Targeting Marwan Issa didn't break the law; it enforced it - opinion

• Published date: 24 March 2024
• Author: LOUIS RENÉ BERES
• Publication title: Jerusalem Post, The: Web Edition Articles (Israel)

Context is clarifying. The world legal system remains a "self-help" system of justice. It is within this background of global anarchy that terror-beleaguered states must shape and identify counter-terrorism options

Responding to intentionally indiscriminate Hamas violence, Israel's precise airstrike was an act of international law enforcement that targeted Issa. Faced with a persistent threat of Palestinian terrorism that could, sometimes, escalate to mass destruction weapons, Israel has no choice but to eliminate Hamas leadership wherever possible.

Abandoning such a primary obligation would express even more than an existential threat to Israel. It would also represent a potentially devastating threat to regional and global security. An example of such a threat would be a direct Iranian attack on Israel that escalates into an unconventional war. Although Iran is pre-nuclear, any accelerating search for "escalation dominance" by Israel and Iran could still produce a nuclear conflict. Iran already has access to radiation-dispersal weapons and could launch a conventional attack against Israel's Dimona nuclear reactor.

Under international law, terrorism represents a crime that must be prevented and punished. As we may learn from both Roman law and Jewish law (Halacha), a universal rule reigns. This rule affirms the immutable principle of "No crime without a punishment." It can be discovered, among other valid sources, in the London Charter of August 8, 1945, the founding document of the Nuremberg Tribunal.

In law, terrorists are known as hostes humani generis or "common enemies of humankind." While the world legal system allows certain insurgencies in matters of "self-determination," there is nothing that can ever justify deliberate attacks on civilians. Here it is important to remember that an integral part of all criminal law is the underlying presence of mens rea or "criminal intent."

In law, there can be no reasonable comparison of Marwan Issa's deliberate mass murder of Israeli noncombatants and the unintended civilian harms now being suffered in Gaza. As a matter of humanitarian international law, responsibility for these Gaza harms falls entirely upon the "perfidious" behavior (i.e., using civilians as "human shields") of Hamas and Iran, not on the Israeli forces acting to support legitimate and indispensable national self-defense. Under the law of war, even where an insurgent uses force with "just cause," it is still required to fight with "just...