“History is an illustrious war against death.”
Jose Ortega y Gasset, Man and Crisis (1958)
Policy Contexts and Legal Obligations
Even after defeating Iran-backed Hamas and Hezbollah on tangible fields of battle, Israel has ample reason to stay vigilant against jihadi terrorism. In essence, Israel’s recent tactical successes have been partial and transient. This is not because of any IDF operational shortcomings or failings. It is the unavoidable outcome of having to face viscerally determined and patently uncompromising foes.
Pertinent details are many and force-multiplying. Though particular jihadi adversaries are constantly forming and reforming, all share a menacing commitment to “martyrdom operations.” In an obviously worst case scenario, some of these adversaries would seek to exploit the power that still lies latent in nuclear weapons technologies. Such unprecedented power could range from low-yield explosives or radioactivity to fully-assembled and more-or-less advanced nuclear weapons. The higher-range threat would stem from such already-nuclear state allies as Pakistan or North Korea.
How should Israel proceed with such potentially existential matters? What are the risk-related implications of a continuously chaotic Syria and a relentlessly explosive Gaza? These questions, while plainly important, are not amenable to science-based answers. To wit, in logic and mathematics, probabilities must be drawn from the calculable frequency of relevant past events. Here, prima facie, there are no such events. For Jerusalem, the “blessing” is also a “curse.”
What about international law? Looking ahead to an accelerated Iranian search for military nuclear capability, ordinary law-based remedies of deterrence could fade in effectiveness. Such a “fade” could take place in hard-to-decipher increments, or suddenly, all-at-once.
To optimize and implement lawful counter-terrorism remedies, Israel should inquire precisely: What is most genuinely important to our jihadi sub-state adversaries? Implicit in this primal query would be the assumption of lawless Iranian support for sub-state adversaries and Israeli attentiveness to ongoing terror-group reconfigurations in Iraq, Lebanon, Syria, Yemen, Judea/Samaria (West Bank) and Gaza.
The traditionally “correct answer” to this query would be rooted in orthodox geo-political expectations; e.g., political power, control over territories, expanding areas of sovereignty, etc.[1] Upon careful reflection, however, relevant truth would reveal itself in variously inconspicuous, overlapping and intersecting layers.[2] Whether the particular jihadi objective is sovereign authority in “Palestine” or a global Islamic “caliphate,”[3] what will matter most would be a presumed “power over death.”[4]
Though rarely discussed in counter-terrorism circles, personal immortality represents the single most important form of power.[5] Significantly, this is hardly the first moment in history when such an inherently preposterous expectation[6] has been so eagerly sought. Jihadists did not invent the idea of a “holy war.”
On its face, the human search for immortality has been timeless and universal. Recalling Homer’s classical account of Achilles’ leadership of the Greeks against Troy, planners should finally learn that the most deeply-hidden cause of that conflict was not Helen or military victory over a despised enemy. That true cause of the Trojan War was conflict-linked hopes for “life everlasting”. When Achilles raises his sword to launch the massive Greek attack, he orders famously: “Onward to immortality.”
That was then. But what can we say about jihadi terrorists who exclaim much the same battle cry today? If they also seek immortality above all else, should disciplined military analysts treat them according to standard psychological bifurcations of “normal” or “abnormal?” And if so, where would these terrorist actors “fit?”
For strategic planners in Jerusalem, this perplexing query ought to become an immediate policy-relevant question. It’s not a usual sort of query for military planners or military commanders. Nonetheless, to at least some ascertainable extent, the question should be applied to specific state adversaries in war[7] and to sub-state terrorist adversaries in war or peace. Potentially, it is a question with multiple legal implications.
There will be ample bewilderment. “Normally,” for example, in examining mixed actor alignments, the Taliban would have represented the sub-state portion. However, as Taliban assumed formal power and sovereign-authority in Afghanistan, it came to represent the state party of subsequent “hybrid” actors. More recently, when Hay’at Tahrir al-Sham insurgents ousted the al-Assad dictatorship in Syria, HTS became the state party in certain newly-developing hybrid foes.[8]
For Israel, fighting undeclared wars against terrorists will become a continuing and law-based obligation. As an operational matter, this obligation will need to coincide with variously determined examinations of enemy “normality.” Are Israel’s reconfiguring jihadi enemies “normal” or “abnormal”?
For Israeli planners, it will become correlatively important to assess complex considerations of tactics as complex matters of law. Under the authoritative laws of war[9] of international law[10] (aka humanitarian international law or the law of armed conflict), parts of this vital distinction may parallel settled jurisprudential contrasts between “justice in war” (jus in bello) and “justice of war” (jus ad bellum).[11] Presently, as Israel seeks to defend the lawfulness of its conduct in Gaza before the “community of nations,” Jerusalem and its principled defenders will need to remind all states and peoples that the grievous harms being suffered by Gaza’s civilian populations are (1) basically the result of incessant jihadi “perfidy” (“human shields”) and (2) have no basis in “criminal intent” or mens rea. On the other hand, (3) Hamas and related terror-group violence is always inflicted with conspicuous criminal intent, and (4) is not “merely” wrong in law, but evil in its nature.[12]
In the end, Israel most urgent question should come down to two rudimentary queries: (1) Is it plausible to assume that all or most of the country’s jihadi terrorist foes are “abnormal,” and (2) how should any affirmative response best be incorporated into tangible counterterrorism strategies? It should further be asked: “Could such an assumption reflect meaningfully data-based research and analyses, or would it represent little more than certain long-ritualized and/or self-serving political obligations?
There are additional sources for confusion. Would the specific criteria applied in any required analysis be consistent with ubiquitous or possibly universal standards of “normalcy,” or instead represent just the predictable result of dominant ideology or “cultural relativism?” Israeli analysts might prefer that such complexities simply didn’t exist, but that is not a preference that anyone could ever fulfil.
Beginning Assumptions
Until the present moment, Israel’s posture on counterterrorism conflicts has expressed the idea that insurgent enemies can’t really be “normal.”[13] After all, the most prominent of these virulent enemies have exhibited a willful indifference to personal safety, an indifference that goes beyond any “normally” established definitions of heroism. Sometimes, incontestably, these terrorists have been willing to accept great personal suffering or even death.[14] But such willingness must always be understood in the very specific context of martyrdom and acquiring “power over death.”
In a paradox of world politics, these Islamist perpetrators seek martyrdom in order not to die. Though such tortuous reasoning makes no traditional logical sense, it is still fully consistent with a variety of compelling religious promises.[15] These promises are also detached from any considerations of international law.
Such sorts of consciously self-destructive behavior are plainly out of synch with what the “world community” would usually regard as “normal, but they are still consistent with the easily-recognized preference hierarchies of jihadi fighters – whether in Syria, Iraq, Afghanistan, Lebanon, Yemen, Sudan, “Palestine” or anywhere else. Going forward, these issues should become increasingly urgent in Jerusalem, but also in Washington.
There is more. In forging operationally useful counter-terrorism policies, Israeli planners should dispense with any extraneous ideological or “common sense” presumptions. By itself, choosing to attack Israeli or American assets does not constitute evidence of psychological abnormality. This is true even where the attackers opt for indiscriminate forms of terrorism.[16] To automatically or routinely assume otherwise would be to confuse science-based judgments with narrowly partisan or delusionary kinds of patriotism.
Israel does need to accept that definable terrorist foes will continue to become willing “suicides” or “martyrs.” It follows that the available arsenal of Israeli deterrent remedies should be constructed dynamically and with sufficient adjustability. Even if a particular jihadi foe would appear willing to “die” for a “holy cause” (a choice whereby “sacrificial” death would signify eternal life), it could still remain subject to alternative kinds of retaliatory threat.[17] The pertinent jihadists may be willing to die as presumed “martyrs,” but still be unwilling to accept a high risk of reprisals against “sacred” Islamic institutions.
In the end, to be both effective and lawful, Israeli counter-terrorism strategies should dispense with any too-stark differentiations between “normal” and “abnormal” behaviors. To more suitably understand and combat jihadi terrorist enemies, leaders in Jerusalem should first acknowledge that “normal” individuals could pose an equally significant threat. Sometimes, it is even conceivable that jihadi foes who are presumptively “normal” would pose the greater risk
A Continuum of Adversarial Intent, Not a Stark Polarity
At first glance, designations of “normal” and “abnormal” may appear mutually exclusive. But upon more subtle and nuanced examination, analysts would discover these designations are more correctly thought of as different points along a single continuum of “civilized” human judgment.[18]
Sigmund Freud wrote creatively about the Psychopathology of Everyday Life (1914) while tracing intriguing connections between the “abnormal” and the “normal.” In consequence, he was surprised to learn just how faint the line of demarcation could actually be. In exploring parapraxes, or slips of the tongue, a phenomenon that we now popularly call “Freudian slips,” he concluded that specific psychopathologic traits could be routinely identified in “normal” persons.
After World War II and the Holocaust, American psychiatrist Robert Jay Lifton interviewed many Nazi (SS) doctors. Perplexed, as a physician, that such monstrous Nazi crimes had somehow been committed in the name of “hygiene,” and that medicalized murders had been labeled “therapeutic,” Lifton was determined to answer assorted core questions. Most elementary of all his queries was this one: How could the Nazi doctors have managed to conform the large-scale medicalized killing of innocent and defenseless human beings with an otherwise completely normal private life?
Some of his findings were counter-intuitive. It was not unusual, for example, that Nazi doctors had remained perfectly good fathers and husbands while murdering Jewish children. Indeed, like some of the most heinous concentration camp commandants, these physicians (who were of course sworn by Hippocrates to “do no harm” and associated international law) were capable of supervising systematic mass murders six days a week. On the seventh day, conventionally and sometimes even religiously, they went off to church with their families.
In Auschwitz, on Sunday, SS prayers were commonly uttered in a usual chorus. How could this be? And how can Professor Lifton’s scholarly insights and answers from this earlier era of mass criminality help us to better understand the thinking of modern-day jihadi terrorists?
Lifton, an American Jewish physician, carried on his unique examination of the Nazi “biomedical vision” as a Yale Professor and as a Fellow of the Max Planck Institute for Research in Psychopathology and Psychotherapy. This was not just some random undertaking of informal or unstructured curiosity. Rather, adhering to widely-accepted and distinctly impressive scientific protocols, Dr. Lifton carefully embarked upon a rigorous academic study of the most meticulous and refined sort.
To the physician, the Oath of Hippocrates pledges that “I will keep pure and holy both my life and my art.” When asked about this unwavering duty, most of the interviewed SS doctors had felt no contradiction. “The Jew,” after all, “was a source of infection.” Ridding society of the Jews, it follows, was properly “anti-infective.” Hideously, they saw such “excisions” as an indisputable “obligation” of “healing” and “compassion.”
Looking back at Nazi medical crimes, scholars must study mass murder as justified by utterly inane metaphor. Inter alia, Holocaust murders offer irrefutable evidence of just how easy it is to subordinate science and reason to the most preposterous and self-intoxicating doggerel. With such willful subordination, otherwise normal behavior can quickly and completely give way to once-unimaginable levels of predation.
Good and Evil in World Politics
There are underling explanatory themes, some of them jurisprudential. The duality of good and evil within each person expresses a very old idea in western thought, notably in German literature, and especially from Johan Wolfgang von Goethe and Friedrich Nietzsche to Hermann Hesse and Thomas Mann. Always, in this remarkable literature,[19] we may learn that the critical boundaries of caring and compassion are not between “normal” and “abnormal” persons, but within each individual person. Generally porous walls of human normalcy and abnormality allow each single individual to oscillate more or less freely between altruism and cruelty.
Truth is exculpatory, in psychiatry as well as in law. Always, the contrived veneer of human civilization remains markedly thin. Always, it remains ready to crack. When it finally begins to fracture, as in the illuminating fictional case of the British schoolboys in William Golding’s Lord of the Flies, a darkly ubiquitous human nature rises to expose primal layers of barbarism. Always, observes Nobel Literature laureate Thomas Mann, this nature will “dare to be barbaric, twice barbaric indeed.”
After attending the 1961 Eichmann trial in Jerusalem, political philosopher Hannah Arendt ventured the sobering hypothesis that evil can be ordinary or “banal,” that it can be generated by the literal (and seemingly benign) absence of authentic thought. Unsurprisingly, this novel interpretation of evil was widely challenged and disputed following the actual trial, but it was, in fact, rooted in certain classical views of individual human dualism, particularly the central themes of Goethe’s Faust. Hannah Arendt’s resurgent idea of evil as mundane was also reinforced by still-earlier studies of nefarious human behavior in the crowd, or the herd, or the mass, especially the helpfully intersecting works of Soren Kierkegaard, Max Stirner, Arthur Schopenhauer, Gustave Le Bon, Carl G. Jung, Elias Canetti, and of course Sigmund Freud.
In all of these thematically-interrelated writings, a common focus is directed toward the potentially corrosive impact of group membership and identity on individual human behavior. In this genre, Freud’s own best contribution is his Group Psychology and the Analysis of the Ego (1921). Though not generally thought of by professors of international law as being in their “wheelhouse,” it sheds illuminating light on seemingly distant matters of jurisprudence.
Robert Lifton likely knew all this. Still, he was seeking something more, some other isolatable mechanism by which the ordinary or normal evildoer could somehow render himself (or herself) “abnormal.” Ultimately, he discovered this revealing mechanism in an intra-psychic process that he proceeded to label as “doubling.”
Fundamentally different from the traditional psychoanalytic concept of “splitting” – what Freud preferred to call “dissociation” – doubling, said Lifton, is the means whereby an “opposing self” begins to replace portions of the “original self,” in effect, usurping and overwhelming that original self from within. When this happens, scholars may learn further, the opposing self is able to embrace evil-doing without restraint and even while the original self remains determinedly “good.” Also, doubling permits various evil doers to avoid guilt, and thus to live simultaneously at two very discrete and adversarial levels.
As a “maneuver,” however unwitting, doubling allowed the Nazi doctors to be murderers and decent family men at the same time. In similar fashion, doubling is likely the way that various mass-murdering terrorists are able to reconcile the evident ordinariness of their daily lives with otherwise unfathomable expressions of cruelty and lawlessness. It is a process, ipso facto, worth studying by legal scholars.
As with the Nazi doctors and the Jews, it is plausible that jihadi mass murderers – including the prospective suicide-bombers among them – regard the indiscriminate destruction of despised “others” as a sacred form of “healing.” Now, in developing matters of counter-jihadi terrorism, the healing-killing paradox will continue to be crucial to Israeli self-defense foreign policies.
There is more. A verifiably abnormal side to normalcy can be discovered. This is not an oxymoron. For the future, in thinking about how best to protect Israelis and others from jihadi terror-crimes, analysts would all be well-advised not to think of would-be tormentors in narrowly polar terms. Along expressly jurisprudential lines, they should also remain aware of permissible forms of national protection, including “anticipatory self-defense.”[20]
Doubling was not the only reason that usually “normal” individuals were able to become actively complicit in mass murder. Elements of “groupthink,” especially an overwhelming need to belong, have always remained a dominant socializing influence. Clinically, at least, whatever sorts of explanation ultimately emerge as most persuasive, we may still have to accept that the most undeniably odious terrorist killers have been clinically “normal.” If we choose to accept that only “abnormal” individuals could ever believe in the religious “sacrifice” of “martyrs,” we would have to face up to certain logically unassailable histories.
An acceptance of terrorist “normalcy” should be a part of Israeli counterterrorism policies. To the extent that these policies would soon need to be focused on preventing mass-destruction terror attacks against the Jewish State, including already-foreseeable instances of nuclear terrorism or nuclear war,[21] its cumulative national security benefit could prove invaluable.[22] In the final analysis, operational success in all forms of counterterrorism-conflicts must rest on antecedent intellectual success. The ancient Greeks and Macedonians already understood this vital connection, summarizing it by describing their military victories as triumphs of “mind over mind.” For these earlier civilizations, such victories were never mere issues of “mind over matter.”[23]
Policy-Relevant Conclusions
In the end, what will really matter to Israeli and US policy in countering Jihadi terrorists is not whether they are “normal “or “abnormal,” but whether we can fully understand their pertinent preference orderings. It doesn’t really matter if a linkage between Jihadi terrorist strategies and personal death avoidance is “normal,” only that this nexus fits within the Islamist terrorist decisional calculus.
Following Israel’s 12-Day War, the long-simmering issue of Palestinian statehood has risen to the surface once again.[24] Back in August 2021, Taliban leader Mullah Abdul Ghani Baradar and Hamas leader Ismail Haniyeh met formally in Qatar. Both Hamas and Palestinian Islamic Jihad considered the US loss in Afghanistan a tangible validation of their own ideological “resistance.” When congratulating the Taliban on August 17, 2021, Ismail Haniyeh asserted: “The demise of the US occupation of Afghanistan is a prelude to the demise of the Israeli occupation of the land of Palestine.”
The anticipated linkages could not have been plainer. Moreover, they should now be understood in the wider context of protracted Islamist war against the West. In this struggle-defining context, Israel and the United States are seen as “infidels” seeking illegitimate control over Islamic lands. The implications for international law enforcement are manifest in Israel’s ongoing wars against jihadi terror organizations.
There is more. Abdullah Azzam, Palestinian scholar and cleric, is generally regarded as the “father” of global jihad. Azzam served as mentor to Osama bin Laden and laid conceptual foundations for the establishment of al-Qaeda. His notion of intra-Islamic solidarity is unambiguous.
The Taliban’s re-conquest of Afghanistan reenergized global jihad’s determined war against Israel and the United States. Looking ahead, the dramatic submission of the world’s principal superpower (head of the “Zionist-Crusader alliance”) to Koran-directed “true believers” was regarded as an especially auspicious omen for “holy war.” Following Taliban victory, the future of Palestinian “resistance” also appeared brighter and more promising. To wit, recent declarations of support for Palestinian statehood have emerged from France, Spain, Ireland and Norway.
Violence and the Sacred[25]
There is a relevant “anthropology” here. For the Palestinian terror movement against Israel, violence and the sacred must be deeply interpenetrating and inherently inseparable. Though it maintains various more-or-less legitimate claims of “self-determination,” religious sacrifice is what Jihadi Palestinian insurgency is ultimately about. To finally understand this key point represents a sine qua non of successful counter-terrorism.
There is more. Foundational links between religious sacrifice and violent insurgency have a long and potentially instructive history. To acknowledge and gain useful insight from this chronology, Israeli and American planners may look back to ancient Greece, specifically, to Plutarch. Ideas of Palestinian-Islamic religious sacrifice are ferociously adversarial, but they are not unprecedented.
The first century biographer’s Sayings of Spartan Mothers recognizes the honorable female parent as the one who reared her sons for civic sacrifice. Always, such a venerated Greek mother was relieved to learn that her son had died “in a manner worthy of his self, his country and his ancestors.” On the other hand, those “unworthy” Spartan sons who failed to live up to this bold standard of sacrifice were singled out for ferocious reprimand and community-wide humiliation.
One woman, we learn from Plutarch, whose son had been the sole survivor of a disastrous military engagement, killed him brutally with a tile. Culturally, it seems, this was the only fitting punishment for his unpardonable cowardice. Later, the eighteenth-century Swiss (Genevan) philosopher, Jean Jacques Rousseau, citing to Plutarch, described another citizen-mother’s tale as follows: “A Spartan woman had five sons in the army and was awaiting news of the battle. A Helot (slave) arrives trembling; she asks him for the news. `Your five sons were killed.’ `Base slave, did I ask you that?’ The slave responds: `We won the victory.’ The mother runs to the temple, and gives enthusiastic thanks to the gods.”
Why relate these seemingly irrelevant tales from ancient Greece? The answer is simple. There are serious lessons here for both Israel and the United States. Even now, it is impossible to deny that the deepest roots of jihadi terror originate from cultures that display similar views of religious sacrifice.
The key purpose of such ritualistic violence extends beyond any presumed expectations of civic necessity. Always, this rationale goes directly to the very heart of individual human fear; that is, to the palpable and all-mesmerizing locus of existential dread.[26] Ironically, therefore, fear of death has a great deal to with martyr-centered terrorism and correlative law enforcement.
Terrorism, when expressed as sacrificial practice, becomes a “sacred” expression of religious obligation. In certain faith-based Palestinian communities, sacrifice derives, in part, from a desperately hoped-for conquest of personal death. By adopting such practice, the jihadi terrorist expects to overcome his own terrifying mortality.
For Palestinian terrorists, there are multiple accepted paths to immortality. Palestinian-American terrorist, U.S. Army Major Nidal Hasan, actively sought the death sentence for his murder spree at Fort Hood back on November 5, 2009. As he explained in open court, if he were to die by lethal injection, “I would still be a martyr.”
What could be clearer? What earthly promise could possibly be more gratifying than an authoritatively pledged conferral of immortality? There are always very significant connections between existential dread and jihadi terrorism.
Though still widely unrecognized in Israel and the United States, there can be no greater power in world politics than a presumed capacity to overcome death. The jihadi terrorist openly “yearns for death,” but this is actually a mock heroism. At his (or her) existential core, the Hamas fighter is not primarily interested in land or justice. This terrorist wittingly kills himself or herself, together with innocent others, to ensure a personal life that will never end. The so-called “death” that he or she actually expects to suffer in consequence of this “sacrificial “suicide” is never anything more than a momentary inconvenience. In the final tally, it is just a vaguely minor distraction.
In life, truth may emerge through paradox. Hamas and other Palestinian “martyrs” kill themselves as “suicides” in order not to die. There is no more central truth to jihadi terror that is so consistently ignored or wittingly misunderstood.
While seemingly irrational, the martyr, the Shahid, can still calculate rationally that his/her intended suicide will be “cost-effective. This hero-fighter is embarked on what is taken to be a divinely-guided trajectory. He has chosen a gloriously fiery path to life everlasting. On every conceivable dimension, it represents a perfect path.
More on “Martyrdom” and Jihad
In Islam, “martyrdom” has always been closely associated with jihad. Unequivocal and celebratory invocations for such sacrificial killing can be found in the Koran (9:111) and more explicitly in the canonical hadith. “Do not consider those who are slain in the cause of Allah as dead,” instructs the Koran, “for they are living by their Lord.”[27]
For Hamas there are obligatory aspects of sacrificial terror that ought never be overlooked by Israel or the United States. This two-sided nature of terror/sacrifice – the sacrifice of the victim and reciprocal death of “the Martyr” – is codified in the Charter of Hamas: “The Palestinian problem is a religious one, to be dealt with on this premise…`I swear by that (sic.) who holds in His Hands, the Soul of Muhammad! I indeed wish to go to war for the sake of Allah! I will assault and kill, assault and kill, assault and kill.’”
Today, the full gamut implications of this Islamist decisional calculus warrant intensive study in Jerusalem and Washington. Convinced that Shahada (“Death for Allah”) violence against the Israel will lead to a glorious martyrdom, the true jihadist can never be effectively deterred only by ordinary threats of armed reprisal. Among other pertinent ironies, such partial threats could sometimes even become an incentive to additional and/or enlarged terrorism. In this perilous mix, international legal authority is apt to be ignored.
I would argue that for Israel, there is no plausibly tolerable “Two-State Solution.” For the most part, the Islamic world recognizes only one state in this area of the world, and this state is not Israel. On 29 November 2012, the UN General Assembly upgraded the Palestinian Authority’s formal status to Nonmember Observer State, This upgrade allows Palestine to bring complaints against Israelis before the International Criminal Court (ICC), but not as a fully sovereign state.[28] The ICC-issued arrest warrant for Israeli Prime Minister Benjamin Netanyahu is a current legal case in point.
Human death fear always has a great deal to do with explaining jihadi terrorism. Though they would strenuously deny it, the Jihadists’ terror of death can lead some to commit an expressly murderous form of “suicide.” Because dying in the act of killing “infidels,” “apostates,” and “unbelievers” is expected to buy the jihadist freedom from death, these insurgents aim for something far more ambitious than military victory. They seek to conquer their own keenly-dreaded mortality by “killing themselves.”
For them, it all makes perfectly good sense.[29]
There is still more. Israel and its Islamist terrorist enemies maintain very different orientations to “peace.” This stark asymmetry puts Israel at a disadvantage in virtually any “peace process.” While Israel’s Islamist enemies dutifully manifest their “positive” expectations for immortality, individual and collective, via doctrinal slaughter of “heathen,” Israel’s leaders flatly reject their foes’ faith-based and exterminatory decisional calculus.
Among other perils, Israel now confronts a real and still-expanding threat of unconventional war and unconventional terrorism. Faced with opponents who are not only willing to die, but actively seeking their own ecstatic “deaths,” Jerusalem should better understand the critical operational limits of ordinary warfare, national homeland defense and strategic deterrence.
Summing up, Israel’s jihadi foes operate in a perpetual search for preeminent power. Ipso facto, this means power over death. Counter-terrorism policy-makers in Jerusalem ought never lose sight of this widely overlooked power or its continuously primal place in adversarial decision-making.
In the end, “power over death” trumps every alternative form of power, including forms deployed as aircraft carriers, submarines, missiles or other technologically advanced nuclear weapon systems. The core cause of such a presumptive preeminence will lie not in comparative law-based judgments, but in the beating heart of individual human beings. To be countered effectively, jihadi acts of terror will need to be regarded in Israeli planning circles not “just” as mala prohibita (“evil as prohibited”), but also as malum in se (“evil in themselves”). Accordingly, any meaningful “history” of Israel’s future should include an “illustrious war against death.”
Notes
[1] Regarding pertinent issues of sovereignty, see: Louis René Beres, “Self-Determination, International Law and Survival on Planet Earth,” ARIZONA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW, Vol. 11, No. 1., 1994, pp. 1-26. See also: Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations (The Principle of Equal Rights and Self-Determination of Peoples), G.A. Res. 2625, U.N. GAOR, 25th Sess., and Supp. No. 28 at 121, U.N. Doc. A/8028 (1970), reprinted in 9 I.L.M. 1292; Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514, U.N. GAOR, 15th Sess., Supp. No. 16, at 66, U.N. Doc. A/4684 (1960); Principles Which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the Information Called for Under Article 73e of the Charter, G.A. Res. 1541, U.N. GAOR, 15th Sess., Supp. No. 16, at 29, U.N. Doc. A/4684 (1960).
[2] On this deeper meaning of truth in world politics and international law, Plato’s ancient philosophy can be helpful. Plato’s theory, offered in the fourth century B.C.E, seeks to explain all political/legal meanings in terms of epiphenomena, an unstable realm of half-truths and distorted perceptions. In contrast to the uniformly stable realm of immaterial Forms, a realm from which all genuine knowledge must be derived, the political/legal arena is dominated by myriad contradictions of the reflected world.
[3] See, by this author: Louis René Beres: https://www.jurist.org/commentary/2021/09/louis-rene-beres-after-afghanistan-terrorism-islamist-sacrifice/
[4] Also vital to jihadi decision making (and a conceptual corollary of “power over death”) is a “need to belong.” In his modern philosophical classic, Being and Time (1953), Martin Heidegger laments what he calls (in German) das Mann (“The They”). Drawing on earlier insights of Nietzsche, Kierkegaard, Jung and Freud, Heidegger’s “The They” represents the ever-present herd, crowd, horde or mass, an “untruth” (the term favored by Danish philosopher Soren Kierkegaard) that can all-too-quickly suffocate needed intellectual growth. Regarding Heidegger’s always-threatening “The They,” its crowning human untruth lies in (1) “herd” acceptance of immortality at both institutional and personal levels; and (2) “herd” encouragement of the notion “power over death” is sometimes derivative from “membership” in nation-states. History reveals that this can become an insidious and lethal notion. Presently, it can be associated with
“belonging” to jihadi terror groups.
[5] See, by this author, BESA (Israel): Louis René Beres, https://besacenter.org/terrorism-power-death/
[6] Says Philosopher Emmanuel Levinas: “An immortal person is a contradiction in terms.” See his “Being-Toward Death as the Origin of Time,” in God, Death and Time (1993).
[7] Under international law, the question of whether or not a condition of war actually exists between states is often unclear. Traditionally, a “formal” war was said to exist only when a state issued a formal declaration of war. The Hague Convention III codified this position in 1907. This Convention provided that hostilities must not commence without “previous and explicit warning” in the form of a declaration of war or an ultimatum. See Hague Convention III on the Opening of Hostilities, Oct. 18, 1907, art. 1, 36 Stat. 2277, 205 Consol. T.S. 263. Presently, a declaration of war may be tantamount to a declaration of criminality because international law prohibits aggression. See Treaty Providing for the Renunciation of War as an Instrument of National Policy, Aug. 27, 1948, art. 1, 46 Stat. 2343, 94 L.N.T.S. 57 (also called Pact of Paris or Kellogg-Briand Pact); Nuremberg Judgment, 1 I.M.T. Trial of the Major War Criminals 171 (1947), portions reprinted in Burns H. Weston, et. al., INTERNATIONAL LAW AND WORLD ORDER 148, 159 (1980); U.N. Charter, art. 2(4). A state may compromise its own legal position by announcing formal declarations of war. It follows that a state of belligerency may exist without formal declarations, but only if there exists an armed conflict between two or more states and/or at least one of these states considers itself “at war.”
[8] Ironically, and without legal (international law) or conceptual justification, US President Donald J. Trump removed HTS’ foreign terrorist designation.
[9] In law, states must judge every use of force twice: once with regard to the underlying right to wage war (jus ad bellum) and once with regard to the means used in actually conducting war (jus in bello). Following the Kellogg-Briand Pact of 1928 and the United Nations Charter, there can be absolutely no right to aggressive war. However, the long-standing customary right of post-attack self-defense remains codified at Article 51 of the UN Charter. Similarly, subject to conformance, inter alia, with jus in bello criteria, certain instances of humanitarian intervention and collective security operations may also be consistent with jus ad bellum. The law of war, the rules of jus in bello, comprise: (1) laws on weapons; (2) laws on warfare; and (3) humanitarian rules. Codified primarily at The Hague and Geneva Conventions, these rules attempt to bring discrimination, proportionality and military necessity into all belligerent calculations.
[10] For the authoritative sources of international law, see art. 38 of the Statute of the International Court of Justice: STATUTE OF THE INTERNATIONAL COURT OF JUSTICE, Done at San Francisco, June 26, 1945. Entered into force, Oct. 24, 1945; for the United States, Oct. 24, 1945. 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153, 1976 Y.B.U.N., 1052. Taken as a whole, the system of international law is best described as “Westphalian,” after the Treaty of Westphalia. See: Treaty of Peace of Munster, Oct. 1648, 1 Consol. T.S. 271; Treaty of Peace of Osnabruck, Oct. 1648, 1 Consol. T.S. 119. Together, these two treaties comprise the “Treaty of Westphalia.”
[11] For authoritative criteria to distinguish permissible insurgencies from impermissible ones, see: Louis René Beres, “The Legal Meaning of Terrorism for the Military Commander,” CONNECTICUT JOURNAL OF INTERNATIONAL LAW, Vol. 11., No. 1., Fall 1995, pp. 1-27.
[12] Not “just” mala prohibita (“evil as prohibited”), but also malum in se (“evil in themselves”).
[13] At the same time, of course, this posture has its principal legal justification in the national right to “self-defense.” This core right is a peremptory or jus cogens norm under authoritative international law. According to Article 53 of the Vienna Convention on the Law of Treaties: “…a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be amends, “is then entitled to take `proportionate’ reprisals.” See Ingrid Detter De Lupis, The Law of War, 75 (1987). Evidence for the rule of proportionality can also be found in the International Covenant on Civil and Political Rights (1966) at Art. 4. Similarly, the American Convention on Human Rights allows at Art. 27(1) such derogations “in time of war, public danger or other emergency which threaten the independence or security of a party” on “condition of proportionality.” In essence, the military principle of proportionality requires that the amount of destruction permitted must be proportionate to the importance of the objective. In contrast, the political principle of proportionality states “a war cannot be just unless the evil that can reasonably be expected to ensure from the war is less than the evil that can reasonably be expected to ensue if the war is not fought.” See Douglas P. Lackey, THE ETHICS OF WAR AND PEACE, 40 (1989). modified only by a subsequent norm of general international law having the same character.” See: Vienna Convention on the Law of Treaties, Done at Vienna, May 23, 1969. Entered into force, Jan. 27, 1980. U.N. Doc. A/CONF. 39/27 at 289 (1969), 1155 U.N.T.S. 331, reprinted in 8 I.L.M. 679 (1969).
[14] At the same time, terrorist groups have displayed the most profoundly unheroic kinds of behavior, ways generally identified in law as “perfidious.” Deception can be legal under the law of armed conflict, but The Hague Regulations expressly disallow any placement of military assets or personnel in populated civilian areas. Prohibition of perfidy is codified at Protocol 1 of 1977, additional to the Geneva Conventions of 1949, and at Geneva IV, Art. 28. It is widely recognized that these rules are also binding on the basis of customary international law. Perfidy represents an especially serious violation of the law of war, one that is identified as a “Grave Breach” at Article 147 of Geneva Convention IV. In our current subject of analysis, the legal effect of perfidious behavior is to immunize the preempting state from any unavoidable harms done to the perfidious party’s noncombatant populations.
[15] The Jihadist terrorist kills himself or herself together with assorted innocent others to ensure a personal life that will never end. The so-called “death” that he or she actually expects to suffer in consequence of this “suicide,” is actually no more than a momentary inconvenience. The Shahid can calculate “normally” that the suicide is “cost-effective.” In Islam, “martyrdom” has always been associated with Jihad. Unequivocal and celebratory invocations for such sacrificial killing can be found in the Koran (9:111), and in the canonical hadith. “Do not consider those who are slain in the cause of Allah as dead,” instructs the Koran, “for they are living by their Lord.” For Hamas, there are obligatory aspects of sacrificial terror that must never be overlooked. This two-sided nature of terror/sacrifice – the sacrifice of “The Jew,” and the sacrifice of “The Martyr” – is specifically codified in the Charter of Hamas as a “religious” problem. “Earlier, Yasser Arafat’s appointed clergy, preaching on the Temple Mount, reaffirmed a core religious precept: “Palestinians spearhead Allah’s war against the Jews. The dead shall not rise until the Palestinians shall kill all the Jews….” Convinced that Shahada (“Death for Allah”) violence against the Israel will lead directly to martyrdom, the Islamist terrorist can likely not be effectively deterred by more ordinary threats of retaliation. In certain circumstances, such threats could become an incentive to commit additional terrorism.
[16] It should be noted that all forms of terrorism are ipso facto lawless. More specifically, they are hostes humani generis, or “common enemies of mankind.”
[17] In this connection under pertinent law, terrorist leaders could face certain unexpected jurisprudential remedies. Here we must recall that criminal responsibility of leaders under international law is never limited to direct personal action nor is it limited by official position. On the principle of command responsibility, or respondeat superior, see: In re Yamashita, 327 U.S. 1 (1945); The High Command Case (The Trial of Wilhelm von Leeb), 12 LAW REPORTS OF TRIALS OF WAR CRIMINALS 1 (United Nations War Crimes Commission Comp., 1949); see Parks, COMMAND RESPONSIBILITY FOR WAR CRIMES, 62 MIL.L. REV. 1 (1973); O’Brien, THE LAW OF WAR, COMMAND RESPONSIBILITY AND VIETNAM, 60 GEO. L.J. 605 (1972); U S DEPT OF THE ARMY, ARMY SUBJECT SCHEDULE No. 27 – 1 (Geneva Conventions of 1949 and Hague Convention No. IV of 1907), 10 (1970). The direct individual responsibility of leaders is also unambiguous in view of the London Agreement, which denies defendants the protection of the act of state defense. See AGREEMENT FOR THE PROSECUTION AND PUNISHMENT OF THE MAJOR WAR CRIMINALS OF THE EUROPEAN AXIS, Aug. 8, 1945, 59 Stat. 1544, E.A.S. No. 472, 82 U.N.T.S. 279, art. 7.
[18] Dostoyevsky inquires about such judgment: “What is it in us that is mellowed by civilization? All it does, I’d say, is to develop in man a capacity to feel a greater variety of sensations. And nothing, absolutely nothing else. And through this development, man will yet learn how to enjoy bloodshed. Why, it has already happened…Civilization has made man, if not always more bloodthirsty, at least more viciously, more horribly bloodthirsty.” See: Fyodor Dostoyevsky, Notes From Underground 108 (Andrew R. MacAndrew, trans., New American Library, 1961) (1862).
[19] The present author minored in German literature as an undergraduate, and later examined German philosophy as part of his doctoral studies at Princeton.
[20] The customary right of anticipatory self-defense, which is the legal expression of preemption, has its modern origins in the Caroline Incident. This was part of the unsuccessful rebellion of 1837 in Upper Canada against British rule. (See: Beth Polebau, “National Self-Defense in International Law: An Emerging Standard for a Nuclear Age,” 59 N.Y.U. L. REV. 187, 190-191 (noting that the Caroline Incident transformed the right of self-defense from an excuse for armed intervention into a customary legal doctrine). Following the Caroline, even the threat of an armed attack has generally been accepted as justification for a militarily defensive action. In an exchange of diplomatic notes between the governments of the United States and Great Britain, then-U.S. Secretary of State Daniel Webster outlined a framework for self-defense that does not actually require a prior armed attack. (See Polebau, op. cit., citing to Jennings, “The Caroline and McLeod Cases,” 32 AM. J. INT’L L., 82, 90 (1938).) Here, a defensive military response to a threat was judged permissible as long as the danger posed was “instant, overwhelming, leaving no choice of means and no moment for deliberation.” (See Polebau. supra, 61).
[21] For informed accounts by this author of nuclear war effects, see: Louis René Beres, Apocalypse: Nuclear Catastrophe in World Politics (Chicago: University of Chicago Press, 1980); Louis René Beres, Mimicking Sisyphus: America’s Countervailing Nuclear Strategy (Lexington, Mass., Lexington Books, 1983); Louis René Beres, Reason and Realpolitik: U.S. Foreign Policy and World Order (Lexington, Mass., Lexington Books, 1984); and Louis René Beres, Security or Armageddon: Israel’s Nuclear Strategy (Lexington, Mass., Lexington Books, 1986). Most recently, by Professor Beres, see: Surviving Amid Chaos: Israel’s Nuclear Strategy (New York, Rowman & Littlefield, 2016; 2nd ed. 2018).
[22] Jurisprudentially, there are related issues here concerning the specific crime of aggression. See especially: RESOLUTION ON THE DEFINITION OF AGGRESSION, Dec. 14, 1974, U.N.G.A. Res. 3314 (XXIX), 29 U.N. GAOR, Supp. (No. 31) 142, U.N. Doc. A/9631, 1975, reprinted in 13 I.L.M. 710, 1974; and CHARTER OF THE UNITED NATIONS, Art. 51. Done at San Francisco, June 26, 1945. Entered into force for the United States, Oct. 24, 1945, 59 Stat. 1031, T.S. No. 993, Bevans 1153, 1976, Y.B.U.N. 1043.
[23] See, on this background: F.E. Adcock, The Greek and Macedonian Art of War (1957). Such ancient wisdom should continuously be borne “in mind” as America prepares for serious understanding of the “psychopathology of normalcy.”
[24] Some supporters of Palestinian statehood argue that its prospective harms to Israel could be reduced or eliminated by ensuring that Arab state’s immediate “demilitarization.” For contra legal reasoning, see: Louis René Beres and (Ambassador) Zalman Shovel, “Why a Demilitarized Palestinian State Would Not Remain Demilitarized: A View Under International Law,” Temple International and Comparative Law Journal, Winter 1998, pp. 347-363; and Louis René Beres and Ambassador Shoval, “On Demilitarizing a Palestinian `Entity’ and the Golan Heights: An International Law Perspective,” Vanderbilt Journal of Transnational Law, Vo. 28., No.5., November 1995, pp. 959-972.
[25] For a classic scholarly book with this revealing title: See: René Girard, Violence and the Sacred (1977).
[26] In the Middle East, where theological doctrine divides into the dar al-Islam (world of Islam) and the dar al-harb (world of war), acts of terror against unbelievers have generally been accepted as expressions of sacredness. In turn, individual sacrifice derives, in large part, from a very conspicuously hoped-for power over death. By adopting atavistic practice, the Jihadist terrorist expects to realize an otherwise unattainable immortality. For Hamas, which seeks secular power as a new sovereign state of Palestine, certain obligatory aspects of sacrificial terror must never be overlooked. These aspects, underscoring the two-sided nature of terror/sacrifice – that is, the sacrifice of “The Unbeliever” (or “Apostate”) and reciprocal sacrifice of “The Martyr” – is codified within the Charter of Hamas as a “religious” problem.” For authoritative details of the Hamas Charter, see: Louis René Beres: https://scholarlycommons.law.case.edu/jil/vol39/iss3/2/
[27] Says Sura 2:154: “Do not think that those who are killed in the way of Allah are dead, for indeed they are alive, even though you are not aware.” See also: Qur’an, 3:157-8; 169-171; 44:56.
[28] See: Louis René Beres (Israel): https://besacenter.org/israel-palestine-threat/
[29] In authoritative studies of world politics, rationality and irrationality have now taken on very precise meanings. In this regard, a state or terror group is presumed to be rational to the extent that its leadership always values national survival/group survival more highly than any other conceivable preference or combination of preferences. Conversely, an irrational state or terror group is one that would not always display such a markedly specific preference ordering. On pragmatic or operational grounds, ascertaining whether a particular state adversary such as Iran would be rational or irrational could become a problematic and daunting task. Regarding Jihadi terror groups, on the hand, it is plain by definition that they are inherently prone to irrational decision-making.
Louis René Beres was educated at Princeton (Ph.D., 1971), and is the author of many books and articles dealing with history, law, literature, and philosophy. He was born in Zürich at the end of World War II. Some of his pertinent publications have appeared in JURIST; Harvard National Security Journal (Harvard Law School); Yale Global Online; Parameters: Journal of the US Army War College; Special Warfare (Pentagon); Armed Forces and Society; Bulletin of the Atomic Scientists; The Strategy Bridge; Israel Defense (Tel Aviv); BESA Perspectives (Tel Aviv); INSS Strategic Assessment (Tel Aviv); The War Room (USA War College); Infinity Journal (Tel Aviv); Modern War Institute (West Point); International Security (Harvard); World Politics (Princeton); and more than a dozen major law journals and reviews. Professor Beres is a seven-times contributor to Oxford University Press Annual Yearbook on International Law and Jurisprudence and is a member of Oxford University Press editorial advisory board for the Yearbook.
