DOES HAMAS REALLY WANT A STATE? Hamas now has the opportunity to go beyond what Hizbollah has accomplished and have a terrorist state they can call their own.

I'm curious if there are any consequences in international law based on a ruling of the International Court of Justice in 2004 when the legality of Israel's security fence was brought before it. In the process, the court ruled on the rights of states to defend themselves from attack, and ended up implying a limitation to this right:

The ICJ recognises that this right is enshrined in Article 51 of the UN Charter. But the ICJ then says that this right is limited to self-defence in the case of armed attack "by one state against another state". That limitation does not appear anywhere in the text of Article 51 itself. Article 51 recognises that states have an inherent right of self-defence "if an armed attack occurs". It does not say that the armed attack must have been carried out by, or be attributable to, another state.

The distinction is critical in the on-going struggle against international terrorism. Although every act of terrorism necessarily originates in territory (or aboard a ship or aircraft) that is owned or occupied by a sovereign state, it does not follow that every such act of terrorism is supported by that state, and attributable to it in a legal sense.

The ICJ is now saying that if terrorists based in the territory of state A attack state B without the passive or active support of state A, state B may not have the right to defend itself from future attack by striking back at the terrorist base – despite Article 51. [emphasis added]

If Hamas should solidify control over Gaza and declare itself as the government of an actual state, would it make any difference in terms of the options open to Israel--assuming the government would be willing to take them.

The distinction implied by the ICJ seems to have already had consequences in the US in connection with the case of Ali Al-Marri--identified as a member of Al Qaeda--whom the Fourth Circuit Court of Appeals said can no longer be held in prison as an enemy combatant and should instead be given a criminal trial in a civilian court.

During The Journal Editorial Report, John Yoo--a law professor at University of California at Berkeley who was associated with a number of the Bush administration's post-Sept. 11 legal policies--was interviewed about the Fourth Circuit Court of Appeals decision in the Al-Marri case and said that:

It basically holds that we cannot be at war with some organizations that not--that's not a state. So we could capture people in Afghanistan, we could capture people in Iraq--those people would be enemy combatants. But any al Qaeda member that makes it to the United States has to be given a criminal jury trial, Miranda, lawyers.

...According to this court--which I don't really agree with--according to this court, the justification is just that by definition, we can't be at war with a nonstate. And so anyone who is captured trying to hurt the United States who doesn't fight on behalf of another country is by definition a criminal.

There is another point Yoo makes--one that is relevant to the legality of Israel holding terrorists in their prisons:

The first thing is, under the laws of war, any nation has the right to hold members of the enemy who it captures for as long as the conflict goes on. And simply because the war might go on for a long time--I wouldn't say indefinitely, just it might go on for a long time--doesn't mean suddenly you give up that right. Just like, in wartime, you have the right to kill members of the enemy. That doesn't mean if we have a long war, you have to give that right up, too.

So if Hamas in Gaza--or Fatah in the West Bank for that matter--should solidify their control and end up with a 'Palestinian state', what would the repercussions be under international law when these 2 terrorist groups continue following through on their respective charters to destroy Israel?

After all, should a Palestinian state be created, the policy of targeted assassinations would likely be more problematic. Instead, as Investor's Business Daily concludes in Predators Craving Israel:

The only thing that could save the Sharon decision now is if Israel's leadership treats Gaza like a state and responds as it would if it were attacked by a neighboring country. That could settle the problem rather quickly.

Technorati Tag: Israel and Gaza and West Bank.