The Washington Post, May 27, 2004
ISRAEL AND GAZA
By Louis Rene Beres
Israel has just completed an essential defensive operation against terrorists in Rafah. Although televised images of this Gaza operation suggested cruelty and indiscriminate action by Israeli forces, exactly the opposite is true. By deliberately placing young Arab children in the front of large mobs that advanced menacingly upon Israeli soldiers, Palestinian leaders openly committed major violations of the Law of War. There is, in fact, a precise legal term for these violations, a term that applies equally to the Palestinian tactic of routinely inserting scores of gunmen among the lines of children. This codified crime under humanitarian international law is called "perfidy."
Israel's leaders understand fully that several Palestinian terror groups are now actively planning for mega-terror attacks. These preparations underway in Gaza are partially directed by various elements in Egypt. Remarkably, although unrecognized, Israel has been willing to keep its counterterrorism operations in Gaza consistent with established legal rules of engagement. Palestinian violence, however, is consistently in violation of all civilized norms.
Israel has been blamed for blowing up Palestinian houses. These houses are not ordinary residences. Rather, they are critical exit points for smugglers' tunnels that begin in other houses on the Egyptian side. The tunnels are a primary conduit for the growing traffic of arms, heavy explosives, drugs and hostile operatives into Rafah. Left in place, they could soon become the source of chemical and/or biological terrorism against Israel. Indeed, these tunnels could even enlarge the prospect of a "dirty bomb" nuclear assault upon Israeli cities deliveredbyArabsuicide bombers.
Terrorism is a crime under international law. When terrorists represent populations that enthusiastically support such attacks, and when these terrorists also find easy refuge among hospitable populations, all blame for ensuing counterterrorist harms lies exclusively with the criminals. Understood in terms of ongoing Palestinian terrorism and Israeli self-defense, this means that the Palestinian side alone must now bear full legal responsibility for Arab civilian casualties.
International law is not a suicide pact. Rather, it correctly offers an authoritative body of rules and procedures that always permits states their "inherent right of self-defense." When terrorist organizations openly celebrate the explosive"martyrdom"of Palestinian children and unashamedly seek religious redemption through the mass-murder of Jewish children, they have absolutely no legal right to demand sanctuary anywhere. Under international law they are hostes humani generis, "common enemies of humankind," who must be punished wherever they are found.
Palestinian terrorism has become a barbarous goal unto itself. Using bombs filled with nails, razor blades and screws dipped in rat poison, the killers proceed to maim and burn Israeli civilians with only cheers and blessings from Yasser Arafat's appointed Islamic clergy. The children who are encouraged to blow themselves up for Allah have been carefully indoctrinated with musical glorifications of a fiery death and emboldened with delightful images of immortality. It goes without saying that the children of Palestinian leaders are themselves "deprived" of any divinely sanctioned propulsions into "paradise."
Deception can be legal in armed conflict, but the Hague Regulations disallow placement of military assets or personnel in heavily populated civilian areas. Further prohibition of perfidy is found in Protocol I of the 1977 addition to the Geneva Conventions of 1949, and it is widely recognized that these rules also are 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" in Article 147 of Geneva Convention IV. The full legal effect of perfidy committed by Palestinian terrorist leaders is to immunize Israel from any responsibility for counter-terrorist harms done to Arab civilians.
All combatants, including Palestinian terrorists, are bound by the Law of War of international law. This requirement is found in Article 3, common to the four Geneva Conventions of Aug. 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. 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 indispensable war against escalating Arab violence, Israel would surrender this important right and undermine this fundamental obligation. The clear effect of such capitulation would be to make potential victims of us all.
Just wars arise from love of the innocent. Still, in the midst of such a war against uniquely cruel enemies, Israel must continue to root out the terrorists in Gaza to avoid further mass murders of its citizens -- murders that could soon involve chemical, biological or even nuclear agents. Although perfidious provocations by assorted Palestinian terror groups may repeatedly elicit Israeli reprisals that bring harm to Arab noncombatants, it is always these provocations -- not Israel's defensive responses -- that are violations of international law.
Louis Rene Beres is the author of many books and articles dealing with terrorism, war and international law. He is also the academic advisor for the Freeman Center For Strategic Studies.