Written for Arutz Sheva. An expert in international law weighs in on the proposal to achieve a ceasefire with Hamas.
Any time there is an announced “cease fire” between Israel and Hamas, it wrongly and foolishly bestows upon that terror organization
(1) an expressly legitimate status under international law; and
(2) a clear and newly incontestable condition of legal symmetry between the parties.
This is never a tolerable jurisprudential arrangement for Israel.
Moreover, no proper system of law can ever permit any sort of compromise or accommodation by a government with criminal organizations, even, in the case of Israel and Hamas, one that might involve a somewhat less formal arrangement than the currently proposed cease fire.
It follows that Israel ought never to unwittingly prop up its criminal adversary in Gaza by agreeing to a cease fire or similar “armistice”; instead, it should proceed immediately to do whatever is needed operationally, while simultaneously reminding the world that the pertinent conflict is between a fully legitimate sovereign state (one that meets all criteria of the Convention on the Rights and Duties of States, 1934) and an inherently illegal insurgent organization that meets none of these criteria, and that routinely violates all vital precepts of the law of armed conflict.
Hamas’ inherent illegality is readily deducible from the far-reaching codified and customary criminalization of terrorism under authoritative international law, and can never be challenged by even well-intentioned third parties (e.g., the United States) in the presumably overriding interests of “peace.” This is true even if Hamas were somehow mistakenly acknowledged to have “just cause” for its insurgency
Since the Hebrew Bible, there have always been clear and determinable rules of warfare. Now, moreover, especially since prominent codified changes enacted in 1949 and 1977, these rules bind all insurgent forces, not only uniformed national armies. In modern usage, they derive most plainly from the St. Petersburg Declaration (1868), which, in turn, followed upon earlier limitations expressed at the First Geneva Convention of 1864.
In any conflict, the means that can be used to injure an enemy are not unlimited. It follows that no matter how hard they may try to institute certain self-serving manipulations of language, those who would identify the willful maiming and execution of noncombatants in the name of some abstract ideal – any ideal – are always misrepresenting international law.
Whenever Palestinian insurgents (Hamas; Fatah; Popular Front for the Liberation of Palestine; Islamic Jihad, it makes no difference) claim a legal right to use “any means necessary,” they are attempting to deceive. Even if their corollary claims for “national self-determination” were in some fashion legally supportable, there would remain fully authoritative limits on permissible targets and weapons.
Under binding humanitarian international law, the ends can never justify the means.