- The Washington Times - Wednesday, February 14, 2007

Whether they are operating in Iraq or in Israel or anywhere else, suicide bombers can never be considered “freedom fighters.” From the standpoint of binding international law, there is simply no cause on this long-bloodied planet that can ever warrant the intentional mutilation and murder of civilians. By even the unwritten and merely customary standards of civilized human behavior, these actions are always criminal.

Supporters of Palestinian violence against Israeli citizens claim that the insurgent force is directed against an “occupation,” and thus warrants “any means necessary.” In law, this claim is baseless and incorrect. Even where the use of insurgent force may be justified — and this is certainly not the case with Palestinian terrorism — deliberate attacks upon noncombatants are always illegal. There is no more sacred principle of law and justice than the imperative to protect the innocent.

“One man’s terrorist is another man’s freedom fighter.” Although repeated often as if it were an expression of revealed wisdom, this contrived mantra has no grounding in law. The argument here is not a matter of subjective interpretation. On the contrary, there do exist very precise and settled criteria that distinguish the terrorist from the freedom fighter. According to international law, any insurgent who willfully causes the explosive incineration of men, women and children at lunch or at prayer or at a wedding ceremony or on a bus or at a shopping mall or at a bakery is a terrorist.

Certain insurgencies can be judged lawful. Yet, even these insurgencies must conform to the laws of war. In law, the ends can never justify the means. Wherever an insurgent group resorts to unjust means, as in the recent case of a blown-up family bakery in Israel, its actions are unpardonable.

How shall we judge precisely when insurgent force is just or unjust? The determinable standards that must be applied are known in law as just cause and just means. These two standards, and these two standards alone, allow us to differentiate lawful insurgency from terrorism.

National liberation movements that fail to meet the test of just means are not protected as legitimate. Leaving aside the unsupportable argument that Palestinian organizations satisfy the legal standards of “national liberation,” it is abundantly clear that they do not meet the just means standards of discrimination, proportionality and military necessity. These formal criteria, long applicable under the Laws of War, have been applied to all insurgent organizations by the common Article 3 of the four Geneva Conventions of 1949 and by the two protocols to these Conventions of 1977. They are now directly binding upon all combatants by virtue of both customary and conventional international law, and by “the general principles of law recognized by civilized nations.”

Under law, the ends can never justify the means. As in the case of war between states, every use of force by insurgents must be judged twice, once with regard to the justness of the objective (the avowed Hamas/Palestinian Authority objective is a Palestinian state built upon the ruins of Israel) and once with regard to the justness of the adopted means. Neither a Palestinian organization nor an Iraqi militia that deliberately targets civilians with expressed intent to maximize pain and suffering can ever claim to be “freedom fighters.”

Ironically, as it continues with its present “surge” in Iraq, the Bush administration still supports the idea of a “Road Map” to peace in the Middle East. All American and European supporters of a Palestinian state presume that it will be part of a “two-state solution.” These smug supporters of Oslo-redux argue that the new Arab state will exist side-by-side with the existing Jewish state. Yet, this curious presumption is dismissed everywhere in the Arab-Islamic world.

Terrorist crimes, as part of a broader category of harms called crimen contra omnes (crimes against all), 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 any states permitted to characterize terrorists as “freedom fighters.” This prohibition is especially pertinent 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 explicitly formed by the Founding Fathers according to the timeless and universal principles of natural law.

Palestinian and Iraqi terrorists are not “freedom fighters.” They are “common enemies of mankind” who exceed all moral and legal authority in their persistently cruel attacks. Until July 7, 2005, British newspapers had always referred to such murderers as “militants,” but when the al Qaeda allies of Islamic Jihad and Hamas launched suicide attacks in London the media in Great Britain abruptly changed their vocabulary. Once the victims were Londoners, the perpetrators quickly became “terrorists.”

No one peoples’ blood is redder than another’s. Under law, those who deliberately target innocents are never “freedom fighters.” Isn’t it time, therefore, to finally recognize this simple understanding on both sides of the pond?

Louis Rene Beres is the author of many books and articles dealing with terrorism and international law.

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