The war between Israel, Hamas and other terror organizations has heightened awareness regarding the question of whether today’s international law is capable of addressing armed conflict between a state and non-state actors.
Simply put, the question is how a sovereign state, obligated by the customary and conventional rules of international humanitarian law and the laws of armed conflict, is expected to engage in asymmetrical war with terror organizations that distinctly, and by definition, do not consider themselves as bound by such rules. Openly, they deliberately and even proudly consider themselves to be entitled, as terror organizations, to flout all accepted humanitarian norms and rules of international law to advance their aims. All this knowing that the international community lacks practical and legal means, as well as the basic desire and capability, to prevent them from doing so.
What is currently known as “the law of armed conflict” was set out in clear terms in the late 1800s and early 1900s. While these laws have, from time to time, been updated and amended, whether immediately following the Second World War (1949) and between 1974-7 following the Vietnam War, the fundamental norms and principles have not been substantially updated.
It is questionable whether the law of armed conflict as it exists today, incorporating as it does international humanitarian law, is capable of providing legal as well as operative answers to the practical issues arising out of today’s struggle against terror, directed not necessarily against a defined and identifiable state armed force, but rather against terror groups purposely embedded within civilian populations. Such conflicts may not necessarily be confined to the territory of a particular state and, by definition, are not necessarily directed against the military forces of a state but against civilians.
This dilemma is not new. It has existed since the late ‘60s, when the phenomenon of terrorism, including plane hijacking and hostage-taking, became prevalent as an effective and brutal tool against states and their populations.
More recently, terror organizations, under the guise of “national liberation movements” or “freedom fighters,” and with the political, legal and financial support of some states and groupings of states, as well as international and regional organizations, have gained international recognition and standing as semi-legitimate actors in the international community. Despite the inherent illegitimacy of their modus operandi, terrorist organizations can mobilize those states that politically sponsor and support their cause through manipulation of the international community. They give them recognition, standing, financial, diplomatic and political backing.
The modes and tactics of terror develop and change concomitant with the technological advances in the means and techniques of combat. As has been demonstrated in this recent war, Hezbollah, Hamas and the Houthi terror regime in Yemen are equipped, principally by the terror regime in Iran, with unmanned aerial vehicles, drones and long-range rockets, some equipped with precision-guided capabilities.
International law attempts to address such developments as they occur in a somewhat piecemeal manner, periodically adopting treaties and other instruments to cope with such phenomena as aviation and maritime terror, hostage-taking, nuclear and cyber terror, conventional and non-conventional weaponry, land mines and the like.
Over the years, the international community has updated international law by adopting several counter-terror conventions aimed at addressing contemporary issues of terror, whether this be terror against and aboard aircraft, airports and maritime navigation, terror against diplomats and internationally protected persons, terror involving the taking of hostages, nuclear terror, and state-funded terror.
However, these instruments, as forward-looking as they may be, do not address the immediate legal, moral and practical dilemmas inherent in the actual confrontation with terror on the battlefield and in facing terror organizations that openly violate international humanitarian norms.
This lacuna amplifies the need to adapt international humanitarian law to the conflict scenarios of today’s world realities.
In light of the long Vietnam War (1955-1975), the international community, under the auspices of the International Red Cross Movement, negotiated and adopted the 1977 Protocols Additional to the Geneva Conventions relating to the protection of victims of international and non-international armed conflicts. With these instruments, current international humanitarian law attempted to modernize itself by acknowledging that wars are not just between states but within states and between states and involve non-state entities and groups.
As such, the 1977 Additional Protocols recognized and granted belligerent status to “armed conflicts in which peoples are fighting against colonial domination, alien occupation, and racist régimes in the exercise of their right of self-determination.”
Does asymmetrical warfare have asymmetrical rules?
Terror groups defining themselves as “national liberation movements” or “freedom fighters” have thus been acknowledged as legitimate belligerents with an element of international status, acceptability and protection within the permissible framework of international law. As such, under the guise of international legitimacy, they can abuse such legitimacy granted to them by the 1977 Additional Protocols to the Geneva Conventions by glibly and openly violating accepted humanitarian norms. They proudly consider themselves to be immune and absolved from internationally accepted obligations. They celebrate and delight in the fact they continue to enjoy impunity and need not abide by accepted rules of warfare.
They can operate underneath and outside the accepted norms of armed conflict. They have been free from the restrictions and international standards of accountability under which normal states and even recognized liberation groups are obliged to function in conducting their military campaigns.
To a considerable extent, this modernization of international humanitarian law has enabled states and organizations within the international community that sponsor, encourage and support such groups to give them respectability and acceptance.
In any normal legal system—both civil and international, the individual components within the system can live and conduct themselves within the orderly parameters of the system on the assumption that the other elements of the system will comport themselves in the same way. Departure from such parameters and behavior in violation of such a normative system undermines and threatens the system’s very existence and raises the question of the need to review the system, adjust the norms, or adapt them to meet the new realities or developments.
While the 1998 Rome Statute establishing the International Criminal Court provided the international community with a vehicle for preventing impunity by individuals—including terrorists accused of committing the most serious and grave crimes—the extent to which this court is capable or willing to exact justice against such terrorists has yet to be proven.
Nowhere is this factor more evident than in the recent conflict between Israel and Hamas in the Gaza Strip, the Iranian-supported Hezbollah terror organization in Lebanon and Syria and the Houthi terror regime in Yemen.
These terror entities, together with others such as Palestinian Islamic Jihad and an Iranian terror offshoot in Iraq, have openly and blatantly abused, violated and continue to violate all accepted humanitarian norms. Nevertheless, through skillful manipulation of information and propaganda, they appear to enjoy support within the international community, in the international media and, sadly, among large population groups on campuses and the streets of capital cities in North America and Europe.
The brutal massacre committed on Oct. 7, 2023, against Israeli and foreign civilians in the towns and villages close to the Gaza Strip, involved multiple crimes of rape, murder, torture and kidnapping—all of which in and of themselves not only violate basic norms of humanity but also accepted principles of international law and specific international conventions prohibiting such acts and guaranteeing the rights of women, children and the elderly.
The mass targeting of Israel’s towns and villages by more than 10,000 missiles and rockets violates principles of international humanitarian law set out in the Geneva Conventions and the Additional Protocols to it, requiring the protection of civilian populations not involved in fighting. In clearly willful and open violation of international humanitarian law, as well as the customary principles enunciated in the laws and principles of armed conflict set out in the 1907 Hague Rules, the terrorists indiscriminately targeted civilians in a distinct, deliberate, and concerted means to demoralize and terrorize the civil population and to pressure organized governments and society. This is their tactical modus operandi.
The use by both Hamas and Hezbollah of their own civilian populations and public facilities—whether it be mosques, churches, schools, hospitals, private homes, office blocks and even premises of international organizations—as human and civilian shields to protect their weapons storage, command facilities and operatives, and imprison hostages, constitutes a blatant violation of international humanitarian law.
The burrowing of hundreds of kilometers of tactical tunnels under homes, public thoroughfares, population centers and hospitals for use solely for their fighters and not for the protection of the general public is no less a violation of international humanitarian law.
The use by terrorists of civilian ambulances adorned with recognized humanitarian emblems for carrying arms and terrorists; the use of civilian vehicles for transporting terror operatives accompanied by children and family to approach and attack roadblocks; the standard use of hospitals, mosques, churches and schools as storage space for weapons and explosives, the location of militia offices and tactical headquarters in dense residential areas, are illustrative examples of the abuse and violation of humanitarian norms by Hamas.
Above all, the cruel, cynical use of hostages, including women, children and the elderly, parading them in the streets of Gaza, abusing their dignity, holding them in inhumane conditions underground, and sexual abuse are all violations of international conventions.
Through misleading media reporting, circulation of falsified statistics and cynical use of video footage of casualties, Hamas assumes correctly that a naïve international community will quickly accuse Israel of using disproportionate military force against groups of apparently unorganized civilians.
The irony is that the accepted rationales of terms such as “combatant,” “legitimate target,” “defended locality,” and “human shield,” as well as the situation of “military necessity,” have become blurred in the context of a war on terror.
Despite this, the international community is still geared to somewhat anachronistic conceptions of armed conflict between states and presumes to judge those fighting terror by such anachronistic criteria and standards rather than adapting itself to the new situations and challenges that they bring.
This is particularly evident in the response of the international community to Israel’s engagement in combat with such terror organizations. The tendency is to view combat against the terrorists as if they are actions of conventional warfare against states. In so doing, the international community overlooks the criminal nature of the terrorist acts that gave rise to the critical need for response.
This dilemma is compounded by a situation in the United Nations and other international political fora in which automatic majority resolutions are adopted condemning those that fight terror while naively or deliberately giving encouragement and carte-blanche to those supporting and perpetrating the terror. This instills in them confidence that their actions are indeed achieving their intended political ends and have the sanction of the international community.
Conclusion
In light of the biased and partisan reaction of the international community and its automatic accusations against Israel of committing war crimes and even genocide, it is high time that responsible states come to terms with the fact that modern-day terror undermines and abuses accepted humanitarian norms and standards. This must be dealt with both militarily and legally. To do so requires addressing several unique issues that characterize the various components of terror, including:
- Religious ideology and motivation driving and glorifying terror, whether this be in the form of incitement by religious leaders or educational materials aimed at children and students encouraging hatred.
- The tendency of the Western world to view such fanatic religious glorification of terror through spectacles of “political correctness” or to overlook it out of fear of incitement, threats, violent reaction, or accusations of Islamophobia.
- Media and social networking often cynically and deliberately manipulate the public through false reporting and circulation of false and inaccurate video footage and statistics.
- Transfer by states of weaponry, ammunition, technology and funding enable terror despite international conventions prohibiting and criminalizing such transfer.
- Terror groups and their state sponsors manipulate and abuse the United Nations, its related organs, human rights and international humanitarian law bodies. Such organizations serve to give respectability and acceptance to the terror groups, which in turn is interpreted by them as a green light and carte blanche for continued terror.
The essential question still remains as to whether today’s highly politically polarized international community has the capability and will to overcome its limitations, ignorance, naivete and misguided political correctness to adapt international humanitarian law to the urgent and vital needs of today in dealing with modern terror.
Time will tell.
Originally published by The Jerusalem Center for Public Affairs.
