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December 20, 2014 / 28 Kislev, 5775
 
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Posts Tagged ‘Geneva Conventions’

After Fatah-Hamas Reconciliation: The Endless Futility Of Israel’s Peace Process (Third of Five Parts)

Wednesday, July 27th, 2011
            The explicit application of codified restrictions of the laws of war to noninternational-armed conflicts dates back only as far as the four Geneva Conventions of 1949.  Recalling, however, that more than treaties and conventions comprise the laws of war, it is also clear that the obligations of jus in bello (justice in war) comprise part of “the general principles of law recognized by civilized nations,” and bind all categories of belligerents.  Indeed, the Hague Convention IV of 1907 declares, in broad terms, that in the absence of a precisely published set of guidelines in humanitarian international law concerning “unforeseen cases,” the preconventional sources of international law govern all belligerency.
            Terrorist crimes, as part of a broader category called crimen contra omnes (crimes against all) by the lawyers, mandate universal cooperation in apprehension and punishment. As punishers of “grave breaches” under international law, all states and state-like authorities are expected to search out and to prosecute or extradite, individual perpetrators.  Regarding Israel and the Palestinian Authority (PA), the latter’s obligation under law to extradite terrorists to Israel would have obtained evenif there had been no Oslo Accords.
            There is, then, really no need to probe further the precise language of the Accords.The PA’s multiple violations of extradition expectations under international law existed and continue to exist independently of Oslo.
            The important though controversial principle of universal jurisdiction is usually founded upon an authoritative presumption of solidarity between all sovereigns in the fight against international crime.  Moreover, the case for universal jurisdiction may be strengthened whenever extradition is difficult or impossible to achieve. It is also built into the four Geneva Conventions of August 12, 1949.
             Traditionally, piracy and slave trading were the only offenses warranting universal jurisdiction.  Following World War II, however, states have generally recognized an expansion of universal jurisdiction to include crimes of war; crimes against peace; crimes against humanity; torture; genocide; and crimes of terrorism. For the most part, this purposeful (although sometimes abused by anti-Israel elements) jurisdictional expansion has its origins in certain multilateral conventions, in customary international law, and in certain pertinent judicial decisions.
            Terrorism is assuredly not the only major crime in which Arafat and many of the subsequently released Palestinian prisoners were actively complicit.  These persons also committed related Nuremberg-category crimes, including crimes of war and crimes against humanity.  In this connection, we should recall that units of the Palestine Liberation Army (PLA) served enthusiastically with Saddam Hussein’s forces in occupied Kuwait during the first Gulf War, making them, and Yasir Arafat personally (the legal principle of command responsibility is known as respondeat superior, or “Let the Master Answer”), responsible for multiple mean crimes.
             As if these offenses were not enough of an intolerable affront to world law, many of the terrorists who were later released from Israeli jails in presumed furtherance of the Oslo Accords, and also the wider peace process, quickly accepted various high positions in the Palestine Authority’s or Hamas’s security forces.
            Even if the nonstate Palestinian party to the Oslo Accords had not been a terrorist organization, Israel would still have entered into an agreement of unequal obligations, an agreement wherein the PLO would not have been held under law to the same standards of accountability.  Assorted federal court decisions in the United States have reaffirmed that agreements between nonstate and state parties impose asymmetrical compliance expectations.  For example, in a concurring statement in the case of Tel-Orenv. Libyan Arab Republic, a 1981 civil suit in U.S. federal courts in which the plaintiffs were Israeli survivors and representatives of persons murdered in a terrorist bus attack in Israel in 1978, Circuit Judge Harry T. Edwards stated:  “…I do not believe the law of nations imposes the same responsibility or liability on nonstate actors, such as the PLO, as it does on states and persons acting under color of state law.”
            The PLO, of course, among many of its sister affiliates and foes, had always remained a terrorist organization, and, consequently, Israel never had any right to honor the Oslo Accords’ alleged requirement to release certain convicted members of that criminal group.  No government, in fact, has any right to lawfully pardon or grant immunity to terrorists with respect to criminally sanctionable violations of international law.  In the United States, it is evident from the Constitution that the President’s power to pardon does not encompass violations of international law, and is precisely limited to “Offenses against the United States.”
             This limitation derives from a broader prohibition that binds all states, including Israel, namely the overriding claims of pertinent peremptory rules stemming from Higher Law or the Law of Nature.  These claims, with core origins in Torah, are identified in Blackstone’s Commentaries, which acknowledges that all law  results from those principles of natural justice, in which all the learned of every nation agree….”
            In its apprehension and incarceration of terrorists, Israel had acted, however unintentionally, not only for itself, but on behalf of the entire community of states.  Moreover, because some of the jailed terrorists had committed crimes against other states as well as against Israel, the government in Jerusalem could not permissibly pardon these offenses against other sovereigns. The Jewish state, therefore, possessed no right to grant immunity for terrorist violations of international law.
             No matter what might be permissible under its own Basic Law and the Oslo Accords, any freeing of terrorists has always been legally incorrect.  By its freeing of terrorists, Israel was manifestly guilty of what is known in law as a “denial of justice.” Arguably, in this connection, all complicit Israeli prime ministers from Rabin to Netanyahu also committed individually punishable violations of international law.

 

             LOUIS RENÉ BERES was educated at Princeton (Ph.D., 1971), and is the author of many books and articles dealing with international relations and international law.  In the United States,  he has worked for over forty years on international law and nuclear strategy matters, both as a scholar, and as a lecturer/consultant to various agencies of the United States Government.  In Israel, he has lectured widely at various academic centers for strategic studies, at the Dayan Forum, and at the National Defense College (IDF).  Professor Beres was Chair of Project Daniel. Born in Zürich, Switzerland, he is Strategic and Military Affairs columnist for The Jewish Press.

Israel Must Be Allowed To Win

Wednesday, January 14th, 2009

The war of aggression waged by Hamas, against which Israel has commenced a robust response, must not be seen in a vacuum. Hamas is an agent of radical Islam’s revolutionary jihad. Israel, the “little Satan,” is a proxy of Western modernity. The conflict in Gaza is merely the latest round: a continuation of the war which flared up during the summer of 2006 and which rages still in Afghanistan, Pakistan, Iraq, Somalia, Sudan, and other theaters.

So what can the big Satan do to help? Obviously, we are not going to contribute military force. We already subsidize Israel’s defense, and, more importantly, the IDF doesn’t need that kind of aid. What Israel needs is to be allowed to win: to finish the grisly work of “breaking the will of the Palestinians, of Hamas, to continue to fire at Israel,” as Israeli Interior Minister Meir Sheetrit so aptly put it.

Our best means of bringing about that urgently needed outcome is to nullify the militarily overmatched Palestinians’ primary asset: the skewed state of international politics and international law.

On the political front, it is high time to acknowledge the failure of the fantasy that the Palestinians are legitimate actors worthy of statehood and its privileges. Contrary to the prevailing elite view, legitimacy is not conferred by such facile exercises as the holding of popular elections – though such exercises are not without consequences, which we will come to momentarily. There are certain minimal requirements for statehood, not least of which is accepting the right of one’s sovereign neighbor to exist.

At present, no representative of the Palestinian people concedes this right to Israel. As its 1988 charter makes plain, Hamas unapologetically seeks Israel’s destruction. This is why Hamas was formed: to eradicate the Jewish state as a preliminary step in the jihadist quest for global hegemony.

That leaves Fatah, the legacy of Yasir Arafat and Hamas’s rival. In their foolish desperation to “solve” the currently unsolvable Israeli/Palestinian dispute, our rose-tinted solons portray Fatah as a “moderate” party that seeks peaceful coexistence with Israel.

It’s a dangerous illusion.

Regardless of what Palestinian Authority President Mahmoud Abbas may say to Western audiences, his message to the Arab world is that Palestinians should put aside their internal divisions and, as he put it in 2007, “direct our guns against Israeli occupation.”

To anyone outside Brussels or Foggy Bottom, that cannot be a surprise: Fatah, Abbas’s organization, is pledged by its constitution to the destruction of Israel. (See, e.g., Article 12: Fatah’s first stated “Goal” is the “Complete liberation of Palestine, and eradication of Zionist economic, political, military and cultural existence”; see also, e.g., Article 19: “Armed struggle is a strategy and not a tactic, and the Palestinian Arab People’s armed revolution is a decisive factor in the liberation fight and in uprooting the Zionist existence, and this struggle will not cease unless the Zionist state is demolished and Palestine is completely liberated.”)

When we appraise hostile countries, it has become de rigueur in our foreign policy circles to distinguish the “people” (always good) from their nasty governments. So it is with the noble Palestinians. Secretary of State Condoleezza Rice insisted in a 2006 interview, for instance, that the “great majority” of them – i.e., upwards of “70 percent” – are “perfectly ready to live side by side with Israel because they just want to live in peace.”

This is preposterous. Palestinians are weaned on Jew-hatred through schools and media controlled by the competing factions and other jihadists. Their national heroes are those dedicated to killing Jews, most especially the “martyrs” who self-implode in suicide attacks. It is to be expected, then, that when the public is polled in the actual Palestinian territories, rather than in Condi-world, a very different reality is reflected: About three in four Palestinians deny Israel’s right to exist, a figure that soars to over nine in ten when only the fighting-age demographic (between 18 and 25) is considered.

It is, moreover, only natural that Palestinians would choose Hamas in a free election, as they did in 2006. Of course, no shortage of delusional gibberish has been spouted about this outcome by democracy devotees – who typically twaddle about elections having consequences right up until the moment when the election happens and they don’t like the consequences.

So, to maintain the fiction that we are dealing with decent, peace-loving people, we are urged to blinker the Palestinians’ choice to be led by unabashed mass-murderers. That, we are told, merely indicates a desire for less corruption and better social services – metrics by which Hamas is putatively superior to Fatah.

I somehow doubt we’d be so nuanced if a cognate electoral choice were made by our neighbors in Canada or Mexico.

In any event, we must halt the mindless “two state solution” rhetoric. Before the Israelis finally acted, Palestinian forces had launched over six thousand missiles at Israel from Gaza since 2005 – when Israel bowed to international pressure and ceded control of Gaza to the Palestinian Authority.

And that onslaught must be considered in context, both with Hamas’s provocations that led to the 2006 war and with the two intifadas orchestrated by Arafat’s Fatah – including one commenced after a breathtaking settlement offer which would have awarded the Palestinians about 90 percent of their land demands.

Those are not the actions of a people who will be ready to function as a legitimate state anytime soon.

Let’s be blunt: we are looking at a generation or more before the Palestinians might be prepared to assume the obligations of sovereignty. So we should stop talking about it. Doing so only indicates to the Palestinians that we are more interested in the simulacrum of a settlement than in cultivating a mature statehood that is stable, hopefully democratic, and respectful of its peers – such that it is capable of negotiating with them absent the notion of annihilating them.

“Road maps” and “peace processes” that hold out the possibility (indeed, the likelihood) of near-term statehood tell the Palestinians that terrorism succeeds and that they can reap enormous benefits while continuing to work toward Israel’s demise.

In short, we can help Israel enormously in the here and now – while simultaneously setting the Palestinians on their only realistic path toward long-term prosperity – by making clear that statehood is absolutely off the table until the Palestinians convincingly abandon terrorism, acknowledge Israel’s right to exist, rescind or amend all covenants to the contrary, and demonstrably overhaul their institutions (especially their media and education systems) in a manner that conveys their commitment to this new state of affairs.

* * *

We can further help Israel, and greatly advance the cause of counterterrorism, by unmistakably signaling our support for Israel’s determination to defeat Hamas. Not just to win another half-round in an endless series of pauses that allow Israel’s terrorist enemies to regroup, but instead to break the enemy’s will.

This will call for taking a strong stand on a crucial matter of international law: namely, there is no consensus international law of armed conflict.

For far too long, we have abided – even encouraged – the fiction that there is a community of nations all playing by the same rules. There is not. For present purposes, the most significant demonstration of this is that many nations, including our European allies, have joined the 1977 Protocol I to the Geneva Conventions. The United States has not. Israel has not. Since this is about national life and death, we can no longer afford to keep papering over that difference.

As has happened to us repeatedly since our military response to 9/11, Israel is being accused of war crimes based on standards to which it has never consented. For people who care about their international obligations – and the Israelis deeply do, just as we do – such allegations have a devastating effect on the national cohesion needed to see through a difficult war. They are also slanderous.

These Protocol I standards were designed for the benefit of terrorist organizations, national-liberation movements, and third-world tyrannies. We don’t accept them, nor do the Israelis, and nor would the Europeans had they not abdicated responsibility for their own security. As construed by human-rights activists, Protocol I makes the conduct of warfare illegal – certainly if the combatant nation has any notion of achieving its objectives, which is the point of going to war in the first place.

Protocol I, furthermore, is a betrayal of the human-rights mission. Its effort to convert war from a military campaign run by soldiers to a regulatory exercise run by lawyers invites two outcomes, both deadly: either war will be protracted, increasing the inevitable collateral carnage, or guarantors of global stability will refrain from acting – abandoning the field to terrorists and dictators who are unmoved by legal obligations.

These are unacceptable choices. We are under no duty to cede moral ground to self-styled human rights activists just because they see warfare as the greatest of human evils when we know, based on hard experience, that it is not.

The ethos we are dealing with here is best demonstrated by the ludicrous contention that Israel’s operations are “disproportionate” because so many more Palestinians than Israelis have been killed or wounded at this point in the fighting.

The concept of “proportionality,” which has long been a guideline in the conduct of war, has nothing to do with comparative casualties. It refers to a weighing of the military advantage to be derived from an operation versus the risk of inordinate collateral damage (i.e., excessive harm to civilian lives and infrastructure).

Of Protocol I’s many failings, among the worst is its attempt to impose legal exactitude on proportionality and its companion concept, the “distinction” between military and civilian targets. In the original contemplation, these standards were left to the best judgment of commanders, mindful of the facts that the primary objective in war is victory and that some civilian casualties are unavoidable.

Yet, as military law experts David B. Rivkin Jr. and Lee A. Casey explain in “Leashing the Dogs of War” (an important 2003 article published in The National Interest), Protocol I demands that military forces contemplating operations ceaselessly consider alternatives with a view toward causing the least conceivable danger to civilians. Indeed, military forces must “take all feasible precautions” and otherwise “do everything feasible” to avoid incidental loss of civilian life.

Consequently, the principal objective of warfare becomes preserving the lives of the enemy’s civilians. Military success is subordinated, despite the fact that this could endanger one’s own civilians (over whose security war is often fought in the first place) and extend the war (thus placing enemy civilians in further danger anyway).

In this framework, there is a steady warping of standards, to the aforementioned point that proportionality is now absurdly invoked as if each side were required to sustain roughly equivalent casualty counts. War crimes, too, are trivialized, with antiwar activists finding them whenever injury or death is sustained by a civilian – or at least an alleged civilian.

On the matter of who is a civilian, Protocol I is a humanitarian disaster. The point of the Geneva Conventions was to civilize warfare. They accord benefits, particularly honorable prisoner-of-war status, to combatants who comply with the laws of war: by identifying themselves as warriors and refraining from attacking civilians.

Terrorists, of course, target civilians (the more killed the better, from their perspective) and compound this imperilment of innocent life by assuming the appearance of civilians, hiding in residential areas, storing their weapons in schools, hospitals, and houses of worship, and so on. Nevertheless, Protocol I awards terrorists the benefits of Geneva despite their flouting of Geneva’s humanitarian burdens.

To make matters worse, Protocol I eviscerates the principle of distinction, “recognizing” that there are, purportedly, “situations in armed conflicts where, owing to the nature of the hostilities, an armed combatant cannot … distinguish himself” from the civilian population.

Given that Protocol I at least feints at protecting civilians, one would think “the nature of the hostilities” here would not be, for instance, a Hamas operative driving along the road with missiles in his trunk or walking into a caf? with an explosive vest strapped to his chest.

But it is sadly true, as Rivkin and Casey write, that “things have reached a point where the use of irregular attacks purposefully directed at civilians in the form of suicide bombers has been practically, if not formally, accepted by virtually all of the Arab countries, by much of the Third World, and by many in Europe as a legitimate form of Palestinian ‘resistance.’ ”

That is where Protocol I gets you. And if you are the legitimate armed force of a sovereign state like Israel, you are expected to absorb an attack – or perhaps 6,000 attacks – before you even think about defending yourself against perfidious attackers who must be regarded as civilians unless you are fortunate enough to catch them in the act.

For very sound reasons, this is not our law. Nor is it Israel’s. Governments with real security responsibilities cannot protect lives this way. If they try to do so, they are effectively elevating the lives of their enemies above their own populations. That would be inappropriate in any event, but it is especially inane when the enemy is the Palestinians. They have willingly chosen to be led by a terrorist group whose sworn mission is to obliterate a neighboring country. Of all the civilians on earth, they are the least deserving of such indulgence.

With each day’s perusal of news accounts comes new accusations of Israeli international law violations and war crimes. In response, we shouldn’t cower behind the usual diplomatic niceties. We should be clear: there are no international law obligations in warfare absent consent. We can’t stop transnational progressives from designing suicidal compacts, and we can’t stop Europeans from adopting them. But we are not obliged to engage the fiction that these arrangements constitute law in our own country, in Israel, or in any nation sober enough to reject them.

Fighting a defensive war for survival is not a war crime. It is an obligation. It is primarily what governments are created for. To claim otherwise is to make a perverse mockery of international law. We must defend Israel full-throatedly on this point. In doing so, we are defending ourselves.

Andrew C. McCarthy is the author of “Willful Blindness: A Memoir of the Jihad” (Encounter Books, 2008). He is the Legal-Affairs Editor at National Review. This essay originally appeared on National Review Online.

The Oslo Accords/Road Map Were Always A Deathtrap For Israel (Part II)

Wednesday, December 17th, 2008

The explicit application of codified restrictions of the laws of war to non-international armed conflicts dates back only as far as the four Geneva Conventions of 1949.  Recalling, however, that more than treaties and conventions comprise the laws of war, it is clear that the obligations of jus in bello (justice in war) comprise part of “the general principles of law recognized by civilized nations” and bind all categories of belligerents.  Indeed, the Hague Convention IV of 1907 declares in broad terms that in the absence of a precisely published set of guidelines in humanitarian international law concerning “unforeseen cases,” the pre-conventional sources of international law govern all belligerency.

 

 Terrorist crimes, as part of a broader category called crimen contra omnes (crimes against all) by the lawyers, mandate universal cooperation in apprehension and punishment.  In this connection, as punishers of “grave breaches” under international law, all states and state-like authorities are expected to search out and to prosecute, or extradite, individual perpetrators.  Regarding Israel and the Palestinian Authority (PA), the latter’s obligation under law to extradite terrorists to Israel would have obtained even if there had been no Oslo Accords. Hence, there is really no need to probe incessantly the precise language of the Accords. The PA’s multiple violations of extradition expectations under international law existed independently of Oslo.

 

The important principle of universal jurisdiction is founded upon the presumption of solidarity between all sovereigns in the fight against crime.  Moreover, the case for universal jurisdiction is strengthened whenever extradition is difficult or impossible to achieve. And it is built into the four Geneva Conventions of August 12, 1949.

 

Traditionally, piracy and slave trading were the only offenses warranting universal jurisdiction.  Following World War II, however, states have generally recognized an expansion of universal jurisdiction to include crimes of war; crimes against peace; crimes against humanity; torture; genocide; and crimes of terrorism. For the most part, this purposeful jurisdictional expansion has its origins in certain multilateral conventions, in customary international law, and in certain pertinent judicial decisions.

 

Terrorism is not the only crime in which Arafat and many of the subsequently released Palestinian prisoners were complicit.  Related Nuremberg-category crimes − including crimes of war and crimes against humanity − were also committed by these persons.  In this connection, my readers here in The Jewish Press should recall that units of the Palestine Liberation Army (PLA) served with Saddam Hussein’s forces in occupied Kuwait, making them, and Yasir Arafat personally (the legal principle of command responsibility is known as respondeat superior, or “Let the Master Answer”) responsible for multiple crimes of extraordinary horror and ferocity. As if these offenses were not enough of an affront to world law, many of the terrorists who have been released from Israeli jails in furtherance of the Oslo accords and the wider “peace process” quickly accepted assorted high positions in the Palestine Authority’s or Hamas’ “security forces.”

 

Even if the nonstate party to the Oslo accords had not been a terrorist organization, Israel would have entered into an agreement of unequal obligations − an agreement wherein the PLO would not have been held (under international law) to the same standards of accountability.  Several recent federal court decisions in the United States reaffirm that agreements between nonstate and state parties impose asymmetrical compliance expectations.  For example, in a concurring statement in the case of Tel-Oren v. Libyan Arab Republic − a 1981 civil suit in U.S. federal courts in which the plaintiffs were Israeli survivors and representatives of persons murdered in a terrorist bus attack in Israel in 1978 − Circuit Judge Harry T. Edwards stated:  “…I do not believe the law of nations imposes the same responsibility or liability on nonstate actors, such as the PLO, as it does on states and persons acting under color of state law.”

 

The PLO, of course, among many of its sister affiliates and foes, always remained a terrorist organization, and Israel therefore never had any right to honor the Oslo accords’ alleged requirement to release certain convicted members of that organization.  No government, in fact, has the right to lawfully pardon or grant immunity to terrorists with respect to criminally sanctionable violations of international law.  In the United States, it is evident from the Constitution that the President’s power to pardon does not encompass violations of international law, and is limited to “Offenses against the United States.”  This limitation derives from a broader prohibition that binds all states, including Israel, namely the overriding claims of pertinent peremptory rules stemming from Higher Law or the Law of Nature.  These claims, with core origins in Torah, are identified in Blackstone’s Commentaries, which acknowledge that all law  “results from those principles of natural justice, in which all the learned of every nation agree….”

 

In its apprehension and incarceration of terrorists, Israel had acted, however unintentionally, not only for itself, but also on behalf of the entire community of states.  Moreover, because some of the jailed terrorists had committed crimes against other states as well as against Israel, the government in Jerusalem could not permissibly pardon these offenses against other sovereigns. The Jewish State, therefore, has possessed absolutely no right to grant immunity for terrorist violations of international law.  No matter what might be permissible under its own Basic Law and the Oslo accords, any freeing of terrorists was always legally incorrect.  By its freeing of terrorists, Israel was manifestly guilty of what is known in law as a “denial of justice.” In this connection, all complicit Israeli prime ministers also committed individually punishable criminal acts.

 

Israel’s obligation to abrogate the Oslo accords, as we have seen, stemmed from certain peremptory expectations of international law.  Israel, however, has substantial rights of abrogation here apart from such expectations.  These rights derive from the doctrine of Rebus sic stantibus. Defined literally as “So long as conditions remain the same,” this doctrine of changed circumstances augmented Israel’s obligations to cease compliance with Oslo.  This is because Israel’s traditional obligations to the accords ended promptly when a “fundamental change” occurred in those circumstances that existed at the effective dates of the accords, and whose continuance formed a tacit condition of the accords’ ongoing validity.  This change, of course, involved multiple material breaches by the PLO, especially those concerning control of anti-Israel terrorism and extradition of terrorists.  In short, Rebus sic stantibus almost immediately became significant basis for Israeli abrogation because of the profound change created by the PLO in the very circumstances that formed the cause, motive and rationale of consent.

 

According to Oslo expectations, Arafat should have been actively committed to the control of anti-Israel terrorism.  Yet, Arafat not only sheltered terrorists; he let them incite, recruit, organize, train, arm, raise funds, and launch operations from areas that had been under his control.  Naturally, the same has been true of his successors, Fatah as well as Hamas. The Olmert position that these two groups were somehow legally distinguishable was prima facie wrong.

 

Israel’s unfulfilled obligation to terminate the Oslo accords stemmed also from a related principle of national self-preservation.  Under this peremptory norm, any agreement may be terminated unilaterally, following changes in conditions that make performance of the agreement injurious to fundamental rights, especially the basic rights of existence and independence.  Known in law as “rights of necessity,” this norm was explained with particular lucidity by none other than Thomas Jefferson.  In his “Opinion on the French Treaties,” written on April 28, 1793, Jefferson stated that when performance, in international agreements, “becomes impossible, nonperformance is not immoral.  So if performance becomes self-destructive to the party, the law of self-preservation overrules the laws of obligation to others.”  Later, in that same document, Jefferson wrote:  “The nation itself, bound necessarily to whatever its preservation and safety require, cannot enter into engagements contrary to its indispensable obligations.”  Israel, The Jewish Press reader will recall, has an “indispensable obligation” to endure.

 

Copyright © The Jewish Press, December 19, 2008. All rights reserved

 
LOUIS RENÉ BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with international relations and international law.  In the United States he has worked for over thirty-five years on international law and nuclear strategy matters, both as a scholar and as a lecturer/consultant to various agencies of the United States Government.  In Israel he has lectured widely at various academic centers for strategic studies, at the Dayan Forum and at the National Defense College (IDF).  He was Chair of Project Daniel, and is the Strategic and Military Affairs columnist for THE JEWISH PRESS.

If It Looks Like A Duck… Why Suicide Bombers Can Never Be Freedom Fighters

Wednesday, August 1st, 2007

We Jews know a terrorist when we see one. Surely we don’t need the elegant refinements of international law to help us distinguish a suicide bomber from a freedom fighter. If it looks like a duck Nothing could possibly be easier to understand.

Still, from a practical standpoint, legal distinctions can often be quite helpful. What is obvious to us about terrorism is certainly not obvious to many others. Even after a monster in human form walks into an Israeli school, mall, or bakery and blows up innocent human beings within range, many in the “civilized” world will somehow find merit in the mayhem. Indeed, more often than we may care to admit, the journalists and pundits as well as ordinary observers will respond in partial or even full defense of the murderer. For them, terrorism has become just another form of revolutionary violence, and revolution, they presume, is always romantic and fundamentally good. Just ask almost any university professor, even in Israel.

But terrorism, especially suicide bombing, is never authentic revolution and it is never good. From the standpoint of authoritative international law, suicide bombers can never be considered “freedom fighters.” Jurisprudentially, there is simply no cause that can ever warrant the intentional mutilation and murder of civilians. By even the unwritten and merely customary standards of civilized human behavior, these actions are always criminal.

Supporters of barbarous Palestinian violence against Israeli citizens always claim that the insurgent Arab force is directed against an “occupation,” and thus warrants “any means necessary.” In law, this claim is altogether baseless and incorrect. Even where the use of insurgent force may actually be justified – and this is certainly not the case with Palestinian terrorism – deliberate attacks upon noncombatants are always illegal. There is no more sacred principle of law and justice than the imperative to protect the innocent.

“One man’s terrorist is another man’s freedom fighter.” Although repeated again and again, this contrived mantra has absolutely no grounding in law. There do exist very precise and settled legal criteria that distinguish the terrorist from the freedom fighter. According to international law, any insurgent who willfully causes the explosive incineration of men, women and children at lunch or at prayer or at a wedding ceremony or on a bus or at a shopping mall or at a bakery is a terrorist- period!

It is true that certain insurgencies can be judged lawful. Yet, even these insurgencies must conform to the laws of war. The ends can never justify the means. Wherever an insurgent group resorts to unjust means, as in the recent case of a blown-up family bakery in Eilat, its actions are unpardonable.

How shall we judge precisely when insurgent force is just or unjust? The determinable standards that must be applied are known in law as just cause and just means. These two standards, and these two standards alone, allow us to differentiate lawful insurgency from terrorism.

National liberation movements that fail to meet the test of just means are not protected as legitimate. Leaving aside the unsupportable argument that Palestinian organizations satisfy the legal standards of “national liberation”, it is abundantly clear that they do not meet the just means standards of discrimination, proportionality and military necessity. These formal criteria, long applicable under the Laws of War, have been applied to all insurgent organizations by the common Article 3 of the four Geneva Conventions of 1949 and by the two protocols to these Conventions of 1977. They are now directly binding upon all combatants by virtue of both customary and conventional international law, and – according to article 38 of the Statute of the International Court of Justice – by “the general principles of law recognized by civilized nations.”

Under 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 (the avowed Hamas/PA objective is a Palestinian state built upon the charred ruins of Israel) and once with regard to the justness of the adopted means. A Palestinian organization that deliberately targets civilians with an expressed intent to maximize pain and suffering can certainly never claim to be “freedom fighters.”

Ironically, as it continues with its present “surge” in Iraq, the Bush Administration still supports the idea of a “Road Map” to peace in the Middle East. Oddly enough, all American and European supporters of a Palestinian State continue to presume that it will somehow be part of a “two-state solution.” These smug supporters of Oslo-redux maintain that a 23rd Arab state will simply exist side-by-side with the existing Jewish State. Significantly, this curious presumption is dismissed everywhere in the Arab/Islamic world.

Terrorist crimes, as part of a broader category of harms called crimen contra omens (crimes against all), mandate universal cooperation in apprehension and punishment. As punishers of “grave breaches” under international law, all states are expected to search out and prosecute, or extradite, individual terrorist perpetrators. In no circumstances are any states permitted to characterize terrorists as “freedom fighters”. This prohibition is especially pertinent 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 explicitly formed by the Founding Fathers according to the timeless and universal principles of Natural Law.

Palestinian terrorists are not “freedom fighters.” They are “common enemies of mankind” who exceed all moral and legal authority in their persistently cruel attacks. Until July 7, 2005, British newspapers had always referred to such murderers as “militants,” but when the al-Qaeda allies of Islamic Jihad and Hamas launched suicide attacks in London the media in Great Britain abruptly changed their vocabulary. Once the victims were Londoners, the perpetrators quickly became “terrorists.”

If it looks like a duck. Although obvious enough to us, the rest of the world often finds it convenient to confuse suicide bombers with freedom fighters. It follows that the unassailable criteria of international law do have their distinctly proper place in distinguishing one from the other, and that the architects of Israeli foreign policy would now do well to understand and to publicize these criteria.

Copyright, The Jewish Press, August 3, 2007. All rights reserved

LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with terrorism and international law. He is Strategic and Military Affairs columnist for The Jewish Press.

Fighting Terrorism In Lebanon And Gaza: The Lie Of Israeli ‘Disproportionality’

Wednesday, August 9th, 2006

Humanitarian international law continues to correctly require that every use of force by an army or insurgent force meet the test of “proportionality.” Going back to the basic legal principle that “the means that can be used to injure an enemy are not unlimited,” proportionality stipulates (among other things) that every exercise of armed force be limited to the minimum application needed for operational success. More specifically, this ancient principle of customary international law applies to all judgments of military advantage and to all planned reprisals.

But properly legal determinations of proportionality cannot be made in a vacuum. Rather, these decisions must always take into account the extent to which an adversary has committed prior or ongoing violations of the law of war. In the case of both the Hamas/Islamic Jihad/Fatah terrorists in Gaza and the Hezbollah terrorists in Lebanon, there is today ample and essentially incontestable evidence that these belligerents are manifestly guilty of “perfidy.”

Deception can be legally acceptable in armed conflict, but the Hague Regulations clearly disallow the placement of military assets or military personnel in heavily populated civilian areas. Further prohibition of perfidy can be found at Protocol I of 1977, additional to the Geneva 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 even identified as a “grave breach” at Article 147 of Geneva Convention No. IV. The critical legal effect of perfidy committed by Palestinian or Hezbollah terrorists – especially their widespread resort to “human shields” – is to immunize Israel from any responsibility for inadvertent counter-terrorist harms done to Arab civilians. Even if Hamas and Islamic Jihad and Fatah and Hezbollah did not deliberately engage in perfidy, any terrorist-created link between civilians and insurgent warfare would always give Israel full and unassailable legal justification for its defensive military actions. This is not to suggest that Israel would have carte blanche in its applications of armed force, but that the reasonableness of these applications would have to be appraised in the context of enemy perfidy.

To be sure, viewed against the background of extensive and unapologetic terrorist perfidy in both Gaza and Lebanon, Israel is certainly not guilty of “disproportionality.” Let critics of Israel recall that all combatants, including all insurgents in Gaza and Lebanon, are bound to comply with the law of war of international law. This requirement derives not only from what is known in jurisprudence as the “Martens Clause,” which makes its first appearance in the Preamble to the 1899 Hague Convention No. II on land warfare, but also from Article 3, common to the four Geneva Conventions of August 12, 1949. It is found also at the two protocols to these Conventions.

It is easy for those who are altogether unfamiliar with international law to lash out unfairly at Israel with charges of “disproportionality.” Yet, legal scholars must always understand the vital significance of context. Authoritative judgments under international law are not made in isolation from other pertinent factors. In this connection, it is apparent that any seemingly disproportionate use of force by the Israel Defense Forces is actually the outcome of antecedent perfidy by its criminal enemies in both Gaza and Lebanon (terrorism is a codified crime under international law). Were it not for these egregious violations of the law of war by terrorist adversaries, Israel would not now be obliged to wage war in a fashion that inevitably creates civilian casualties.

Equally untenable is the charge that Israel is committing “aggression” in Lebanon. At Lebanon’s insistence, not Israel’s, a formal state of war has continued to exist between the two countries since the beginning; that is, since the Jewish State originally came into existence in May 1948. Only an armistice agreement exists between Israel and Lebanon. Signed on March 23, 1949, this is not a war-terminating agreement, but merely a pledge (still not honored by Lebanon) to cease hostilities temporarily in an ongoing conflict. Legally, it is simply not possible for Israel to commit aggression against Lebanon, as the latter already considers itself in a formal condition of belligerency.

International law is not a suicide pact. Faced with enemies on several fronts who still make no secret of their genocidal intentions, Israel displays remarkable respect for the law of war. In distinctly marked contrast to the conscious indiscriminacy of its terrorist adversaries in both Gaza and Lebanon, Jerusalem adheres scrupulously to the law of war of international law. It follows that intimations and accusations of Israeli “disproportionality” in counter-terrorist warfare are unfounded.

© Copyright, The Jewish Press, 2006. All Rights Reserved.

LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with terrorism, international law and the law of war.

Israeli Counterterrorism In Gaza

Wednesday, June 30th, 2004

Televised images of Israel’s recent defensive operation in Gaza suggest cruelty and indiscriminacy. In fact, exactly the opposite is true. By deliberately placing young Arab children in the front lines of armed mobs that march with lethal intent upon Israeli soldiers, it is Palestinian leaders who openly commit violations of the law of war. Specifically, this practice of “human shields” is far more than a simple expression of cowardice; it also represents the expressly codified crime of “perfidy.” Similarly perfidious is the Palestinian tactic of routinely scattering armed gunmen among the cynically manipulated children

Several Palestinian terror groups, including the “moderate” Palestinian Authority, are now actively planning for mega-terror attacks upon Israel - attacks that would use chemical and/or biological weapons of mass destruction. To a significant extent, these insidious preparations are underway in Gaza. What government on earth could be expected to merely sit back passively and render its population vulnerable to historically unprecedented levels of mass-slaughter?

Remarkably, although unrecognized and unacknowledged, Israel has been willing to keep its essential counterterrorism operations in Gaza consistent with established standards of humanitarian international law. Palestinian violence, however, is consistently in violation of ALL civilized rules of engagement.

Terrorism is a crime under international law. When terrorists represent populations that enthusiastically support such attacks, and where these terrorists also find easy refuge among hospitable populations, all blame for ensuing counterterrorist harms lies exclusively with the criminals. Understood in terms of ongoing Palestinian terrorism and Israeli self-defense, this means that the Palestinian side alone must now bear full legal responsibility for Arab civilian casualties.

International law is not a suicide pact. Rather, it correctly offers an authoritative body of rules and procedures that always permits states to express their “inherent right of self-defense.” When terrorist organizations openly celebrate the explosive “martyrdom” of Palestinian children and unashamedly seek religious redemption through the mass-murder of Jewish children, they have absolutely no legal right to demand sanctuary anywhere. Under international law, they are hostes humani generis, “Common enemies of humankind” who must be punished wherever they are found.

Palestinian terrorism has become relentlessly familiar. Using bombs filled with nails, razor blades and screws dipped in rat poison, the killers proceed to maim and burn Israeli civilians with only cheers and blessings from the Arafat-appointed Islamic clergy. As for those who command and control the suicide-bombers’ mayhem, they cower cravenly in their towns and cities, taking exquisite care to find personal safety amidst densely-packed Arab populations.

Special IDF counterterrorism and commando units then attempt to identify and target only the terrorist leaders and to minimize collateral harms. Sometimes, however, such harms simply can’t be avoided, even by the IDF, which follows its code of “Purity of Arms” more stringently than any other nation’s army.

Deception can be legally acceptable in armed conflict, but the Hague Regulations clearly 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 the Geneva Conventions of 1949, and 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 incontestable legal effect of perfidy committed by Palestinian terrorist leaders is to immunize Israel from any responsibility for 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 always give Israel full legal justification for defensive military action.

All combatants, including Palestinian terrorists, are bound by the Law of War of international law. 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 exceptionally generous in describing Palestinian terrorists, fanatical criminals who normally target only civilians and whose characteristic mode of “battle” is not military engagement, but rather primal religious sacrifice and wanton murder of pregnant women and young children.

Israel has both the right and the obligation under international law to protect its citizens from criminal acts of terrorism. Should it ever decide to yield to Palestinian perfidy in its indispensable war against escalating Arab violence, Israel would surrender this important right and undermine this fundamental obligation. The clear effect of such capitulation would be to make potential victims of us all.

(c) The Jewish Press. All rights reserved.

LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with terrorism and international law. He is Strategic and Military Affairs columnist for The Jewish Press.

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