Truth-Telling in the Middle East: Perfidy, Counterterrorism, and the Law of War

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The Gaza/Egypt border line in Rafah August, 2008. The metal wall constructed by Israel to allow their tanks and troops into Gaza but keep Palestinians from exiting was cut down by Hamas after coming into power. (Photo credit www.zoriah.com)

 

By Louis René Beres

International law is not a suicide pact. Every country on earth has an expansive legal right to “self-defense.” Although this right can never absolve any state of the obligation to fight both enemy states and terrorists with a diligent respect for civilian populations, it is also true that both enemy armies and insurgent forces must comply with these same rules of armed conflict.

In Israel’s wars on terror, there has always been much talk about “proportionality.” After all, the law of war requires that every use of force by an army or by an insurgent group meet certain appropriate tests. Drawn from the basic (“peremptory”) 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 must be limited to what is needed for operational success. This  key principle of  codified and customary international law applies to all judgments of military advantage, and to all planned reprisals.

Proper determinations of proportionality, however, need not be made in a geopolitical vacuum. Instead, these legal decisions may always take into proper account the precise extent to which any pertinent  adversary has committed prior or ongoing violations of the law of war. For example, in the frequently interrelated cases of Hamas/Islamic Jihad/Fatah terrorists in Gaza, and the Hezbollah terrorists in Lebanon, ample evidence exists that all of these belligerents have been guilty of repeated “perfidy.”

In law, deception can sometimes be acceptable in armed conflict, but the Hague Regulations expressly disallow any placement of military assets or military personnel in heavily populated civilian areas. Further prohibitions 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 an especially 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 historic but largely unrecognized legal effect of perfidy committed by Palestinian or Hezbollah terrorists, especially their  recurrent resort to “human shields,” has been to immunize Israel from any legal responsibility for inadvertent counter-terrorist civilian harms. In this connection, even if Hamas and Islamic Jihad and Fatah and Hezbollah had not systematically engaged in deliberate violations, any terrorist-created links between civilians and insurgent warfare would still have bestowed upon Israel a legal justification for its defensive military actions.

This is not to suggest that Israel, in the future, should have a jurisprudential carte blanche in its applications of armed force, but only that the lawfulness of these critical applications will always need to be appraised in the context of  identifiable enemy “perfidy.”

All combatants, including all insurgents in Gaza and Lebanon, are required to comply with the law of armed conflict. This firm requirement derives not only from 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.

For those who are unfamiliar with international law, or who intentionally seek to distort that law for narrowly propagandistic benefit, it is easy to tar Israel with contrived charges of “disproportionality.” Nonetheless, competent and fair legal scholars will always understand and acknowledge the significance of context.

International law is not a suicide pact. In the case of Israel, allegedly disproportionate resorts to force in Gaza and Lebanon theatres by the Israel Defense Forces have routinely represented the permissible outcome of antecedent Arab perfidy. Were it not for these egregious violations of the law of war by its terrorist adversaries, Israel would never have been obliged to wage its wars in a fashion that could create civilian harms.

Over the years, from war to war, has Israel somehow committed “aggressions” against Lebanon? An authoritative answer is readily at hand. At only Lebanon’s insistence, a formal state of war has existed between the two countries since the Jewish State first came into existence in May 1948.

Therefore, only an armistice agreement exists between Israel and Lebanon. Signed on March 23,1949, this pact was, by definition, not a war-terminating agreement, but merely a pledge, still not honored by the Lebanese side, to cease active hostilities on a temporary basis.

It is not legally possible for Israel to commit aggression against Lebanon. The latter considers itself in a formal and uninterrupted condition of belligerency with the Jewish State. A state cannot commit aggression against another state with which it is already at war.

Faced with multiple and sometimes cooperating enemies on several fronts who often make no secret of their genocidal intentions, Israel has still managed to display admirable  respect for the law of armed conflict. Indeed, in starkly marked contrast to the conscious indiscriminacy of its myriad terrorist foes in both Gaza and Lebanon, Jerusalem has actually been able to stay true to this law.

The core legal issue in endless Middle East conflict is not about Israeli “disproportionality. “  It is, rather, about a persistent and relentless enemy inclination to terrorism and perfidy. Until this destabilizing inclination is better understood and suitably curbed, Israel’s basic right to stay alive must include utterly indispensable resorts to military self-help.

International law is not a suicide pact.

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LOUIS RENÉ BERES, Professor of International Law at Purdue, was educated at Princeton (Ph.D., 1971). He is the author of many books and articles dealing with terrorism, international law and the law of war.  Dr. Beres, who was Chair of Project Daniel, was born in Zürich, Switzerland.  The views expressed are those of the author.

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