Following Prime Minister Binyamin Netanyahu’s March 2014 meetings with US President Barack Obama, Israel remains on track to continue with its planned schedule of concessions to Palestinian statehood. Apart from the inherently dangerous nature of these concessions, which include a further release of assorted terrorists with blood on their hands, Israel’s position on this matter also flouts humanitarian international law. More precisely, by conspicuously rewarding Palestinian insurgent forces that have repeatedly defiled basic obligations of the law of armed conflict, Jerusalem – with Washington’s energetic complicity - effectively supports the continuance of Arab terror-violence.
In law, there is nothing to uphold the shallow mantra of “by any means necessary.” This conveniently ritualistic slogan is just as barren of authentic jurisprudential meaning as the oft-mumbled phrase, “One man’s terrorist is another man’s freedom fighter.” Significantly, neither statement is conceivably defensible in law.
Going back as far as the Hebrew Bible, there have always been clear and determinable rules of warfare. Now, moreover, especially since prominent codified changes enacted in 1949 and 1977, these rules bind all insurgent forces, not only uniformed national armies. In modern usage, they derive most plainly from the St. Petersburg Declaration (1868), which, in turn, followed upon earlier limitations expressed at the First Geneva Convention of 1864.
In any conflict, the means that can be used to injure an enemy are not unlimited. It follows that no matter how hard they may try to institute certain self-serving manipulations of language, those who would identify the willful maiming and execution of noncombatants in the name of some abstract ideal - any ideal - are always misrepresenting international law.
Whenever Palestinian insurgents -- Hamas; Fatah; Popular Front for the Liberation of Palestine; Islamic Jihad, it makes no difference -- claim a legal right to use "any means necessary," they are attempting to deceive. Even if their corollary claims for "national self-determination" were in some fashion legally supportable, there would remain fully authoritative limits on permissible targets and weapons. Under binding humanitarian international law, in sum, the ends can never justify the means.
Intentional forms of violence directed against the innocent are always repugnant, and always prohibited.
While it is true that certain insurgencies can be judged lawful, any such permissible resorts to force must nonetheless conform to the laws of war. Even if incessant Palestinian cries of “occupation" were reasonable rather than contrived, any corresponding claims of entitlement to oppose Israel "by any means necessary" would remain unsupportable.
International law has precise form and content. It cannot be invented and reinvented by terror groups or aspiring states, merely to accommodate their own presumed interests. Earlier, on November 29, 2012, the Palestinian Authority (PA) had been upgraded by the UN General Assembly to the status of a "nonmember observer state," but significantly, the PA has since declared itself nonexistent.
On January 3, 2013, Abbas formally "decreed" the absorption of the "former PA" into the "State of Palestine." While this administrative action did effectively and jurisprudentially eliminate the PA, it assuredly did not succeed in creating a new state by simple fiat. Leaving aside Abbas's illegal refusal to follow the Palestinians' binding obligation to negotiate full sovereignty directly with Israel, the evident criteria of "nonmember observer state" also fell far short of expectations of the only authoritative international treaty on statehood. This governing document is the Convention on the Rights and Duties of States (the "Montevideo Convention") of 1934.
National liberation movements that fail to meet the test of just means are never protected as legitimate. Even if we were to accept the argument that Palestinian insurgent groups somehow met the criteria of “just cause,” they would not meet the additionally limiting standards of discrimination, proportionality, and military necessity. These compulsory standards have been applied to insurgent organizations by the common Article 3 of the four Geneva Conventions of 1949, and also by the two authoritative protocols to these Conventions of 1977.
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 upholding the "laws of humanity," and for the "dictates of public conscience."
Every use of insurgent force by Palestinian insurgents must be judged twice, once with regard to the justness of the objective (in this case, a Palestinian state to be built upon the ruins of Israel), and once with regard to the justness of the violence employed.
American and European supporters of a Palestinian State continue to believe that this 23rd Arab country will somehow be part of a "two-state solution." Oddly, this wishful presumption is contradicted almost everywhere in the Arab/Islamic world. Cartographically, in this world, Israel has already been eliminated. On these maps, unambiguously, Israel exists only as “Occupied Palestine.”
Always, terrorist crimes mandate universal cooperation, in both 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 expectation is explicitly and emphatically true for the United States, which already incorporates all international law as the "supreme law of the land" at Article 6 of the US Constitution (the “Supremacy Clause”), and which was intentionally formed according to the principles of Natural Law. For the Founding Fathers of the United States, of course, these principles were “born” at Sinai.
Finally, it is also ironic that certain Palestinian terrorists supported by the American “Road Map” are increasingly cooperative with al-Qaida and related Jihadist fighters. Why, then, did we even bother to undertake major wars in Iraq and Afghanistan? It hardly makes sense for us to fight determined enemies in one theater, and then actively sustain and enhance them in another.
International law is never subject to any opportunistic or narrowly geopolitical re-interpretations. With respect to prohibitions on Palestinian terror-violence, humanitarian rules are plain and incontrovertible. It is finally time for these rules to be taken seriously, everywhere, but especially in Jerusalem and Washington.
LOUIS RENÉ BERES was educated at Princeton (Ph.D., 1971), and is the author of many books and articles dealing with terrorism, counter-terrorism, and international law. His most recent writings have been published at the Harvard National Security Journal (Harvard Law School); the International Journal of Intelligence and Counterintelligence; the Israel Journal of Foreign Affairs; the Brown Journal of World Affairs; and Oxford University Press. Professor Beres was born in Zürich, Switzerland, at the end of World War II.