We Jews know a terrorist when we see one. Surely we don’t need the elegant refinements of international law to help us distinguish a suicide bomber from a freedom fighter. If it looks like a duck Nothing could possibly be easier to understand.
Still, from a practical standpoint, legal distinctions can often be quite helpful. What is obvious to us about terrorism is certainly not obvious to many others. Even after a monster in human form walks into an Israeli school, mall, or bakery and blows up innocent human beings within range, many in the “civilized” world will somehow find merit in the mayhem. Indeed, more often than we may care to admit, the journalists and pundits as well as ordinary observers will respond in partial or even full defense of the murderer. For them, terrorism has become just another form of revolutionary violence, and revolution, they presume, is always romantic and fundamentally good. Just ask almost any university professor, even in Israel.
But terrorism, especially suicide bombing, is never authentic revolution and it is never good. From the standpoint of authoritative international law, suicide bombers can never be considered “freedom fighters.” Jurisprudentially, there is simply no cause that can ever warrant the intentional mutilation and murder of civilians. By even the unwritten and merely customary standards of civilized human behavior, these actions are always criminal.
Supporters of barbarous Palestinian violence against Israeli citizens always claim that the insurgent Arab force is directed against an “occupation,” and thus warrants “any means necessary.” In law, this claim is altogether baseless and incorrect. Even where the use of insurgent force may actually be justified – and this is certainly not the case with Palestinian terrorism – deliberate attacks upon noncombatants are always illegal. There is no more sacred principle of law and justice than the imperative to protect the innocent.
“One man’s terrorist is another man’s freedom fighter.” Although repeated again and again, this contrived mantra has absolutely no grounding in law. There do exist very precise and settled legal criteria that distinguish the terrorist from the freedom fighter. According to international law, any insurgent who willfully causes the explosive incineration of men, women and children at lunch or at prayer or at a wedding ceremony or on a bus or at a shopping mall or at a bakery is a terrorist- period!
It is true that certain insurgencies can be judged lawful. Yet, even these insurgencies must conform to the laws of war. The ends can never justify the means. Wherever an insurgent group resorts to unjust means, as in the recent case of a blown-up family bakery in Eilat, its actions are unpardonable.
How shall we judge precisely when insurgent force is just or unjust? The determinable standards that must be applied are known in law as just cause and just means. These two standards, and these two standards alone, allow us to differentiate lawful insurgency from terrorism.
National liberation movements that fail to meet the test of just means are not protected as legitimate. Leaving aside the unsupportable argument that Palestinian organizations satisfy the legal standards of “national liberation”, it is abundantly clear that they do not meet the just means standards of discrimination, proportionality and military necessity. These formal criteria, long applicable under the Laws of War, have been applied to all insurgent organizations by the common Article 3 of the four Geneva Conventions of 1949 and by the two protocols to these Conventions of 1977. They are now directly binding upon all combatants by virtue of both customary and conventional international law, and – according to article 38 of the Statute of the International Court of Justice – by “the general principles of law recognized by civilized nations.”
Under law, the ends can never justify the means. As in the case of war between states, every use of force by insurgents must be judged twice, once with regard to the justness of the objective (the avowed Hamas/PA objective is a Palestinian state built upon the charred ruins of Israel) and once with regard to the justness of the adopted means. A Palestinian organization that deliberately targets civilians with an expressed intent to maximize pain and suffering can certainly never claim to be “freedom fighters.”
Ironically, as it continues with its present “surge” in Iraq, the Bush Administration still supports the idea of a “Road Map” to peace in the Middle East. Oddly enough, all American and European supporters of a Palestinian State continue to presume that it will somehow be part of a “two-state solution.” These smug supporters of Oslo-redux maintain that a 23rd Arab state will simply exist side-by-side with the existing Jewish State. Significantly, this curious presumption is dismissed everywhere in the Arab/Islamic world.
Terrorist crimes, as part of a broader category of harms called crimen contra omens (crimes against all), mandate universal cooperation in apprehension and punishment. As punishers of “grave breaches” under international law, all states are expected to search out and prosecute, or extradite, individual terrorist perpetrators. In no circumstances are any states permitted to characterize terrorists as “freedom fighters”. This prohibition is especially pertinent for the United States, which incorporates all international law as the “supreme law of the land” at Article 6 of the Constitution, and which was explicitly formed by the Founding Fathers according to the timeless and universal principles of Natural Law.
Palestinian terrorists are not “freedom fighters.” They are “common enemies of mankind” who exceed all moral and legal authority in their persistently cruel attacks. Until July 7, 2005, British newspapers had always referred to such murderers as “militants,” but when the al-Qaeda allies of Islamic Jihad and Hamas launched suicide attacks in London the media in Great Britain abruptly changed their vocabulary. Once the victims were Londoners, the perpetrators quickly became “terrorists.”
If it looks like a duck. Although obvious enough to us, the rest of the world often finds it convenient to confuse suicide bombers with freedom fighters. It follows that the unassailable criteria of international law do have their distinctly proper place in distinguishing one from the other, and that the architects of Israeli foreign policy would now do well to understand and to publicize these criteria.
Copyright, The Jewish Press, August 3, 2007. 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 and international law. He is Strategic and Military Affairs columnist for The Jewish Press.