Analysis: Can international law cope with today’s terror?

A question emerging from the war between Israel, Hamas and other terror organizations is this: Is today’s international law capable of addressing armed conflict between a state and terror organizations?

How is a sovereign state, obligated by the customary and conventional rules of international humanitarian law and the laws of armed conflict, expected to engage in asymmetrical war with terror organizations that do not consider themselves bound by such rules?

The laws of armed conflict have been updated from time to time — including in 1949 following World War II, and in 1974-77 after the Vietnam War.

Non-state terror has existed since the late 1960s when plane hijacking and hostage-taking became prevalent as an effective and brutal tool to use 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.

As has been demonstrated in the current conflict, Hezbollah, Hamas and the Houthi terror regime in Yemen are equipped, principally by the 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 piecemeal manner [but they fail to] address the immediate legal, moral and practical dilemmas inherent in the actual confrontation with terror organizations that openly violate international humanitarian norms.

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Terror groups defining themselves as “national liberation movements” or “freedom fighters” have 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 the 1977 Additional Protocols to the Geneva Conventions by glibly and openly violating the 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.

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.

While the 1998 Rome Statute establishing the International Criminal Court provided the international community with a vehicle for preventing impunity by individuals, including terrorists, 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 current 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 the Islamic Jihad terror organization 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.

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The brutal massacre committed on Oct. 7 saw multiple crimes of rape, murder, torture and kidnapping — all of which not only violate basic norms of humanity but also violate accepted principles of international law and specific 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 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 population and public facilities as human and civilian shields to protect their weapons storage, command facilities and operatives, and to imprison hostages, constitutes a blatant violation of international humanitarian law.

The burrowing of hundreds of kilometers of tactical underground 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; 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 babies, 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.

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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.

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 UN and other international political forums 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.

Conclusion

In light of the biased 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 enables terror despite international conventions prohibiting and criminalizing such transfer.

• Terror groups and their state sponsors manipulate and abuse the UN, 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.