Terrorism and self-determination: International law is on Israel’s side - opinion

The laws of war are typically divided into two categories. The first is International Humanitarian Law (IHL), namely the Hague Conventions (1899 and 1907) and the Geneva Conventions (1949). The additional 1977 Protocol to the Geneva Conventions introduced non-state actors to the conventions, reflecting new global realities. This protocol, often overshadowed by academic preference in researching the realm of IHL, is the right to resort to the use of force, also known as jus ad bellum. 

This was part of the backdrop for my dissertation in Israel, which dealt with the right of self-defense against terror and focused on two issues: the distinction between civilians and combatants and the proportionality of self-defense. Several case studies were presented, divided into before and after the 9/11 terrorist attacks, taken as a paradigm shift.

In many cases, when IHL applies to the war on terror, it turns into an asset for terrorist networks. 

For example, the use of human shields in places protected by IHL turns hospitals, schools, and mosques into safe havens for terrorist activity. In practice, despite these institutions being legitimate military targets according to international law, attacks against them are often disproportionate, making them a trap – and challenging on moral grounds.

It’s almost impossible to apply the principle of distinction between civilians and combatants in the context of the war on terror. This is no novelty, as terrorists operate clandestinely and there are no uniforms to identify them on the battleground. 

WHAT IS new is the return of the discourse that glorifies terror – with an emphasis on the Israeli-Palestinian conflict – in the name of self-determination.

It was supposed to be an outdated issue, as post-1994 United Nations (UN) resolutions and conventions outlawed links between terror and self-determination. This means that, according to international law, terror cannot be justified, without exception. The failed target attack on the World Trade Center (WTC) in 1993, blamed on al-Qaeda – together with terrorist attacks against US targets overseas, in Tanzania, Kenya, and Yemen – emphasized the need to boost a global fight against terrorism, and enabled this change.

Since 1994, resolutions condemning acts of terror made no reference to the right of self-determination and explicitly stated that terrorist acts were under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious, or other similar nature (likewise, the 1997 Convention for the Suppression of Terrorist Bombing and 1999 Convention for the Suppression of the Financing of Terrorism). Later, in the aftermath of 9/11, these legal responses to previous terrorist acts laid the foundations for guiding a consensus regarding the illegality of terrorism, irrespective of the motivation.

With the establishment of the Counter-Terrorism Committee (CTC), the UN Security Council (UNSC) seized the matter. The creation of the CTC was an important step in coordinating efforts to overthrow the politicization of terrorism, common during the Cold War.

This was not imposed by the United States. Rather, it was one of the rare moments of consensus among permanent members of the UNSC. At that time, terrorism was raging in Russia, and China was facing the threat of an Uighur rebellion. Over the last two decades, at least two major factors made this consensus possible.

First, the right to self-determination in the context of decolonization faded. While terror has become more prevalent in the ideology of Islamic jihad, the “holy war” against “infidels” has nothing to do with self-determination. 

Further, separatist movements remained a threat to the territorial integrity of states. 

This is why pro-Palestinian activists insist on classifying Palestinian self-determination claims as sui generis, claiming that it is the “last bastion of colonialism” in the Middle East. By doing so, the goal is to overshadow secessionist movements everywhere else, be that the Kurds’ struggle for an independent state formed out of territory in Turkey, Syria, Iraq, and Iran, the struggle for a free Tibet, or the Sikh independence movement in India.

Second, the rise of local identities also threatens the territorial integrity of states; not to mention the overseas territories still under the control of European states or the United States. Many French territories have been rebelling against the central government in Paris, such as Corse, New Caledonia, and Martinique. 

This last case can be regarded as ironic – or even tragic. 

This is the place where Aimé Césaire and Frantz Fanon were born. Their engagement in the anti-colonial struggles in Africa, especially in Algeria, continues to shape foundational stories. Their writings are essentially the bible of anti-imperialist resistance. Yet, their homeland continues to be ruled by France. While the majority of Africa – with the exception of some islands – has achieved independence, Martinique remains an ultramarine territory of France.

A turning point for the international community

However, October 7 marked a turning point in relation to the consensus that had been maintained since the establishment of the CTC. Among many circles in the international community, terrorism is gaining renewed sympathy as a legitimate tool in the struggle for national liberation.

How else to explain the hostile stance against Israel taken by countries such as Spain – fighting to eradicate the vestiges of the Basque Country and Freedom movement (ETA); Colombia, fighting against the Revolutionary Armed Forces of Colombia (FARC); or Turkey, fighting against the Kurdistan Workers’ Party (PKK) – while ignoring the self-determination claims of these movements and designating them as terrorist organizations? 

Do they have an interest in undoing established international norms that deem terrorism illegal no matter the circumstances? 

If anything, this approach has increased terrorist threats almost everywhere.

The level of open support for Hamas’s massive terrorist attacks on October 7 as a legitimate tool in the struggle for self-determination may result in pervasive effects. Undermining the post-9/11 war on terror may produce a boomerang effect. No state is immune to separatist movements. Besides, Islamic jihad is an ideology unrelated to self-determination. To allow exceptions may be to shoot oneself in the foot. It is not by chance that terrorism hit both Iran and Russia after October 7.

The support of those two countries for Hamas – and their insistence on resuscitating Cold War exceptions – should not be underestimated. Both have disputes with the Islamic State movement, which is a Sunni movement. Russian crackdowns on Chechnya and Dagestan following 9/11 resumed terrorist actions inside Russia. Iran, in turn, played a major role in the fight against the Islamic State in Iraq.

IN EUROPE, terror is also making a comeback, with the number of terrorist attacks increasing. Music events seem to be now a popular Islamic State target: See the terrorist attack at a Moscow concert hall or the stabbing at a recent German music festival; a threat of terrorist activity resulted in the cancellation of Taylor Swift performances in Vienna.

Ignoring the outlawing of terrorism by opening an exception for the Palestinian right to self-determination ultimately bears consequences. Already, it appears clear that this has boosted the popularity of the Islamic State, which is now spreading like a fire in the sun.

The author is a legal consultant on strategic international advocacy. She is a former senior lecturer on international law in Brazil and a Zvi Meitar Center for Legal Advanced Studies fellow researcher.