In his September 24 speech at the United Nations, President Obama spoke passionately in favor of a Palestinian state. In this connection, his plea for full Palestinian independence strongly reinforced an earlier action by the UN General Assembly. Lamentably, to be sure, on November 29, 2012, the UNGA – without any expressed regard for the governing Convention on the Rights and Duties of States (1934) – had enthusiastically upgraded the Palestinian Authority to the status of a “nonmember observer state.”
Among other things, this elevated status will allow the Palestinian Authority to bring certain alleged criminals (read “Israelis”) before the International Criminal Court at The Hague. In other words, it will provide the PA with official cover for transforming a thoroughly crude geopolitics into law.
Reciprocally, however, any impermissible uses of insurgent force by assorted Palestinian factions, even if now cumulatively and officially called “Palestine,” would still be classified as criminal.
Moreover, these egregious Palestinian resorts to violence would still be an expression of terrorism. From the beginning, supporters of Palestinian terror-violence against Israelis have insisted that the preferred ends of that insurgency, Palestinian “independence,” necessarily justify any means, including recurrent attacks upon defenseless Israeli civilians. Nonetheless, as Obama’s UN speech conveniently neglected to mention, in jurisprudence the ends can never be invoked to justify the means. Rather, universally core philosophical, religious, and legal principles of humankind, principles identified as peremptory under international law, have long stipulated that intentional violence against the innocent is always repugnant, and therefore always prohibited.
Despite the apparent ease with which television “experts” discuss the subject, international law is not self-explanatory. As in the case of any formal and complex body of disciplined knowledge, therefore, some actual and industrious study of pertinent jurisprudence is required. A layperson is generally no more qualified to offer snap judgments on what is permissible or impermissible under international law, than he or she would be suited to evaluate alternative techniques of brain surgery.
In law, one man’s terrorist can never be another man’s freedom fighter. Although fashionable to repeat at cocktail parties and gatherings of sclerotic university professors, this facile expression remains little more than an empty witticism. It is true that certain insurgencies can sometimes be judged lawful (this is, after all, a manifestly founding principle of the United States Declaration of Independence), but even these selectively permissible resorts to force must still conform to humanitarian international law.
Whenever an insurgent group resorts openly to unjust means, e.g., shooting Israeli civilians in buses, schools, or restaurants, their actions are always “terrorism.” Even if ritualistic Palestinian claims of a hostile Israeli “occupation” were somehow reasonable rather than contrived, any related claims of entitlement to employ “any means necessary” would remain false.
International law always has precise and determinable content. It cannot be gratuitously invented and reinvented by terror groups, or even by “nonmember observer states,” simply to satisfy particular interests. This is especially the case where terror violence intentionally targets a country’s most fragile and vulnerable civilian populations.
National liberation or self-determination movements that fail to meet the test of just means can never be protected as lawful or legitimate. Even if one were to accept the argument that Hamas and its sister groups could satisfy the relevant struggle criteria, it is still clear that they would not satisfy the critically-involved legal standards of discrimination, proportionality, and military necessity. These basic standards of the law of armed conflict have been applied to insurgent organizations by the common Article 3 of the four Geneva Conventions of 1949, and also by the two Protocols to these Conventions of 1977.
They are also binding on 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 associated “dictates of public conscience.”
Under international law, the ends can never justify the means, even at the hands of a “nonmember observer state.” As in the case of war between states, every use of force by insurgents must always be judged twice, once with regard to the justness of the objective (in this case, a Palestinian state, to be built explicitly on the charred ruins of a pre-existing Jewish state), and once with regard to the justness of the means used in reaching that objective.