On Hamas "Freedom-Fighters": The View from International Law

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Even now, even after repeated Hamas bomb attacks on Israeli buses, nurseries, and preschools, some will argue passionately that the ends of such 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 fact that Israel came into inadvertent control of the West Bank and Gaza in 1967 because of utterly undisguised Arab aggression, the ends 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.

How often have we heard the claim that one man's terrorist is another man's freedom-fighter! This empty witticism, although now repeated ritually by radio and television pundits seeking to appear clever, is jurisprudentially meaningless. From the standpoint of international law, one man's terrorist can never be another man's freedom-fighter. 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 illegal 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 terrorist violence purposely targets infants, children, and the elderly.

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.

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 criteria of "national liberation," it is incontestable that they do not meet the standards of discrimination, proportionality, and military necessity--the relevant standards applicable under the laws of war. These standards 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. …