Undermining Justice: Israel Hamas Ceasefire




Once again, Israel and Hamas have agreed upon a so-called "cease fire." Once again, as Hamas regards all of Israel as "Occupied Palestine," the agreement will inevitably fail. And once again, for Israel and the wider "international community," there will be significantly dark consequences for international justice.

In specifically jurisprudential terms, the immediate effect of this latest cease-fire will be wrongfully to bestow upon the leading Palestinian terror organization (1) a generally enhanced position under international law; and (2) a status of formal legal equivalence with Israel, its beleaguered terror target.

The longer-term effect will be seriously to undermine the legitimacy and effectiveness of international law itself..........

In any conflict, under law, the means that can be used to injure an enemy are not unlimited. No matter how hard those who would justify the willful maiming and execution of noncombatants in the name of some abstract ideal may try to institute certain self-serving manipulations of language, these people misrepresent international law. Always.

Whenever Palestinian insurgents (Hamas, Fatah, Popular Front for the Liberation of Palestine, Islamic Jihad; it makes no legal difference) claim a right to use "any means necessary," they are trying to deceive. Even if their corollary claims for "national self-determination" were in some way sensible and supportable, there would still remain certain authoritative limits on permissible targets and weapons. Even if an insurgent group claims the legal right to wage violent conflict for "self-determination" -- Hamas's argument -- the group does not have a corresponding right to use force against the innocent. In short, under humanitarian international law, the ends can never justify the means. Never.

Intentional forms of violence deliberately directed against the innocent are always far more than "merely" repugnant. They are also always unlawful.

While it is true that certain insurgencies can be appropriately judged lawful, any such permissible resorts to force must nonetheless conform to the unequivocal laws of war.

Even if incessant Palestinian cries of "occupation" were somehow reasonable rather than contrived, any corresponding claims of entitlement to oppose Israel "by any means necessary" would remain totally unfounded. Palestinian cries of "occupation" are contrived not only because Israel had already physically left Gaza completely in 2005 -- maintaining a partial blockade only for its own self-defense, as now can be seen was justified -- but also because the alleged right of Palestinian self-determination is factually overridden by a long history of Jewish claims to that land. These claims include the Balfour Declaration of 1917, the subsequent San Remo Treaty of 1920, and the British Mandate for Palestine.

International law has very precise form and content. It cannot be invented and reinvented by terror groups or aspiring states ("Palestine"), merely to accommodate their own presumed geo-strategic interests. On November 29, 2012, the Palestinian Authority [PA] was upgraded by the U.N. General Assembly to the status of a "nonmember observer state," but significantly, the PA has since declared itself nonexistent. On January 3, 2013, Mahmoud Abbas formally "decreed" the absorption of the "former PA into the State of Palestine." While this administrative action did effectively and jurisprudentially eliminate the PA, it assuredly did not succeed in creating a new state by simple fiat. The pertinent expectations under international law -- codified by, among others, the Convention on the Rights and Duties of States (Montevideo Convention) of 1934 -- were not met.