TERRORISTS ARE NOT "FREEDOM FIGHTERS"
By Professor Louis Rene Beres
March 13 2002
Supporters of Palestinian violence against Israeli citizens - even the most dreadful and barbaric shootings and bombings - frequently claim that struggle against "the occupation" warrants "any means necessary." From the standpoint of authoritative international law, this claim is entirely incorrect. Even where the use of insurgent force may be justified - and in the case of the Palestinians such justification is surely debatable - deliberate attacks upon noncombatants are always illegal. Indeed, there is no more ancient and sacred principle of law than the immutable imperative to protect the innocent.
"One man's terrorist is another man's freedom fighter." There is no basis in law for this facile and shallow expression. The issue here is not one of subjective interpretation. On the contrary, there exist precise and settled criteria that are readily available to distinguish one from the other. Any insurgent who intentionally causes the explosion and burning of women and children at lunch or at prayer or at a wedding ceremony or in a shopping mall is a terrorist. Period.
It is true that certain insurgencies can be judged lawful under international law. Yet, even these insurgencies MUST always conform to the laws of war. The ends can never justify the means in international law. Never. Where the insurgent group resorts to unjust means, its actions are unambiguously terroristic.
How shall we determine precisely when insurgent means are just or unjust? The determinable standards that must be applied in judgment are known in law as JUST CAUSE and JUST MEANS. These standards, and these 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 lawful or legitimate. Leaving aside the very doubtful argument that Palestinian organizations meet the standards of "national liberation," especially after the Barak Government offered the PA/PLO control of over 97% of West Bank (Judea/Samaria) and Gaza,it is assuredly clear that they do not meet the standards of discrimination, proportionality and military necessity. These standards, applicable under the Laws of War, have been applied to 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 binding upon all combatants by virtue of both customary and conventional international 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 (in this case, a Palestinian state built upon the charred ruins of a dismembered Israel) and once with regard to the justness of the means used in pursuit of that objective. A group of Palestinian organizations that deliberately targets indiscriminately with intent to maximize pain and suffering can never claim to be "freedom fighters."
American and European supporters of a Palestinian State presume that it will be part of a "two-state solution," that is, that the new Arab state will exist side-by-side with the existing Jewish State. Yet, this presumption is dismissed everywhere in the Arab/Islamic world. Indeed, the "Map of Palestine" at the official website of the Palestinian National Authority includes all of Israel. There are not two states on this map; only one. Palestinian insurgents who resort to terrorism against Israel will never acknowledge that a Jewish State has any right to endure. Why should this should be so difficult to understand when even the most "moderate" Palestinians themselves have been so cartographically honest on their own website?
Terrorist crimes, as part of a broader category called CRIMEN CONTRA OMNES (crimes against all), mandate universal cooperation in apprehension and punishment. In this connection, 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 is especially the case 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 formed by the Founding Fathers according to the timeless 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 barbarous attacks upon Israeli citizens. They must be treated accordingly.
© 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 BERES@POLSCI.PURDUE.EDU