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Since the escalation of the conflict with Israel which took place last May, the Palestinian cause has garnered significant support from all around the world. However, some long-standing objections have come back to haunt one of the most controversial debates in international relations.
“What about Hamas though? Shouldn’t Israel wield its “right to self-defense“? Isn’t Israel’s state violence a lesser evil when compared to the unpredictable warfare of a fundamentalist, non-state group seeking power in a war-torn land?
These appear to be the main arguments of those who claim that realpolitik is what matters when approaching complex and prolonged conflicts as if supporting Palestine would also mean supporting Hamas, the Islamist organization which is currently fighting on its behalf.
Despite the asymmetric character of the conflict, where Israel’s blatant violations of international law cause far bigger casualties and damages in comparison to Hamas, still, it feels ethically “awkward” – to quote AlJazeera journalist Malika Bilal – to be taken as a Hamas supporter when standing with Palestine.
On the other hand, supporting the Palestinian cause, no matter who is currently fighting for it is disregarded as a mere idealistic position, distant from a real-world where such a fight is embraced by a dangerous, radicalised armed group that Israel claims to be contained in a “war against terror”.
This narrative seeking to discredit the Palestinian cause is even more dangerous because it overlooks the fact that supporting the rights of the Palestinian people means acting according to international law, as if such norms had lost adherence to reality and become de facto obsolete.
Civil society will struggle to make Palestinian voices heard if they don’t understand the legal background of the issue, no matter how difficult it might feel sometimes to care about “empty” statements.
In such a complex world, shouting “that is not fair” is not enough; we need to know exactly how to formulate our demands. After all, both Nelson Mandela and Gandhi were lawyers.
International Law: Powerful Weapon or Ineffective Instrument?
The events in Israel are not the only ones to underscore the importance of certain international norms. Palestinian supporters do the same thing sometimes, by remarking that since Israel is blatantly violating international law and no one holds it accountable, the law is, in a de facto sense, not effective.
Some human rights groups that support Palestine also deny the existence of a conflict between Israel and Hamas on the misleading premise of the imbalance of their forces. Whilst trying to defend Palestinian rights, they actually do the opposite by removing the necessary basis for the application of international humanitarian law (IHL): the existence of a conflict. According to this viewpoint, Israel would not be obligated to respect fundamental principles of IHL like the obligation not to target civilian objects.
On the other hand, when Israel violates international law it doesn’t do so randomly and provides justifications that are entrenched in a longstanding revisionist approach to the legitimacy of the use of force: the exceptionality of counterterrorism operations. That is to say that when fighting against an unpredictable, armed non-state actor designated as a terrorist organization like Hamas, state actors can be relieved of their international obligations.
As state actors continue to draw their narrative from international norms, no matter how revisionist and inaccurate their approach might be, it signifies that international law is not dead and can be a powerful weapon in making their voice heard.
The Palestinian War of Liberation
“Today I come bearing an olive branch in one hand, and the freedom fighter’s gun in the other. Do not let the olive branch fall from my hand.”
Former PLO leader Yasser Arafat spoke these famous words in front of the UN General Assembly on November 13, 1974, thus becoming the first representative of a non-member body to speak at the United Nations General Assembly. Why was Arafat allowed to make what sounds like a finely formulated threat of force while addressing the representatives of the states of the world?
The answer is simple: it was his right to do so.
According to the 1966 International Covenants on Human Rights, the right of self-determination is the right of all people to “freely determine their political status and freely pursue their economic, social, and cultural development”. As the General Assembly of the United Nations has stated in more than one resolution (see, for instance, the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations):
The struggle of people against any forcible action aimed at depriving them of their right to self-determination is legitimate.
Article 1, paragraph 4 of the First Protocol Additional to the Geneva Conventions, signed on June 4, 1977, mentions three circumstances in which peoples struggle for the exercise of their right to self-determination: colonial domination, alien occupation, and racist regimes. Even though the case of Palestine could fit in all three categories, alien occupation is, legally speaking, the most relevant description.
The international community at large has confirmed on numerous occasions that the West Bank (including East Jerusalem) and the Gaza Strip is occupied territory. This position has been adopted by the UN and other international humanitarian organizations, including the International Committee of the Red Cross. The UN Security Council first recognized this status in Resolution 242 of November 22, 1967, in which it emphasized the “inadmissibility of the acquisition of territory by war” and called for the “withdrawal of Israel armed forces from territories occupied in the recent conflict”.
Arafat wasn’t making a threat of force but was entertaining the idea of not wielding his right to fight for Palestine’s self-determination, a right that the Palestinian people continue to have despite the fact that the main actor currently fighting for it has resorted to a strategy that is very far from Arafat’s fine speech.
In the end, when put in front of the “awkward” argument of “but what about Hamas?”, the most correct and powerful answer does not lie in pointing out the asymmetric character of the conflict – or, worse, the non-existence of the conflict – but in remarking that the subject of the right to self-determination is the Palestinian people and Hamas is only the current, bleak manifestation of the rightful Palestinian resistance, a manifestation that rose to power thanks to its enemies.
The Oslo Accords: Failed Process or Deceitful Instrument?
The peace talks between Arafat and former Israeli Prime Minister Yitzhak Rabin ended with the signing of the famous Olso Accords. Then regarded as a milestone in the road to a long-awaited peace, is described by many today as a missed opportunity because of the failure of the parties involved to comply with their obligations plus a rise of extremism on both sides.
However, in an interesting article published by Middle East Eye, some authoritative analysts firmly disagree with this view. “Oslo never died. It is still doing today what it was set up to do,” says Diana Buttu, a Canadian-Palestinian lawyer and former adviser to the Palestinian Authority. She notes that the occupation was not mentioned anywhere in the accords, and neither was a Palestinian state or freedom for the Palestinians. No action was specified against Israel’s illegal settlements – the chief obstacle to Palestinian statehood.
“Their view was that clearer language, on Palestinian statehood and independence, would never have got past Rabin’s coalition. Their approach was beyond naïve; it was reckless. They behaved like amateurs.” The real issue is not the non-effectiveness or the alleged irrelevance of the law, but its lack of clear, specific provisions that in this case played to the detriment of Palestine.
The Rise of Hamas
The “mother organization” of Hamas is the Palestinian Muslim Brotherhood, which was banned under Egyptian occupation prior to the 1967 Arab-Israeli War when Israel took control of Gaza and the West Bank. Striking as it might appear, from that time on, things changed radically for the organization in terms of what was allowed in the open by the Israeli occupation forces with a view to counterweight Arafat’s PLO.
When the wheelchair-bound Sheik Ahmed Yassin formed the Islamist group Mujama al-Islamiya, Israel recognized it as an association in 1979. In 1984, following the discovery of arms caches in a mosque by the Israeli military, Yassin was jailed on a 12-year sentence but was released a year later. In 1987, during the First Intifada, Yassin founded Hamas, becoming its spiritual leader.
Hamas soon came to prominence for its terrorist acts like the suicide bombings, commonly believed to be one of the main reasons for “the failure” of the Oslo process and the rise of Benjamin Netanyahu in 1996. After refusing to adhere to the Oslo Accords and embracing the Palestinian War of Liberation, Hamas was designated as a terrorist organization by the EU and the United States. When Hamas won the 2006 elections in Gaza, they became the leading force in the Palestinian struggle towards self-determination.
After the reassuring and charismatic figure Yasser Arafat, who died in 2004 under uncertain circumstances, the Palestinian cause developed a new characteristic: terror. Stigma fueled the dominant narrative in the West which blamed Palestinian people for their own plight as if they chose violence over peace. Today, mainstream media rarely mentions the true nature of the Oslo Accords. Understandably, the people of Gaza felt betrayed when the leaders of Hamas broke the trust they built after years of charitable projects and institution building with Israel’s silent collaboration.
Israel’s War on Terror and the Dehumanisation of a Nation
During the latest battle between Israel and Hamas, one of the most striking moments was when the AP building in Gaza collapsed from the bombs of Israeli Air Forces. How did a state actor bomb the headquarters of a press agency and get away with it? Perhaps it’s because the powerful always manage to escape the law.
To some extent, this might be true, but there is also another factor that fuels Israel’s narrative on the necessity of its acts: the presumed exceptionality of counterterrorism operations. The theory, by which the War on Terror was launched, is that this is a special kind of military operation where “traditional” norms in armed conflicts do not apply. This theory emerged alongside the Bush Doctrine on preventive war, which gained popular support in the wake of the 9/11 terrorist attack in the United States.
This kind of approach removes the sine qua non or “the essential condition” of an armed conflict, in order to justify a military strike according to international humanitarian law. The fundamental principles of international humanitarian law are the distinction between military and civilian objects with the obligation to target only military objects, follow the principle of proportionality, and adhere to the principle of precaution. Denying the need to apply these basic principles stems from a process of dehumanizing those who are designated as terrorists. A bleak consequence of such a process is that it involves innocent civilians, too.
The tendency of many stakeholders to underscore the need for counterterrorism operations and comply with IHL is an issue of great concern for the International Committee of the Red Cross, the guardian institution of IHL, which has repeatedly pointed out the groundlessness of such a revisionist approach, not to mention the fact that the only effect of such a modus operandi is the further radicalization of the targeted movement. Violence is not only the consequence of terror, it is its root as well.
It is important that these details be part of the public debate around such a longstanding and painful conflict. An informed civil society can truly revolutionize the defense of an oppressed nation.