Ceasefire violations

(JNS) — “Let reason go before every enterprise and counsel before any action.”

Ecclesiastes 32:23

At time of writing, negotiations between Israel and Hamas on a potential “ceasefire” are seemingly set to continue despite Hezbollah’s attempted attack on Israel followed by massive rocket fire and statements by officials that the ceasefire talks are near collapse. 

Even if an agreement is reached, however, it will almost certainly fail because Hamas still regards all of Israel as “Occupied Palestine.” For both Israel and the “international community,” there would be injurious consequences for international justice. Some of these consequences would be “force-multiplying” and irremediable.

It’s high time for a realistic understanding of these urgent issues. The immediate effect of any anticipated ceasefire agreement would be the defiling bestowal of legal legitimacy on insidious terror-criminals. The longer-term effect would be to undermine the authority of international law in general and to enlarge the prospects of a continuous regional war.

In principle, even such grievous effects could be acceptable if accompanied by a return of hostages (criminally abducted citizens from over 20 separate countries, including a one-year-old Israeli child) but no such humanity should be expected from Hamas. If perchance Hamas did actually return some of the still-living hostages, it would assuredly compensate for this “generosity” by repeating Oct. 7-style atrocities at later dates and in different venues.

There are further legal details. No authoritative system of law can encourage or allow accommodation between a legitimate national government and a barbarous criminal organization. Though any promised cessation of hostilities could conceivably benefit Israel as well as Hamas, the cumulative costs for both Israelis and Palestinians would plausibly exceed anticipated gains. Even if Israel could expect the return of some hostages, Hamas would feel incentivized to launch future hostage-taking operations. Lest anyone forget, Hamas is motivated at its core by “criminal intent” or mens rea.

Hamas is an illegal organization. This inherent illegality is deducible from the far-reaching criminalization of terrorism discoverable under binding international law. Such a primal status can never be correctly overlooked by third-party agreement brokers (e.g., the United States), however well-intentioned.

Before the ancient Hebrew laws of Deuteronomy, there already existed determinable rules of warfare. Today, these “peremptory” norms (rules that are overriding and ought never to be broken) bind insurgent fighting forces, not just traditionally uniformed national armies. Conspicuously, these rules stem from the St. Petersburg Declaration (1868), a codification that followed still-earlier limitations identified at the First Geneva Convention (1864).  

Under longstanding international law, “The means that can be used to injure an enemy are not unlimited.” No matter how allegedly just the cause, the willful maiming, rape and murder of noncombatants is always a crime. The ends can never justify the means. 

Regarding the deaths of many Palestinian civilians occasioned by Israeli bombardments, these harms are not witting violations of the law of war. They represent the wholly unintentional result of necessary counter-terrorist operations, not of “criminal intent.” In Gaza, such harms are the collateral outcome of Hamas’s resort to “human shields.” The technical name for this ongoing Islamist crime is “perfidy.”

There is more: Whenever Hamas or other Palestinian terrorists claim the right to “any means necessary,” they intend to deceive. Even if their corollary claims of “national self-determination” were in some way reasonable, there would still remain distinctly tangible limits on permissible targets and legitimate weapons.

Any calls to “Free Palestine from the River to the Sea” are exterminatory on their face. In law, such calls are always an expression of “intent to commit genocide.” Reciprocally, whatever one hears from so-called protestors, Israeli-inflicted harms upon perfidy-shielded Palestinian populations have nothing to do with genocide. These harms remain the unavoidable correlates of Israel’s inextinguishable right to self-preservation.  

International law has precise form and content. It cannot be invented and reinvented by terror groups or by aspiring states (here, “Palestine”) to accommodate narrow geostrategic interests. On Nov. 29, 2012, the Palestinian Authority was upgraded by the U.N. General Assembly to the status of a “nonmember observer state,” but the P.A. subsequently declared itself nonexistent.

On Jan. 3, 2013, P.A. chief Mahmoud Abbas formally “decreed” the absorption of the “former” P.A. into the “State of Palestine.” While this administrative action did eliminate the P.A., it did not create a new Arab state. Leaving aside Abbas’s law-violating refusal to negotiate full sovereignty directly with Israel, the codified criteria of “nonmember observer state” fall far short of expectations of the governing international treaty on statehood: The Convention on the Rights and Duties of States (aka the “Montevideo Convention”) of 1934.

There are further details: “National liberation movements” that fail to meet the test of “just means” are never legitimate. Even if one were to accept the argument that Hamas’s goals do meet the identifiable criteria of “just cause,” they would not satisfy the additional limiting standards of distinction, proportionality and military necessity. These standards are compulsory and were applied to insurgent organizations by (1) the common Article 3 of the four Geneva Conventions of 1949; and (2) the two 1977 protocols to these Conventions.

These same standards are also binding upon 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, every use of force by Palestinian insurgents must be judged twice, once with regard to the justness of the objective and once with regard to the justness of the means employed. This signifies that even if Hamas were somehow law-compliant in seeking to carve a Palestinian state from the still-living body of Israel, the means adopted to achieve this goal (terror, rape and murder) would be law-violating prima facie.

The egregious crimes committed by Hamas terrorists 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 states permitted to acknowledge terrorists as “freedom fighters.” Under no circumstances is it permissible for an established state to create “ceasefire” agreements with an unambiguously criminal non-state organization.

The implications are plain: In the final analysis, the broader international community should be working with Israel to delegitimize and disarm Hamas, not to broker an intrinsically illegal and war-fostering “ceasefire” agreement. By initialing such an agreement, Israel would effectively enhance Hamas’s plans to dismantle the Jewish state and wreak chaos on the wider region.

A ceasefire agreement could possibly bring certain short-term benefits to Israel, but only at the expense of variously insufferable longer-term costs. Plausibly, the immediate benefits of a ceasefire would not bring back the hostages. Moreover, at some not-too-distant point, the foreseeable costs could become existential. This is especially likely on account of Hamas’s ties to Iran and Iranian ties to North Korea.

Drawing heavily upon ancient Jewish law and reason, international law does not support equivalencies between sovereign states and criminal gangs. In the case of Israel and Hamas, the wisdom of this position is not just a matter of abstract jurisprudential principle. It is also a matter of justice. Recent history reveals that every terrorist release or exchange leads directly to new acts of hostage-taking and jihadist barbarism.