Exchanging Palestinian prisoners for Israeli hostages sets stage for further massacres - opinion

Among other things, this is because the driving forces behind statehood, the Palestinian Authority and Hamas, have been responsible for decades of egregious anti-Israel terrorism.

Moreover, this undiminished criminality has never sought creation of a new Arab state to exist side by side with the Jewish state. Prima facie, its objective has been a “one-state solution.”

The evidence is corroborative. By this exterminatory solution, all of Israel would become part of Palestine. To wit, on PA and Hamas maps, all of Israel, not just Judea/Samaria (West Bank) and Gaza, is delineated as “Occupied Palestine.”

Both PA and Hamas remain clear about their unchanging commitment to terrorism-violence as the path to Palestinian “self-determination.”

Over time, some of the freed terrorists will plan calibrated escalations to chemical, biological, or nuclear (radiation dispersal) terrorism. Also likely will be variously coordinated rocket attacks on Israel’s nuclear reactor at Dimona. Although generally forgotten, Hamas launched such an attack in the past, but it has not been able to inflict serious harm.

Terrorism is not just bad behavior; it is a codified and customary crime under binding international law. Its explicit criminalization can be discovered at all listed sources of the UN’s Statute of the International Court of Justice.

This signifies that whenever Palestinian jihadists claim the right to use “any means necessary” against an Israeli “occupation,” their arguments are unsupportable in law.

After the so-called peace agreement, the PA and Hamas will plausibly mirror their long-bloodied past. From the beginning, all supporters of Palestinian terrorism-violence against Israelis have maintained that the “sacred” end of Palestinian insurgency justifies the means.

Leaving aside the everyday and ordinary ethical standards by which any such argument must be unacceptable, ends can never justify means under conventional or customary international law.

Empty Palestinian witticisms notwithstanding, one person’s terrorist can never be another’s freedom fighter. While it is true that certain insurgencies can be lawful – for example, “just cause” is at the heart of the US Declaration of Independence – even residually permissible resorts to force must conform to humanitarian international law.

This references resorts that are distinctive, proportionate, and militarily necessary – authoritative standards that were made applicable to insurgent armed forces by Article 3 of the four Geneva Conventions of 1949 and the 1977 Protocols to these Conventions.

Regarding the rule of “proportionality,” this does not demand equivalent or symmetrical force – only force that is balanced against clearly stated goals.

Whenever an insurgent force resorts to unjust means, its actions become terroristic ipso facto. Even if the ritualistic Palestinian claim of a hostile Israeli “occupation” were reasonable rather than contrived, a corresponding right to oppose Israel “by any means necessary” would be false. Any openly unjust means would be an expression of criminal terrorism.

These unchallengeable or “peremptory” legal standards are also binding on all combatants by virtue of customary and conventional international law, including Article 1 of the Preamble to the Fourth Hague Convention (1907).

This foundational rule, called the “Martens Clause,” makes all persons responsible for upholding the “laws of humanity” and the “dictates of public conscience.”

History deserves some pride of place. The Palestine Liberation Organization (PLO) was formed in 1964, three years before there were any “occupied territories.” What, therefore, was the PLO attempting to “liberate” between 1964 and 1967? There can be only one logical answer.

In law, terrorist crimes mandate universal cooperation in apprehension and punishment. As punishers of “grave breaches” under our decentralized system of international law, a system created after the Peace of Westphalia in 1648, all states are required to search out and prosecute, or to extradite, individual terrorist perpetrators. In no circumstances are states permitted to treat terrorists as “freedom fighters.”

There is more. States are never authorized to support terrorism-violence against other states, whether by direct action or by acting within protective terms of an international agreement. This is emphatically true for the United States, which identifies international law as the “supreme law of the land” at Article 6 of the Constitution and at assorted Supreme Court decisions.

The American nation was formed by its Founding Fathers according to timeless legal principles of Sir William Blackstone’s Commentaries and the Hebrew Bible.

There is one final observation. As the Israel-Hamas agreement will coincide with President Donald Trump’s new mutual security pact with Doha, Palestinian terrorists and war criminals who could flee to Qatar would be guaranteed immunity from law-based punishments. In short order, such immunization could lead Hamas and other jihadi fighters to implement new cycles of barbarous terrorist assault.

Two core questions deserve immediate consideration: (1) Has Israel taken appropriate note of this agreement “side effect?” and (2) Could foreseeable consequences of the agreement with Hamas reasonably be consistent with a genuine peace?