Louis Rene Beres, Professor of International Law February 3, 2004 Terrorism is an established crime under international law, and no people or government is ever obliged by this law to sit back passively and absorb barbarous terrorist attacks. When the terrorists represent populations that enthusiastically support such attacks, and where the terrorists also find easy refuge among these hospitable populations, legal responsibility for all ensuing counter terrorist harms must lie exclusively with the criminals.
Understood in terms of ongoing Palestinian terrorism and Israeli counter terrorism, this means that full legal responsibility for all casualties among Arab civilians inflicted in the course of Israeli self-defense operations now lies with the Palestinian side. Moreover, the Palestinian practice of deliberately inserting terrorists and terrorist infrastructures into civilian Arab jurisdictions represents yet another particular crime under humanitarian international law. The precise name of this codified crime is “perfidy.”
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 Palestinian terrorist organizations openly glorify death and unashamedly seek religious redemption through murder, they have absolutely no legal right to demand subsequent sanctuary among civilian Arab populations. On the contrary, such demands are demonstrably “perfidious” under longstanding international law.
The Palestinian strategy is familiar. Using bombs filled with nails, razor blades and screws dipped in rat poison, terrorists now regularly maim and burn to death defenseless Israeli civilians – usually women and children. Those who command and control the suicide-bombers’ mayhem remain fearfully in their towns and cities, always taking care to place themselves for personal safety amidst densely-packed Arab populations. Special IDF counter terrorism and commando units then attempt, more meticulously than most people imagine, to identify and target only the terrorist leaders and to minimize collateral harms. Sometimes, however, such harms simply can’t be avoided. Even the IDF, which follows its code of “Purity of Arms” more stringently than any other army on the face of the earth (including the armed forces of the United States, which now operate under far looser rules of engagement in Iraq and Afghanistan) cannot always protect surrounding civilian populations.
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 legal effect of perfidy committed by Palestinian terrorist leaders is to immunize Israel from any responsibility for counter terrorist 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 fighters, 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 religious sacrifice and murder.
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 endless Arab violence, Israel would surrender this essential right and undermine this fundamental obligation. The net effect of such capitulation would be to make victors of the criminals, a result that would (a) doubtlessly increase rather than diminish the overall number of noncombatant Jewish victims in the region; and (b) strengthen the resolve of Al Qaeda and its allied Islamic groups in their closely-related terror war against the United States.
The obligation of Israel’s citizens to their Government in Jerusalem is dependent upon that Government’s assurance of protection. Many major legal theorists throughout history – notably Bodin, Leibniz and Hobbes – understood that the provision of security is the first obligation of the state. “The obligation of subjects to the sovereign,” says Thomas Hobbes in Chapter XXI of LEVIATHAN, “is understood to last as long, and no longer, than the power lasteth by which he is able to protect them.” It follows that Israel’s obligation to oppose Palestinian perfidy now derives not only from international law, but also from that country’s more general requirement to protect its own citizens.
Just wars arise from a love of the innocent. Now in the midst of such a war against uniquely cruel Arab terrorists, Israel must continue to use all necessary force in order to avoid further mass killings of its utterly beleaguered citizens – killings which could soon even involve chemical and/or biological agents. Although perfidious provocations by assorted Palestinian terror groups may repeatedly elicit Israeli reprisals that bring harms to Arab noncombatants, it is always these provocations – not Israel’s essential defensive responses – that would be in violation of humanitarian international law. International law is not a suicide pact.
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 E MAIL: BERES@POLSCI.PURDUE.EDU