An aerial view shows the bodies of victims of an attack following a mass infiltration by Hamas gunmen from the Gaza Strip lying on the ground in Kibbutz Kfar Aza, in southern Israel, Oct. 10, 2023. Photo: REUTERS/Ilan Rosenberg

Whatever else is offered under the Israel-Hamas agreement, offering Palestinian statehood would undermine authoritative international law. To wit, beyond any reasonable doubt, both the Palestinian Authority (PA) and Hamas have been responsible for decades of barbarous anti-Israel terrorism. Moreover, the entities that operate this continuous criminality have never sought a Palestinian Arab state that would co-exist with the existing Jewish State. Always, its unhidden objective is to destroy Israel.

Corroborative evidence of this is abundant. In this “One-State Solution,” all of Israel would become part of “Palestine.” Already, on official PA and Hamas maps, all of Israel, not just Judea/Samaria (West Bank) and Gaza, is identified as “Occupied Palestine.” Cartographically, therefore, Israel has already been removed.

The PA and Hamas both remain clear about their commitment to terror-violence as the sole path to Palestinian “self-determination.” It follows that Palestinian prisoners now being exchanged for Israeli hostages will escalate criminal harms against the innocent. In all likelihood, the Trump-brokered agreement will set the stage for a force-multiplying encore of October 7 defilements. Significantly, previous prisoner releases by Israel produced new waves of anti-Israel terrorism.

In the future, what should Jerusalem say to new victim families of agreement-generated crimes?

Plausibly, over time, some freed terrorists will likely 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. Though generally forgotten, Hamas already launched such an attack in the past, but was not yet technically able to inflict serious levels of destruction. This earlier terrorist incapacity is rapidly disappearing.

Terrorism 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 relevant law.

After the “peace agreement,” the PA and Hamas will mirror their long-bloodied past. From the beginning, all supporters of Palestinian terror-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 prominent 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. These resorts are distinction, proportionality, and military necessity — 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 measured against clearly-stated and legitimate goals.

Whenever an insurgent force resorts to unjust means, its actions become terroristic ipso facto. Even if ritualistic Palestinian claims of an Israeli “occupation” were reasonable, any corresponding right to oppose Israel “by any means necessary” would be false. Specifically, 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 terror-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.

If the Trump-brokered Israel-Hamas agreement leads to Palestinian statehood, Israel could expect tangible enlargements of terror violence. And because some of the new state’s assaults on Israel would be ones of direct military action rather than insurgency, international law would identify these actions as “crimes of war.” Here, the only decipherable changes would be linguistic.

There is one final observation. As the Israel-Hamas agreement coincides with President Trump’s new mutual security pact with Doha, Palestinian terrorists and war criminals who flee to Qatar would be granted immunity from law-based punishments. Very quickly, such immunization could lead Hamas and other jihadi fighters to implement new and more insidious cycles of terrorist assault. None of these agreement outcomes could reasonably be called “peace.”

Prof. Louis René Beres was educated at Princeton (Ph.D., 1971) and is the author of many books and scholarly articles dealing with international law, nuclear strategy, nuclear war, and terrorism. In Israel, Prof. Beres was Chair of Project Daniel (PM Sharon). His 12th and latest book is Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016; 2nd ed., 2018).