Doc's Talk: Understanding Gaza:Pain and Perfidy Under International Law

Tuesday, January 29, 2008

Understanding Gaza:Pain and Perfidy Under International Law

:Professor Louis René Beres
January 28, 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." This cowardly act even 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.

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 US-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 too busy attacking each other), 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 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. Always they 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 counterterrorist 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 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 God. 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.

International law is not a suicide pact.
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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.

2 comments:

hindustani said...: i do agree with you that international law is not a suicide pact and that sovereign states are responsible to protect their civilian lives. israel is a sovereign state whether some of us like its existence or not. but what about the palestinians? do they have a sovereign state to call their own, and to protect them? what the israeli govt does to the palestinians is as deplorable as what hamas does against the israeli, perhaps more so as it does it in the garb of a responsible sovereign state.; 11:10 AM
GS Don Morris, Ph.D./Chana Givon said...: First allow me to say thank you for reading my blog-given your comments it seems that we find ourselves on either side of an issue fence. Second, you are correct, Palestinians do not have a sovereign state and historically never have had one. Third, you argue moral equivalency regarding Hamas and IDF actions and this I take issue with your statement and logic. Fourth, you apply value quantification to actions based upon perceived intentions-this is at best opinion, at worse propaganda. All the best-doc; 6:47 PM

The IDF’s Minorities in Numbers and Pictures

In honor of IDF Diversity Week, we present diversity through numbers and pictures. Each year, more and more Muslims, Christians, Druze, Bedouin and immigrants from around the world take on the responsibility of defending Israel.

MUSLIMS:

Muslim Arab Israelis are not required to draft in the IDF, but there are many who volunteer. In 2013, there were over 200 Muslims serving in the IDF and over 300 in the reserves.

Bedouins:

Bedouins are nomadic Muslims who were in Israel when modern borders were set in place and are now considered Israeli citizens. They are not required to draft but a growing number choose to enlist. In 2012, there were over 1,400 Bedouin Muslim soldiers doing regular IDF service and almost 1,500 in the reserves.

Read more:http://www.idfblog.com/2014/02/27/truth-idf-numbers-pictures/#more-34027

Are you aware that in 2013, Middle class taxes go up-significantly?

In January of next year, the federal income tax rate for middle-class taxpayers is scheduled to rise from 25 percent to 28 percent, and the payroll tax is scheduled to rise from 13.3 percent to 15.3 percent… This drives the marginal tax rate based on the aforementioned three taxes to 48.12 percent. Add in state and local property, corporate, excise, and other state and local taxes, and the percentage of each additional dollar that is taxed hovers around 50 percent… When half of each additional dollar earned is taxed away, taxpayers experience a disincentive to start businesses or expand existing ones. This leads to fewer jobs being created.

Why is HAMAS Inside Tampa Schools?

Clare Lopez

Kelly Miliziano, who teaches history classes at Steinbrenner High School in the Tampa, Florida area apparently thinks it’s perfectly OK to invite a senior official of a HAMAS-affiliated organization into her classroom to discuss Islam with her students. According to local media reports, not only has this been going on for years, but in spite of the civil and criminal proceedings that could result from such reckless negligence, the Hillsborough County school superintendent, Mary Ellen Elia, and the chairman of the school board, Candy Olson, also expressed approval for students under their responsibility to be exposed repeatedly to guest speaker, Hassan Shibly, who is the Executive Director for the Council on American-Islamic Relations (CAIR) in the Tampa area.
More...

Did You Know... Ignoring the Call to Islam will Bring Jihad

‘Conquest through Da’wa [proselytizing] that is what we hope for. We will conquer Europe, we will conquer America! Not through sword but through Da’wa.’
-- Yousef al-Qaradawi , Muslim Brotherhood spiritual leader The Arabic word ‘Da’wa’ means the “call to Islam.” But do not think that Da’wa is the same thing as an invitation to an optional holiday event. The classical Islamic doctrine of jihad mandates that enemies must be given the opportunity to convert to Islam or pay the jizya tax before it is permissible to attack them.
Clare M. Lopez

Who is being discriminated-facts tell the truth

Religious bias

Hate crimes motivated by religious bias accounted for 1,409 offenses reported by law enforcement. A breakdown of the bias motivation of religious-bias offenses showed:

65.4 percent were anti-Jewish.
13.2 percent were anti-Islamic.
9.5 percent were anti-other religion, i.e., those not specified.
4.3 percent were anti-Catholic.
3.8 percent were anti-multiple religions, group.
3.3 percent were anti-Protestant.
0.5 percent were anti-Atheism/Agnosticism/etc.

http://www.fbi.gov/about-us/cjis/ucr/hate-crime/2010/narratives/hate-crime-2010-incidents-and-offenses.

On March 31, 1977, the Dutch newspaper Trouw published an interview

with PLO executive committee member Zahir Muhsein. Here's what he said:

"The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct "Palestinian people" to oppose Zionism.

For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifa and Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan."

In March 1977, Zahir Muhsein, a PLO executive, said:

"The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct Palestinian people to oppose Zionism."

"For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifa and Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan."

The Arab Apartheid

Ben-Dror Yemini
In 1948, the Arab countries refused to accept the UN partition proposal and they launched a war of annihilation against the State of Israel which had barely been established. All precedents in this matter showed that the party that starts the war - and with a declaration of annihilation, yet - pays a price for it. Between 550,000 and 710,000 Arabs fled because of the war and a larger number of 850,000 Jews were expelled or fled from Arab countries (the "Jewish nakba").
Population exchanges and expulsions were the norm at that time, occurring in dozens of other conflict points and affecting about 52 million people. In all the population exchange precedents that occurred during or at the end of an armed conflict, there was no return of refugees to the previous region, which had turned into a new national state.
Only the Arab states acted completely differently from the rest of the world. Instead of assimilating the refugees, they crushed them despite the fact that they were their coreligionists and members of the Arab nation - instituting a regime of apartheid. So the "nakba" was not caused by the actual dispossession, which had also been experienced by tens of millions of others. The "nakba" is the story of the apartheid, oppression, abuse and denial of rights suffered by the Arab refugees at the hands of the Arab countries. (Maariv)

International Law and Military Operations in Practice - Col. Richard Kemp

"Islamist fighting groups study the international laws of armed conflict carefully and they understand it well. They know that a British or Israeli commander and his men are bound by international law and the rules of engagement that flow from it. They then do their utmost to exploit what they view as one of their enemy's main weaknesses. Their very modus operandi is built on the correct assumption that Western armies will normally abide by the rules, while these insurgents employ a deliberate policy of operating consistently outside international law. "

Lost Historical Moments

What Rabin’s last Knesset speech really said:repudiation of a Palestinian state

Rabin ruled out a fully sovereign Palestinian state :

“We view the permanent solution in the framework of State of Israel which will include most of the area of the Land of Israel as it was under the rule of the British Mandate, and alongside it a Palestinian entity which will be a home to most of the Palestinian residents living in the Gaza Strip and the West Bank. We would like this to be an entity which is less than a state, and which will independently run the lives of the Palestinians under its authority.”

Rabin ruled out a total withdrawal from Judea and Samaria and thus a return to the pre-June 1967 borders :

“The borders of the State of Israel, during the permanent solution, will be beyond the lines which existed before the Six Day War. We will not return to the 4 June 1967 lines.”

Rabin ruled out withdrawing form the Jordan Valley:

“The security border of the State of Israel will be located in the Jordan Valley, in the broadest meaning of that term.”

Rabin ruled out uprooting settlement blocs, like the Gush Katif bloc in Gaza (which was subsequently uprooted by former Prime Minister Ariel Sharon):

“The establishment of blocs of settlements in Judea and Samaria, like the one in Gush Katif.

AND

Rabin ruled out removing any settlement before coming to a full peace agreement with the Palestinians:

“I want to remind you: we committed ourselves, that is, we came to an agreement, and committed ourselves before the Knesset, not to uproot a single settlement in the framework of the interim agreement, and not to hinder building for natural growth.”

Rabin insisted on Israel retaining full security control of the borders with Egypt and Jordan, contrary to Israel’s relinquishment of the Philadelphia Corridor on the border with Egypt:

“The responsibility for external security along the borders with Egypt and Jordan, as well as control over the airspace above all of the territories and Gaza Strip maritime zone, remains in our hands.”

Correcting Oslo Myths-Part 2

3) Kuttab laments that the post-1993 Oslo process resulted in a Palestinian Authority "whose ministers and legislators are not guaranteed passage between Gaza and the West Bank ...."

Before free passage or other perquisites, PA leaders were obligated, among other things, to eliminate the terrorist infrastructure in the West Bank and Gaza Strip, end anti-Israeli, antisemitic incitement in schools, mosques, and communications media, and resolve all outstanding issues through peaceful negotiations. They met none of these commitments, sometimes bolstering terrorism and greatly increasing incitement.

4) Kuttab complains that under Oslo the PA got "lightly armed police ---- but no real sovereignty over the land or contiguity between our communities in Gaza and the West Bank."

Oslo agreements repeatedly were revised, regardless of Palestinian non-compliance, until the authorized number of police grew from 8,000 to 40,000. Though they were to be the only armed forces in the territories, Israeli estimates early in the second intifada put the number of gunmen - police, "security services," terrorists, and armed gangs - at 85,000. Their armament reportedly included not only heavy machine guns and rocket-propelled grenades, but also anti-tank and anti-aircraft missiles.

Sovereignty was to be negotiated in the envisioned 1998 "final status" talks - after a five-year period of confidence-building. Palestinian leadership chronically undermined the process. Palestinian terrorism made the 1993 - 1998 Oslo period more deadly for Israelis than the 15 years preceding it.

The United States doesn't have contiguity between the lower 48 states and Alaska and Hawaii; territorial contiguity between the West Bank and Gaza Strip - that is, through the 20 miles of Israeli territory between them - was never promised and would destroy Israeli contiguity.

5) "Palestinians have been made to endure hundreds of checkpoints in the West Bank, an eight-foot wall deep in our territories, and tight Israeli control over borders."

The security barrier is not "deep in Palestinian territories," but rather encompasses less than 8 percent of Judea and Samaria, and is mostly a fence, rarely a wall; the land in question is not "our [Palestinian] territories" but disputed territory to which, according to the authors of U.N. Security Council Resolution 242, Jews as well as Arabs have claims; and there are no international borders, only the 1949 armistice lines with Jordan. Under 242, borders remain to be negotiated. As for checkpoints - like the security barrier and "tight Israeli control" - Palestinian Arabs precipitated these measures themselves. No terrorism and there would be no fence or tight Israeli control and few checkpoints - like before the first intifada.

Correcting Some Oslo Myths

1) In Oslo "Israeli, Palestinian and other world leaders promised that ... Palestinian sovereignty would be solidified."

No, they didn't. The 1993 Declaration of Principles and subsequent Oslo agreements outlined a process by which final status negotiations about the West Bank and Gaza Strip would be reached. The process required an end to anti-Israel terrorism and incitement and a commitment to peaceful negotiations. The PA, Fatah, Hamas, Islamic Jihad, the Popular Front for the Liberation of Palestine, and other terrorist groups, sabotaged the process from the start.

2) "The reality is that, in defiance of U.N. Security Council Resolution 242, which states that it is inadmissible to occupy land by force, Palestinian territories are still under foreign military occupation."
Wrong again. Resolution 242 (1967) does note "the inadmissibility of the acquisition of territory by war." It also affirms the right of every state in the area "to live in peace with secure and recognized boundaries free from threats or acts of force." There were no "Palestinian territories." Jordan occupied the West Bank, Egypt controlled Gaza. Israel did not have "secure and recognized boundaries," so retention of some of those territories was possible under 242. Israel is not a "foreign" military occupier in the West Bank but, pending final negotiations, the lawful military administrator as a result of a successful war of self-defense.

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