07 May 2019


Are terrorists normal? . . . Nazis, Hamas, al Qaeda, et al.
How are mass-murdering terrorists and rocket-launchers aiming indiscriminately at men, women and children able to reconcile their daily lives with unfathomable expressions of cruelty, violence and barbarism? On Nazis, Hamas, al Qaeda, et al  arutzsheva *By Prof. Louis René Beres

"Are They Normal? 

It's not a usual question for commanders or strategic planners. Still, to some reasonable and ascertainable extent, this complex question could be applied to virtually any adversary in war,[i] or at least to certain identifiable cadres of a pertinent enemy leadership.

In fighting the wars associated with counter-terrorism, American analysts may have especially sound reasons to make such a determined inquiry. After all, perhaps even by definition, all counterterrorism-focused conflicts should be fashioned with some explicit regard to presumed differences between "normal" and "abnormal" opponents. Moreover, for purposes of optimizing findings, these differences should be applied to informed considerations of both adversarial means and adversarial ends.

This means, among other things, a distinctly pragmatic application to the available operational methods of conducting counter-terror-conflicts and to the recognizable objectives of any such conflict.
Under the laws of war[ii] of "Westphalian"[iii] international law[iv] (aka humanitarian international law or the law of armed conflict) parts of this important distinction may parallel settled jurisprudential contrasts between "justice in war" (jus in bello) and "justice of war" (jus ad bellum).[v]

In the end, the most urgent question should come down to this basic query: Is it plausible to assume that all or most of Israel and the West's terrorist foes are "abnormal," and how should any affirmative response best be incorporated into tangible counterterrorism strategies? Could such an assumption reflect meaningfully data-based research and analyses?

There is more. Would the specific criteria applied in any required analysis be consistent with ubiquitous or possibly even universal standards of normalcy, or instead, represent only the predictable result of ideology or "cultural relativism?”

Until now, the West's core posture on counterterrorism conflicts has expressed the curiously reassuring idea that insurgent enemies can't be normal.[vi] After all, the most prominent of these virulent enemies have generally exhibited a willful indifference to personal safety, an indifference that goes beyond our "normally" established definitions of heroism. Sometimes, of course, these terrorists have even been willing to accept great personal suffering, even death.[vii] The marchers on the Gaza fence are but one example. Launching rockets from Gaza schools and hospitals is another.

While such sorts of consciously self-destructive behavior are plainly out of synch with what we would usually regard as "normal", they are also consistent with the easily-recognized preference hierarchies of Jihadist fighters - whether in Gaza, Syria, Iraq, Afghanistan, Yemen, Sudan or anywhere else. These issues should become increasingly urgent as US policymaker s learn that the announced defeat of ISIS was premature.

In the dissembling Middle East, literally thousands of disbanded ISIS terrorist fighters in Syria are now being scooped up by conspicuously agile recruiters from al-Qaeda.

In forging operationally useful policies, planners should dispense with any extraneous ideological or "common sense" presumptions. By itself, choosing to attack the Israelis or or other targets abroad is not evidence of psychological abnormality. This is true even where the attackers would opt for lawlessly indiscriminate forms of terrorism. To automatically assume otherwise would be to confuse our required science-based analytic judgments with narrowly partisan or self-delusionary kinds of national chauvinism.

At the very same time, we do need to accept that certain identifiable terrorist foes will continue to become or send willing "suicides" or "martyrs." It follows that the available arsenal of deterrent remedies must always be constructed accordingly.

[. . .] This article is very long and extremely worth-while reading. Continue here to read the full article.

However, below are the footnotes, in and of themselves to be read and digested.

[i] 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."

[ii] 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.

[iii] 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.”

[iv] 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.

[v] 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.

[vi] 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).

[vii] At the very 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.

[viii] 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.

[ix] 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).

[x] 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).

[xi] 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.

[xii] See, on this background: F.E. Adcock, The Greek and Macedonian Art of War (1957).

*By Prof. Louis René Beres
The writer (Ph.D, Princeton, 1971) is emeritus professor of Political Science and International Law at Purdue University. He is the author of many books, monographs, and articles dealing with Israeli security matters, nuclear strategy and nuclear war.

1 comment:

Anonymous said...

Simplest explanation: They are 'pere adam'.