Azmi
Bishara, the Right of
Resistance
and the Palestinian Ordeal
By
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.
NOTES
. 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
<Al-Awda-News@yahoogroups.com>
. 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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