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Azmi Bishara, the Right of
and the Palestinian Ordeal



Richard Falk

Professor of International Law and Practise, Princeton University

TFF associate

February 19, 2002

The unprecedented revocation on 7 November 2001 of Dr. Azmi Bishara's immunity as a member of the Israeli Knesset opened the way for his criminal indictment on charges that he had violated the Prevention of Terrorism Ordinance (1948) and Regulation 5 of the Emergency Regulations (Exiting the Country) (1948). The essence of the allegations against Dr. Bishara was that he had on two occasions made speeches that expressed support for Palestinian resistance in Occupied Palestine and in support of the expulsion of Israeli forces from Southern Lebanon. Bishara was also accused of violating Regulation 5 as a result of his humanitarian role in arranging family visits by elderly Palestinians to their relatives living in Syrian refugee camps.

Such a criminal proceeding raises extremely serious questions concerning the free speech rights of Palestinian citizens of Israel, and particularly those who have chosen to participate in Israeli governmental institutions. For the Knesset to remove the parliamentary immunity of Dr. Bishara in reaction to his public advocacy so as to pave the way for criminal prosecution is to send a chilling message regarding free speech and democratic debate to members of the Palestinian community living in Israel, as well as to suggest a discriminatory double standard applicable to members of the Knesset. Israeli extremists are never officially challenged in this severe manner even if their views on expulsion, re-occupation, and massive military operations favor behavior that flagrantly violates international law and basic human rights standards.

To assess whether the charges level against Azmi Bishara have a valid legal basis it is necessary to assess whether the Palestinian enjoy a right of resistance under international law, and if so, within what limits. If such a right exists legally and morally, then it seems unreasonable to the point of being abusive to charge Bishara for advocating what is well founded in law.

This question as to the legitimate rights of the Palestinian people under current conditions tends to be avoided in almost all discussions of recent phases of the Israel/Palestine encounter. The media focus almost exclusively on violence, especially Palestinian violence, without considering this fundamental relationship between occupying state and occupied people. At issue is the substantive question of the right of a people living under such oppressive circumstances to act in opposition. And of course, as important as the right is its scope, and specifically whether it extends to the use of force, and if so, within what limits. In the foreground of such concerns is the need to distinguish between permissible and impermissible uses of force, and specifically to situate the matter of "terrorism" so to take account of oppression and resistance.

Terrorism is a highly contested term that is manipulated both to condemn and validate (as counter-terror) uses of force by political opponents. The public language of political violence associated with the Palestinian/Israeli conflict reflects the geopolitical and diplomatic asymmetries that arise when a state with powerful allies is one side of a conflict and a disempowered people is on the other side. The media, especially in the United States, shapes public awareness on such matters by insidious and consistent deference to prevailing power structures, thereby distorting analysis of competing claims and shaping public opinion in a manner prejudicial to Palestinian claims. Of course, the anti-Israeli rhetoric that abounds in the Arab world is distorting in a different way. It inflames public opinion as an expression of frustration and hostility, contributing to political and religious extremism that emerges in the face of the utter failure of moderate governments in the Arab world to obtain justice for the Palestinians (or for their own peoples). This prolonged failure to achieve a fair outcome of the conflict that realizes Palestinian rights of self-determination indirectly also makes credible accusations that the United States is the main responsible party, using it diplomatic leverage and overall capabilities to support Israel. Such an American pattern of partisanship has made the United States easy to cast in the role of enemy of the Islamic world.

In this article the attempt is to get away from the polemics that so often dominate discussions of Palestinian rights and Israeli security. In this spirit an effort is made to treat terrorism in as objective and useful a way as possible. Terrorism is defined here as any instance of political violence directed at civilians with a calculated intention of producing fear as well as physical harm. The point to stress is that terrorism so understood pertains to the type of violence, and above all to its target, and not to the identity of the actor as non-state. States can engage in terrorism, and not only sponsor or harbor terrorists. Collective punishment of a people caught in the grips of military occupation is as much a form of terrorism as reliance on suicide bombers to explode deadly ordinance in places where innocent civilians abound.

To explore such a fundamental and controversial issue is to launch a complex inquiry. It is necessary to provide some sense of background and context so as to make an initial assessment as to whether Palestinian recourse to force is reasonable given the overall circumstances. And beyond this, the appraisal of the specific force relied upon by Palestinians needs to be considered from moral, legal, and political perspectives, and in interaction with Israeli occupation tactics and uses of force. Note that this substantive inquiry is on a different plane from that pertaining to the case of Azmi Bishara, which is in its essence the simpler question of whether the advocacy and encouragement of Palestinian resistance, as distinct from its substantive status, is properly a matter of criminal indictment. It would seem that genuinely democratic societies, even under the stress of strife and struggle, permit dissent and verbal statements of opposition, particularly where the weight of international law seems on the side of asserting a right of resistance. Such a conclusion would seem greatly strengthened by an appreciation that Dr. Bishara is an elected representative of the Palestinian community living within Israel, and that his words deserve to be treated as privileged speech.


Background and Context

The overall narrative of the Palestinian struggle for self-determination is exceedingly complex, and raises many issues of interpretation that are not directly relevant to this inquiry. This section sets forth a perspective on the overall Palestinian situation as it is currently manifested by making a series of assumptions as to matters of fact and law. These assumptions avoid issues of underlying historical responsibility that gave rise to the conflict, but rather limit attention to the dynamics of occupation and resistance. Nor is any attempt made to define the contours of a solution that would fulfill the Palestinian right of self-determination, give both Palestinians and Israelis equal status with respect to security, and end the occasion for resistance.

Finally, the endorsement of resistance as legitimate under existing conditions is not without qualification by reference to limits on the use of force, specifically the prohibition of political violence that targets civilian society, and is therefore properly characterized as "terrorism." But such a prohibition also applies to the occupying state, which is legally and morally obligated to refrain from violence directed at innocent civilians or at the occupied society as a whole. Such violence by the state also needs to be understood and treated as an equally prohibited species of "terrorism." Respect for limits on recourse to violence needs to be assessed on the basis of mutuality, and freed from a pervasive statist bias that tends to report instances of violence against Palestinian civilians in neutral language, reducing Palestinian suffering to a statistical count. On the Israeli side civilian casualties are treated much differently, the tragedies of loss being individualized and personalized to a great degree.

Analysis here is presupposes that Palestinians on the West Bank and Gaza have been living continuaously under Israeli occupation since 1967, and that this reality has not been altered in its essence by the effects of partial and provisional Israeli military withdrawal under the agreements reached as a result of the Oslo peace process.

The modalities of occupation have definitely changed, but not the reality that Israel exerts effective control over what takes place within the West Bank and Gaza, including controlling access to and from the territories for all persons and goods. Part of this reality is the unreasonableness of holding the Palestinian Authority (PA) responsible for acts of terrorism committed against Israel, and thereby subject to retaliatory violence.

A second assumption is that the administration of the West Bank and Gaza are subject to the norms contained in the Fourth Geneva Conventions on the Protection of Civilians (1949), as well as those portions of the 1977 Protocol I of the Geneva Conventions pertaining to the Protection of Victims of International Armed Conflicts (1977) that can be considered as part of customary international law. Israel has challenged this assumption, contending that it regards the West Bank and Gaza as "disputed territories," thereby falling outside the coverage of international humanitarian law.

The United Nations has overwhelmingly supported the view that the Geneva framework is applicable to Israeli occupation of Palestinian territories. This UN position is reinforced by a consensus of impartial international law expert. Even the U.S. Government up until the Clinton presidency supported the applicability of international humanitarian law to the Israeli occupation, and one has to wonder why such an abandonment of minimum Palestinian rights has been endorsed by Washington.

A third assumption underlying the analysis offered here is that Israeli occupation has been responsible since 1967 for systematic and deliberate violations of the fundamental rights of the Palestinian people as defined by international humanitarian law. These violations have involved a series of practices: the transfer of populations and annexation of land, house demolitions, political assassinations and extra-judicial punishments, torture, and a variety of collective punishments involving restricted movement and livelihood imposed on the civilian population. The reason that the applicability of the Geneva Convention is so important is that Israel has been guilty of repeated severe violations of its most basic provisions.

A fourth assumption is that the international community by way of the United Nations has affirmed Palestinian rights under international law in relation to the key issues in dispute. the parity of the two peoples and their right to establish respective states on the territory of the former mandate of Palestine (UNGA Res. 181, 29 November 1947); the Palestinian refugees right of return and compensation (UNGA Res. 194), 11 December 1948) Israeli withdrawal from territory occupied by force as a result of the 1967 War as mandated by UNSC Resolutions 242, 338 (1967, 1973); the applicability of the Palestinian right of self-determination as decisive of any solution (UNGA Res. 34/70, 6 December 1973); the unconditional applicability of the Fourth Geneva Convention, as well as the reaffirmation of international and UN law that it is inadmissible to acquire territory by force or conquest (UNSC Res. 476, 480, 1322, 30 June 1980, 12 November 1980, 7 October 1980). In effect, international law is definitely supportive of the main Palestinian claims, and a peace process so oriented would look very different than the sort of bargaining on the basis of real politik (and realistic expectations given the disparities) that was the essence of the Oslo peace process.

A fifth assumption is that Israel has consistently and flagrantly defied the will of the United Nations with regard to Palestinian rights for more than five decades, and that despite this victimization, the UN has been unable to offer either protection to the Palestinian people or steps to ensure the implementation of their rights. Efforts in 1999 and 2001 to uphold the treaty obligation of the parties to the Geneva Conventions to ensure compliance have come to nothing due to the opposition of the United States and Israel.

Palestinians enjoy no remedy, and even efforts by an overwhelming consensus of members of the Security Council to establish a monitoring presence in the West Bank and Gaza to report on violent incidents have been effectively blocked by Israeli refusals and American vetoes.

A sixth assumption is that Israel's response to Palestinian resistance has itself been the occasion of further violations of international law, intensifying the violations that have been continuing incidents of an occupation that has lasted more than fifty years and has continuously generated facts on the ground (settlements, annexations, strategic roads) that diminish the scope of the Palestinian patrimony that defines the extent of its right of self-determination.

This Israeli response to Palestinian resistance has been especially characteristic of the period covering the second intifada, from 29 September 2000 to the present, intensifying by stages, and including in the period of Ariel Sharon's leadership continuous recourse to Israeli provocations.

These six assumptions set the stage for an exploration of Palestinian resistance from the perspectives of law, morality, and politics, each of which is relevant to an assessment of what the Palestinians have done to uphold their rights. This inquiry is beset by special difficulties associated with its unique character. These include an unusually long period of military occupation, a refusal by the occupying power to accept the constraints of international humanitarian law, the role of non-state actors as largely unrepresented`in official arenas of inter-governmental policymaking, and the inability of the United Nations to establish a protective, and even a monitoring, presence that was proposed to provide some aid and comfort to vulnerable peoples. Also of relevance is the gradual descent of the conflict into a condition of asymmetric war being waged by Israel under Sharon's militant leadership against an essentially defenseless Palestinian society. This gruesome reality in Palestine is further accentuated by the extent to which Israeli recourse to warfare has been assimilated by analogy and argument to the American led war against global terror unleashed by the September 11 attacks on the World Trade Center and Pentagon. Under these circumstances, a framework that considers Palestinian claims and Israeli counter-claims must be constructed on the basis of sensitivity to context and widely shared norms of behavior.


The Relevance of International Law

The Palestinian Territories, including East Jerusalem, came under Israeli occupation as a result of the 1967 War. The UN has consistently affirmed that these territories are governed by international humanitarian law, and specifically by Section III of the 1907 Hague Regulations relating to the Military Authority over the Territory of a Hostile State, the Fourth Geneva Convention, and as much of Protocol I as is embodied in customary international law.

Israel has denied its legal obligation on the grounds that the territory occupied is "disputed" not "occupied," and therefore technically does not fall within the coverage of the Geneva Conventions. As suggested, such a position has been rejected repeatedly by overwhelming votes in the United Nations. The applicability of the Fourth Geneva Convention has been affirmed in UNSC Res. 237 (1967), UNSC Res. 259 (1968); UNSC Res. 271 (1969); UNSC Res. 446 (1979); UNSC Res. 452 (1979); UNSC Res. 465 (1980); UNSC Res. 480 (1980); UNSC Res. 592 (1986); UNSC Res. 607 (1988) UNSC Res. 694 (1991); UNSC Res. 799 (1992); UNSC Res. 904 (1994); and UNSC Res. 1322 (2000).

The essence of what international humanitarian law requires of Israel is to uphold the human rights of the occupied civilian population of Palestine, and the related crucial responsibility to refrain from action that would change the legal status, physical character, institutional structure, and demographic composition of the people and territory under occupation.

It is true that the Geneva Convention allows Israel to act to uphold its security interests, and may restrict the occupied population to the extent reasonably necessary. [is the term "reasonably necessaray" in the text of the GC? if so, should it be put in quotes?] The reality of Palestinian resistance, including recourse to various kinds of force, has made the interpretation of what is reasonable very controversial in specific situations.

What is clear beyond doubt is the illegality under the Fourth Geneva Convention of the primary duty of the occupying power not to change the character of the occupied territory. The continuous establishment and expansion of over 200 armed and militarily guarded Israeli settlements within Occupied Palestine has continually created and expanded "facts on the ground" that violate this fundamental duty of the occupier, as specified in Article 49(6) of the Fourth Geneva Convention. These settlements have changed the demographic character of the occupation, as well as land tenure, especially with respect to East Jerusalem, which has also been altered in terms of its metropolitan boundaries. Because the settlements need to be protected, additional land has been requisitioned, and supposedly secure "bypass roads" have been constructed at great expense for the exclusive use of Israeli settlers, and directly linked to Israel. The encroachment on Palestinian rights is intrusive in the extreme and fundamental, a source of grievance, resentment, and intense friction.

Such a process is violative of international law in another way. It impinges upon the most fundamental right of all, that of self-determination for the Palestinian people. As revealed in the course of the Oslo peace process in the 1990s, Israel continued its program of settlement construction while negotiating with the Palestine Liberation Organization as the representative of the Palestinian people, doubling the settlement population and establishing many new settlement in the Oslo years, between 1993 and 2000. The embedded character of these settlements distorted the negotiations with respect to the West Bank and East Jerusalem in a manner that diminished the scope of Palestinian self-determination, violating fundamental rights bearing on Palestinian entitlements that had already been confined to the 22 percent of the original Palestinian mandate that was alone the subject of negotiations to establish a state of Palestine. It needs to be realized that the Palestinians were expected by Israel and the United States to strike compromises pertaining to this 22 percent, including substantial accommodations of the settlements, alterations of Jerusalem, and diminished rights of Palestinian refugees living in exile or camps. At no point was the Israeli 78 percent open for comparable discussion of respective claims.

In evaluating Palestinian recourse to resistance, this background of Israel's refusal to heed the overwhelming will of the international community with respect to either withdrawal or sustaining the status quo in occupied Palestine is decisive and essentially uncontroverted. Such a conclusion is further strengthened by Israeli reliance on collective punishments that are also explicitly prohibited in international humanitarian law, especially house demolitions, curfews and closures, and interferences with normal economic activities related to the Palestinian pursuit of employment, education, and minimum economic wellbeing. It is helpful to appreciate that international law nearly always needs to be interpreted in situations of an unprecedented character on the basis of the general policies at stake. What makes the belligerent occupation of Palestine distinctive is the combination of territory acquired by force, which is impermissible under modern international law, combined with the extent to which the Palestinian people are victims of a process of interrupted decolonization. While states in the region and more generally were attaining political independence, the Palestinians were locked into a frozen reality in which their circumstances deteriorated as compared to what it had been during the period of British manatory rule. The Palestinians have never been able to enjoy the sovereign independence that had been already promised in the 1960s under the authority of the United Nations. Of course, the Arabs contributed to their own grief by refusing in 1947 to accept the famous partition resolution of the UN General Assembly.

These factors need to be kept in mind when evaluating the interaction between the security considerations of the occupying power and spontaneous and organized resistance by a people seeking to exercise their long suppressed rights.

The frustrations associated with these conditions erupted in the first intifada that began in 1987, consisting of stone-throwing in the course of demonstrations and Palestinian refusal to cooperate with the Israeli administering authorities. As a result of the Oslo arrangements, Palestinian security forces were lightly armed and given the task of controlling urban areas in the occupied territories. The frustrations associated with the Oslo Process, and the related concerns with Camp David II and the provocative visit in September 2000 of Ariel Sharon to the Haram al-Sharif, including al-Aqsa Mosque, led directly to the second intifada. From its very first days Israeli sharpshooters inflicted heavy casualties on Palestinian demonstrators, who in the early period were mainly unarmed youth engaged in stone-throwing of a symbolic character.Israeli police and military forces were amply protected in their fortified positions against the stones.. In essence, Israel relied on excessive force in both intifadas, generating a cycle of violence that has been escalated by Israel at each stage, inflicting disproportionate casualties on the Palestinian side.

Such an assessment is not meant to minimize the tragedy and suffering associated with the loss of innocent Israeli lives as a result of deliberate Palestinian terrorist initiatives.

International law is silent on the rights of an occupied people to resist an occupation that flagrantly and persistently violates their most fundamental rights, thus infringing upon their entitlements associated with the right of self-determination.f

Such rights do seem to flow directly, however, from the general support given to the dynamics of decolonization and from the related legitimacy of efforts by a colonized people to engage in struggle including armed struggle.

Without entering into the substantive details, the main relevant point is that the historic UN General Assembly 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples establishes, according to Professor Georges Abi-Saab, four important propositions. First is that force to deny self-determination is prohibited under international law. Second, and conversely, is that "forcible resistance to forcible denial of self-determination--by imposing or maintaining colonial or alien domination--is legitimate according to the Declaration." Third, such movements to achieve self-determination, although not qualifying as states, have standing in international law, including the right to receive support from outside actors. Finally, third party governments can treat such movements as legitimate without encroaching on the rights of the state exercising control over the territory and its inhabitants.

The extension of such general developments in international law to the Palestinian struggle is supported by the weight of international expert opinion, and has been endorsed on a number of occasions by the UN General Assembly.

In this regard, the right of Palestinian resistance is linked to the historic rights of the Palestinian people to self-determination. The long denial of this right must be taken into account in evaluating recourse to force. Despite this affirmation, the laws of war also apply to the modes of resistance undertaken by the Palestinians. International law provides no direct guidelines at this point, except general prohibitions on indiscriminate violence that is contained in the customary international law, as well as attacks directed at civilian society, which are treated as "terrorism" and are of a criminal character. There are no extenuating circumstances that can justify legally the violation of this principle of limitation. In a reported statement to a meeting of the foreign ministers of the Organization of the Islamic Conference, Hamas sought support for suicide bombings directed at Israeli targets because "the Palestinians had no choice but to fight occupation," and allegedly possessed no alternative means.

Such a dilemma does appear to exist, but it does not validate the use of violence against Israeli civilians. To avoid charges of terrorism, Palestinians must find ways to resist that do not rely on violence directed at Israeli citizens. Such a burden may be difficult given the harshness of the occupation, but it can only be lifted by Palestinian ingenuity.

All forms of nonviolent resistance are definitely permissible, including refusal to obey the regulations of the occupying power. The difficult issue concerns recourse to force. Reliance on symbolic and low-tech violence (stone-throwing), especially if directed at military or illegal settler personnel, seems clearly to be permissible given the present conditions of occupation. Violence against military personnel and administering officials is more problematic, as is violence that intends to injure and kill that is directed at the settlements, which while illegal and armed, cannot be persuasively viewed as military targets. Under these circumstances, it is difficult to view the advocacy or support of armed Palestinian resistance, as distinct from specific support for suicide bombing against civilians, as well as other forms of violence deliberately directed at innocent persons and non-military targets.


The Relevance of International Morality

International law has always had a close relationship with international morality. The entire effort to prohibit recourse to force in situations other than self-defense and to promote international human rights reflects the legal imprint of a changed dominant morality. Such moral attitudes express a societal revulsion concerning the devastation and cruelties of warfare, heightened by the experience of the two world wars, together with the movement toward the emancipation of peoples from various forms of oppressive governance, with a great emphasis after 1945 on the struggle against colonial rule. The claims of the Palestinian people, and their denial by Israeli force and territorial ambitions, need to be interpreted within this general historical context. So understood, support for a right of resistance assumes the status both of objective analysis and of a moral imperative.

The only moral question at issue is the extent of this right and its relationship to restrictions on the use of force. The best available principled framework for identifying limits on the use of force is that provided by the just war doctrine as adapted to the specific circumstances of illegitimate belligerent occupation. As argued, the just cause of the Palestinians has been continuously confirmed over the years by authoritative statements to this effect by the United Nations, and heightened by Israel's refusal to heed such expressions of authority notwithstanding the fact that it owes its own sovereignty as a state to the same source of authority. The focus of debate at the present time is upon the just means of armed struggle, and how such considerations affect the rights of both Palestinians and Israelis. The emphasis on just means restricts both sides to use force in a manner that minimizes its destructive effects, and is confined to military and security targets. Terrorism by either side is unconditionally prohibited. It is to be observed that in the course of warfare, the ends of victory have often taken precedence over adherence to just means. The most prominent instance is World War II in which the just cause and military victory of the Allied side effectively suppressed criticism concerning reliance on unjust means, especially strategic bombing and attacks on Japanese cities with atomic bombs.

The Palestinian reliance on unjust means under the circumstances of the Israeli occupation needs to be understood in this light. It is not a legal or moral excuse for such behavior, but it is a recognition that in contexts of extremity, the search for effective methods of struggle tend to overwhelm restraint as to means in accordance with just war criteria. An evaluation of the Palestinian struggle that is not sensitive to these elements of necessity fails to address the tragic predicament of surrender or reliance on prohibited means of forcible resistance in pursuit of fundamental rights. States habitually rely with less justification on such rationales for their violence against civilian society. Perhaps, the most notorious case in recent history was the official justification for the atomic bomb attacks on the urban populations of Hiroshima and Nagasaki at the end of World War II as a matter of saving American lives.

The morality of force undertaken by actors allegedly representing civil society (here Hamas and Islamic Jihad) is always suspect, and will be treated by the occupying power in effective control as justifying high levels of counter-force, criminal indictment and punishment. The validation of recourse to force by non-governmental actors carries with it a particularly heavy burden of persuasion to show that peaceful alternatives have been responsibly tried, and are not reasonably available. Such a demonstration in the Palestinian setting depends on discrediting the Oslo peace process as a genuine alternative to armed struggle. It raises complex issues of representation. Who speaks authoritatively for the Palestinian people? Who represents Palestinians in exile living outside the occupied Palestinian territories? The PA did appear to accept the Oslo approach as a peaceful alternative, and has rhetorically opposed terrorism and has to some extent arrested suspects. Whether the outbreak of the second intifada implies the PA's rejection of Oslo, and if so whether such a rejection was reasonable given the surrounding circumstances, is part of the moral assessment that must be made.(? - the sentence as written was not clear: is this right?] Sharp perceptual differences on these matters ensure the absence of a consensus as to whether the Palestinian people were given [via Oslo] a peaceful path to the realization of their right of self-determination, but it is certainly reasonable to conclude that no such opportunity existed for the Palestinian side.


The Relevance of Politics and Political Realism

In settings where power disparities are as great as between the Israelis and Palestinians, the prudential question is also important: what tactics are appropriate to the side seeking to vindicate its rights under international law? Recourse to force has the disadvantage of validating reliance on force by the stronger side, which is especially the case to the extent that resistance by the weaker side can be criminalized as "terrorism" while the forcible response, even if violative of international law, is viewed as "enforcement." Such disparities in relation to force are accentuated by the degree to which the world media tends to be statist in outlook, which pertains particularly to the Israeli/Palestine relationship, especially as portrayed in the United States. Israeli victimization is indivualized and humanized, while Palestinian victimization is reduced to statistical abstraction and often treated as an accidental byproduct of legitimate Israeli reprisal or enforcement actions directed at official, non-civilian targets. Palestinian violence is viewed as an extreme form of terrorism, while Israeli responses, even when directed at civilian targets, are never so described but are at most criticized as "excessive force."

At the same time, given the frustration associated with the failure of Israel to withdraw from Palestinian territories in a genuine manner, as well as Israeli refusal to respect the will of the United Nations, the Palestinian choice seems to have been reduced to one of acquiescence or resistance. To choose resistance under these circumstances seems reasonable. To make resistance pose a credible challenge to the occupying power would seem to justify reliance on force, at least if confined to military and governmental targets. But is such permissible uses of force feasible under the circumstances of Israeli domination?

If such resistance is ineffectual or cannot be mounted, then the dilemma is more serious: terrorism or surrender, with both options appearing unacceptable. It is unfortunate to put a people in these circumstances, and it is not surprising that a desperate politics associated with suicide bombing has resulted. Is such a course of action politically prudent and effective? Only history will eventually reveal the answer, although it seems evident that the short-run consequences will be disastrous for the already beleaguered Palestinian people trapped in the brutal dynamics of Israeli occupation now linked to America's War on Global Terror.


A Concluding Note

The events of 11 September have greatly complicated the struggle of the Palestinians and curtail their options. It is notable that Yasir Arafat immediately condemned the al Qaeda attacks, and repudiated any purported link to Palestinian self-determination.

It is equally notable that formally and informally Israel contended that its opponents among the Palestinians, including Arafat, were essentially no different from the perspective of terrorism than al Qaeda, and should be deemed part of the response to 11 September.

The Bush administration has done a diplomatic dance, initially supporting explicitly for the first time the goal of a viable Palestinian state, while at the same time buying the Israeli argument on the treatment of Palestinian terrorism. By stages this latter posture has prevailed, to the point that the U.S. Government endorses even the harshest Israeli military responses directed at Palestinian civilian society that make use of high technology weaponry and severe collective punishment, and has most directly and unconvincingly incorporated into its anti-terrorism campaign against al Qaida the challenge of Palestinian violence.

Under these circumstances the treatment of Azmi Bishara becomes a particularly prominent litmus test of Israeli democracy. The weight of the above analysis confirms that it is entirely reasonable for someone in Azmi Bishara's position to believe that Palestinians under occupation have certain rights of resistance, although not to the extent of terrorist forms of violence. This assessment of the Bishara case does not determine the outcome of the debate about what sorts of legal, moral, and political considerations apply to Palestinian claims of a right of resistance and to Israeli claims based on security. Such a debate is impossible to resolve, as the premises of the two sides are diametrically opposed, but at least the issues in controversy can be clarified, and a degree of consensus might be established on the limits of permissible force. Even here it is difficult as while it is possible to agree that Palestinian terrorism is unacceptable there is no reciprocal willingness to concede even conceptually, much less operationally, that Israeli violence and occupation policies may under certain circumstances constitute terrorism. And beyond this, the overall refusal of Israel to adhere to the rules of international humanitarian law over the course of its occupation is a constant provocation directed at the Palestinian people, giving them little choice but to resist or surrender.



. The two speeches by Azmi Bishara were delivered at Umm al-Faahem on 5 June 2000, published in Fasl al Maqal on 10 June 2000, and at Kardaha, Syria during a memorial service on 10 June 2001, the first anniversary of President Hafez al-Asad's death.

. Of course, it is impossible to rule out continued "resistance" by extremist elements on the Palestinian side that would not accept a fair compromise, but insisted on a maximalist solution. It would, however, become far more difficult to justify such resistance, especially if it relied on illegal and violent methods.

. For an early legal and political analysis of the impacts of Oslo on the status of West Bank and Gaza, and the rights of the Palestinian people see Stephen Bowen, ed., Human Rights, Self-Determination and Political Change in the Occupied Palestinian Territories (The Hague: Kluwer Law International, 1997).

. Richard Falk and Burns H. Weston, "The Relevance of International Law to Palestinian Rights in the West Bank and Gaza: In Legal Defense of the Intifada, " Harvard Journal of International Law 32 (No.1):129-157 (1991); Falk and Weston, "The Israeli-Occupied Territories, International Law, and the Boundaries of Scholarly Discourse," Harvard Journal of International Law 33 (No. 1): 191-204 (1992).

. See press release of World Council of Churches describing the effort to convene the parties to the Geneva Conventions for the purpose of seeking compliance in the Occupied Palestinian Territories, "WCC calls on Israel to observe its responsibilities under the Fourth Geneva Convention," WCC Press Release, PR-01-34, 14 September 2001.

. These violations of international humanitarian law and of international human rights law are detailed in the report of the Human Rights Inquiry Commission established by the UN Commission on Human Rights, available under the title "Question of the Violation of Human Rights in the Occupied Arab Territories, including Palestine," E/CN.4/2001/121, 16 March 2001. See also Richard Falk, "International Law and the al-Aqsa Intifada, Middle East Report 30(No. 4) 16-18.

. For important indictment of the Sharon government along these lines see Hanan Ashrawi, "Challenging Questions," Dec. 11, 2001, see <>

. For an Israeli interpretation of this legal situation see Brigidier General Uri Shoham, "Note: The Principle of Legality and the Israeli Military Government in the Territories," Military Law Review 153:245-273 (1996).

. A fuller recitation of the instances by which the UN Security Council has confirmed the applicability of the Fourth Geneva Convention is to be found in Asli Bali, "Legal Memorandum: The Legal/Political Context of the Second Intifada and the Question of a Palestinian Right of Resistance." (undated, prepared for the author in Jan./Feb. 2001. Ms. Bali notes that of the Security Council resolution on this matter the United States voted in favor of ten resolutions, and abstained from sixteen. The unusual practice of repeating the demand to uphold international humanitarian law seems to reflect the consensus of Security Council membership with regard to the importance of adherence by Israel, the persistence of Israeli defiance, and the suffering of the Palestinian people that results from Israeli failures to act in accordance with these legal obligations.

. See especially Security Council Res. 465 and 466( 1979-80).

. UNGA Res. 181 (1947).

. For insightful discussion into efforts of international law to address the complexities of belligerent occupation under varying conditions see Myres S. McDougal and Florentino P. Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion (New Haven, CT: Yale University Press, 1961) 732-832, especially 739-744. For general understanding of international law as a process of dealing with claims of adverse parties that need to be evaluated in context in relation to the community policies at stake see Rosalyn Higgins, Problems & Process: International Law and How We Use It (New York: Oxford University Press, 1994) 1-16, 238-253 stressing the extent to which the norms of international law must be interpreted in light of changing community policies, and if norms overly constrain reasonable patterns of adaptation, then the old norms must be abandoned in the face of new claims. So understood, the security considerations of a belligerent occupant must be weighed against the rights of a people to self-determination, particularly if the occupation is prolonged and maintained without respect for minimum humanitarian policies contained in the Fourth Geneva Convention.

. See Report of Human Rights Inquiry Commission, note 5, 14-17.

. On the applicability of the right of self-determination to the Palestinian situation see Catriona J. Drew, "Self-Determination, Population Transfer and the Middle East Peace Process," in Bowen, note -, 119-168.

. See the perceptive essay by Georges Abi-Saab, "Wars of National Liberation and the Laws of War," in Richard Falk, Friedrich Kratochwil, and Saul H. Mendlovitz, eds., International Law: A Contemporary Perspective (Boulder, CO: Westview, 410-436 (1985).

. See Abi-Saab, 416.

. See generally Drew, note 10; for UN endorsement see UNGA Res. 2728 (1971); see also UNGA Res. 2672 C (1970); UNGA Res. 2787 (1971); UN Res. 3098 D (1971). The PLO was recognized later as the legitimate representative of the Palestinian people. UNGA Res. 3210 (1974).

. See Neil MacFarquar, "Hamas Seeks Muslim Support for Suicide Raids," NY Times, Dec. 11, 2001, A18.

Of course, there has ensued a long controversy about whether the bombs were even necessary as Japan seemed on the verge of surrender. Some scholars have argued that the atomic bomb was used to intimidate the Soviet Union and to ensure American supremacy in the Pacific.

. The most forceful expression of this perspective can be found in Edward W. Said, The End of the peace process: Oslo and After (New York: Pantheon, 2000).

. See overall assessment by Henry Siegman, "Here is the Way to Counter Palestinian Terror," Dec. 12, 2001, International Herald Tribune www.iht.comm/articles/41585.htn Siegman argues that Arafat does have a responsibility to prevent Hamas and Islamic Jihad from operating in areas under his control, but also criticizes the Sharon government for provocations and for its failure to move toward the establishment of a Palestinian state. Seigman argues that Israeli security would be easier to protect in relation to a Palestinian state as the locus of responsibility would be easier to locate. At present, it seems evident that Arafat's will is not reinforced by effective control.

. See Elaine Sciolino, "U.S. to Use Reward Ads In Hunting Palestinians," NY Times, December 13, 2001, A11.



© TFF & the author 2002  


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