The UN won't let Israel fight back
Anne Bayefsky
National Post

GENEVA - The United Nations' response to the death of Abdel Aziz Rantisi, and Sheik Ahmad Yassin before him, exposes a very disturbing fault line in the war against terror.

Hamas has been declared a terrorist organization by the U.S. State Department, as well as by the European Union, Canada and Australia.

The 1988 Covenant of Hamas, the Islamic Resistance Movement, speaks for itself. It begins, "Israel will exist and will continue to exist until Islam will obliterate it, just as it obliterated others before it." It continues: "There is no solution for the Palestinian question except through Jihad. Initiatives, proposals and international conferences are all a waste of time and vain endeavors." Its violent message is invoked in the name of defeating the "plan of World Zionism" "embodied in the Protocols of the Elders of Zion." In Rantisi's words of July, 2001: "I urge all the brigades to ... target the Israeli political leaders and members of parliament ..."; "the Hamas political leadership has freed the hand of the brigades to do whatever they want against the brothers of monkeys and pigs."

In plain language, the Hamas aim to obliterate the Jewish state is about pure, unadulterated anti-Semitism.

Rantisi himself (and others such as Sheik Ahmad Yassin) was named by the State Department as a "specially designated global terrorist." Last month the Bank of England froze the assets of Rantisi because "the Treasury have reasonable grounds for suspecting that ... Rantisi, is or may be a person, who commits, facilitates or participates in ... the commission of acts or terrorism."

As soon as Rantisi took over the leadership of Hamas on March 23, 2004, after the Israeli defence forces killed Yassin, he called for further bloodshed, "The doors are wide open for attacks inside the Zionist entity."

Israelis keeping the grim statistics have counted at least 425 Hamas attacks killing 377 Israelis and wounding 2,076 in less than three and a half years of violence, including 52 separate suicide attacks. Hamas terrorists have blown themselves up among teenagers at a discotheque, families at a Passover Seder, in restaurants, in a pedestrian mall and on commuter buses. Only one day prior to Rantisi's death, Hamas claimed responsibility for a suicide bombing which killed another Israeli.

The international legal framework, therefore, could not be clearer.

Rantisi was a combatant in a war. His killing was not "extrajudicial" because the legal term, by definition, applies only to individuals entitled to judicial process before being targeted. Combatants -- including the unlawful combatants of Hamas who seek to make themselves indistinguishable from the civilian population -- are not entitled to such prior judicial process. Furthermore, the manual on the laws of armed conflict of the International Committee of the Red Cross, states that civilians who take a direct part in hostilities forfeit their immunity from attack. Even beyond that, judicial process in these instances is not an option, since it would place both Israeli defence forces and Palestinian civilians at much greater risk of harm.

The overriding legal limit on the conduct of war and the targeting of combatants like Rantisi is the rule of proportionality. In the words of the Geneva Conventions, an attack on a military target "which may be expected to cause incidental loss of civilian life" is prohibited if "excessive." The likelihood of civilian casualties must be carefully considered prior to taking action.

With zero civilian casualties (the only deaths being that of Rantisi and two Hamas accomplices, one a bodyguard, the other his 27-year-old son), the Israeli action could not have been more precise, and hence, proportionate.

The UN response to the legality of the killing of Rantisi (and Yassin) is therefore enormously revealing.

UN Secretary-General Kofi Annan led the way: "The Secretary-General strongly condemns Israel's assassination of ... Yassin ... [E]xtrajudicial killings are against international law." On April 17, he used the identical words to condemn the "assassination of Rantisi."

Almost immediately following Yassin's death (along with eight others, at least four of whom were also Hamas terrorists), on March 22, 2004, the UN Human Rights Commission convened a special sitting. This move was despite the fact that the commission was already in session, and at that very moment set to consider the only country-specific agenda item at the commission for the past 34 years -- on Israel. The suffering of Yassin's victims, or the current genocidal plight of Sudanese in the Darfur region -- reported by international agencies to involve 10,000 dead in the past year, and which may now have reached 1,000 dead per week -- didn't move the commission to hold a special sitting. But they did see fit to schedule an extra three hours to denounce Israel over the death of one man -- a man who personally instigated and authorized suicide bombing, ordered the firing of missiles at Israeli communities, and repeatedly exhorted his followers to "armed struggle" against Israelis and Jews "everywhere."

Having glorified the terrorist in particular, the commission went on to sanction terrorism in general. On April 15, the commission adopted a resolution, sponsored by the Organization of the Islamic Conference, which aimed to condone suicide bombing by referring to "the legitimacy of the struggle [against] foreign occupation by all available means, including armed struggle" and the "right ... to resist." The resolution passed by a large majority.

Shortly thereafter, resolutions which would have criticized Zimbabwe, China and Russia (in relation to events in Chechnya) were either blocked by procedural manoeuvres or voted down. The total tally of country specific votes coming from the 2004 commission now stands at Israel five, rest of the world four (the other states being Belarus, Cuba, Democratic People's Republic of Korea and Turkmenistan).

While those other country resolutions were being considered, the UN hosted a two-day meeting on Israel's security fence, April 15 and 16, directly across the hall from the commission. The juxtaposition was staggering. The same facilities were provided for a meeting on Israel as were provided for human rights on the remainder of the planet. And hours before the meeting ended on its second day, the "Final Document" -- condemning Israel -- was distributed to the public claiming to be based on discussions which had not yet occurred.

Sooner or later one can only hope a light will go on. Whatever superficial lip service is paid to the contrary, according to the UN Israel has no right of self-defence. Everything the UN does in the context of the Arab-Israeli conflict -- whether it be calls for the return to 1967's indefensible borders, declarations that Jerusalem is occupied territory, demands for the return of Palestinian refugees ending the Jewishness of the state, or efforts to isolate and demonize Israel as the worst human rights violator in the world today -- emanates from the standpoint that the Jewish side is not entitled to fight back.

Anne Bayefsky is an adjunct professor at Columbia Law School.

© National Post 2004