By Louis Rene Beres

30 August 2003

The cycle is familiar. Palestinian terrorists maim and murder defenseless Israeli civilians - usually women and children - while those who command and control the mayhem remain in their cities, always careful to place themselves amidst densely-packed Arab populations. Special IDF counter terrorism units then attempt, meticulously, to identify and target only the terrorist leaders while minimizing collateral harms. Sometimes, however, such harms simply can't be avoided. At first glance, even essential Israeli self-defense reprisals that unwittingly harm noncombatants would appear to be a violation of the Law of War. In these instances, however, full legal responsibility for Arab civilian harms must fall entirely upon those Palestinian operational masterminds who deliberately place themselves alongside ordinary persons. More precisely, under international law these Palestinian leaders are guilty of the long-established crime known as "perfidy."

Deception can be legally acceptable in armed conflict, but the Hague Regulations clearly disallow placement of military assets or personnel in densely populated civilian areas. Further prohibition of perfidy is found at Protocol I of 1977 additional to the Geneva Conventions of 1949, and it is widely recognized that these rules are also binding on the basis of customary international law. Indeed, it is generally agreed that perfidy represents an especially serious violation of the Law of War, one identified as a "grave breach" at Article 147 of Geneva Convention IV. Significantly, the legal effect of perfidy committed by Palestinian terrorist leaders is to immunize Israel from any responsibility for counter terrorist harms done to Arab civilians. Even if Hamas and its sister terror groups did not deliberately engage in perfidy, any Palestinian-created link between civilians and terrorist activities would give Israel full legal justification for appropriate military action.

All combatants, including Palestinian fighters, are bound by the Law of War of international law. This requirement is found at Article 3, common to the four Geneva Conventions of August 12, 1949, and at the two protocols to these Conventions. Protocol I applies humanitarian international law to all conflicts fought for "self-determination," the stated objective of all Palestinian fighters. A product of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (1977), this Protocol brings all irregular forces within the full scope of international law. In this connection, the terms "fighter" and "irregular" are exceptionally generous in describing Palestinian terrorists, who normally target only noncombatants and whose characteristic mode of "battle" is not military engagement, but rather premeditated murder.

Israel has both the right and the obligation under international law to protect its citizens from criminal acts of terrorism. Should it ever decide to yield to Palestinian perfidy in its indispensable war against Arab terror, Israel would surrender this essential right and undermine this fundamental obligation. The net effect of such capitulation would be to make victors of the terrorists, a result that would (a) doubtlesly increase rather than diminish the overall number of noncombatant Jewish victims in the region; and (b) strengthen the resolve of Al Qaeda and its allied Islamic groups in their related terror war against the United States.

The reciprocal obligation of Israel's citizens to the Government in Jerusalem is dependent upon the Government's assurance of protection. Many major legal theorists throughout history - notably Bodin, Leibniz and Hobbes - understood that the provision of security is the first obligation of the state. "The obligation of subjects to the sovereign," says Thomas Hobbes in Chapter XXI of LEVIATHAN, "is understood to last as long, and no longer, than the power lasteth by which he is able to protect them." Just wars arise from a love of the innocent. Now in the midst of such a war against uniquely barbarous Arab terrorists, Israel must continue to use all necessary military force in order to avoid further mass murder of its citizens. Although perfidious provocations by Hamas or other Palestinian terror groups may again and again elicit Israeli reprisals that bring harms to Arab noncombatants, it is always these provocations - not Israel's defensive responses - that would be in violation of the Law of War.

In the final analysis, Israel will have no alternative to launching periodic self-defense attacks against terrorist targets. Such operations need not be injurious to noncombatant Palestinian populations so long as the terrorists do not seek to hide amongst these populations, using them as human shields. Bound by the Law of War of international law, these terrorists - whenever they choose to commit perfidy - will be legally responsible for all harms done to Arab civilians.


LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is Professor of International Law, Department of Political Science, Purdue University. He is the author of many books and articles dealing with terrorism and international law.

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