It is easy to condemn Israel with rhythmic chants of “disproportionality.” Yet, competent legal scholars will always acknowledge the vital evaluative significance of context.
It should be clear, until now, that any seemingly disproportionate use of force by the Israel Defense Forces had actually been the permissible outcome of antecedent and perfidious crimes committed by its enemies. What about charges, from one war to the next, that Israel had committed “aggression” in Lebanon? At Lebanon’s insistence, certainly not Israel’s, a formal state of war has existed between the two tiny countries since the Jewish State came into existence in May 1948. Only an armistice agreement obtains between Israel and Lebanon. Signed on March 23,1949, this was not a war-terminating agreement, but merely a pledge to “cease fire.”
Legally, it is not possible for Israel to commit aggression against Lebanon. This is because the latter already considers itself in a formal condition of belligerency with the Jewish State. Israel cannot commit aggression against another state with which it is already at war.
Faced with multiple and sometimes cooperating enemies on several fronts who often make no secret of their genocidal intentions, Israel has nonetheless adhered to the law of war. Indeed, in starkly marked contrast to the conscious indiscriminacy of its terrorist foes in Gaza, Judea/Samaria (West Bank) and Lebanon, Jerusalem has struggled mightily to respect this law.
The authentic legal issue in recurrent Middle East conflict is not Israeli “disproportionality” or “aggression,” but rather a persistent enemy resort to terrorism and perfidy. Notwithstanding foreseeable U.S. and Israeli objections to any Fatah/Hamas merger, neither Palestinian party has any effective reason to refrain from further terrorism against Israel. Already engaged in a far-reaching diplomatic end-run around Jerusalem, neither Fatah nor Hamas will require Prime Minister Netanyahu’s negotiated approval to proceed toward complete Palestinian sovereignty.
In September, probably with very little prodding, the U.N. will take up the issue of membership for “Palestine.” Almost certainly, although any such consideration would likely not meet the more stringent requirements of statehood that were formally established at the 1934 Convention on the Rights and Duties of States (Montevideo Convention), a generally-recognized and totally militarized Palestinian state would then become a fait accompli. Should this U.N. conferral of sovereignty be implemented, Israel’s starkly limited future will be discoverable in Article 12 of the PA (Fatah) Charter, which calls for “the liberation of Palestine completely….,” and in Article 19: “The struggle will not end until the elimination of the Zionist entity and the liberation of Palestine.”
As for the less-moderate Hamas Covenant (Charter of the Islamic Resistance Movement), it begins with Israel’s annihilation: “Israel will exist and will continue to exist until Islam will obliterate it….” Significantly, especially in view of what is still happening in Egypt, the Covenant refers to Hamas as “one of the wings of the Muslim Brotherhood in Palestine.”
In the Middle East, wishful thinking is always perilous. Israel’s enemies plainly have no regard for compliance with the law of war. Once granted a new state carved out of Israel’s still-living body, “Palestine” would enthusiastically seize new opportunities not “only” for war and terrorism, but also (in the literal jurisprudential sense of pertinent international treaties) for genocide.
In the final analysis, Fatah/Hamas seek not to enlarge a secular power over life, but rather a supremely religious power over death.
Is there any power in world politics or diplomacy that can conceivably compete with such a sacred promise of immortality?
Louis René Beres is Professor of International Law at Purdue. Educated at Princeton (Ph.D., 1971), he is the author of many books and articles dealing with terrorism, international law and the law of war. He has counseled governments in Washington and Jerusalem.
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