Not surprisingly, with regard to Israel, The New York Times continues to publish essentially only the Arab side of the story. In this connection, an especially egregious April 4 article by Professor George Bisharat (“Israel On Trial”) was decidedly more of a visceral attack upon Israel’s recent Gaza operation than it was a sober jurisprudential assessment. Moreover, understanding that international law can always be used adversarially by any party to a conflict, Professor Bisharat had carefully selected only those particular norms and events that would best serve his pre-fashioned conclusions. Perhaps the most deceptive omission in his contrived argument was his altogether willful disregard of pertinent background and context.
As my readers in The Jewish Press are all too well aware, international law is not a suicide pact. When Hamas terrorists intentionally target Israeli women and children, Israel having no choice but to defend its most vulnerable populations, must still retaliate against offending Hamas infrastructures, but aims exclusively at military targets. Sometimes, Israeli fire unavoidably kills and injures Palestinian noncombatants. This often creates the false impression of equivalent lawlessness on both sides. The reader of misleading and manipulative columns like that by Professor Bisharat is often left with the erroneous impression that Israel’s use of force had been wanton and (today’s absolutely favorite term for Israel-bashers) “disproportionate.”
There are, of course, profound legal differences between Hamas terrorism, which is by definition indiscriminate, and Israeli defensive retaliations, which are always designed to avoid civilian casualties. Two corollary points (neither was acknowledged in The New York Times column) must be made. First, the criminal intent (mens rea) of Hamas terror represents an incontestable violation of humanitarian rules of armed conflict. Only the Hamas resort to violence is gratuitous, seeking to inflict maximum pain and suffering upon the innocent. The Israeli response is always limited by strict rules of “military necessity,” and is designed entirely for national survival and self-protection.
Does Professor Bisharat really believe that Israel would use armed force against any Arab targets if Hamas were to cease its campaign of rocket mayhem and murder? Could there be any reasonable allegations of an Israeli “occupation” if there were no prior Palestinian terrorism?
Readers of Professor Bisharat’s column were told of Israeli reprisals that “deliberately” kill or injure Palestinians. What they were not told is that these civilians were placed in harm’s way by the deliberate Hamas placement of terror assets amid these populations. Known in law as “perfidy,” this placement is an egregious crime that assigns full legal responsibility for all Palestinian losses to Hamas.
Deception can be an acceptable virtue in warfare, but there is a legal distinction between deception and perfidy. The Hague Regulations in the Laws of War allow “ruses,” but disallow treachery. The prohibition of perfidy is reaffirmed in Protocol I of 1977, and it is understood that these rules are binding on the basis of general and customary international law.
What are the differences between permissible ruses and perfidy? The former include such practices as the use of camouflage, decoys, and mock operations. False signals, too, are allowed, as an example, the jamming of communications.
Perfidy includes such treacherous practices as improper use of the white flag; feigning surrender or pretending to have civilian status. It constitutes perfidy to use ambulances to transport weapons and explosives, or to shield military targets from attack by moving them into densely populated areas. Such treachery even represents the most serious violation of the Law of War – a “Grave Breach.” Here, the legal effect of perfidy is to exempt Israel from the normally operative rules on targets. Even if Hamas had not intentionally engaged in treachery, any Hamas link between protected persons and military activities would still place all legal responsibility for Arab civilian harms squarely upon that “government.”
None of this is meant to suggest that terrorism represents a permissible use of force. By its very nature, the Hamas plan of violence is inherently illegal. The rules of war are just as binding upon Palestinian terrorists as they are upon Israeli military forces. This is the result of a jurisprudential expansion at the common Article 3 of the four Geneva Conventions of 1949, and at the two protocols to these Conventions of 1977.
The Operation Cast Lead harms to Arab civilians in Gaza caused by Israeli self-defense are certainly regrettable, but the legal responsibility for this tragedy lies entirely with Hamas. Also, Israel has the right of self-defense against terrorist attacks originating from Gaza, both the post-attack right codified at Article 51 of the UN Charter, and the customary pre-attack legal right properly called “anticipatory self-defense.”
Israel has the indisputable right and obligation under international law to protect its citizens from criminal acts of terror. Should Israel’s leaders ever decide to capitulate to perfidy and restrict defensive retaliations, the State of Israel would be undermining international law.
“Just wars,” we learn from the seventeenth-century legal philosopher Hugo Grotius, “arise from our love of the innocent.” Recognizing this, Israel must continue to fight vigorously and lawfully for its survival. Although perfidious provocations by Hamas might again elicit Israeli actions that bring serious harms to noncombatant Palestinian populations, it will be these terrorist provocations, and not Israel’s indispensable response, that would be illegal.
You won’t read any of this, however, in The New York Times.
Copyright © The Jewish Press, May 29, 2009. All rights reserved.
LOUIS RENÉ BERES was educated at Princeton (Ph.D., 1971) and is author of many books and articles dealing with the Law of War. He has been a consultant on this matter in both Washington and Jerusalem. Professor Beres is Strategic and Military Affairs columnist for The Jewish Press.