requirement were the Swiss jurist Emmerich de Vattel and the English jurist William Blackstone. Blackstone’s Commentaries became the recognizable foundation of US criminal law.
Palestinian terror crimes of October 7, 2023 – murder, rape and hostage-taking – represent “Nuremberg-level” violations of international humanitarian law. Under compelling or “jus cogens” rules, all states – not just Israel – have a many-sided obligation to punish such criminals. Jurisprudentially, this obligation cannot be diminished for geo-political or “practical” reasons.
What about Israeli “proportionality”? Under binding laws of war, and contrary to “common-sense” meanings, proportionality has nothing to do with inflicting symmetrical or equivalent harms. Instead, it derives from a legal principle that belligerent rights always have specific limitations. And it applies to all belligerents, including Hamas. Claims by advocates of Hamas that insurgents are entitled to fight “by any means necessary” contravenes Hague Convention No. IV (1907), Annex to the Convention, Section II (Hostilities), Art. 22: “The right of belligerents to adopt means of injuring the enemy is not unlimited.” In essence, this propagandistic declaration is an empty slogan.
If one adopts a “common-sense” definition of proportionality, there could never be any legitimate argument for America’s “disproportionate” attacks on European and Japanese cities during World War II. By “common-sense” standards, destruction of Dresden, Cologne, Hiroshima and Nagasaki must represent the nadir of inhumane belligerency.
All combatants are bound by the law of war. Among other things, this basic requirement can be found at Article 3, common to the four Geneva Conventions of 1949. It can never be suspended or abrogated. Israel, too, is bound by the law of war, but its Gaza War actions that killed and injured Palestinian civilians were without mens rea or criminal intent.
The goal of Palestinian “self-determination” is founded on an intended crime – total “removal” of the Jewish state by attrition and annihilation, as laid out in PLO’s “Phased Plan” adopted by the highest deliberative body of the PLO, the Palestinian National Council, on June 9, 1974.
The plan describes a sequence of violence: first, “to establish a combatant national authority over every part of Palestinian territory that is liberated” (Art. 2); second, “to use that territory to continue the fight against Israel” (Art. 4); and third, “to start a Pan-Arab War to complete the liberation of the all-Palestinian territory” (Art. 8). This remains the annihilationist plan of the groups under the PLO umbrella, considered more mainstream than Hamas.
International law is not a suicide pact. It offers a binding body of rules and procedures that permits a beleaguered state to express its inherent right to “self-protection.” And when Islamist leaders seek “redemption” through the mass-murder, the wrongdoers have no correct claims to immunity from law-based punishment.
Under international law, terrorists are considered hostes humani generis or “common enemies of humankind.” Among other things, this category of criminality invites punishment wherever the wrongdoers can be found: all pertinent jurisdiction is “universal.”
Hamas and its jihadist allies argue they are fighting a “just war” and entitled to employ “any means necessary.” Under authoritative international law, however, even if a war is determinably “just,” it must still be fought with “just means” and under no circumstances can there be justification for terror violence.
