War & Responsibility

any people, in Israel and abroad, have said that the Israeli strike in Gaza against the number-two man in the terrorist Hamas organization, Salah Shehadeh, was mistaken on several levels. One criticism focuses on the large number of Arabs killed, including children, in the Gaza raid against the terrorist leader. Another criticism focuses on the policy of assassinating terrorist leaders in general, saying that, in fact, such raids do not prevent terrorism, rather they encourage retaliation by the organization thus struck. And a final criticism relates to the timing of the Shehadeh assassination specifically, claiming that the Hamas was on the verge of agreeing to a ceasefire with Israel.

Echoes of all of the foregoing criticisms could be heard in Tuesday's press briefing with White House press secretary Ari Fleischer. According to Fleischer, "Israel needs to be mindful of the consequences of its actions in order to preserve the path to peace in the Middle East. The president views this as a heavy-handed action that is not consistent with dedication to peace in the Middle East." When a journalist challenged Fleischer to differentiate between Israel's bombing of the Gaza home of Shehadeh and the American bombings in Afghani cities, the press secretary replied, "It is inaccurate to compare the two. And the crucial difference here being that in this instance, in Gaza, this was a deliberate attack against a building in which civilians were known to be located. What's always important is in pursuit of the military objectives, as the United States does in Afghanistan, to always exercise every restraint to minimize those losses of life. But in this case, what happened in Gaza was a knowing attack against a building in which innocents were found."

The criticism that focuses on the noncombatant Arab deaths in the Gaza raid contains within it a moral posturing that asserts that Israel was wrong to endanger Arab noncombatants in its strike against Shehadeh. On the contrary, I suggest that it would have been supremely immoral to have allowed an opportunity to eliminate one of the heads of the Hamas to pass by, even if he attempted to use his family and other noncombatants as human shields. Any decision to forego the strike because of the fear of killing noncombatant neighbors of the enemy leader would have been tantamount to sacrificing Israeli civilians for the sake of Arab civilians. Israeli defense minister Benjamin Ben-Eliezer revealed today that Shehadeh was in the process of planning a mega-terror attack. The strike against the Hamas leader, therefore, was timed to prevent that eventuality, with the understanding that hesitation may have cost many Israeli lives. Clearly, the potential Israeli victims of Shehadeh-masterminded terrorism are, properly, the priority of the Israeli government, not the Arab lives that PLO and Hamas terrorists endanger by their choice of headquarters.

This understanding of the Israeli raid is not just the province of Israelis. International law, according to Professor Louis Rene Beres of Purdue University, supports the right of a state to strike its enemies, even as they hide among noncombatants. In an article entitled, "Atrocities, Retaliations and the Laws of War," Prof. Beres explains, "The Hague Regulations in the Laws of War allow 'ruses,' but disallow treachery or perfidy." What is "perfidy" in war? "Perfidy." the professor writes, "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." The result of the act of "perfidy" on the part of the PLO and Hamas is "[e]xemption (in this case, for Israel) from the normally operative rules on targets." In short, Professor Beres concludes, "the legal responsibility for this tragedy lies entirely with those whose perfidious conduct brought about such harms. [While] Israel has the right and the obligation under national and international law to protect its citizens from criminal acts of terrorism."

The other criticism of the elimination of the Hamas leader is that it will lead to "retaliation" or "revenge" attacks by the Hamas. What form would the Hamas "revenge" take, one wonders. Suicide bombings, perhaps? Shootings? Isn't that what the Hamas has been engaged in for the past eight years, while Shehadeh was alive and well? In the past two years alone, the Hamas has been responsible for some of the worst attacks on Israeli civilians, including the gruesome suicide bombing at the Dolphinarium seaside discotheque, which killed 21 teenagers, the Sbarro's pizzeria bombing in Jerusalem, which killed 15 men, women, and children, and the infamous Netanya hotel bombing, which killed 29 Jews attending a Passover meal, and many other terrorist attacks taking the lives of dozens of Israeli civilians. What makes a potential suicide-bombing attempt next week different from last week's suicide bombing, which killed four people in Tel Aviv? In any event, a bit of research in the Israeli press reveals that the Hamas threatens "retaliation" and "revenge" about once every two weeks. All that can be said for certain regarding future Hamas activity is that Salah Shehadeh will never again plan another suicide bombing.

Lastly, some commentators claimed that the Hamas was on the verge of agreeing to a ceasefire with Israel. The unasked question is what is Israel's interest in a ceasefire with the Hamas? The Hamas covenant explicitly calls for the elimination of Israel and the mass killing of Jews. They have pursued that policy doggedly, as their bloody record shows. On the contrary, if the Hamas really was seeking a ceasefire, that is a sure sign that the current Israeli policy of targeted killings has been working and it should be pursued with increased vigor. According to Israeli secret-service reports, the Hamas has already lost its entire leadership infrastructure in Judea and Samaria thanks to Israeli counterterror activities there. Ultimately, a "ceasefire" will be obtained by virtue of the fact that there will remain no Hamas leaders alive or freely roaming the cities of Gaza, either.

One final point. The criticisms leveled by Western states against Israel for the Gaza operation ring particularly hollow when examined in light of the wartime behavior of those very nations themselves. Yoram Ettinger, Israel's former liaison to the United States Congress, speaking with the Arutz Sheva Israeli radio station this week, pointed out that "[I]n 1989, the US invaded Panama City in order to extract [the ruling strongman Manuel] Noriega, using jets and helicopters. Six hundred civilians were killed in that raid, according to American estimates, and thousands were wounded. Then [U.S. chairman of the Joint Chiefs of Staff,] whose name was Colin Powell, said at the time that the appropriate amount of force was used 'and we have no need to apologize.' The Attorney General at the time, Dick Thornburg, said that the U.S. was operating according to the U.N.'s clause 51 allowing self-defense.. In 1993, in response to the killing and mutilation of 15 U.S. soldiers, the U.S. Air Force bombed Somalia, turning an entire area basically into a parking lot, killing over 1,000 citizens. Again the US said that it was self-defense." Ettinger reminded listeners of the comments by U.S. Secretary of Defense Donald Rumsfeld in reply to critics citing the numbers of civilians killed in the American assault on the Taliban in Afghanistan: "This is a war that has been forced upon us by terrorists. We are making great efforts not to hurt civilians, but if civilians are hurt, the entire responsibility for such is upon the terrorists who use them as cover," said Rumsfeld.

The following article was quoted by Mr. Nissan Ratzlav-Katz. It was posted on FR in March 2002: http://www.freerepublic.com/focus/news/644369/posts

I believe it worth reposting:

Atrocities, Retaliations and the Laws of War

by Prof. Louis Rene Beres
March 10, 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. Yet, 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 that blames America for harm 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, using nail-studded bombs, upon Jews leaving the synagogue 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 - for example, the jamming of communications - are likewise allowed. 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 civilian 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 practitioners 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.
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Professor Beres , author, columnist and past consultant on the Laws of War in Washington and in Jerusalem, is a professor of International Law at Purdue University.

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