Slouching Toward “Palestine”

Louis René Beres

Intra-Palestinian politics remain on a steady course. Following a carefully-choreographed rapprochement with Hamas, the more “moderate” Fatah forces, still trained and funded by millions of U.S. tax dollars, will resume their ritualized terror attacks against Israel. More or less simultaneously, Hamas will do the same. In Lebanon, Shiite Hezbollah, steadily mentored by Iran, and, oddly allied with Sunni Hamas, has already begun active operational preparations, with Syrian collaboration, for the next war. Ironically, however, Israel’s required efforts to defend its citizens will predictably be met with a sanctimonious barrage of assorted criticisms. Although international law allows any such imperiled state to use necessary force preemptively, Israel’s indispensable efforts to stave off existential harms will be harshly condemned throughout the “international community.”

Humanitarian international law, or the law of war, requires that every use of force by an army or by an insurgent group meet the test of “proportionality.” Drawn from the core legal principle that “the means that can be used to injure an enemy are not unlimited,” proportionality stipulates, among other things, that every resort to armed force be limited to what is necessary for meeting military objectives. This principle of both codified and customary international law applies to all judgments of military advantage, and also to all planned reprisals.

Proper determinations of proportionality need not be made in a geopolitical vacuum. Instead, these legal decisions may always take into consideration the extent to which an adversary has committed prior or ongoing violations of the law of war. In the frequently interrelated examples of Hamas/Islamic Jihad/Fatah terrorists in Gaza, and the Hezbollah terrorists in Lebanon, there is ample evidence that all of these belligerents have been guilty of repeated “perfidy.”

In law, deception can be acceptable in armed conflict, but the Hague Regulations expressly disallow the placement of military assets or military personnel in any heavily populated civilian areas. Further prohibition of perfidy can be found at Protocol I of 1977, additional to the Geneva Conventions of 1949. These rules are also binding on the basis of an equally authoritative customary international law.

Perfidy represents a very serious violation of the law of war, one that is even identified as a “grave breach” at Article 147 of Geneva Convention No. IV. The legal effect of perfidy committed by Palestinian or Hezbollah terrorists, especially their recurrent resort to “human shields,” is to immunize Israel from legal responsibility for any inadvertent counter-terrorist harms done to Arab civilians. But even if Hamas and Islamic Jihad and Fatah and Hezbollah have not always engaged in altogether deliberate violations, any terrorist-created links between civilians and insurgent warfare still bestowed upon Israel a fully legal justification for military self-defense.

This is not to suggest that Israel should now have a jurisprudential carte blanche in its necessary applications of armed force, but only that the reasonableness of these applications always be appraised in the context of identifiable enemy perfidy.

Viewed against the historical background of extensive and unapologetic terrorist perfidy in both Gaza and Lebanon, Israel has been innocent of any prior “disproportionality.” All combatants, including all insurgents in Gaza and Lebanon, are bound to comply with the law of war of international law. This important requirement derives not only from what is known as the “Martens Clause,” a binding paragraph which makes its first appearance in the Preamble to the 1899 Hague Convention No. II on land warfare, but additionally from Article 3, common to the four Geneva Conventions of August 12,1949. It is also found at the two Protocols to these Conventions.