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The Palestinian Authority has now succeeded with its deliberate strategy for acquiring incremental statehood at the United Nations. Though this cynical end-run around authoritative international law managed to skirt all critically governing expectations of the Convention on the Rights and Duties of States (The Montevideo Convention, 1934), most states in the UN General Assembly were nonetheless willing to grant the PA nonmember observer state status.
What was not summarily changed, however, were the underlying and deeply embedded inclinations of the PA to commit indiscriminate violence against the innocent. The UN vote won’t automatically turn terrorists into statesmen.
Jurisprudentially, at least, all persisting PA and Hamas expressions of violence against Israeli noncombatants will remain terrorism. From the standpoint of international law, even a now upgraded “Palestine” will be unable to justify serial murder of Israelis as “self-determination.” No matter how hard they might try for more sanitized designations in the UN-altered diplomatic milieu, those Palestinians who continue to identify the willful maiming and execution of Israeli civilians in the name of “national liberation” will still be criminals.
Terrorism is always a crime under international law. To date, whenever Palestinian insurgents have claimed a right to use “any means necessary” because they are victims of an alleged “occupation,” their argument has been contrived. After all, there remain irremediably firm jurisprudential limits on (1) permissible targets of insurgent violence and (2) permissible levels of insurgent violence.
The limited rights of insurgency under international law do not include the intentional firing of rockets at schools and apartments, or the use of nail-filled bombs, lovingly dipped in rat poison. Under even their most generous definition in law, these rights can never supplant the settled rules of humanitarian international law, norms that are 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 permit the willful incineration of infants in their cribs, or children at play.
One needn’t 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 (barbarous attacks upon Jewish civilians). Leaving aside everyday and ordinary ethical standards by which such an argument is already manifestly indecent, the ends can never justify the means under conventional or customary international law. Indeed, for more than two thousand years the binding principles of world law have clearly stipulated that planned violence against the innocent is always repugnant, and always prohibited.
In contrast, in cases where Israeli counter-terrorism kills or injures Palestinian civilians, these particular harms are unintended and are made necessary by calculated Palestinian placement of rocket launchers among noncombatant populations. Here, from the standpoint of international law, the Palestinian side commits the codified crime of “perfidy,” and is therefore legally responsible for those harms actually inflicted by Israel.
Though fashionable to repeat at cocktail parties, the facile expression “One man’s terrorist is another man’s freedom-fighter” is an empty witticism, a shallow phrase 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 still conform to the longstanding laws of war.
Whenever an insurgent group or “nonmember observer state” 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. Its principles and practices cannot be fashioned and re-fashioned by individual terror groups only to satisfy their own presumed geo-political interests. This fact is unchanged by any diplomatic upgrading of the terror group in question.
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 ultimately to be built upon the charred ruins of a dismembered Israel), and once with regard to the justness of the particular means used toward achieving that objective.
Enthusiastic murderers of young children are never “freedom fighters.” If, in fact, they were ever entitled to such a designation, we would then have to concede that international law itself was nothing more than a mannerly-veneered authorization for inflicting consummate evil in world affairs.
UN supporters of a Palestinian state continue to presume that “Palestine” will somehow 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. Significantly, this kindly presumption is dismissed everywhere in the Arab/Islamic world.
Consider cartography. The official map of Palestine at the PA website includes all of Israel. There is only one state on this map; it is not the state of Israel.
In law, terrorist crimes mandate universal cooperation in both apprehension and punishment. As punishers of “grave breaches” under international law, all states are required to search out and prosecute, or extradite, individual terrorist perpetrators. In absolutely no circumstances are states permitted to characterize terrorists as freedom fighters.
This is emphatically true for the United States, which incorporates all international law as the “supreme law of the land” at Article 6 of the Constitution, and which was formed by the founding fathers according to the timeless principles of Blackstone’s Commentaries and antecedent Natural Law.
As Americans, we have an obligation to avoid expressly specious manipulations of law. Authentic freedom fighters do not make war against office workers, nursery schools, buses, flower markets, or mothers in ice-cream parlors. Until we can accept this most elementary human understanding for the Islamic Middle East, we will run the growing risk of further transforming ghoulish Palestinian gangs into a UN-supported government.
Today, the Palestinian Authority is allowed to call itself a nonmember observer state. Soon, leaders of Hamas will join with their enemies in the PA to make common “national” cause against Israel. When, predictably, they resort yet again to waves of expanding violence against the innocent, they will still be acting as terrorists. Despite their newly dignifying formal status at the UN they will remain, situated and unpunished, at the very outermost margins of civilized international relations.
About the Author: Louis René Beres, strategic and military affairs columnist for The Jewish Press, is professor of Political Science at Purdue University. Educated at Princeton (Ph.D., 1971), he lectures and publishes widely on international relations and international law and is the author of ten major books in the field. In Israel, Professor Beres was chair of Project Daniel.
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