Palestinian “Sacredness” and the Law of Armed Conflict

Under pertinent international law, permissible behavior can never stem from overtly wrongful behavior. It follows, inter alia, that insistent Palestinian pleas for “martyrdom” must necessarily represent calls for illegal expressions of force against Israel. Always, in these matters, what is sacred to the Palestinian side is also grievously unlawful. Opinion

Hamas militants dressed as suicide bombers (Photo: AP)

Israel’s Palestinian foes regard “martyrdom” as the supremely highest expression of Islamic sacredness. Nonetheless, there are certain conspicuously prominent disjunctions between the relevant obligations of faith and expectations of international law. Unambiguously, only the latter set of obligations can offer a suitably authoritative source for assessing Palestinian resorts to armed force.

This is the case even when the stated objective of such resorts would be “self-determination” and/or “national liberation.”

Ex injuria jus non oritur. In law, all law, rights can never derive from wrongs. Significantly, this principle is “peremptory,” or fundamental. It follows that those Palestinian insurgents who would seek to justify their willful maiming and execution of noncombatants in the name of a so-called “martyrdom” are defiling the law. Identifying insurgent fighters as “martyrs” can have no jurisprudential effects. Nomenclature can do nothing to absolve such perpetrators from codified and customary crimes of terrorism.

Even if the indignant Palestinian calls for “national self-determination” were correctly grounded in law, these “martyrs” would remain tainted by especially serious expressions of wrongdoing. Under settled international law, all insurgents, even those with a more-or-less supportable “just cause,” must always satisfy firm jurisprudential limits concerning permissible targets, and permissible levels of violence or armed force.

Following an earlier vote by the UN General Assembly, “Palestine” is now justified to call itself a “nonmember observer state.” Although such a designation essentially by-passes the usually more critical expectations of legal rules regarding statehood, especially the Convention on the Rights and Duties of States (1934), much of the world is seemingly prepared to ultimately accept the reality of full Palestinian sovereignty. Most recently, it seems that US President Donald Trump has offered Palestinians some sort of three-party confederation with Jordan and Israel.

Still, any illegal expressions of insurgent force by “Palestine” would qualify as terrorism.

Even the most “sacred” rights of insurgency under international law exclude the intentionally targeting of civilians and/or the use of force to deliberately inflict gratuitous pain and suffering. It is always terrorism, prima facie, when Palestinian insurgents murder Israeli families in their homes or automobiles by stabbing and shooting their victims. Incontestably, it is also terrorism whenever these “martyrs” place their nail-filled bombs dipped in rat poison on Israeli buses.

As to the legal argument known formally as tu quoque – that is, that because the other side is allegedly guilty of similar or equivalent criminality, “our” side is free of any legal wrongdoing – such argument is always invalid. In other words, it is never exculpatory.

It all comes down to this. Even under even the most generous definitions discoverable in relevant law, the residual legal right to armed force can never supplant the peremptory rules of humanitarian international law. Among international lawyers, such jus cogens rules are also known as the law of armed conflict or the law of war.

Unceasingly, and without a scintilla of either evidence or nuance, supporters of Palestinian terror-violence against Israeli noncombatants insist that the ends (Palestinian independence) justify the means (multiple deliberate attacks upon defenseless civilian populations). Leaving aside any ordinary ethical standards by which such argumentation must unhesitatingly be judged indecent, the ends can never justify the means under binding international law. Plainly, for more than two thousand years, unassailable and unhidden legal principles have clarified that intentional violence against the innocent is always prohibited.

At least from the standpoint of authoritative international law, one man's (or woman's) terrorist, can never be another man's (or woman's) “freedom-fighter.” Although sometimes fashionable to bring up at cocktail parties or political gatherings, this all-too-common expression is merely an empty witticism. It is true, of course, that certain insurgencies can sometimes be judged lawful or even law-enforcing (that judgment is, after all, a founding principle of the United States), but even such presumptively allowable resorts to force must still conform to the indispensable laws of war.

Whenever an insurgent group resorts to manifestly unjust means, its actions constitute terrorism. Even if ritualistic Palestinian claims of a gratuitously hostile “occupation” were accepted as reasonable and plausible, corollary claims of entitlement to “any means necessary” would still remain false.

It’s not complicated. International law has a precise and determinable form and content. It cannot be casually invented and reinvented by terror groups or “nonmember observer states” in order to wrongly justify selective interests. This is especially the case where terror violence intentionally targets a designated victim state’s most fragile and vulnerable civilian populations.

National liberation movements that fail to meet the test of just means are never correctly protected as lawful or legitimate. Even if law were somehow to accept the argument that PA, Hamas and certain assorted sister groups had satisfied the authoritative criteria of “national liberation,” they could still not satisfy the equally relevant legal standards of discrimination, proportionality, and military necessity. More precisely, these critical standards were applied to insurgent or sub-state organizations by the common Article 3 of the four Geneva Conventions of 1949, and (additionally) by the two 1977 Protocols to these Conventions.

These standards of “humanity” are also binding upon all combatants by virtue of certain broader customary and conventional international law, including Article 1 of the Preamble to the Fourth Hague Convention of 1907. This rule, commonly called the “Martens Clause,” makes all persons responsible for the “laws of humanity,” and for the associated “dictates of public conscience.”

Under relevant international law, even at the hands of a “nonmember observer state,” the ends can never justify the means. As in the case of war between states, every use of force by insurgents must always be judged twice, once with regard to the justness of the objective (in this case, a Palestinian state to be built explicitly upon the planned-for ruins of a pre-existing Jewish state), and once with regard to the justness of the means used to reach this objective.

For the most part, supporters of Palestinian statehood continue to presume that this new Arab sovereignty would become a willing part of some “two-state solution.” Yet, this disingenuous presumption is widely rejected in the Arab/Islamic world. The “Map of Palestine” at the official website of the Palestinian National Authority and also Hamas still includes all of Israel.

Only one state is depicted on this revealing map. That state is “Palestine.” Here, cartographically at least, Israel has already been removed. 

In law, terrorist crimes mandate universal cooperation in both apprehension and punishment. As indispensable punishers of “grave breaches,” all states are expected to search out and prosecute or extradite, individual terrorists. In no conceivable circumstances are states permitted to regard terrorists as “freedom fighters.”

This is most 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 timeless principles of Natural Law. Accordingly, although generally unrecognized, core legal authority for the United States was taken from Blackstone’s aptly famous Commentaries.

In law, all law, rights can never stem from wrongs. Even if Israel’s Palestinian adversaries continue to insist on treating the most recalcitrant insurgents as “martyrs,” such treatment could have no exculpatory or mitigating effect on attendant terrorist crimes. Irrespective of the justness of cause – and this includes any alleged right to full sovereignty for “Palestine” – nothing under international law can ever justify the deliberate targeting of non-combatant populations.

In law as well as in elementary ethics, “martyrdom” that involves the killing of noncombatant enemy populations is never justifiable.


Louis René Beres is Emeritus Professor of International Law at Purdue. A frequent contributor to Israel Defense, he lectures and publishes widely on matters of Israeli security and nuclear strategy.

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