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The more things change, the more they remain the same. Soon, even the more “moderate” Palestinian forces will re-start their carefully choreographed terror attacks against Israel. Simultaneously, more or less, Hamas– even as it proceeds to a presumably formal rapprochement with Fatah – will do the same. In Lebanon, Shiite Hizbullah, steadily mentored and lavishly re-supplied by Iran, and operationally allied with Sunni Hamas, has already initiated massive preparations for the next war.
Predictably, Israel’s required efforts to defend its citizens will be met, yet again, with a sanctimonious barrage of assorted criticisms. Although international law allows any such imperiled state to use necessary force preemptively in “anticipatory self-defense,” Israel’s plainly indispensable efforts to stave off existential harm will inevitably be condemned widely by the international community.
Humanitarian international law, or the law of armed conflict, requires that every use of force by an army orby an insurgent group meet the test of proportionality. Drawn from the basic (“peremptory”) legal principle that “the means that can be used to injure an enemy are not unlimited,” proportionality stipulates, among other things, that every resort to armed force be limited to what is absolutely necessary for operational success. More specifically, this principle of both codified and customary international law applies to all judgments of military advantage, and also to all planned reprisals.
Proper determinations of proportionality need not be made in a geopolitical vacuum. Instead, these legal decisions may always take into proper account the precise extent to which a pertinent adversary has committed prior or ongoing violations of the law of war. In the frequently interrelated cases of Hamas/Islamic Jihad/Fatah terrorists in Gaza, and the Hizbullah terrorists in Lebanon, there is ample and incontestable evidence that all of these belligerents have been guilty of repeated perfidy.
In law, deception can be acceptable in armed conflict, but the Hague Regulations expressly disallow the placement of military assets or military personnel in any heavily populated civilian areas. Further prohibition of perfidy can be found at Protocol I of 1977, additional to the Geneva Conventions of 1949. These rules are also binding on the basis of (equally authoritative) customary international law.
Perfidy represents an especially serious violation of the law of war, one that is even identified as a “grave breach” at Article 147 of Geneva Convention No. IV. The historic legal effect of perfidy committed by Palestinian or Hizbullah terrorists, especially their predictably recurrent resort to human shields, has been to immunize Israel from legal responsibility for any inadvertent counter-terrorist harms done to Arab civilians. Significantly, even if Hamas and Islamic Jihad and Fatah and Hizbullah had not always engaged in deliberate violations, anyterrorist-created links between civilians and insurgent warfare bestowed upon Israel an unassailable legal justification for its defensive military actions.
This is not to suggest that Israel, in the future, should have a jurisprudential carte blanche in its necessary applications of armed force, but only that the reasonableness of these critical applications should always be appraised in the special context of identifiable enemy perfidy. International law is not a suicide pact.
Viewed against the historical background of extensive and unapologetic terrorist perfidy in both Gaza and Lebanon, Israel has been innocent of any prior disproportionality. All combatants, including all insurgents in Gaza and Lebanon, are bound to comply with the law of war of international law. This important requirement derives not only from what is known as the “Martens Clause,” a binding paragraph which 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.
It is easy for those who are unfamiliar with international law, or who merely seek to distort that law for narrowly propagandistic benefit, to condemn Israel with insubstantial charges of disproportionality. Yet, competent legal scholars will always understand and acknowledge the vital evaluative significance of context. Capable judgments under international law are never made in isolation from germane factors.
It is clear, until now, that any seemingly disproportionate use of force by the Israel Defense Forces had actually been the permissible outcome of antecedent perfidy, of specified crimes committed by its multiple enemies in both Gaza and Lebanon. Undeniably, were it not for these especially egregious violations of the law of war by its terrorist adversaries, Israel would never be obliged to wage war in any fashion that could create civilian harms.
What about recurrent charges, from war to war, that Israel had committed 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 very beginning; that is, since the Jewish state first came into existence in May 1948. Only an armistice agreement exists between Israel and Lebanon. Signed on March 23,1949, this was not a war-terminating agreement, but merely a pledge (one still not honored by Lebanon) to cease active hostilities temporarily.
Legally, it is not possible for Israel to commit aggression against Lebanon. This is because the latter already considers itself in a formal condition of belligerency with the Jewish state. Israel cannot commit aggression against another state with which it is already at war.
Faced with multiple, and sometimes cooperating enemies on several fronts who often make no secret of their (literally) genocidal intentions, Israel has nonetheless managed to display an admirable respect for the law of armed conflict. Indeed, in starkly marked contrast to the conscious indiscriminacy of its terrorist foes in both Gaza and Lebanon, Jerusalem has actually been able to adhere to this law.
The authentic legal issue in recurrent Middle East conflict is not Israeli disproportionality, but rather a persistent enemy resort to terrorism and perfidy.
LOUIS RENÉ BERES, Professor of International Law at Purdue, was educated at Princeton (Ph.D., 1971). He is the author of many books and articles dealing with terrorism, international law and the law of war. Dr. Beres, Strategic and Military columnist for The Jewish Press, was born in Zürich, Switzerland, on August 31, 1945.
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