After ‘Palestine’: Conflict, terrorism, international law
By LOUIS RENÉ BERES
A new state of Palestine would quickly become a staging area for expanding conflict and terror against Israel.
Once formally established, a new state of Palestine would quickly become a
staging area for expanding conflict and terror against Israel. This is hardly a
Such preparations would also take place while Hezbollah mounted
its own expanding rocket operations against Israel, from Lebanon.
by this growing and synergistic violence to undertake defensive operations,
resultant noncombatant deaths in all relevant theaters of conflict would elicit
howls of international condemnation. Israel, yet again, would be blamed for
alleged violations of international law. The loudest allegations of all,
assuredly, would be predictably sanctimonious cries of
The law of war requires that every use of force by
an army or by an insurgent group meet the test of
Proportionality stipulates that every resort to armed
force must be limited to what is absolutely necessary for meeting essential
military objectives. This principle applies to all calculations of military
advantage, and to all reprisals.
Proportionality does not mean that the
defending state must limit its use of force to the precise “amount” being used
by the other side. Here, the conventional wisdom is flat-out wrong.
is not a judgment of equivalent destructiveness. These legal decisions may also
take into proper account the extent to which an adversary has committed prior,
or even ongoing violations of humanitarian international law.
international law, deception can be acceptable in armed conflict, but the Hague
Regulations do not permit the placement of military assets or military personnel
in populated civilian areas. Prohibition of perfidy can be found at Protocol I
of 1977, additional to the Geneva Conventions of 1949.
These rules are
further reinforced by customary international law.
PERFIDY REPRESENTS a
very serious violation of the law of war. It is even identified as a “grave
breach” at Article 147 of Geneva Convention No. IV.
Thus far, the legal
effect of perfidy committed by Palestinian or Hezbollah terrorists has been to
exclude Israel from any legal responsibility for harm to Arab civilians arising
from counter-terrorist activities.
Historically, viewed against the
background of extensive and always unapologetic terrorist perfidy in Palestinian
territories and Lebanon, Israel has been innocent of any
All combatants, including all insurgents, are bound
to comply with the law of war of international law. This firm requirement
derives not only from what is known as the “Martens Clause,” a paragraph that
makes its first appearance in the Preamble to the 1899 Hague Convention No. II
on land warfare, but additionally, from Article 3, common to the four Geneva
Conventions of August 12, 1949. It is also found at the two Protocols to these
Any seemingly disproportionate use of force by Israel has
actually been the permissible outcome of prior crimes committed by its
What about Lebanon and the charge of “aggression?” It is not
possible for Israel to commit such a crime.
Lebanon considers itself in a
formal condition of belligerency with the Jewish state. A state cannot commit
aggression against another state with which it is already at war.
CENTRAL legal issue in Middle East conflict is not about Israeli
“disproportionality,” or “aggression,” but rather a persistent Arab willingness
to resort to terrorism and perfidy.
Soon, the UN could again take up the
issue of membership for “Palestine.”
Although any such consideration
would not likely meet the stringent requirements of statehood that were
established at the 1934 Convention on the Rights and Duties of States
(Montevideo Convention), a generally- recognized and totally militarized
Palestinian state would then become a reality.
Israel’s more unstable
future would then be determinable at Article 12 of the PA (Fatah) Charter, which
calls for “the liberation of Palestine completely...,” and at Article 19: “The
struggle will not end until the elimination of the Zionist entity and the
liberation of Palestine.” As for the “less-moderate” Hamas Covenant (Charter of
the Islamic Resistance Movement), it begins with Israel’s annihilation: “Israel
will exist and will continue to exist until Islam will obliterate
International law is not a suicide pact. It stipulates, quite
precisely, that a beleaguered state can do what is required to protect itself
against the grave harms of terrorism and war. As long as Israel remains
consciously committed to the legally correct meanings of “proportionality,” and
does whatever is possible to minimize the collateral harms of its essential
defensive force, Jerusalem need not concern itself about always-contrived
charges of IDF wrongdoing.
For the jurisprudential record, moreover,
Israel remains the only state in the Middle East that has stayed impressively
true to the law of war, and to its own “purity of arms.”
The writer is a
professor of international law at Purdue University. He is the author of many
books and articles dealing with terrorism, international law and the law of war.