Even if the Palestinian Authority were to succeed with its strategy for incremental statehood at the United Nations, persisting expressions of violence against the innocent would still be terrorism. From the standpoint of international law, even a fully constituted “Palestine” would be unable to justify linguistic transformations of murder. In fact, no matter how hard they might try in any post-independence milieu, those Palestinians who would continue to identify the willful maiming and execution of Israeli noncombatants in the name of a now-expanded goal of “national liberation” (all of Israel proper is “occupied Palestine”) would still be criminals.
Terrorism is a crime under international law. To date, whenever Palestinian insurgents claim the right to use “any means necessary” because they are victims of an alleged “occupation,” they are flat out mistaken. Even if their relentlessly disingenuous claims for “national self-determination” should soon become supportable at the UN, there will remain utterly firm jurisprudential limits on permissible (1) targets of insurgent violence and (2) levels of insurgent violence.
The limited rights of insurgency under international law do not include the use of nail-filled bombs, dipped in rat poison. Under their most generous definition in jurisprudence, these rights can never supplant the settled rules of humanitarian international law, rules also known as the law of armed conflict. Nowhere is it written that there are certain political goals so overwhelmingly worthy of implementation that they can therefore allow the deliberate incineration of infants in their cribs, or of children at play. One doesn’t need to be a professor of international law to understand such an elementary proposition.
From the beginning, supporters of Palestinian terror violence against Israelis have argued passionately that the ends of their insurgency (Palestinian “independence”) justify the means (willful attacks upon Jewish civilians). Leaving aside everyday and ordinary ethical standards by which this argument is already manifestly indecent, the ends can never justify the means under conventional or customary international law. For more than two thousand years, the binding legal principles of world politics have clearly stipulated that intentional forms of violence against the innocent are always repugnant, and hence always prohibited.
Although fashionable to repeat at cocktail parties, the phrase “one man’s terrorist is another man’s freedom fighter” is a shallow witticism entirely devoid of any serious legal meaning. While it is true that certain insurgencies can be judged per se lawful (after all, the idea of “just cause” can be found in the Declaration of Independence of the United States), these residually permissible resorts to force must always conform to the laws of war.
Whenever an insurgent group resorts to openly unjust means, its actions are unambiguously terroristic. It follows that even if the ritualistic Palestinian claims of a hostile Israeli “occupation” were reasonable rather than invented, their corresponding claim of entitlement to oppose Israel “by any means necessary” would still remain false.
International law has determinable form and content. It principles and practices cannot be fashioned and re-fashioned by individual terror groups only to satisfy their own presumed geo-political interests. This is especially the case, of course, wherever terror violence purposely targets fragile and vulnerable civilian populations.
National liberation movements that fail to meet the test of just means can never be protected as lawful or legitimate. Even if we could somehow accept the intrinsically spurious argument that Hamas, Islamic Jihad, and Fatah fulfill the codified criteria of “national liberation,” it is plain that they do not meet the recognizable standards of discrimination, proportionality, and military necessity. These authoritative standards are applicable to insurgent organizations by the common Article 3 of the four Geneva Conventions of 1949, and by the two 1977 Protocols to these Conventions.
They are also binding upon all combatants by virtue of broader customary and conventional international law, including Article 1 of the Preamble to the Fourth Hague Convention of 1907. This rule, called the “Martens Clause,” makes all persons responsible for the “laws of humanity,” and for the “dictates of public conscience.”
Under international law, the ends can never justify the means. As in the case of war between states, every use of force by insurgents must be judged twice, once with regard to the justness of the objective (in this case, a Palestinian state to be built upon the charred ruins of a dismembered Israel), and once with regard to the justness of the means used toward achieving that objective.
Murderers of young children who take undisguised delight in the blood of their victims are never “freedom fighters.” If they were ever entitled to such a designation, we would have to concede that international law itself was nothing more than a mannerly-veneered authorization for consummate evil in world affairs.
American and European supporters of a Palestinian state in the United Nations continue to presume that “Palestine” will be part of a “two-state solution.” For these naive believers in “peace,” a new and 23rd Arab state will cheerfully exist side-by-side with the extant Jewish state. Yet, significantly, this kindly presumption is dismissed everywhere in the Arab/Islamic world.