Slouching toward “Palestine”: Anti-Israel terrorism, aggression, and the law of war
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By Louis René Beres
Intra-Palestinian politics remain on a steady course. Following a carefully-choreographed rapprochement with Hamas, the more “moderate” Fatah forces, still trained and funded by millions of U.S. tax dollars, will quickly resume their ritualized terror attacks against Israel. More or less simultaneously, Hamas will do the same. In Lebanon, Shiite Hezbollah, steadily mentored by Iran, and, oddly allied with Sunni Hamas, has already begun active operational preparations, with Syrian collaboration, for the next war.
Ironically, however, Israel’s required efforts to defend its citizens will predictably be met with a sanctimonious barrage of assorted criticisms. Although international law allows any such imperiled state to use necessary force preemptively, Israel’s indispensable efforts to stave off existential harms will be harshly condemned throughout the “international community.”
Humanitarian international law, or the law of war, requires that every use of force by an army or by an insurgent group meet the test of “proportionality.” Drawn from the core legal principle that “the means that can be used to injure an enemy are not unlimited,” proportionality stipulates, among other things, that every resort to armed force be limited to what is necessary for meeting military objectives. This principle of both codified and customary international law applies to all judgments of military advantage, and also to all planned reprisals.
Proper determinations of proportionality need not be made in a geopolitical vacuum. Instead, these legal decisions may always take into consideration the extent to which an adversary has committed prior or ongoing violations of the law of war. In the frequently interrelated examples of Hamas/Islamic Jihad/Fatah terrorists in Gaza, and the Hezbollah terrorists in Lebanon, there is ample evidence that all of these belligerents have been guilty of repeated “perfidy.”
In law, deception can be acceptable in armed conflict, but the Hague Regulations expressly disallow the placement of military assets or military personnel in any heavily populated civilian areas. Further prohibition of perfidy can be found at Protocol I of 1977, additional to the Geneva Conventions of 1949. These rules are also binding on the basis of an equally authoritative customary international law.
Perfidy represents a very serious violation of the law of war, one that is even identified as a “grave breach” at Article 147 of Geneva Convention No. IV. The legal effect of perfidy committed by Palestinian or Hezbollah terrorists, especially their recurrent resort to “human shields,” is to immunize Israel from legal responsibility for any inadvertent counter-terrorist harms done to Arab civilians. But even if Hamas and Islamic Jihad and Fatah and Hezbollah have not always engaged in altogether deliberate violations, any terrorist-created links between civilians and insurgent warfare still bestowed upon Israel a fully legal justification for military self-defense.
This is not to suggest that Israel should now have a jurisprudential carte blanche in its necessary applications of armed force, but only that the reasonableness of these applications always be appraised in the context of identifiable enemy perfidy.
Viewed against the historical background of extensive and unapologetic terrorist perfidy in both Gaza and Lebanon, Israel has been innocent of any prior “disproportionality.” All combatants, including all insurgents in Gaza and Lebanon, are bound to comply with the law of war of international law. This important requirement derives not only from what is known as the “Martens Clause,” a binding paragraph which makes its first appearance in the Preamble to the 1899 Hague Convention No. II on land warfare, but additionally from Article 3, common to the four Geneva Conventions of August 12,1949. It is also found at the two Protocols to these Conventions.
It is easy to condemn Israel with rhythmic chants of “disproportionality.” Yet, competent legal scholars will always acknowledge the vital evaluative significance of context.
It should be clear, until now, that any seemingly disproportionate use of force by the Israel Defense Forces had actually been the permissible outcome of antecedent and perfidious crimes committed by its enemies.
What about charges, from one war to the next, that Israel had committed “aggression” in Lebanon? At Lebanon’s insistence, certainly not Israel’s, a formal state of war has existed between the two tiny countries since the Jewish State came into existence in May 1948. Only an armistice agreement obtains between Israel and Lebanon. Signed on March 23, 1949, this was not a war-terminating agreement, but merely a pledge to “cease fire.”
Legally, it is not possible for Israel to commit aggression against Lebanon. This is because the latter already considers itself in a formal condition of belligerency with the Jewish State. Israel cannot commit aggression against another state with which it is already at war.
Faced with multiple and sometimes cooperating enemies on several fronts who often make no secret of their genocidal intentions, Israel has nonetheless adhered to the law of war. Indeed, in starkly marked contrast to the conscious indiscriminacy of its terrorist foes in Gaza, Judea/Samaria (West Bank) and Lebanon, Jerusalem has struggled mightily to respect this law.
The authentic legal issue in recurrent Middle East conflict is not Israeli “disproportionality” or “aggression,” but rather a persistent enemy resort to terrorism and perfidy. Notwithstanding foreseeable U.S. and Israeli objections to any Fatah/Hamas merger, neither Palestinian party has any effective reason to refrain from further terrorism against Israel. Already engaged in a far-reaching diplomatic end-run around Jerusalem, neither Fatah nor Hamas will require Prime Minister Netanyahu’s negotiated approval to proceed toward complete Palestinian sovereignty.
In September, probably with very little prodding, the U.N. General Assembly will take up the issue of membership for “Palestine.” Almost certainly, although any such consideration would likely not meet the more stringent requirements of statehood that were formally established at the 1934 Convention on the Rights and Duties of States (Montevideo Convention), a generally-recognized and totally militarized Palestinian state would then become a fait accompli. Should this U.N. conferral of sovereignty be implemented, Israel’s starkly limited future will be discoverable in Article 12 of the PA (Fatah) Charter, which calls for “the liberation of Palestine completely….,” and in Article 19: “The struggle will not end until the elimination of the Zionist entity and the liberation of Palestine.”
As for the less-moderate Hamas Covenant (Charter of the Islamic Resistance Movement), it begins with Israel’s annihilation: “Israel will exist and will continue to exist until Islam will obliterate it….” Significantly, especially in view of what is still happening in Egypt, the Covenant refers to Hamas as “one of the wings of the Muslim Brotherhood in Palestine.”
In the Middle East, wishful thinking is always perilous. Israel’s enemies plainly have no regard for compliance with the law of war. Once granted a new state carved out of Israel’s still-living body, “Palestine” would enthusiastically seize new opportunities not “only” for war and terrorism, but also (in the literal jurisprudential sense of pertinent international treaties) for genocide.
In the final analysis, Fatah/Hamas seek not to enlarge a secular power over life, but rather a supremely religious power over death.
Is there any power in world politics or diplomacy that can conceivably compete with this promise of immortality?
Louis René Beres was educated at Princeton (Ph.D., 1971) and is currently Professor of International Law at Purdue University. The author of ten major books and several hundred scholarly articles on world affairs, his columns appear in many major American and European newspapers and magazines.
For further reading on Israel, we suggest The Sixth Crisis: Iran, Israel, America and the Rumors of War by Dana H. Allin and Steven Simon.