PALESTINIAN PERFIDY, ISRAELI COUNTERTERRORISM AND THE LAWS OF WAR
by Louis Rene Beres
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.
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LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is
the author of many books and articles dealing with international law. |
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