Understanding Gaza: Pain And Perfidy Under International Law

By:Louis Rene Beres, February 13, 2008

It is easy to feel sorry for the Palestinians in Gaza. Televised and print images of their apparently unrelieved misery suggest Israeli cruelty in the creation of shortages and in the use of armed force. Exactly the opposite is true. The moment that flagrantly illegal Hamas rocket attacks upon Israeli noncombatants cease, no harms of any kind will be imposed by Israel.

Hamas commits other egregious violations of international law. It is always a codified war crime to use civilians as “human shields.” As my readers in The Jewish Press already know, this cowardly act has a precise legal name – “perfidy.” By persistently placing their most impoverished women and children in harm’s way – especially in those areas from which they launch terrorist rockets into Israel – Palestinian terrorist leaders deliberately create Palestinian casualties.

[See also Bomb Gaza. Win the War.]

There is more here than meets the eye. Several Palestinian terror groups, including Hamas, are forging conceptual and tactical bonds with al-Qaeda. These criminal organizations are now actively planning for mega-terror operations against Israel. If they cannot be stopped – perhaps because of continued one-sided and selective coverage of Palestinian suffering in Gaza – such attacks would involve (at a minimum) chemical and/or biological weapons of mass destruction.

Over time, especially if Iran should begin to transfer portions of its growing inventory of nuclear materials to selected terror groups, Israel could also face Palestinian-directed nuclear terrorism.

What government could be expected to sit back passively and render its population vulnerable to instantaneous mass-slaughter? Would we, in the United States, sit quietly by as rockets rained down upon American cities from terrorist sanctuaries somewhere on our southern borders? Would we allow such carnage to continue with impunity? Can capitulation and surrender ever be the proper or excusable reaction of a sovereign state sworn to protect its populations? For as long as political philosophers have written about the essential obligations of sovereignty, no state responsibility has been as important as the fundamental assurance of protection.

Although not widely recognized, Israel has always been willing to keep its counter-terrorism operations in Gaza consistent with the settled standards of humanitarian international law.

Palestinian violence, on the other hand, still remains in violation of all civilized rules of engagement. And all this after Israel very painfully “disengaged” from Gaza on the U.S.-backed promise that the Palestinians – finally – would put an end to their relentless barrage of terror.

Significantly, this barrage also remains strategically senseless, as it does absolutely nothing to advance any vital Palestinian interests.

International law is not a suicide pact. Rather, it offers an authoritative body of rules and procedures that permits states to express their inherent right of self-defense. When terrorist organizations celebrate the explosive “martyrdom” of Palestinian children, and when Palestinian leaders unashamedly seek religious redemption through the mass-murder of Jewish children, the terrorists have no legal right to demand sanctuary. Anywhere.

Under international law, terrorists are always hostes humani generis, “Common enemies of humankind.” Even according to the most ancient sources of international law, such murderers must be severely punished wherever they are found. For their arrest and prosecution, jurisdiction is “universal.”

Palestinian terrorism, even during its present “slow” period (when contending Hamas and Fatah factions are simply too busy murdering each other to kill Jews), is far worse than most people ever imagine. Using bombs filled with nails, razor blades and screws dipped in rat poison; the killers maim and burn Israeli civilians with abundant cheers from their neighbors, and with warmest blessings from local clergy. As for those “commanders” who actually direct and control the suicide bombers, they typically cower for protection in assorted hiding places. At times they issue loud calls for their wives, mothers and daughters to stand between themselves and the Israelis.

This is the amply documented “heroism” of Palestinian terrorism. What is unknown to most observers is that carefully trained IDF counter-terrorism units operate in exactly the opposite fashion. These Israeli soldiers always identify and target only the terrorist leaders. They always seek to minimize collateral harms. There are times, of course, when such harms simply can’t be avoided. Even the IDF, which follows its code of “Purity of Arms” far more stringently than any other nation’s army, including our own, cannot undo the deliberate barbarism of Palestinian perfidy.

Deception can be legally acceptable in armed conflict, but The Hague Regulations forbid 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. 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 critical legal effect of perfidy committed by Palestinian terrorist leaders is to immunize Israel from any responsibility for inadvertent counter-terrorist harms done to Arab civilians. Even if Hamas and Fatah and Islamic Jihad and their several 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.

International law – as I have pointed out in several earlier columns here in The Jewish Press – is not a suicide pact. 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 charitable in describing Palestinian terrorists.

These fanatics are plainly criminals who intentionally target civilians, and whose characteristic mode of “battle” is not purposeful military engagement, but primal religious sacrifice.

In the final analysis, Israel faces a Palestinian terrorist enemy who embraces violence not for land, and not for national self-determination, but for religious faith. For this determined Jihadist enemy, terrorism is now a plainly sacred expression of worship.

Israel, like every other state, has the indisputable right and obligation under international law to protect its citizens from such an enemy. Why, indeed, should this even be controversial?

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