‘A boy had been given money to buy things at the grocery store. On the way, he lost the money. Someone saw him looking for the money: “Did you lose it here?” the man asked. “No,” said the boy. “Then why are you looking here?” “Ah,” said the boy. “Where I lost the money it is dark, but here it is light.” The Wise Men of Chelm (Jewish folk tale)
Israelis have good reason to be worried about the current Hamas ceasefire. On the terrorist side, there is every intention to continue the jihad. Reciprocally, Israel will soon feel renewed pressures to accept a Palestinian state. Still, like the boy from “Chelm” who looks for lost grocery money only where it would be most visible, the Jewish state would be looking for peace in the wrong place.
To clarify, some authoritative background will be needed. A core principle of all civilized legal systems – one reaffirmed at the post-war Nuremberg trials – is nullum crimen sine poena or “no crime without a punishment.” Today, even following “perfidious” terror attacks on Israeli civilians, much of the world is apt to blame Israel for cumulative regional harms.
Though Israel’s counter-terrorist war in Gaza had been killing and wounding Palestinian civilians, this war of self-defense was indispensable for national survival and Israel-inflicted harms were entirely collateral. Altogether unlike the precipitating October 7, 2023 Hamas terror attack, these harms were not the result of “criminal intent” (mens rea).
In these ongoing matters, logic deserves pertinent pride of place. To begin, the self-justifying Palestinian narrative of an Israeli “occupation” has always been founded on a flimsy edifice of legal falsehoods. In essence, this narrative is a contrivance of structured propaganda. Even if the contrivance were not so blatant, Palestinian insurgents would lack any law-based right to intentionally harm Israeli noncombatants.
In law, all law, even a “just war” must be fought by “just means.” Under international law, rape, murder, suicide-bombings and hostage-taking can never express a permissible path to “self-determination.”
Under law, all law, the ends can never justify the means. In law, all law, rights can never stem from wrongs: Ex iniuria ius non oritur.
Hamas are not lone wolves
THERE IS more. For the most part, Hamas and other jihadi killers are not “lone wolves.” They are spurred on by organized Palestinian incitements to barbarous terror-violence. Though generally overlooked, these determined criminals remain captivated by the Islamist promise of “power over death.” This is a delusionary power reserved for “martyrs.”
Among other inglorious traits, jihadist terrorists (Hamas, Islamic Jihad, Fatah, etc.) are markedly unheroic in their search for Palestinian statehood. More precisely, they are consumed by an elemental or primal cowardice. Should there be any doubts about this, one need only remember that the jihadists kill themselves – or allow death to be inflicted upon themselves – in order not to die.
This wanton murderer expects to suffer little more than a transient inconvenience on the path to “life everlasting.” Nonetheless, for themselves as individuals, jihadist leaders typically prefer luxury hotel suites in Qatar or Turkey to Islamist heaven.
Does the jihadi “foot soldier” truly believe in such a blessedly eternal life? To answer this question, one must first understand that religious faith can easily trump logic and science, especially in the Islamist Middle East.
A personally reinforcing point can be offered by the present writer, who many years back, interviewed a failed Palestinian suicide-bomber. When I inquired of this young man (face to face, with an Israeli captor-interpreter) how he felt about failure as a “martyr” (shahid), the would-be terrorist replied without hesitation: “Devastated, because now I will surely have to die.”
Back to current jihadi criminal plans for Israel. Can there be a lawful “ceasefire agreement” between a genuine national government (Israel) and an inherently criminal organization (Hamas)? Whatever the overall merits of each side’s position, the immediate effect of any ceasefire agreement is to bestow on a criminal-terror organization a legitimate position under international law and formal legal equivalence with a sovereign state. Among other things, the inherent illegality of Hamas as a “self-determination” organization can be extrapolated from the explicit criminalization of terrorism under both codified and customary international law.
WHAT ABOUT “Palestine?” Though the name would seem to signify extant “sovereign equality” with Israel, the legal reality is different. There has never been a state of Palestine, nor does such a state exist today. For those willing to examine this time-urgent matter in appropriately legal context, the place to begin is the Convention on the Right and Duties of States (Montevideo, 1933). Among other things, this governing treaty on statehood dispels all prevailing falsifications regarding an alleged “State of Palestine.”
In the next year, and without a scintilla of objective legal verification, the global community could become convinced that Palestinians deserve an independent state and that fulfilling this presumed right would benefit both Israelis and Palestinians. Accordingly, there would be assorted incentives to interpret the Montevideo Convention as a validation or justification of Palestinian statehood. Bolstered by such faux reasoning, this jihad-based Arab state would accelerate its pre-independence program of war and terror against Israel.
From the standpoint of every operational Palestinian faction, all present-day Israel would be designated “occupied territory.” Though openly genocidal, “From the river to the sea…” is already the pre-state Palestinian war cry. Should there remain any doubts about wrongful Palestinian definitions of an Israeli “occupation,” one need only to check official Palestinian maps. On each map, Palestine’s borders are drawn to include all of Israel. One should recall here that the Palestine Liberation Organization (PLO, forerunner of the PA and Hamas) was founded in 1964, three years before there were any “occupied territories.”
So what exactly was the PLO attempting to “liberate?”
DURING THE many years that Palestinian terrorists were slaughtering each other as well as Israeli civilians, Israel’s law-based warnings about Palestine were widely ignored or harshly condemned. Not even after 9/11, when Fatah and Hamas celebrated America’s jihad-triggered misfortune, did the United States and its allies even bother to reevaluate their traditional support of Palestinian statehood. We should expect, therefore, especially after the current cease-fire agreement, that Israelis would feel pressured to consider “Palestine” as a longer-term solution.
On the Arab side, theology could be determinative. For all jihadist forces in the Middle East, the conflict with Israel is never authentically about land or geopolitical advantage. Rather, it is always about God and variously derivative promises of achieving “power over death.”
For Palestinian terror groups, the true enemy is never Israel as such. Their enemy is “The Jews.” The young Palestinian terrorist who strikes with axe or blade (both used for beheading Jewish children on October 7, 2023) is expecting to be rewarded as a “martyr.” Prima facie, this means an incomparable reward.
Plainly, Hamas and all other Palestinian jihadi organizations still seek a “one-state solution” for their “Jewish question.” In principle, at least, certain earlier declarations of support for Palestinian “self-determination” might not have been unreasonable, but only if the Palestinian side had been committed to a genuine “two-state solution.” Whatever their current differences, all jihadi groups agree that Israel is by its very nature intolerable (because any Jewish state, by definition, represents a religious abomination in the Dar al Islam – territorial dominion of Islam) and that Israel is “Occupied Palestine.”
FROM THE seventeenth century onward, the world political system has operated in a “state of nature.” In the corrosively anarchic Middle East, considerations of raw power have routinely trumped any binding expectations of authoritative international law. On particular matters concerning Palestinian statehood, it is high time to understand that everyone’s true enemy in the region is not Israel, but a persistently sordid mix of jihadist criminal forces.
Though counter-intuitive, any tangible advances to Palestinian statehood would disadvantage Arabs as well as Israelis. As a complicating factor, an irredentist Palestinian state would weaken Israel in its potentially survival struggle against a near-nuclear or already-nuclear Iran. For the Jewish state, the Palestinian threat (expanded anti-Israel terrorism) and the Iranian nuclear threat are never separate and distinct. Instead, they are intersectional and mutually reinforcing.
Finally, we may learn from the historic Nuremberg Tribunals and Nuremberg Principles an elementary pillar of justice, first drawn from ancient Jewish law: “No crime without a punishment.” In the end, if world leaders should choose to betray this “peremptory” principle (one that is per se inviolable), Palestine could wind up as Israel’s “last straw.”
It follows that absolutely any post-ceasefire incentives to accept a Palestinian state should be rejected by Jerusalem. Recalling the boy’s lost grocery money in Jewish literary “Chelm” – where the “Wise Men” were satirically not so wise at all – Israel should never be tempted by any seemingly gainful advantages of “light.”
The writer is an emeritus professor of international law at Purdue University and the author of many books and scholarly articles on international law, nuclear strategy, nuclear war, and terrorism. His 12th and latest book is Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016; second edition, 2018).