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The rule prohibiting deliberate attacks on civilians is both ancient and straightforward. One early commentator, the king of Spain's judge advocate in the Netherlands, Balthazar Ayala (writing in 1582), described it as follows: "Intentional killing of innocent persons — for example, women and children — is not allowable in war (if unintentional, as when a town is assaulted with catapults and other engines of war, the case is different, because such things are inevitable in war)." In modern language the rule comes to this: Civilians may not be purposefully targeted. However, civilian casualties that unintentionally result when otherwise legitimate military targets are attacked, do not violate the laws of war, so long as they are proportionate to the military objective to be achieved. Traditionally, this rule has applied, like the other laws of armed conflict, equally to all sides — regardless of their relative strengths or virtues. There is no exception that excuses noncompliance by the "weaker" side, or those with a good cause, including a "national liberation struggle," even if their objectives become unachievable as a result. Significantly, one of the primary U.S. goals in the war against international terrorism has been to reaffirm the illegitimacy of deliberate attacks on civilians, and the related need to treat harshly those belligerents who have embraced these tactics. The U.S. insistence that captured al Qaeda and Taliban operatives are not entitled to the prisoner-of-war status is an integral part of this campaign to bolster the traditional rules of international law. This is not, however, Chairman Arafat's view, and he has a growing number of supporters in this opinion. As Mrs. Arafat recently explained to an Arab-language newspaper in London, from the Palestinian perspective, suicide attacks on civilians "are an indivisible part" of the right to resist occupation. A campaign of terror, of course, is nothing new in human history. What is new, and highly regrettable, is that an important segment of the community of nations appears to agree with this position. Many of the states that support the Palestinian cause have refused to reject or condemn these tactics. Indeed, more than a dozen Arab states (including "moderates" like Jordan, Morocco, and Egypt) were recently joined by China, Cuba, and Vietnam in offering a draft resolution to the U.N.'s Commission on Human Rights referring to all Palestinian casualties as "martyrs," and approving the use of "all available means," without qualification, to achieve creation of a Palestinian state. Some states, such as Iraq and Saudi Arabia, have openly rejected the characterization of suicide bombers as terrorists at all. As one Saudi official (a member of the king's council) recently noted, these people are not terrorists, but youths offering "their souls for the sake of freedom." At the same time, "progressives," both in Europe and America, have actually suggested that a highly noble end — Palestinian statehood — may excuse, or at least mitigate, recourse to otherwise unacceptable means. For example, former Slate editor Michael Kinsley has claimed that "terrorism is not an evil that transcends all other considerations . . . . An illegitimate tactic used in a legitimate cause, as part of a conflict with legitimate and illegitimate tactics and aspirations on both sides, is different from an illegitimate tactic used for purposes that are utterly crazed and malevolent." All of this suggests two possibilities. Either certain commentators and — far more importantly — states do not believe that deliberate attacks on civilians actually violate the laws of war, or they believe that an exception to the rule is justified here because it may be the only means by which the Palestinians can achieve their goals. The second explanation is far more likely, and is highly troubling from many perspectives. To begin with, creating an exception to the laws of war for a virtuous cause instantly destroys the general rule, since there are few who do not believe that their cause is virtuous. In al Qaeda's view, the cause of driving the United States from the Middle East in general, and the "sacred" soil of Saudi Arabia in particular, is no doubt a far more transcendent cause than even the creation of a Palestinian state — which is likely to be as secular and corrupt as the other Arab regimes in the region. Leaving aside basic morality, international law, including the laws of war, is not carved in stone. States make the laws of war through custom, practice, and by treaty, and that law may be changed through those same processes. Even when a particular norm is based on a treaty, its force and effect may be undermined over time by actual practice. This may well be the process we are now witnessing in the Middle East; and it certainly is the goal of many involved on the Palestinian side of that conflict. The new rule they offer would be particularly dangerous for the United States. Not only would it permit attacks like those of September 11 as legitimate acts of warfare, but the new "rule" on offer also would appear to forbid the stronger belligerent — Israel in this case but the United States in any conflict in which it may become involved — from causing any civilian casualties, whether by accident or design. This, at any rate, is the only possible conclusion to be drawn from the virulent attacks on Israel not only by Arab but also by European states, suggesting an absolute moral and legal equivalence between the deliberate attacks on Israeli civilian targets, and the civilian casualties inflicted by the IDF in attacking Palestinian military targets. The proponents of these new rules ought, however, to think twice. The rule against deliberate attacks on civilians may, over time, have been honored as much in the breach as in the observance, but it has nevertheless served well as a limiting factor on the horrors of war. Permitting the development of a new rule, allowing civilians to be targeted, cannot, in the long run, work to the advantage of the Palestinian cause, or the cause of any other similarly situated group. Although the rule they may hope to develop suggests that the "weaker" belligerent may resort to tactics that the stronger belligerent cannot use, this is not likely to be the rule they get. Another rule of international law, as old as that against deliberately attacking civilians, suggests a basic principle of mutuality. Although individual violations of the laws of war by one belligerent do not absolve an opponent of its own legal obligations, a state need not accord the benefits of the laws of war to an enemy that, as a matter of policy, rejects similar limitations. The 1949 Geneva Conventions, for example, recognized this principle. As the Red Cross noted in its commentary on the Geneva Conventions, "[t]here could be no question of obliging a State to observe the Convention in its dealings with an adverse Party which deliberately refused to accept its provisions." As a practical matter,
therefore, a new rule permitting attacks on civilians probably will not
be limited to the weaker or more "virtuous" side, as the Palestinians
hope, and there is no doubt that states are far better equipped to damage
civilian targets than any terrorist cell, or national liberation movement.
However compelling many in the Arab world and Europe find the Palestinian
cause, this is one area where the status quo is in everyone's interest.
The continued acceptance by the Arab states and by Chairman Arafat's supporters
elsewhere of terror as a tactic may work a change that everyone will live
to regret. This is particularly true in the 21st century, when terrorists
are seeking access to weapons of mass destruction. A vigorous and universal
rejection of terror tactics is an essential component of the global campaign
to shore up deterrence against such attacks. — David B. Rivkin Jr. & Lee A. Casey are partners in the Washington, D.C., office of Baker & Hostetler LLP. Both served in the Reagan and George H. W. Bush administrations. |
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of the casualties in the most recent Israeli-Palestinian conflict are
obvious — scores of victims, ruined buildings, and religious monuments
turned into fortresses. However, while the 24-hour news channels beam
all of this death, mayhem, and destruction into our living rooms, one
of the conflict's most significant casualties has gone almost entirely
un-remarked. The Palestinian Authority, and its supporters, have undertaken
a frontal assault on one of the oldest and best established laws of war
the traditional rule forbidding deliberate attacks on the civilian
population. Although both Israelis and Palestinians have, of course, blamed
each other for violating this rule, it is the Palestinian side that actually
has put its survival at risk. By claiming that "suicide" bombings
— which are directed at civilian targets like restaurants, hotels,
and discos, — are a legitimate tactic in the armed struggle against
Israel, the Palestinian Authority and its allies are seeking a fundamental
shift in international law. They clearly believe that this change will
benefit their struggle. In the long run, however, it will benefit no one.
