After ‘Palestine’: Conflict, terrorism, international law (JERUSALEM POST OP-ED) By LOUIS RENÉ BERES 06/21/12)
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A new state of Palestine would quickly become a staging area for
expanding conflict and terror against Israel.
Once formally established, a new state of Palestine would quickly
become a staging area for expanding conflict and terror against
Israel. This is hardly a secret.
Such preparations would also take place while Hezbollah mounted its
own expanding rocket operations against Israel, from Lebanon.
Forced by this growing and synergistic violence to undertake
defensive operations, resultant noncombatant deaths in all relevant
theaters of conflict would elicit howls of international
condemnation. Israel, yet again, would be blamed for alleged
violations of international law. The loudest allegations of all,
assuredly, would be predictably sanctimonious cries
The law of war requires that every use of force by an army or by an
insurgent group meet the test of “proportionality.”
Proportionality stipulates that every resort to armed force must be
limited to what is absolutely necessary for meeting essential
military objectives. This principle applies to all calculations of
military advantage, and to all reprisals.
Proportionality does not mean that the defending state must limit its
use of force to the precise “amount” being used by the other side.
Here, the conventional wisdom is flat-out wrong.
This is not a judgment of equivalent destructiveness. These legal
decisions may also take into proper account the extent to which an
adversary has committed prior, or even ongoing violations of
humanitarian international law.
Under international law, deception can be acceptable in armed
conflict, but the Hague Regulations do not permit the placement of
military assets or military personnel in populated civilian areas.
Prohibition of perfidy can be found at Protocol I of 1977, additional
to the Geneva Conventions of 1949.
These rules are further reinforced by customary international law.
PERFIDY REPRESENTS a very serious violation of the law of war. It is
even identified as a “grave breach” at Article 147 of Geneva
Convention No. IV.
Thus far, the legal effect of perfidy committed by Palestinian or
Hezbollah terrorists has been to exclude Israel from any legal
responsibility for harm to Arab civilians arising from counter-
Historically, viewed against the background of extensive and always
unapologetic terrorist perfidy in Palestinian territories and
Lebanon, Israel has been innocent of any “disproportionality.”
All combatants, including all insurgents, are bound to comply with
the law of war of international law. This firm requirement derives
not only from what is known as the “Martens Clause,” a paragraph that
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.
Any seemingly disproportionate use of force by Israel has actually
been the permissible outcome of prior crimes committed by its enemies.
What about Lebanon and the charge of “aggression?” It is not possible
for Israel to commit such a crime.
Lebanon considers itself in a formal condition of belligerency with
the Jewish state. A state cannot commit aggression against another
state with which it is already at war.
THE CENTRAL legal issue in Middle East conflict is not about
Israeli “disproportionality,” or “aggression,” but rather a
persistent Arab willingness to resort to terrorism and perfidy.
Soon, the UN could again take up the issue of membership
Although any such consideration would not likely meet the stringent
requirements of statehood that were established at the 1934
Convention on the Rights and Duties of States (Montevideo
Convention), a generally- recognized and totally militarized
Palestinian state would then become a reality.
Israel’s more unstable future would then be determinable at Article
12 of the PA (Fatah) Charter, which calls for “the liberation of
Palestine completely...,” and at Article 19: “The struggle will not
end until the elimination of the Zionist entity and the liberation of
Palestine.” As for the “less-moderate” Hamas Covenant (Charter of the
Islamic Resistance Movement), it begins with Israel’s
annihilation: “Israel will exist and will continue to exist until
Islam will obliterate it....”
International law is not a suicide pact. It stipulates, quite
precisely, that a beleaguered state can do what is required to
protect itself against the grave harms of terrorism and war. As long
as Israel remains consciously committed to the legally correct
meanings of “proportionality,” and does whatever is possible to
minimize the collateral harms of its essential defensive force,
Jerusalem need not concern itself about always-contrived charges of
For the jurisprudential record, moreover, Israel remains the only
state in the Middle East that has stayed impressively true to the law
of war, and to its own “purity of arms.” (© 1995-2011, The Jerusalem
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