This article appeared in the print version as After Pillar of Defense: Separating Appearance From Reality (Part II)
Terrorism is always more than bad behavior. Terrorism is a distinct and codified crime under international law. When terrorists represent populations that enthusiastically support such attacks, and where these terrorists can also find an easy refuge among hospitable populations, responsibility for ensuing counterterrorist harm must lie with the criminals.
In law, truth can sometimes be counterintuitive. Understood in terms of an inevitably still ongoing cycle of Palestinian terrorism and Israeli self-defense, the Palestinian side must bear full legal responsibility for Arab civilian casualties in Gaza. After all, without their premeditated attacks on Israeli civilian populations, there would have been no Palestinian casualties.
International law, as I have repeated so many times in this space, is not a suicide pact. Unambiguously, it offers an authoritative body of rules and procedures that permits states to express their inherent right of self-defense. When terrorist organizations openly celebrate the “martyrdom” of Palestinian children, and when Palestinian leaders unashamedly seek religious redemption through the mass murder of Jewish children, the terrorists understandably have no legal right to demand sanctuary.
Under international law, these criminals are hostes humani generis, “common enemies of humankind.” Significantly, in law such murderers must be punished severely wherever they are found. Concerning their arrest and prosecution, jurisdiction is now, after Nuremberg, universal.
Palestinian terrorism, even during its very occasional slow periods, has become all too familiar. In addition to rockets, the killers – using bombs filled with nails, razor blades, and screws dipped in rat poison – seek to maim and burn Israeli civilians. Generally this objective is sought with cheers and abundant blessings from the leading Islamic clergy.
Why do they feel this way? In the precise words of a major Hamas leadership figure, “The Jews [not “the Israelis”] lack sanctity.”
There is also considerable irony here. Those arrogant Palestinian commanders who directly control the suicide-bombers’ mayhem always cower fearfully in their towns and cities, taking meticulous care to find personal safety amid densely packed Arab populations. In addition to assorted Israel Air Force (IAF) units, other special IDF counterterrorism and commando elements meticulously identify and target only terrorist leaders in order to minimize any collateral harm. Such harm can’t inevitably be avoided by the self-defending party, even by the IDF, which actually follows its obligatory purity of arms code more stringently than any other army on earth.
Deception can be legally acceptable in armed conflict, but the Hague Regulations disallow placement of military assets or personnel in heavily populated civilian areas. Further prohibition of perfidy is found at Protocol I of 1977, additional to theGeneva Conventions of 1949. 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 identified as a “grave breach” at Article 147 of Geneva Convention IV. The critical legal effect of perfidy committed by Palestinian terrorist leaders in Gaza was to immunize Israel from any responsibility for unintended counterterrorist harms done to Arab civilians. Even if Hamas and Fatah and Islamic Jihad and their sister terror groups did not deliberately engage in perfidy, any Palestinian-created link between civilians and terrorist activities would have granted Israel full legal justification for appropriately defensive military action. Operation Pillar of Defense was an obvious case in point.
Again, international law is not a suicide pact. All combatants, including Palestinian insurgents, are bound by the Law of War. This requirement is found at Article 3, common to the four Geneva Conventions of August 12, 1949, and at the two protocols to these Conventions.
Protocol I applies humanitarian international law to all conflicts fought for “self-determination,” the stated objective of all Palestinian fighters. A product of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (1977), this protocol brings all irregular forces within the full scope of international law.
In this connection, the terms “fighter” and “irregular” are conspicuously generous in describing Palestinian terrorists, fanatical criminals who target only civilians and whose characteristic mode of “battle” is not military engagement, but religious sacrifice.
In the final analysis, virtually all Palestinian terrorism is rooted in a culture-wide search for immunity from personal death. It follows that there can be no greater cowardice than what is expressed by this form of terror.