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On Hamas "Freedom Fighters": The View From International Law20 August 2003
Even now, even after repeated Hamas suicide-bomb attacks on Israeli buses, pizza restaurants, ice-cream parlors, kibbutz nurseries and preschools, some still argue passionately that the ends of barbaric Palestinian violence justify the means — that an end to the so-called Israeli "occupation" justifies premeditated murder of any and all Israelis. Leaving aside both ordinary ethical standards (by which this argument is manifestly indecent) and the uncontested fact that Israel came into inadvertent control of West Bank and Gaza in 1967 because of undisguised Arab aggression, the ends can never justify the means under authoritative international law. On the contrary, for more than two thousand years, binding legal rules of world politics have stipulated that intentional violence against the innocent is always repugnant and always prohibited. From the standpoint of international law, one man's terrorist can never be another man's freedom-fighter. This empty witticism, although now repeated ritually by various unschooled newspaper reporters and by smooth radio and television pundits seeking to appear clever, is jurisprudentially meaningless. It is true, to be sure, that certain insurgencies can indeed be judged lawful (a judgment without which the United States of America would never have been properly constituted), but even these permissible resorts to force must always conform to the laws of war. Wherever an insurgent group resorts to unjust means, its actions are unambiguously terroristic. The rules of war bind all belligerents,insurgents as well as states. It follows that even if Hamas claims of an Israeli "occupation" were correct rather than concocted, their corresponding claim of entitlement to oppose Israel "by any means necessary" would remain unsupportable.
International law has determinable form and content. It cannot be invented and reinvented by terror groups merely to accommodate their own adversarial interests. This is especially the case where terror violence purposely targets infants, children and the elderly, the quintessentially characteristic targeting signature of Hamas and its many Palestinian cousins.
There are fixed and precise standards that must be applied in judgment of all insurgent resorts to violence. These standards are known in law as just cause and just means. These standards, and these standards alone, allow us to distinguish lawful insurgency from terrorism. When they are applied to Hamas, the distinction is not difficult to make. According to the explicitly genocidal Charter of Hamas: "The time (salvation) will not come until Muslims will fight the Jews and kill them." This fight is against all Jews: "The Nazism of the Jews," says the Charter, "does not skip women and children...." every Jew, therefore, is a proper target.
Palestinian terrorists believe that they have just cause because they legally deserve a state; because there is under authoritative international law a general right of "peoples" to "self-determination." But the proposed Palestinian state of the Road Map is openly intended to be built upon the mutilated corpse of an existing state, the Jewish State of Israel. There are no two states in the Palestinian Final Solution. What is currently called Israel or "The Zionist Entity" is merely "occupied Palestine." Returning to the precise words of the Hamas Charter: "Israel will rise and will remain erect until Islam eliminates it as it had eliminated its predecessors."
On the very same day that he signed the Declaration of Principles in 1993, Yasser Arafat addressed the Palestinian people on Jordanian television. There he assured his listeners that Oslo I was nothing more than a codified implementation of the 1974 PLO "Plan of Phases," a 10-point scheme for the incremental destruction of Israel. "The first stage," said Arafat, "is the establishment of a national authority on any part of Palestinian soil that is liberated or from which the Israelis withdraw." Exactly the same assertion was repeated by Chairman Arafat after the signing of Oslo II.
Let us return to the other legal criterion of permissible armed force. National liberation movements that fail to meet the test of just means are never protected as lawful or legitimate. Even if we were to accept the historically spurious argument that Hamas and its sister Palestinian organizations somehow meet the standard of "self-determination,"and even if we were to overlook undisguised Palestinian designs for Israel's annihilation, it is clear that Palestinian resorts to force do not meet the meager minimum legal standards of discrimination, proportionality and military necessity. These are the relevant standards applicable under the laws of war of international law. They 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 the "dictates of public conscience."
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 built directly upon the charred ruins of Israel) and once with regard to the justness of the means used in pursuit of that objective. A group that deliberately targets defenseless noncombatants with open intent to maximize suffering (Hamas bombs are carefully filled with nails, screws and razor blades) can never claim to be "freedom fighters." In this connection, it is hardly surprising that Hamas — representing the single most anti-American people on earth — is now openly forging ever-stronger ties to Al Qaeda. What IS surprising is that $100 million American tax dollars are being funneled to the Palestinian Authority.
Contrary evidence notwithstanding, American and European supporters of the "Road Map" stubbornly insist that a Palestinian state would be part of a "two-state solution," that is, that the new Arab state would exist side-by-side with the existing Jewish State. Yet, this presumption is dismissed not only by Hamas, but even by more "moderate" sectors of the Palestinian community. The "Map of Palestine" at the official website of the Palestinian National Authority still includes all of Israel. There are not two states on this map; there is only one.
Terrorist crimes, as part of a broader category called Crimen Contra Omnes ("Crimes Against All"), mandate universal cooperation in apprehension and punishment. In this connection, 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 all international law as the "supreme law of the land" at Article 6 of the Constitution, and which was formed by the Founding Fathers according to the timeless Jewish principles of Higher Law. In these principles, G-d is always the ultimate source of all law. The Torah reflects both G-d's transcendence and G-d's immanence. The basis of obligation always inheres in the law's transcendent nature.
Hamas terrorists can never be "freedom fighters." They are, rather, Hostes Humani Generis, "Common Enemies of Mankind." Any further linguistic association of Palestinian murderers with "freedom" would only undermine the fragile legal structure of civilized international relations. Without this structure, anarchy would soon reign supreme in the bloodstained Middle East, passionate Islamic intensity would displace all reasoned conviction and the already-imperiled ceremony of innocence would finally drown.
Louis Rene Beres (Ph.D., Princeton, 1971), Professor, Department of Political Science, Purdue University, lectures and publishes widely on Israeli strategic matters. His work is well-known to Israel's military and academic communities. He is also the academic adviser at the Freeman Center for Strategic Studies, a Houston-based research facility and political action group.
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