30 July 2002
PALESTINIAN PERFIDY, ISRAELI
COUNTERTERRORISM AND THE LAWS OF WAR
by Louis Rene Beres
Professor of International Law
Department of Political Science
The recent Israeli bombing of a building in Gaza succeeded in killing a principal Hamas terrorist, Salah Shehadeh, but it also killed and wounded a number of Arab civilians. Normally, according to international law, any such bombing that strikes noncombatants could be a clear case of "unjust means." In this instance, however, full legal responsibility for the harms done to civilians must fall upon those Palestinian leaders who deliberately placed terrorists in the midst of ordinary populations. These leaders are guilty of the long-established crime known as "perfidy."
Deception can be legally acceptable in armed conflict, but the Hague Regulations clearly disallow placement of military assets in densely populated civilian areas. Further prohibition of perfidy is found in Protocol I of 1977 additional to the Geneva Conventions of 1949, and it is widely recognized that these rules are also binding on the basis of customary international law. Indeed, it is generally agreed that perfidy represents an especially serious violation of the Laws of War, one identified as a "grave breach" at Article 147 of Geneva Convention IV. The legal effect of perfidy committed by Palestinian terrorist leaders is to immunize Israel from any responsibility for counterterrorist harms done to Arab civilians. Even if Hamas had not deliberately engaged in perfidy, any Palestinian-created link between civilians and terrorist activities would have given Israel full legal justification for full military action.
All combatants, including Palestinian fighters, are bound by the Laws 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.
Israel has both the right and the obligation under international law to protect its citizens from criminal acts of terrorism. Should it ever decide to yield to Palestinian perfidy in its war against Arab terror, Israel would surrender this essential right and undermine this fundamental obligation. The net effect of such capitulation would be to make victors of the terrorists, a result that would doubtlesly increase rather than diminish the overall number of noncombatant victims in the region.
Interestingly, the reciprocal obligation of Israel's citizens to the Government in Jerusalem is dependent upon the Government's assurance of protection. Many major legal theorists throughout history - notably Bodin, Leibniz and Hobbes - understood that the provision of security is the first obligation of the state. "The obligation of subjects to the sovereign," says Thomas Hobbes in Chapter XXI of LEVIATHAN, "is understood to last as long, and no longer, than the power lasteth by which he is able to protect them."
Just wars always arise from a love of the innocent. Now in the midst of such a war against Arab terrorists, Israel must continue to use all necessary military force in order to avoid further mass killings of its citizens. Although perfidious provocations by Hamas or other Palestinian terror groups may again elicit Israeli reprisals that bring harms to Arab noncombatants, it is these provocations - not Israel's defensive responses - that would be in violation of the Laws of War.
In the final analysis, Israel will have no alternative to launching periodic self-defense attacks against terrorist targets. Such operations need not be injurious to noncombatant Palestinian populations so long as the terrorists do not seek to hide amongst these populations, using them as human shields. Bound by the Laws of War of international law, these terrorists - whenever they choose to commit perfidy - will be legally responsible for all harms done to Arab civilians.
LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with international law.