The Senate Should Send The PLO A Message: There’s No Hijacking International Law

The Palestine Liberation Organization (PLO) has requested from the Government of Switzerland permission to become a party to the latest international conventions on the humanitarian laws of war. At first blush, this seems nothing more than yet another PLO bid for legitimacy and an issue of legal arcana.

In fact, the present effort by the organization that pioneered the new era of international terrorism is a significant new step in a fifteen year campaign: The PLO is determined to hijack international law by diverting it from its traditional goal — namely, protection of innocent civilians — toward protection of groups that will purposefully slaughter such civilians as a political statement.

This PLO initiative gives the U.S. Senate an excellent opportunity to slap down terrorist hypocrisy while acting favorably on a pending Administration request (put forward in 1987 by President Reagan) to reaffirm traditional humanitarian law. Quick action now will encourage the Swiss to deny the PLO’s bid to corrupt the laws of war.

Traditional Rules of War: Protection for Non-Combatants

In 1949, in the aftermath of two devastating global wars, new Geneva Conventions were developed to codify the laws of armed conflict and to limit the activities of combatants with respect both to other combatants and to non-combatants. Particularly noteworthy were the protections afforded to civilian bystanders. The Geneva Conventions were among the most important human rights treaties ever concluded.

The underlying concept of the 1949 Geneva Conventions — the crux of traditional humanitarian law — is that every reasonable effort should be made to protect non-combatants caught up in fighting through no fault of their own. When it came to balancing this priority against the interests of active participants in conflict, especially irregular forces who for tactical reasons choose to go "underground" and not distinguish themselves from civilians, the Geneva Conventions clearly favored the non-combatant.

The Geneva Conventions recognized that great danger to civilians results when participants in hostilities masquerade as non-combatants. This effectively invites the opposing side, which is not able to distinguish such irregulars from innocent civilians, to retaliate against non-combatants. For this reason, of fundamental importance to humanitarian law, the Geneva Conventions limited combatant status and prisoner-of-war protections only to those irregular forces that (1) wear uniforms, (2) carry their arms openly in all military operations, and (3) obey the laws of war.

How Terrorists Commandeered the Conventions

In 1974 a conference was convened in Geneva to rewrite the humanitarian law of war. Virtually every nation in the world attended. Also in attendance as non-voting participants were representatives of eleven "national liberation" movements, notably including the PLO.

Out of these negotiations came two new agreements: Protocol I, a revision of the laws of war governing international armed conflicts, and Protocol II, an update to the laws relating to civil wars. The latter generally restated customary practice but constructively added requirements for: "humane treatment and basic due process for detained persons, protection of the wounded, sick and medical units, and protection of non-combatants from attack and deliberate starvation."(1)

Protocol I on international wars, however, departed substantially from traditional humanitarian law. As a result of the efforts of groups like the PLO and their supporters and promoters among the Soviet bloc and Third World nations, Protocol I was transformed into a highly politicized document. This was accomplished most fundamentally by the Protocol’s declaration that any so-called "war of national liberation" was automatically to be regarded as an international conflict.

In its first article, Protocol I defines as inherently international all "conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes. (Emphasis added.)" It falls to regional organizations like the Organization for African Unity and the Arab League — long identified with radical movements and sympathetic to political terrorism — to determine which "peoples" constitute legitimate parties in armed conflicts for the purposes of this agreement. This obliterates the critical principle that humanitarian law should apply universally and not hinge on subjective judgments about the justness of the combatants’ respective causes.

The Effect of Protocol I: Terrorists Get Protection as Combatants

By dignifying as an international conflict virtually any "progressive" guerilla operation, this accord helps transform terrorists into protected combatants for the purposes of the Geneva Conventions. Protocol I would allow irregulars to enjoy combatant/prisoner-of-war status even if they do not distinguish themselves from civilians by wearing uniforms and by carrying their arms openly prior to combat operations — and even, incredible as it may seem, if they do not themselves comply with the laws of war. Instead, such irregulars are, in effect, entitled to use non-combatant populations as camouflage for their operations — thereby inviting retaliatory attacks against civilians. And such irregulars can, even if they illegally make civilians the targets for their own attacks, demand combatant/POW status if captured.

One need not be a legal expert to understand the enormous value of Protocol I to terrorist groups like the PLO. Not only does it go a long way toward according their movements the political standing they have long sought. It also transforms those who commit murder and other terrorist atrocities into soldiers entitled to privileged treatment as prisoners of war (e.g., they cannot be prosecuted as criminals) should they fall into the hands of their enemies.

The possibility that terrorists might exploit such a bastardization of traditional humanitarian law of war is not merely idle speculation. During the 1988 trial of Mutula Shakur, a self-described soldier for the "Republic of Afrika" accused by the United States government of murdering police and robbery in New York, the defense argued that Shakur was immune from prosecution on the grounds that, pursuant to the terms of Protocol I to the Geneva Convention, he should be treated as a prisoner of war. With the PLO’s effort to become a formal signatory to this agreement, it must be expected that such a pretext for terrorism — and such an argument for preferential treatment for its perpetrators — will be heard with ever greater frequency.

The Senate Must Send a Message to the PLO

The Congress has expressed reservations about the wisdom of the policy of negotiating with the Palestine Liberation Organization begun under the Reagan Administration and pursued by its successor. The reality of continuing PLO support for terrorism and the divisive effect of such negotiations on the U.S.-Israeli relationship have put a premium on means to express the United States’ antipathy toward terrorists and solidarity with those who are among its most frequent victims — innocent civilians.

President Reagan, in rejecting Protocol I, offered the Senate an excellent opportunity to convey such a message. He invited "an expression of the sense of the Senate that it shares the view that the United States should not ratify Protocol I, thereby reaffirming its support for traditional humanitarian law, and its opposition to the politicization of that law by groups that employ terrorist practices."(2)

The Center for Security Policy believes the Senate should immediately adopt a resolution expressing these sentiments as an important signal both to the PLO and to the Swiss Government as it contemplates the PLO’s request to become a signatory to Protocol I to the Geneva Conventions on the Laws of War.

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1. Letter of Transmittal from President Ronald Reagan to the United States Senate, 29 January 1989.

2. Ibid.