“By Any Means Necessary” – Terrorism and Insurgency Under the Law

by Louis René Beres

Recently, following a previous history of Palestinian terrorist releases premised on furthering the “Middle East Peace Process,” Israel began the latest round of freeing designated criminals from its jails. Not only was this first-phase release (which included convicted murderers) unlikely to assist in achieving a lasting peace, it could even be argued to have been a violation of international law because of its probable effect on potential future violence.

From the standpoint of Palestinian insurgents, those being released are not terrorists or criminals, but rather “freedom fighters.”  For them, therefore, Mr. Netanyahu’s apparent magnanimity was actually little more than a lamentably belated recognition of their longstanding and commendably heroic stance on insurgency. This stance is that Palestinians have an unassailable legal right of “self-determination,” and, in consequence, are entitled to use “any means necessary” to bring about a fully lawful condition of full statehood.

At first, this position may sound quite reasonable, and perhaps, even intuitively correct. Still, jurisprudentially, at least, the opposite is true. It is never lawful to use “any means necessary” to create an independent state, even against an authentic “occupation.”

In this case, where there exists no authentic occupation, and where the means embraced by all Palestinian insurgent factions intentionally disregard the established jus in bello limits of the laws of war, the violations are plain and indefensible.  Of course, even if the relentless Palestinian calls for “national self-determination” were supportable in law – that is, even if there were a genuine “occupation” –  there would still remain certain fixed and determinable jurisprudential limits on permissible targets and levels of violence.

By virtue of the November 29, 2012 action by the UN General Assembly, the Palestinian Authority (PA) is now authorized to call itself a “nonmember observer state.” Although this designation does essentially by-pass the critical expectations of more pertinent legal rules, especially the Convention on the Rights and Duties of States (1934), the “Montevideo Convention,” most of the world is already prepared to accept the juridical reality of  Palestinian statehood. Nonetheless, any impermissible uses of insurgent force by assorted Palestinian factions, even if now approved by “Palestine,” would still constitute terrorism.

The always-limited rights of insurgency under international law can never include the willful targeting of civilians, or the intentional use of force to cause gratuitous pain and suffering. As examples, it is always terrorism when Palestinian insurgents murder Israeli families in their homes or automobiles by stabbing or shooting. Similarly, it is always terrorism when these insurgents place nail-filled bombs, dipped in rat poison, on Israeli buses.

Even under even their most generous definitions in jurisprudence, these rights can never supplant the settled or peremptory rules of humanitarian international law. Such rules are also popularly known as the law of war, or the law of armed conflict.

Supporters of Palestinian terror-violence against Israelis argue passionately that the preferred ends (Palestinian “independence”) necessarily justify the means (deliberate attacks upon Israeli civilians). Leaving aside the everyday and ordinary ethical standards by which any such argument must be construed as indecent, the ends can never justify the means under either conventional or customary international law. For more than two thousand years, rudimentary philosophical, religious, and legal principles have stipulated unambiguously that intentional violence against the innocent is always repugnant, and always prohibited.

International law is not always self-explanatory. As in the case of any formal and complex body of disciplined knowledge, some industrious study of jurisprudence is usually required. From the standpoint of authoritative international law, one man’s terrorist can never be another man’s freedom-fighter. Although fashionable to repeat at cocktail parties and gatherings of university professors, this facile expression is little more than an empty witticism; a narrowly propagandistic device, devoid of any serious jurisprudential meaning. It is true that certain insurgencies can sometimes be judged lawful (this is, after all, a distinctly founding principle of the United States Declaration of Independence), but even these selectively allowable resorts to force must still always conform to the laws of war.

Where an insurgent group resorts to attacks on civilians, its actions are always “terrorism.” Even if it limited its attacks to military targets, it would be in violation of both domestic and international law if it did not have formal “belligerent” status. And use of illegal weapons would be a violation of international humanitarian law. Even if ritualistic Palestinian claims of a hostile “occupation” were reasonable rather than purposely contrived, any related claims of entitlement to employ “any means necessary” would remain utterly false. Under international law, every use of force must be judged twice, once with regard to the justness of the cause (jus ad bellum), and once with regard to the actual means of fighting (jus in bello).

Significantly, these criteria are always separate and discrete.

Always, international law has very precise and determinable content. It cannot simply be invented and reinvented by terror groups or “nonmember observer states” simply to satisfy their particular interests. This is especially the case where terror violence intentionally targets a country’s most fragile and vulnerable civilian populations.

National liberation movements that fail to meet the test of just means are never protected as lawful or legitimate. Even if one were to accept the argument that Hamas and its sister groups somehow meet the struggle criteria of “national liberation,” it is still clear that they do not satisfy the critically-relevant legal standards of discrimination, proportionality, and military necessity. These standards 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 also binding upon all combatants by virtue of broader customary and conventional international law, including Article 1 of the Preamble to the Fourth Hague Convention of 1907. This rule, called the “Martens Clause,” makes all persons responsible for the “laws of humanity,” and for the associated “dictates of public conscience.”

Under international law, even at the hands of a “nonmember observer state,” 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 to be built explicitly upon the charred ruins of a pre-existing Jewish state), and once with regard to the justness of the means used to reach that objective.

In law, the murderers of young children who take an unhidden and often atavistic delight in the blood of their victims, are never “freedom fighters.” If they should ever become entitled to any such exculpatory designation, we would then have to concede that international law itself had become little more than a nicely-veneered authorization for the commission of evil.

American and European supporters of a Palestinian State continue to presume that this entity will be part of a “Two-state solution.” For these persistent believers in “peace,” it is presumed, a 23rd Arab state will obediently coexist with an extant Jewish State. Oddly enough, this kindly presumption is dismissed everywhere in the Arab/Islamic world itself.

Cartographically, the “Map of Palestine” at the official website of the Palestinian National Authority and of Hamas, still includes all of Israel.

 Only one state is depicted on this map. That state is not the State of Israel.

Terrorist crimes always mandate universal cooperation in apprehension and punishment. 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 emphatically true for the United States, which incorporates treaties as the “supreme law of the land” at Article 6 of the Constitution (although not all treaties are self-executing), and incorporates portions of customary international law through judicial decisions, most notably the Paquete Habana (US Supreme Court 1900). Under Natural Law, which represents the canonic legal foundation of the United States Constitution – what Blackstone declared reflects “the eternal, immutable laws of good and evil, to which the Creator himself in all his dispensations conforms” – every state has an obligation of self-preservation, Wherever a government acts contrary to this core obligation, which is assuredly the case with Israel’s recurrent freeing of Palestinian terrorists, these actions, inter alia, warrant far-reaching citizen opposition.

The theory of Natural Law, which, ironically, has certain discernible roots in the Hebrew Bible, is based on clarity, self-evidence, and coherence. Its validity cannot be shaken by the presumed imperatives of geopolitics, even when a particular prime minister of Israel should feel that manifestly contrary actions are called for. Even if the Netanyahu Government takes seriously the expectation of peace in exchange for recently released terrorists, it still lacks altogether the authority to cancel always-overriding legal rules.

International law, which is founded upon a variety of Natural Law foundations, forms part of the law of every state, including the State of Israel. This is the case whether or not the incorporation of international law into municipal law is codified explicitly, as it is in the United States. It follows that the Government of Israel is bound by pertinent norms of international law concerning the proper punishment of terrorist crimes, and that any intentional release of terrorist criminals in a presumed gesture for peace is both illegal and inexcusable.

Louis René Beres was educated at Princeton (Ph.D., 1971), and is the author of many books and articles dealing with terrorism and international law. Dr. Beres, Professor of International Law at Purdue, was born in Zürich, Switzerland, on August 31, 1945.