Europe's claim that Yassin attack illegal is off base
Lee A. Casey & David B. Rivkin Jr.:
...
"Hamas, of course, is not merely a group of ordinary combatants. Because of its irregular organization and illegal tactics, its members are in fact unprivileged or unlawful combatants. Under the traditional laws of war, based on centuries of state practice, such individuals are fully subject to attack, just like lawful combatants. But, if captured, they do not merit the rights and privileges of prisoners of war (hence the non-POW status of the U.S.'s Guantanamo Bay detainees) and can be subject to prosecution in military courts. Hamas is, as a matter of law, in precisely the same position as al Qaeda.
"By now it is no secret that Europe views the situation differently. Leaving aside the Old World's growing consensus that the war on terror should be treated as a criminal law-enforcement matter ? a recipe for disaster and defeat ? most European states have accepted the 1977 Protocol I Additional to the Geneva Conventions. Like the 1949 Geneva Conventions (to which both the United States and Israel are parties), this instrument preserved the classification of unlawful combatant. But it also can be interpreted to provide new and extraordinarily beneficial advantages to such groups. In particular, under one of Protocol I's provisions, irregular or guerilla fighters can arguably be attacked only when they are themselves attacking. At all other times, they must be treated as part of the civilian population.
"Of course, this absurd rule disadvantages the lawful armed forces of sovereign states (as it was designed to do), by giving the practitioners of asymmetric warfare incalculable advantages, since lawful combatants can still be attacked at any time. It also allows them to benefit from their own violations of otherwise applicable legal norms, such as the requirement that combatants clearly distinguish themselves from the civilian population and carry their arms openly. Protocol I was relentlessly promoted by third-world governments ? not a few of which had started out as guerilla movements ? and was embraced (whether from guilt, fatigue, or absentmindedness) by the former imperialists of Western Europe.
"Fortunately for the American people, Ronald Reagan was paying attention, and rejected Protocol I outright, making clear that the advantages it provided to irregular and unlawful combatants were entirely unacceptable to the United States. Fortunately for the citizens of Israel (although not for Hamas), Jerusalem also refused to ratify Protocol I. Thus while European states may not be permitted to target a known terrorist in the context of an armed conflict, it remains entirely lawful for both Israel and the United States to do so. The next time Europe's leaders jump to condemn Israel for such actions, they would do well to keep this in mind."
Lee A. Casey & David B. Rivkin Jr.:
...
"Hamas, of course, is not merely a group of ordinary combatants. Because of its irregular organization and illegal tactics, its members are in fact unprivileged or unlawful combatants. Under the traditional laws of war, based on centuries of state practice, such individuals are fully subject to attack, just like lawful combatants. But, if captured, they do not merit the rights and privileges of prisoners of war (hence the non-POW status of the U.S.'s Guantanamo Bay detainees) and can be subject to prosecution in military courts. Hamas is, as a matter of law, in precisely the same position as al Qaeda.
"By now it is no secret that Europe views the situation differently. Leaving aside the Old World's growing consensus that the war on terror should be treated as a criminal law-enforcement matter ? a recipe for disaster and defeat ? most European states have accepted the 1977 Protocol I Additional to the Geneva Conventions. Like the 1949 Geneva Conventions (to which both the United States and Israel are parties), this instrument preserved the classification of unlawful combatant. But it also can be interpreted to provide new and extraordinarily beneficial advantages to such groups. In particular, under one of Protocol I's provisions, irregular or guerilla fighters can arguably be attacked only when they are themselves attacking. At all other times, they must be treated as part of the civilian population.
"Of course, this absurd rule disadvantages the lawful armed forces of sovereign states (as it was designed to do), by giving the practitioners of asymmetric warfare incalculable advantages, since lawful combatants can still be attacked at any time. It also allows them to benefit from their own violations of otherwise applicable legal norms, such as the requirement that combatants clearly distinguish themselves from the civilian population and carry their arms openly. Protocol I was relentlessly promoted by third-world governments ? not a few of which had started out as guerilla movements ? and was embraced (whether from guilt, fatigue, or absentmindedness) by the former imperialists of Western Europe.
"Fortunately for the American people, Ronald Reagan was paying attention, and rejected Protocol I outright, making clear that the advantages it provided to irregular and unlawful combatants were entirely unacceptable to the United States. Fortunately for the citizens of Israel (although not for Hamas), Jerusalem also refused to ratify Protocol I. Thus while European states may not be permitted to target a known terrorist in the context of an armed conflict, it remains entirely lawful for both Israel and the United States to do so. The next time Europe's leaders jump to condemn Israel for such actions, they would do well to keep this in mind."
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