PALESTINIAN ATROCITIES, ISRAELI RETALIATIONS AND THE LAW OF WAR
By Prof. Louis Rene Beres
March 6, 2002
The cycle is familiar. Palestinian terrorists intentionally attack Israeli women and children. Israel, having absolutely no choice, retaliates against PLO infrastructures, aiming exclusively and conscientiously at military targets. But sometimes Israeli fire unavoidably kills and injures Palestinian noncombatants, creating the false impression of lawlessness on both sides. This delusionary view can be compared to an interpretation of current U.S. attacks against al-Qaida fighters which blames this country for harms done to Afghan civilians.
It is important to better understand the profound moral and legal differences between Palestinian terrorism, which is always deliberately barbarous and indiscriminate, and Israeli retaliations, which are always consciously designed to AVOID civilian casualties. From the standpoint of international law, two points must be made. First, the criminal intent of Palestinian terror represents an incontestable violation of humanitarian rules of armed conflict. It is essential, therefore, to distinguish between such terror and Israeli responses to terror, which are never intended to harm innocent parties. When television news reports create parallel images between Palestinian attacks upon Jews leaving the synagogue with nail-studded bombs and Israeli reprisals against PLO targets with infantry and air-launched missiles, they obscure an essential truth: The Palestinian resort to violence is grotesque and gratuitous, seeking only to inflict maximum pain and suffering upon the innocent, while the Israeli use of force is designed only for survival and self-protection. Does anyone really believe that Israel would use armed force against any Arab targets if the Palestinians ceased their campaign of mayhem and murder?
There is a second point. Ordinary people watching the evening news now routinely see pictures of Israeli reprisals against "refugee camps." What they are not told is that these camps are the constructed sources and seedbeds of anti-Israel terrorism, and that the deliberate PLO/PA use of these camps for such criminal purpose is an example of "perfidy" in international law. In the case of calculated Palestinian placement of Arab civilians in harm's way, it is a crime that assigns full legal responsibility for Palestinian losses with the PLO and Palestinian Authority.
The PLO/PA practice of intentionally placing its terrorist forces and assets in the midst of civilian populations is unequivocally a war crime. Although it is certainly true that the Law of War is designed to protect all noncombatants from armed attack, this authoritative body of rules also makes it perfectly clear that responsibility for civilian harms must ultimately rest with the side that engages in perfidy. When IDF infantry from the Golani and Paratrooper brigades, in coordination with armored units, head into the Jenin and Balata camps to root out would-be Palestinian suicide bombers, full responsibility for resultant civilian casualties rests with Yassir Arafat.
Deception can be an essential and acceptable virtue in warfare, but there is a meaningful distinction between deception or ruse and perfidy. The Hague Regulations in the Laws of War allow "ruses" but disallow treachery or perfidy. The prohibition of perfidy is reaffirmed in Protocol I of 1977, and it is widely and authoritatively understood that these rules are binding on the basis of general and customary international law.
What, exactly, are the differences between permissible ruses and perfidy? The former include such practices as the use of camouflage, decoys, and mock operations. False signals, too, are allowed; as an example, the jamming of communications.
Perfidy, on the other hand, includes such treacherous practices as improper use of the white flag; feigned surrender or pretending to have civilian status. It especially constitutes perfidy to shield military targets from attack by placing or moving them into densely populated areas or to purposely move civilians near military targets. Indeed, it is generally agreed that such treachery represents the most serious violation of the Law of War, what is known as a "Grave Breach." The legal effect of such perfidy - the practice now engaged in by the PLO/PA - is this: Exemption (in this case, for Israel) from the normally operative rules on targets. Indeed, even if the PLO/PA had not intentionally engaged in treachery, any Palestinian link between protected persons and military activities would place all legal responsibility for Arab civiian harms squarely upon Yassir Arafat.
None of this is meant to suggest that terrorism represents a permissible use of force under international law. By its very nature, the PLO/PA plan of violence is overwhelmingly illegal. At the same time, the rules of war are as binding upon Palestinian terrorists as they are upon Israeli or American uniformed military forces. This is the result of a binding jurisprudential expansion of the laws of war at the common Article 3 of the four Geneva Conventions of 1949 and at the two protocols to these Conventions of 1977.
The recent harms to Arab civilians in PA Area A caused by Israeli reprisals are tragic and deeply regrettable, but the legal responsibility for this tragedy lies entirely with those whose perfidious conduct brought about such harms. Moreover, Israel has the indisputable right of self- defense against terrorist attacks originating from this territory, both the post-attack right codified at Article 51 of the UN Charter and the customary pre-attack legal right called "anticipatory self-defense." Israel has the right and the obligation under national and international law to protect its citizens from criminal acts of terrorism. Should Prime Minister Sharon ever decide to capitulate to perfidy and restrict essential retaliations accordingly, the State of Israel would surrender this basic right and undermine this basic obligation. The net effect of such capitulation would be to make victors of the terrorists, an effect that would assuredly increase rather than diminish the overall number of civilian victims, in both Israel and in the Palestinian territories.
"Just wars," we learn from the seventeenth-century legal philosopher Hugo Grotius (a major source for Thomas Jefferson in writing the Declaration of Independence). "arise from our love of the innocent." Recognizing this, Israel - confronted by Palestinian terrorists who now seek to soften Israel for much larger forms of civilian destruction - must continue to use all applicable military force within the boundaries of humanitarian international law. Although perfidious provocations by the PLO/PA might elicit Israeli actions that bring harms to noncombatant Palestinian populations, it is these provocations, not Israel's response, that would be in serious violation of international law.
International law is not a suicide pact. Faced with a murderous terrorist adversary that persistently follows an announced strategy of unrestrained barbarism, Jerusalem cannot permit egregious Palestinian manipulations of civilian populations to preclude needed uses of Israeli military force. Rather, Israel must now make the entire international community aware that perfidy is a crime under international law, and that it is the Arab practicioners of perfidy, not those who are strategically disadvantaged by such a practice, that must be identified and punished as war criminals.
In the final analysis, Israel has no alternative to maintaining lawful self-defense operations against the Palestinian terrorist forces. Such operations need not be injurious to noncombatant populations so long as the PLO/PA do not seek to hide behind these populations as human shields. Bound by the laws of war of international law, these terrorists, whenever they choose to commit perfidy, are the responsible party for all resultant harms done to Palestinian civilians.
© Louis Rene Beres, All Rights Resrved
LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is author of many books and articles dealing with the Law of War. He has been a consultant on this matter in both Washington and Jerusalem. Professor Beres's columns appear often in major American, Israeli and European newspapers.Louis Rene BeresProfessor of International LawDepartment of Political SciencePurdue UniversityWest Lafayette IN 47907 USAE MAIL [email protected]