Middle East and Terrorism: Israel-Hamas Ceasefire Would Violate International Law

Through Prof. Louis René Beres

Thank you: Dr. Carolyn Tal

International law has a precise form and content. It cannot be invented and reinvented by terrorist groups. Such law does not support the hope-based adoption of ceasefire agreements between sovereign states and criminal gangs.

Israel and Hamas could still reach an agreement on a “ceasefire.” However, since the jihadist terror organization still considers all of Israel to be “Occupied Palestine,” this agreement will almost certainly fail. Accordingly, there will be damaging consequences for international justice for both Israel and the “international community.” Some of these consequences would be “force-multiplying” and irreparable.

It is high time for a realistic insight into these urgent issues.

The immediate effect of any expected ceasefire would amount to a dishonorable granting of legal legitimacy to wily terrorist criminals. The long-term effect would undermine the authority of international law in general and increase the likelihood of continued regional war.

In principle, even such serious effects could be acceptable if they were accompanied by the return of hostages (criminally abducted civilians from more than twenty different countries, including a one-year-old Israeli child), but no humanity can be expected from Hamas. If Hamas were to actually return some of the surviving hostages, it would surely compensate for this “generosity” by attempting to repeat the atrocities of October 7 at later dates and in other locations.

There are further legal details. No authoritative legal system can encourage or permit an agreement between a legitimate national government and a barbaric criminal organization. While any promised cessation of hostilities might benefit both Israel and Hamas, the cumulative costs to both Israelis and Palestinians would likely exceed the expected gains. Even if Israel could expect the return of some hostages, Hamas (the Islamic Resistance Movement) would have an incentive to launch hostage-taking operations in the future. Let us not forget that Hamas is at its core motivated by “criminal intent” or human reason.

Hamas is an illegal organization. This inherent illegality is inferred from the far-reaching criminalization of terrorism that can be discovered under binding international law. Such a primary status can never be properly overlooked by third parties entering into agreements (e.g. the United States), no matter how well-intentioned.

Before the ancient Hebrew laws of Deuteronomy, there were already definite rules for warfare. Today, these “peremptory” norms (rules that are overriding and may never be broken) bind insurgent forces, not just traditionally uniformed national armies. Interestingly, these rules date back to the Declaration of St. Petersburg (1868), a codification that followed even earlier constraints identified in the First Geneva Convention (1864).

Under longstanding international law, “the means which may be used to injure an enemy are not unlimited.” No matter how just the cause, the deliberate maiming, raping, and murdering of noncombatants is always a crime. The end can never justify the means. As for the deaths of many Palestinian Arab civilians caused by Israeli bombardments, these harms are not a deliberate violation of the laws of war. They represent the entirely unintended result of necessary counter-terrorist operations, not of “criminal intent.” In Gaza, such harms are the byproduct of Hamas’s resort to “human shields.” The technical name for this ongoing Islamist crime is “treason.”

When Hamas or other Palestinian terrorists claim the right to “any necessary means,” their intent is to deceive. Even if their accompanying claims of “national self-determination” were somehow reasonable, there would still remain clearly tangible limits to permissible targets and legitimate weapons.

All calls to “liberate Palestine from the river to the sea” are prima facie extermination. In law, such calls are always an expression of “the intent to commit genocide.” Conversely, no matter what one hears from so-called protesters, damage inflicted by Israel on Palestinian Arab populations protected by treason has nothing to do with genocide. This damage remains the inevitable correlate of Israel’s ineradicable right to self-preservation.

International law has a precise form and content. It cannot be invented and reinvented by terrorist groups or by aspiring states (here “Palestine”) to accommodate narrow geostrategic interests. On November 29, 2012, the Palestinian Authority (PA) was upgraded to “non-member observer state” status by the UN General Assembly, but the PA subsequently declared itself non-existent.

On January 3, 2013, Mahmoud Abbas formally “ordered” the absorption of the “former” PA into the “State of Palestine.” While this administrative action eliminated the PA, it did not create a new Arab state. If we leave aside Abbas’ law-breaking refusal to negotiate directly with Israel for full sovereignty, the codified criteria of “non-member observer state” fall far short of the expectations of the governing international treaty on state sovereignty: the 1934 Convention on the Rights and Duties of States (also known as the “Montevideo Treaty”).

There are further details. “National liberation movements” that do not meet the test of “just means” are never legitimate. Even if one were to accept the argument that Hamas causes do meet the identifiable criteria of “just cause,” they would not meet the additional restrictive standards of distinction, proportionalityAnd military necessityThese standards are mandatory and were applied to insurgent organizations by (1) Common Article 3 of the four Geneva Conventions of 1949; and (2) the two Protocols to these Conventions of 1977.

These same norms are also binding on all combatants under 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 upholding the “laws of humanity” and the “dictates of public conscience.”

In essence, any use of violence by Palestinian Arab insurgents must be judged twice, once with respect to the justice of the ends and once with respect to the justice of the means used. This means that even if Hamas were somehow law-abiding in its attempt to create a Palestinian state out of the still-living body of Israel, the means used to achieve this end (terror, rape, and murder) would clearly be law-breaking. .

The gross crimes committed by Hamas terrorists require universal cooperation in their apprehension and punishment. As punishers of “serious violations” of international law, all states are expected to seek out, prosecute, or extradite individual terrorist perpetrators. Under no circumstances should states recognize terrorists as “freedom fighters.” Under no circumstances is it permissible for an established state to conclude “ceasefire” agreements with an unambiguously criminal non-state organization.

The implications are clear. Ultimately, the broader international community should be working with Israel to delegitimize and disarm Hamas, not to broker an inherently illegal and belligerent “ceasefire” agreement. By initialing such a deal, Israel would effectively reinforce Hamas’s plans to dismantle the Jewish state and wreak havoc in the broader region.

A ceasefire agreement could bring Israel some short-term benefits, but only at unbearable long-term costs. It is likely that the immediate benefits of a ceasefire would not be the return of the hostages. Moreover, the foreseeable costs could become existential at some point in the not-too-distant future. This is especially likely given Hamas’s ties to Iran and Iran’s ties to North Korea.

International law clarifies and codifies millennia of human wisdom. Such law does not support the hope-based adoption of ceasefire agreements between sovereign states and criminal gangs.

In the case of Israel and Hamas, history shows that every release or exchange of terrorists immediately leads to new hostage-taking and jihadist barbarism.

Prof. Louis René Beres, born in Zurich, from Princeton and is the author of numerous books and articles on terrorism, counterterrorism, and international law. His writings have appeared in The Atlantic; The New York Times; JURIST; Harvard National Security Journal (Harvard Law School); International Journal of Intelligence and Counterintelligence; Israel Journal of Foreign Affairs; Brown Journal of World Affairs; Case Western Reserve Journal of International Law; BESA Perspectives (Israel); Jerusalem Post; Israel National News; Israel Defense; Bulletin of the Atomic Scientists; and Oxford University Press. Professor Beres is the author of seven editorials in the annual Oxford University Press Yearbook on International Law and Jurisprudence.

Source: https://www.israelnationalnews.com/news/395115

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