Prof. Louis René Beres
Written for Arutz Sheva. An expert in international law weighs in on the proposal to achieve a ceasefire with Hamas.
(1) an expressly legitimate status under international law; and
(2) a clear and newly incontestable condition of legal symmetry between the parties.
This is never a tolerable jurisprudential arrangement for Israel.
Moreover, no proper system of law can ever permit any sort of compromise or accommodation by a government with criminal organizations, even, in the case of Israel and Hamas, one that might involve a somewhat less formal arrangement than the currently proposed cease fire.
It follows that Israel ought never to unwittingly prop up its criminal adversary in Gaza by agreeing to a cease fire or similar "armistice"; instead, it should proceed immediately to do whatever is needed operationally, while simultaneously reminding the world that the pertinent conflict is between a fully legitimate sovereign state (one that meets all criteria of the Convention on the Rights and Duties of States, 1934) and an inherently illegal insurgent organization that meets none of these criteria, and that routinely violates all vital precepts of the law of armed conflict.
Hamas' inherent illegality is readily deducible from the far-reaching codified and customary criminalization of terrorism under authoritative international law, and can never be challenged by even well-intentioned third parties (e.g., the United States) in the presumably overriding interests of "peace." This is true even if Hamas were somehow mistakenly acknowledged to have "just cause" for its insurgency
Since 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, 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 U.N. General Assembly to the status of a "nonmember observer state," but significantly, the PA has since declared itself nonexistent.
On January 3, 2013, Mahmoud 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' illegal refusal to follow the Palestinian Arabs' 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 charred 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 U.S. 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 had already been “born” at Sinai.