Humanitarian international law continues to correctly require that every use of force by an army or insurgent force meet the test of “proportionality.” Going back to the basic legal principle that “the means that can be used to injure an enemy are not unlimited,” proportionality stipulates (among other things) that every exercise of armed force be limited to the minimum application needed for operational success. More specifically, this ancient principle of customary international law applies to all judgments of military advantage and to all planned reprisals.
But properly legal determinations of proportionality cannot be made in a vacuum. Rather, these decisions must always take into account the extent to which an adversary has committed prior or ongoing violations of the law of war. In the case of both the Hamas/Islamic Jihad/Fatah terrorists in Gaza and the Hezbollah terrorists in Lebanon, there is today ample and essentially incontestable evidence that these belligerents are manifestly guilty of “perfidy.”
Deception can be legally acceptable in armed conflict, but the Hague Regulations clearly disallow the placement of military assets or military personnel in heavily populated civilian areas. Further prohibition of perfidy can be found at Protocol I of 1977, additional to the Geneva Conventions of 1949. It is widely recognized that these rules are also binding on the basis of customary international law.
Perfidy represents an especially serious violation of the law of war, one even identified as a “grave breach” at Article 147 of Geneva Convention No. IV. The critical legal effect of perfidy committed by Palestinian or Hezbollah terrorists – especially their widespread resort to “human shields” – is to immunize Israel from any responsibility for inadvertent counter-terrorist harms done to Arab civilians. Even if Hamas and Islamic Jihad and Fatah and Hezbollah did not deliberately engage in perfidy, any terrorist-created link between civilians and insurgent warfare would always give Israel full and unassailable legal justification for its defensive military actions. This is not to suggest that Israel would have carte blanche in its applications of armed force, but that the reasonableness of these applications would have to be appraised in the context of enemy perfidy.
To be sure, viewed against the background of extensive and unapologetic terrorist perfidy in both Gaza and Lebanon, Israel is certainly not guilty of “disproportionality.” Let critics of Israel recall that all combatants, including all insurgents in Gaza and Lebanon, are bound to comply with the law of war of international law. This requirement derives not only from what is known in jurisprudence as the “Martens Clause,” which makes its first appearance in the Preamble to the 1899 Hague Convention No. II on land warfare, but also from Article 3, common to the four Geneva Conventions of August 12, 1949. It is found also at the two protocols to these Conventions.
It is easy for those who are altogether unfamiliar with international law to lash out unfairly at Israel with charges of “disproportionality.” Yet, legal scholars must always understand the vital significance of context. Authoritative judgments under international law are not made in isolation from other pertinent factors. In this connection, it is apparent that any seemingly disproportionate use of force by the Israel Defense Forces is actually the outcome of antecedent perfidy by its criminal enemies in both Gaza and Lebanon (terrorism is a codified crime under international law). Were it not for these egregious violations of the law of war by terrorist adversaries, Israel would not now be obliged to wage war in a fashion that inevitably creates civilian casualties.
Equally untenable is the charge that Israel is committing “aggression” in Lebanon. At Lebanon’s insistence, not Israel’s, a formal state of war has continued to exist between the two countries since the beginning; that is, since the Jewish State originally came into existence in May 1948. Only an armistice agreement exists between Israel and Lebanon. Signed on March 23, 1949, this is not a war-terminating agreement, but merely a pledge (still not honored by Lebanon) to cease hostilities temporarily in an ongoing conflict. Legally, it is simply not possible for Israel to commit aggression against Lebanon, as the latter already considers itself in a formal condition of belligerency.
International law is not a suicide pact. Faced with enemies on several fronts who still make no secret of their genocidal intentions, Israel displays remarkable respect for the law of war. In distinctly marked contrast to the conscious indiscriminacy of its terrorist adversaries in both Gaza and Lebanon, Jerusalem adheres scrupulously to the law of war of international law. It follows that intimations and accusations of Israeli “disproportionality” in counter-terrorist warfare are unfounded.
© Copyright, The Jewish Press, 2006. All Rights Reserved.
LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with terrorism, international law and the law of war.