The day after Operation Protective Edge

In the long-term, Jerusalem should finally understand that its myriad Palestinian enemies will never countenance a "two-state solution."

By LOUIS RENÉ BERES
A United Nations Security Council meeting at UN headquarters in New York. (photo credit: REUTERS)
A United Nations Security Council meeting at UN headquarters in New York.
(photo credit: REUTERS)
The Palestinians are always quick to impress the world with graphic images of their protracted suffering. Yet, this end game vis-à-vis Israel, carefully calculated and basically unhidden, is genocidal. In essence, they still offer a one state solution for the West Bank, Gaza, and Israel itself.
This intended state is to be for Palestinian Arabs only. No Jews allowed. Whoa. Is anybody listening?
For the moment, a state of Palestine does not exist. Historically, although almost no one ever makes this clear, such a country has never existed. Nonetheless, current supporters of formal Palestinian statehood have found durable practical benefit in citing to Israel and "Palestine" as if there were some legal equivalence between them.
At some point, perhaps after Operation Protective Edge has been concluded - an indispensable operation, mandated by endless Palestinian terror attacks - Hamas, Islamic Jihad, and Fatah will agree upon the boundaries and composition of an independent Palestine. Although Prime Minister Binyamin Netanyahu has long insisted that any such 23rd Arab state be "demilitarized," the eventual leadership of a sovereign Palestine would be under no legal obligation to obey. This statement is true even if the Palestinian side should initially agree to some identifiable forms of demilitarization in their pre-independence agreements with Israel.
Once it is formally established, a new state of Palestine would promptly become a staging area for incrementally expanding terror and war against what still remains of Israel. Moreover, this lethal transformation could take place while Hezbollah, tied closely to Tehran and Damascus, escalates its own rocket operations against Israel from Lebanon. Depending upon the still uncertain outcomes in Syria, and also in Iran, the hideous ferocity of any such aggression could compel Israel to launch renewed forms of self-defense in several theaters of conflict, simultaneously.
Jerusalem will also need to be concerned with ISIS' steady march of chaotic annihilation across Iraq. If you like what is happening in Iraq, you will love Palestine. In fact, there is clear evidence that ISIS is already operating in Gaza, and could even fill the power vacuum following any pending Israeli defeat of Hamas.
Inevitably, Israel's necessary effort to defend its citizens from ever-mounting terror threats will be met with a sanctimonious barrage of one-sided international criticism. Although international law allows any similarly imperiled state to use necessary force preemptively, Israel’s plausible efforts to stave off existential harms will continue to be singled out for special condemnation. Ultimately, these condemnations could include the United States, even as Washington will not hesitate to accelerate drone attacks that kill and wound noncombatants in Afghanistan, Pakistan, and Yemen.
Some of these attacks, authorized by still-secret committees within the US Department of Justice, have targeted US citizens for extra-judicial execution. While it may be entirely appropriate to identify certain such individuals as "enemy combatants," nothing has transpired to summarily excise the Fifth Amendment to the United States Constitution. The last anyone heard about elementary "Due Process" expectations in the United States, they were still very much in force.
Humanitarian international law, or the law of war, requires that every use of force by an army or by an insurgent group meet the test of “proportionality.” Drawn from the core legal principle that “the means that can be used to injure an enemy are not unlimited,” proportionality stipulates, among other things, that every resort to armed force be limited to what is necessary for meeting appropriate military objectives. This important principle of both codified and customary international law applies to all judgments of military advantage, and also to all planned reprisals. It surely does not mean that each side must somehow suffer symmetrical harms or casualties.
The rule of proportionality does not stipulate that a defending state, here Israel, must limit its use of force to the "amount" being employed by the other side. Also, proper determinations of proportionality need not be rendered in a geopolitical vacuum. Rather, these legal decisions may take into consideration the extent to which a particular adversary has committed prior or ongoing violations of the law of war.
In the frequently interrelated examples of Hamas/Islamic Jihad/Fatah terrorism in Gaza, there is ample evidence that all of these belligerents have consistently been guilty of “perfidy.”
In law, deception can be acceptable in armed conflict, but the Hague Regulations expressly disallow the placement of military assets or military personnel in any heavily populated civilian areas. Further prohibition of perfidy can be found at Protocol I of 1977, additional to the Geneva Conventions of 1949. These rules are also binding on the basis of an equally authoritative customary international law.
Perfidy represents a very serious violation of the law of war, one that is explicitly identified as a “grave breach” at Article 147 of Geneva Convention No. IV. The legal effect of perfidy committed by Palestinian terrorists, especially their recurrent resort to “human shields,” has been to immunize Israel from legal responsibility for any inadvertent counter-terrorist harms done to Arab civilians. But even if Hamas and Islamic Jihad and Fatah and Hezbollah have not always engaged in deliberate violations, that is, even if there was no consistent mens rea, or criminal intent, any terrorist-created links between civilians and insurgent warfare have still bestowed upon Israel an unambiguous legal justification for Operation Protective Edge.
This does not suggest that Israel should be given any jurisprudential carte blanche in its defensive applications of armed force, but only that the reasonableness of these applications should always be appraised in the specific context of recognizable enemy perfidy. Israel should be treated like any other state under the law of war, no better, of course, but also, no worse.
Historically, viewed against the background of extensive and unapologetic terrorist perfidy in Gaza, Israel has been innocent of any alleged “disproportionality.” All combatants, including Palestinian insurgents in Gaza, are obligated 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 Conventions.
Naturally, in world politics, especially the Arab Middle East, reason is often trumped by passion. Naturally, it has always been easy to condemn Israel with rhythmic chants of “disproportionality.” Yet, competent legal scholars, if reasonably honest about their obligations, will have to acknowledge the utter illegitimacy of any such charges.
Until now, any seemingly disproportionate uses of force by Israel has actually been the permissible outcome of antecedent and perfidious crimes committed by Palestinian terrorists. Faced with multiple and sometimes cooperating enemies on several fronts, foes who often make no secret of their exterminatory intentions, Israel has actually adhered faithfully to the law of war. In starkly marked contrast to the conscious indiscriminate actions of its terrorist foes in Gaza, Jerusalem has struggled mightily to respect and honor this set of rules - significantly, a set of binding norms originating in the Hebrew Bible (Deuteronomy).
The core legal issue in Operation Protective Edge is not Israeli “disproportionality,” or “aggression,” but the unwavering Arab resort to terrorism and perfidy. No Palestinian faction recognizes any persuasive reason to refrain from future terrorism against Israel. Engaged in far-reaching diplomatic end-runs around Jerusalem, neither Fatah nor Hamas will seek Prime Minister Netanyahu's negotiated approval to proceed toward complete Palestinian sovereignty. Already, the Palestinian Authority enjoys the partially elevated legal status of being designated as a UN "nonmember observer state."
Soon, perhaps at the next opening of the General Assembly, the UN could again take up the issue of full statehood for "Palestine." Although any such consideration would likely not meet the substantially more stringent requirements of statehood established at the 1934 Convention on the Rights and Duties of States (Montevideo Convention), a generally-recognized and militarized Palestinian state could then become a reality. Should any such UN conferral of sovereignty be enacted, Israel's then more problematic future will be discoverable in Article 12 of the PA (Fatah) Charter, which calls for "the liberation of Palestine completely....," and in 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 and ends with Israel's annihilation: "Israel will exist and will continue to exist until Islam will obliterate it...." Worth noting, especially in view of what could still return in any post-Sisi Egypt, the Covenant openly refers to Hamas as "one of the wings of the Muslim Brotherhood in Palestine."
In the Middle East, wishful thinking is always worrisome. Over time, Israel's Palestinian Arab enemies have not displayed any scintilla of regard for the law of war. Once a new Arab state were carved out of Israel's still-living body, "Palestine" would seize lasciviously upon newly enlarged opportunities for war and terrorism.
Israel had no viable alternatives to Operation Protective Edge, but even such needed and legitimate expressions of national self-defense must represent merely temporary and partial stratagems. In the long-term, Jerusalem should finally understand that its myriad Palestinian enemies will never countenance a "two-state solution" (they admit this openly), and that absolutely any Palestinian state would remain dedicated to Israel's annihilation and disappearance.
The author is a professor of International Law at Purdue and was educated at Princeton (Ph.D., 1971). He is the author of many major books and articles dealing with terrorism, international law, and the law of war. His most recent publications appear in the Harvard National Security Journal (Harvard Law School); International Journal of Intelligence and Counterintelligence; Israel Journal of Foreign Affairs; Parameters: Journal of the US Army War College; US News & World Report; The Jerusalem Post; and The Atlantic. Dr. Beres, who has counseled governments in Washington and Jerusalem, was born in Zürich, Switzerland, on August 31, 1945.