Wednesday, April 20, 2016

Bernie Sanders, Israel, and the law of war - Prof. Louis René Beres




by Prof. Louis René Beres


Senator Sanders, please take note. All combatants, including Palestinian "insurgents" allegedly fighting for "self-determination," are bound by the law of war.

Somehow, Senator Bernie Sanders fancies himself an informed judge on the laws of war - alternately  referred to as either "humanitarian international law," or the "law of armed conflict" -  but his current judgments are woefully incorrect. In accusing Israel of using "disproportionate force" against Palestinians, this "shoot-from-the-hip" presidential aspirant ignores both the critical regional context of Israel's self-defense responses to terrorism, and the authentic legal meaning of "proportionality." In essence, although plainly unknown to the Senator, this meaning has nothing to do with equivalence, or with any obligatory legal matching of reprisals against Palestinian force.

Jurisprudentially, the rule of proportionality is never merely a matter of "common sense." It is, rather, an established norm of long-settled, codified, and customary international law. More precisely, this authoritative rule stipulates, among other things, that every belligerent's resort to armed force be purposely limited to what is presumed necessary to meet appropriate military objectives.

Under no circumstances, does this binding principle suggest that each party to an ongoing conflict must intentionally seek to impose only symmetrical harms upon the enemy. If that sort of "common sense" suggestion were actually correct, there would then be no modern historical equivalent to America's grievously "disproportionate" attacks on European and Japanese cities during World War II. Indeed, by that inapplicable standard, Dresden, Cologne, Hiroshima and Nagasaki would represent the documented nadir of inhumane belligerency; unassailably, the modern world's very worst violations of the law of war.

In all war, whether fully-blown world wars, or regional counter-terrorist operations, legal judgments need not be made in an historical vacuum.

In all war, in other words, background "counts."

Somehow, in the seemingly endless Palestinian “holy war” against Israeli noncombatants, most recently, hideously random stabbings, background is conveniently glossed-over.

Significantly, Hamas, FatahIslamic Jihad, and related terror groups, operating comfortably from Gaza, always take steps to ensure that Israeli reprisals will in fact kill or injure Arab noncombatants. By carefully placing elderly women and young children in those very areas from which Arab rockets are routinely launched into Israeli homes, hospitals, and schools, Palestinian leaders - not Israeli defenders - openly violate the most fundamental expectations (more technically, "peremptory" or "jus cogens" expectations) of the laws of war.

Somehow, Senator Sanders always fails to mention this antecedent point.

Nonetheless, in law, any use of  "human shields" represents substantially more than simple immorality or cowardice. It further expresses a starkly delineated crime. The correct legal name for this egregious "delict" is “perfidy.”

Perfidy is identified as a "grave breach" at Article 147 of Geneva Convention IV. To be sure, deception can often be legally acceptable in armed conflict, but the Hague Regulations specifically disallow any placement of military assets or personnel in populated civilian areas. Related prohibitions of perfidy can be found at Protocol I of 1977, additional to the Geneva Conventions of August 12, 1949.  These rules are also binding on the discrete but still-intersecting basis of customary international law, a source identified properly at Article 38 of the Statute of the International Court of Justice.

Senator Sanders, please take note. All combatants, including Palestinian insurgents allegedly fighting for "self-determination," are bound by the law of war. This core requirement is found at Article 3, common to the four Geneva Conventions of 1949.

Also worth considering is that some Palestinian terror groups, at least eventually, seek to prepare for full-fledged mega-terror attacks on Israel. Such aggressions, plausibly unprecedented, and possibly even in cooperation with certain allied non-Palestinian Jihadists, could include chemical and/or biological weapons of mass destruction. Over time, especially if Iran should agree to transfer portions of its still-substantial inventory of nuclear materials to certain proxy terror groups, Israel could have to face Palestinian-directed nuclear terrorism.[1] 

Also possible is that ISIS or ISIS-type surrogates would sometime displace any formal leadership in "Palestine," and that Israel (and its allies) could then have to face an even more insidious source of atomic terror.

 Always, however perilous the perceived threat (and conspicuously unacknowledged by Senator Sanders), Israel has sought to keep its essential counterterrorism operations consistent with applicable law. For their part, however, Palestinian fighters remain in deliberate and persistent violation of all pertinent rules of civilized military engagement.

Moreover, terror-violence launched from Gaza has only accelerated after Israel very painfully left the area in 2005.

Senator Sanders, kindly take note. Terrorism is far more than bad behavior. Always, terrorism is a distinct crime under international law.

Senator Sander's jurisprudential reasoning notwithstanding, the Palestinian side must bear full legal responsibility for Arab civilian casualties in Gaza. Absent their pre-meditated attacks on Israeli civilian populations, there would be no reciprocal Palestinian harms. Not ever!

International law, Senator Sanders, is not a suicide pact. Meaningfully, it offers an authoritative body of rules and procedures that very clearly permits a beleaguered state - any beleaguered state - to express its "inherent right of self-defense." When Arab terrorist organizations cheerfully celebrate the explosive "martyrdom" of Palestinian children, and when Palestinian leaders unashamedly seek a religious "redemption" through the mass-murder of Jewish children, the terrorists have absolutely no legal claim to "sanctuary."

Under international law, Senator Sanders, note that these criminals are called Hostes humani generis, or "Common enemies of humankind." Unambiguously, in law, such a category of murderers must be punished severely, and wherever they are found. Concerning their required arrest and prosecution, jurisdiction is now termed, after Nuremberg (1945-46) “universal.”

Also relevant is that the historic Nuremberg Tribunal strongly reaffirmed the ancient legal principle of Nullum crimen sine poena, or "No crime without a punishment."

There is a manifestly non-legal but still significant point that is germane to Senator Sanders' assessment of Israeli "disproportionality." Predictably, those Palestinian commanders who directly control terror-mayhem against Israel cower unheroically in their towns and cities, taking meticulous care to discover personal safety amid densely-packed and PA/Hamas-exploited local Arab populations.

Too often, it seems, these commanders, not particularly eager to become "martyrs" themselves, manage to escape Israeli self-defense reprisals, but only because Israel insists upon very close adherence to a "Purity of Arms."

Senator Sanders' comments notwithstanding, there is no army on earth that adheres more strictly than the IDF to such self-limiting moral expectations.

Plainly, Senator Bernie Sanders is thoroughly unfamiliar with the laws of war of international law. Perhaps just as seriously, he also fails to recognize that these vital laws are an integral and incorporated part of the domestic or municipal law of the United States. This is the case by virtue of  the Constitution, especially Article 6 (the so-called "Supremacy Clause"), and because of several corollary Supreme Court decisions, particularly the Paquete Habana (1900).

In essence, this means that Senator Sanders' blatant misuse of relevant international law simultaneously represents a wrongful interpretation of American Constitutional law.

[1] Professor Beres is author of one of the earliest books on the subject of nuclear terrorism: Terrorism and Global Security: The Nuclear Threat (Boulder, Colorado: Westview Press, 1979).


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. His twelfth and just-published book is titled Surviving Amid Chaos: Israel's Nuclear Strategy (Rowman & Littlefield, 2016).
https://rowman.com/ISBN/9781442253254/Surviving-Amid-Chaos-Israel's-Nuclear-Strategy#


Source: http://www.israelnationalnews.com/Articles/Author.aspx/74

Copyright - Original materials copyright (c) by the authors.

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