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John Locke on nations' right to resist occupation

The fallout from Amira Hass’ Haaretz article in which she stated that “throwing stones is the birthright and duty of anyone subject to foreign rule” continues. There are many responses in the Hebrew media and blogesphere, and some interesting debates, mostly on Facebook.

As some readers noted in the comments to my previous posts, there were several UN resolutions (not all of them having to do with Israel/Palestine) that affirmed this right, but there wasn’t much legal writing on the issue. However, John Locke, an English philosopher and one of the fathers of Liberal thinking, had very clear words to say (Second Treatise of Civil Government, Locke 1690, emphasis mine):

Over those then that joined with him in the war, and over those of the subdued country that opposed him not, and the posterity even of those that did, the conqueror, even in a just war, hath, by his conquest, no right of dominion: they are free from any subjection to him, and if their former government be dissolved, they are at liberty to begin and erect another to themselves.

(h/t Dotan Leshem)

UPDATE: Check out the quote in the first comment also. 

Related:
Settlers accuse ‘Haaretz’ of calling for violence against them
The undeniable Palestinian right to resist occupation

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    1. Kolumn9

      You misquoted…

      “Over those then that joined with him in the war, and over those of the subdued country that opposed him not, and the posterity even of those that did, the conqueror, even in a just war, hath, by his conquest, no right of dominion: they are free from any subjection to him, and if their former government be dissolved, they are at liberty to begin and erect another to themselves.”

      It is ‘subjection’, not ‘objection’ and this is an argument for self-determination, not the right of resistance.

      You should have quoted the following passage instead:

      “Sec.192. By the second, the inhabitants of any country, who are descended, and derive a title to their estates from those who are subdued, and had a government forced upon them against their free consents, retain a right to the possession of their ancestors, though they consent not freely to the government, whose hard conditions were by force imposed on the possessors of that country: for the first conqueror never having had a title to the land of that country, the people who are the descendants of, or claim under those who were forced to submit to the yoke of a government by constraint, have always a right to shake it off, and free themselves from the usurpation or tyranny which the sword hath brought in upon them, till their rulers put them under such a frame of government as they willingly and of choice consent to. Who doubts but the Grecian Christians, descendants of the ancient possessors of that country, may justly cast off the Turkish yoke, which they have so long groaned under, whenever they have an opportunity to do it? For no government can have a right to obedience from a people who have not freely consented to it; which they can never be supposed to do, till either they are put in a full state of liberty to chuse their government and governors, or at least till they have such standing laws, to which they have by themselves or their representatives given their free consent, and also till they are allowed their due property, which is so to be proprietors of what they have, that no body can take away any part of it without their own consent, without which, men under any government are not in the state of freemen, but are direct slaves under the force of war.”

      This is Locke on the right to resist occupation, but as you already mentioned elsewhere the legitimate means of doing so are a different question altogether.

      Reply to Comment
      • thanks for the correction – that was a copying mistake, I don’t think it changes much.

        thanks also for the quote – it’s a good one.

        Reply to Comment
        • Kolumn9

          The bigger point was that the quote you cited doesn’t actually talk about a nation’s right to resist occupation.

          Reply to Comment
    2. Shmuel

      Fair enough. They have the right to resist. But equally, the conqueror too has the right to resist that resistance especially if the conquest occurred as a result of aggression by the conquered people.

      So where does that leave us? ANSWER: at the impass that currently exists between Israel and the Palestinian Arabs.

      Of course, there is another alternative. Serious negotiations in which the conquered people renounce their original aggression and agree to never do it again (unambiguously). To show that they mean what they promise, they agree to negotiate more secure borders (with some give and take) which would make it less tempting to initiate future aggression.

      In return, the occupation would end.

      Not that hard is it?

      Reply to Comment
      • Palestinan

        By your twisted logic ,a thief has the right to resist the resistance of the landlord ! Only in Isghael

        Reply to Comment
        • Shmuel

          Seriously, by your twisted logic, all the Arabs have to do is claim that ALL of Palestine is theirs and by magic it becomes theirs and theirs alone.

          Then if we Jews claim part of our ancestral homeland, you have the right to call us thieves.

          You know what? The Arabs are the thieves.

          Reply to Comment
          • What ancestral homeland? Kindly provide me with a scientifically edited lineage proving you’re a descendent of a Jew residing in Palestine in 70 AD. Most Jews aren’t and never were. Then please explain to me why 2,000 years won’t revoke your so-called right.

            Reply to Comment
          • Kolumn9

            Kindly provide me with a scientifically edited lineage proving that a Palestinian is a descendant of a Jew residing in Palestine in 70 AD. Also kindly demonstrate to me by what right the people that call themselves the Palestinians can claim to be sole and exclusive owners of the entirety of Israel. This would likely require you to argue that the Jews are foreign but that would mean arguing that every Arab that wondered into Palestine prior to 1948 is a local while any Jew that was resident at that time was foreign including those that “never left”.

            Reply to Comment
          • Richard Lightbown

            For the sake of completeness can you give your opinion on the rest of Yossi’s points:

            - most Jews aren’t and never were descendants of a Jew residing in Palestine in 70 AD
            - Why 2,000 years does not revoke this right which is being assumed.

            Otherwise what is the point of your post?

            Reply to Comment
          • Shmuel

            - History books give a detailed account as to where each location that each Jewish community ended up in since their exile by the Romans. It details why they got there, how they got there, how long they stayed and where they moved to. Google it.

            - Every Jew has a Hebrew name which includes his father’s Jewish name too name too. Names are handed down through generations from father to son.

            - The Hebrew language was kept alive by each Jewish community for 2000 years.

            - Genetic studies back up that most Jews have genes that can be traced back to the levant.

            - A small number of Jewish communities never left Palestine.

            - Jews returning to Palestine from the mid 1800s purchased lands. They paid for lands that they ended up living on, GET IT???

            Satisfied?

            Now kindly justify on what basis do Arabs claim ALL of Palestine for themselves? Did they inhabit every square inch of Palestine between say 1850 and 1947? Clearly NOT. In 1947 there were ONLY 1.2 million Arabs in Palestine. In 1850, probably no more than 100,000. So on what basis do they assert that all of Palestine is Arab land?

            Reply to Comment
          • Richard Lightbown

            Satisfied? No, I was asking Dotan to explain his post not you. For your own part you have still to satisfy Yossi Gurvitz’s request for your scientifically edited lineage, which I am not going to find in a google search for “history books”.

            And even you Shmuel, yes even you, must be aware that most of the Jewish owned land of Israel, not to mention the occupied Syrian Golan has been stolen by force of arms between 1947 and the present day.

            Reply to Comment
          • Shmuel

            “Satisfied? No, I was asking Dotan to explain his post not you.”

            What a coincidence. I never asked you whether YOU were satisfied. My post was addressed to YGurwitz.

            “For your own part you have still to satisfy Yossi Gurvitz’s request for your scientifically edited lineage”

            No I don’t. I was very satisfied with my answer. Those of you who were not, will never be satisfied.

            “which I am not going to find in a google search for “history books”.

            Please yourself.

            “And even you Shmuel, yes even you, must be aware that most of the Jewish owned land of Israel, not to mention the occupied Syrian Golan has been stolen by force of arms between 1947 and the present day.”

            You said a mouthful there. Nothing was stolen. The Golan was taken by force in a defensive war. As for the rest of Israel, it certainly was not built on stolen land. For something to be stolen, it had to belong to someone first. And it so happens that all of you steadfastly refuse to answer the question how ALL of Palestine belonged to the Arabs. When exactly was there a sovereign state called Arab Palestine in the history of mankind? What were it’s borders?

            Never? So why do you guys claim that ONLY the Arabs deserve self determination in Palestine but not the Jews?

            How wrong can you be? Even the UN disagrees with you. Have you heard of UN resolution 181? It was a vote to partition Palestine into two states, one Jewish one Arab. Who were the ones to reject that resolution? The Arabs. Why? Because they tried to steal the land that the Jews were allocated. But it backfired on them. They ended up losing their lands to Jordan, Egypt and Israel after the war that they started against the Jews in 1947.

            Reply to Comment
          • Richard Lightbown

            Don’t be so obtuse. The land had owners who were ejected from their property, which was then stolen (‘confiscated’ in Israelispeak). Even Alan Dershowitz has given up defending the’ land without a people claim’. Your statement “They paid for lands that they ended up living on” is not true in the vast majority of cases. People were forced off their lands, fled from their houses (if they were not killed in them as at Deir Yassin and elsewhere) , taking only what they could carry. Most of them have lived in camps ever since. These were criminal acts which are irrespective of who was governing the country. No UN resolution ever endorsed Palestine’s ethnic cleansing. Similar crimes occurred on the Golan where 125,000 of the indigenous population were forcibly exiled. The defensive war claim was refuted by Moshe Dayan decades ago. Even a defensive war is illegal if it contravenes the Geneva Conventions, which forcibly substituting your own population for the indigenous population most certainly does. You’re living in a parallel universe Shmuel.

            Reply to Comment
          • Shmuel

            You are the only one that is obtuse. Quoting dubious sources and selectively at that. Here are just a couple of instances in your post when you do it. The rest I will ignore …

            “Even Alan Dershowitz has given up defending the’ land without a people claim’.”

            Nobody claims that the land was without people, silly. What anyone with even half a brain can work out is that the land was sparsely populated. Here is a little exercise for you:

            In 1947, there were 1.2 million Arabs in Palestine.

            Now take an excel spreadsheet (you do know how to use one don’t you?) and work backwards to work out the likely population of Arabs 100 years before.

            I allowed a growth rate of 3% (birth rate – death rate) which is very reasonable in my opinion. That gave me a population of around 58,000 in 1850. But I was generous and rounded it up to 100,000 in my previous post. Either way, it should tell even you that in the mid 1800s, Palestine was sparsely populated.

            I mention that because that’s when the first wave of Jewish immigration began to return to Palestine.

            “Your statement “They paid for lands that they ended up living on” is not true in the vast majority of cases.”

            How can one argue against such ignorance. Or is it deliberate denial? Any reputable history book confirms that the Jews paid exorbitant prices for lands that they purchased from absentee Arab landlords.

            Often those lands were useless swamps (like in Petach Tikva) but in some cases simple Felahin were working those lands. And yes, in those cases the Jews replaced the Felahin because after paying exorbitant prices for the land, they had the right to work the land themselves

            Reply to Comment
          • Palestinan

            Your ancestral homeland is in Europe.
            Keep your beliefs and myths to yourself and dont let them creep into your argument!

            Reply to Comment
          • Shmuel

            And your ancestral homeland is in hell. Oops, I mean Arabia. Keep your myths and stories to yourself. Don’t let them creep into YOUR argument.

            Reply to Comment
          • Shmuel

            To anyone who is willing to open their eyes, ears and who is willing to think for themselves.

            This little sad interchange between me and this moron who calls himself Palestinian, illustrates why the occupation continues.

            It started by my suggestion that the occupation will only end if both sides sit down, negotiate seriously and compromise.

            It ended by this moron telling me that I don’t belong here because my home is Europe. Of course, his bloody minded ness, brought out the bloody minded in me.

            That has been the story of the Middle East in a nutshell for the last 100 years.

            Reply to Comment
          • Joe

            If we’re going to have land ownership based on historical claims of people who last lived there >1500 years ago, we have a serious global problem. Look at the UK for a start – who should the land there belong to – Vikings, Anglo-saxons, Romans, or someone else? The idea is absurd.

            Reply to Comment
          • Joe

            Also – y’know – two can play that game. If there were people who claimed to be descendents of Ammonite (and other tribes living in the ‘land flowing with milk and honey’ before Joshua), could they also not argue that they have a claim to the land? Who is deciding whose ancestry is better/original?

            Reply to Comment
          • Shmuel

            Ok so where are the Amonites? What language do they speak? Is their culture still alive? Or did they blend in with other people and they already have a home?

            Your argument is a straw man argument. You created a problem that does not exist and proceeded to demolish your own argument.

            And we all know why you did that. You did it because you were hoping to demolish our own argument that we the Jewish people need our own home. And what better home than claiming our ancestral homeland which WAS sparsely populated in the mid 1800s so we could have part of it back.

            And you still did not answer my question why that was wrong. The only thing you could say is that the land belonged to the Arabs. But that would be just an assertion. An unjustifiable assertion. Because in 1850, Arabs did not inhabit every square inch of Palestine. Nor was there ever a sovereign Arab country known as Palestine. But a small number of Jews NEVER left Palestine.

            Reply to Comment
          • Joe

            So if one person said they were an Ammonite, that would be a legitimate claim?

            That there were Jews in the 19 and 20 centuries in Palestine is without question. That some families have a continuous ancient ancestral lineage in the land is without question. I’m not talking about them, but the people who returned to the land with opnly several-thousand-year old ancestral claim.

            The rest of your post (and other posts) is entirely without merit – such claims would simply be thrown out almost anywhere that has the rule of law and a concept of justice. Only in Israel does land belong more to the Jews than the people who have actually been living continuously on it for many hundreds of years.

            Reply to Comment
          • Shmuel

            “So if one person said they were an Ammonite, that would be a legitimate claim?”

            A claim to what, Joe? You missed the point of my argument entirely.

            Here were (and are) the Jewish people, millions of people, a distinct people who preserved their language and culture. We had and still have a need to call ONE place on this earth our home. Why? Because while we were in exile things did not work out for us too well did they, Joe? Do I need to elaborate? I will if you want me to.

            Here was Palestine which happens to be the place that we were kicked out from. And yes, even though in the 1850s it had an Arab population, they certainly did not populate the entirity of Palestine. In fact, Palestine was sparsely populated. Nor was it a sovereign Arab land. So what exactly was wrong with the idea of establishing two states there, one for the Arabs who lived there and one for the Jews who already lived there as well as for the returning Jews?

            And what have the hypothetical Amonites got to do with all this? Are you going to invent the Amonite Liberation movement (the ALM?). Are you aware of an Amonite problem? Don’t they already have a home? Whoever and wherever they are? Or are your Amonites just a red herring?

            Reply to Comment
    3. Aaron Gross

      I don’t believe in any abstract right to self-determination. It doesn’t exist; it’s a mirage. You can say that unicorns exist, but that doesn’t make them real.

      I do think there’s a principle, or rule of thumb, that it’s right to resist settlement of your land, including by violence, including by terrorism if necessary. (Palestine in the 20th century, America in the 19th.)

      Legally, populations have the right to violently resist invaders and occupiers, but only in certain forms, such as partisan militias. None of the Palestinian violent resistance is protected by law. For instance, if Palestinian combatants are captured by Israel, they are not entitled to prisoner of war status; they can be imprisoned or executed at Israel’s discretion, after due process.

      Reply to Comment
      • directrob

        The ICJ writes: ” the right of peoples to self-determination is today a right erga omnes. ”

        There are enough examples to make this right not a mirage.

        The right to use force is not all that clear, but given current situation irrelevant. What is clear is that what going on here is framing. The crime of withholding Palestinian rights and the complacency of the US and Europe is the real issue.

        Reply to Comment
        • Aaron Gross

          There is a legal right to self-determination, but only in certain situations. Quebec does not have a legal right to wage a war of secession against Canada. The legal right does not apply to Palestinian resistance to the occupation, either. That legal right is not based on self-determination. I think the legal right to self-determination would apply if, for instance, Israel tried to annex Judea and Samaria.

          The legal right to use force is very clear. The type of violent resistance that’s legally protected is described clearly in the Geneva Convention. Palestinian combatants do not meet the criteria clearly listed there, even when attacking military targets.

          Reply to Comment
          • At some point, Aaron, effective control over J and S is annexation; indeed, settlers seek it outright, and the Israeli use of “J and S” suggests something of inevitability.

            Partisans will kill civilians, as we know from the Kind David Hotel. “Legal right of violence” is not going to change things. Violence has socio-economic causes. Sometimes its gang violence, c 1865 or 1980, quite different in the US. Sometimes domestic. Sometimes partisan. Funny thing–the nonviolent protests (Wall and Village) are trying to find another way. I wouldn’t laugh them off, even if stones migrate to them as well. If you want a way out of this, don’t you have to acknowledge that some on the other side are changing?

            Reply to Comment
          • Aaron Gross

            Here’s a difference between prolonged occupation and sovereignty (annexation): If the Palestinians were to agree to Israel’s demands – basically, to surrender – they could get sovereignty over most of Judea and Samaria tomorrow. The occupation might look permanent because we know this scenario isn’t going to happen, but the point is that the occupation could end tomorrow.

            I still have some hope that the occupation will end – not tomorrow, of course – with an Israeli withdrawal from most of the territory. I’ve never seen a convincing argument against this possibility.

            Of course I acknowledge changes on the other side. Everyone has to do that, no matter what his beliefs.

            Reply to Comment
          • “If the Palestinians were to agree to Israel’s demands – basically, to surrender – they could get sovereignty over most of Judea and Samaria tomorrow.” : I fail to see how “surrendering,” which allows one’s opponent to do whatever it likes, will insure anything along these lines. But the real error is in objectifying “Palestinian.” The exterior refugee camps are not the Bank, nor the Bank Gaza. Indeed, Israel can do nothing for the exterior refugees, the “right of return” demand really an indication that the PA can do little for them either. Nationhood has here created a cul de sac of impotence. You have an ascendant religious nationalism which wants J and S. That will force a civil relations confrontation in the Bank; and that seem not the best hope, but last hope.

            Reply to Comment
          • directrob

            Aaron I fear you are wrong:

            “The obligations erga omnes violated by Israel are the obligation to respect the right of the Palestinian people to self-determination, and certain of its obligations under international humanitarian law.”

            Reply to Comment
          • Aaron Gross

            The right to self-determination in that ruling applies specifically to the security barrier: “It is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self‑determination is brought to an end.” To repeat, this right does not apply to resistance to the occupation.

            Reply to Comment
          • directrob

            For the Palestinians there is a right to self-determination. (I guess we both agree, for the ICJ this right is erga omnes. It has nothing to do with the wall see page 172)

            Your story about POW or common criminal status would make more sense if Israel observed the Geneva conventions.

            Reply to Comment
      • I am all against terrorism, but I cannot see a difference between a “partisan militia” and a terrorist cell. Both are secretive, organizing themselves for violent action. Partisans do not wear “arrest me” badges when doing their day job. The difference claimed rests on the fact that there were Jewish partisons under the Mandate; these were good, so not like partisans of today in that land.

        Reply to Comment
        • Aaron Gross

          On the difference between Palestinian militias and partisans, see Geneva Convention (III), Article 4.

          For an interesting, more theoretical look at partisans, one which doesn’t pay much attention to targeting civilians as opposed to military, see Carl Schmitt, The Theory of the Partisan. (You might want to read his The Concept of the Political first, because the later book is sort of a continuation of that.)

          Reply to Comment
          • Actually, you may be the one who directed me to Schmitt some time ago. My point was that Jewish partisans under the Mandate did not confrom to the military/civilian distinction. If we want to take present refuge in the Geneva Convention, then we should as well take other present international rulings seriously. We do not.

            I do not want to see another bombing of any kind in Israel. If such happens, I will not say “legitimate,” but I will speak of causation. We cannot box lived life fully into what we want; recognized freedom comes from this. If I advocate harsher measures I am waiting for new violence. The risk before us is whether another path is possible.

            Reply to Comment
          • JG

            You *really* bringing up CARL SCHMITT, *the* nazi jurist and anti-semite par excellance?
            ROFL

            Reply to Comment
    4. Richard Witty

      1612?

      Locke was most importantly known for articulating the term “consent of the governed” as the basis of political legitimacy.

      Reply to Comment
    5. Erin Higgs

      Force is all-conquering, but its victories are short-lived.
      Abraham Lincoln
      16th president of US (1809 – 1865)
      If your enemies are hungry, give them food to eat. If they are thirsty, give them water to drink. You will heap burning coals of shame on their heads, and the LORD will reward you.Proverbs 25:21-2
      Non-violence is the greatest force at the disposal of mankind. It is mightier than the mightiest weapon of destruction devised by the ingenuity of man.
      Mahatma Gandhi
      Read more at http://www.brainyquote.com/quotes/keywords/non-violence.html#dw7X2fhClxrhfw1w.99
      There is no such thing as defeat in non-violence.
      Cesar Chavez
      Read more at http://www.brainyquote.com/quotes/keywords/non-violence.html#dw7X2fhClxrhfw1w.99
      I do not hold to non-violence for moral reasons, but for political and practical reasons.
      Aung San Suu Kyi
      Read more at http://www.brainyquote.com/quotes/keywords/non-violence.html#dw7X2fhClxrhfw1w.99

      Reply to Comment
      • XYZ

        Violence ended the Holocaust.
        VIolence ridded the world of Nazism and genocidal Japanese militarism.
        Violence ended slavery in the United States

        On the other hand, Gandhi’s “non-violence” at least partially contributed to one of the biggest mutual slaughters in history during the partition of India.

        Reply to Comment
      • Gandhi aside, nonviolence is not global; it cannot be effective in all situations. When massive war breaks out, all it can do is wait–except for ver specific local actions often unnoticed in the carnage. There is, however, a bit of nonviolence in the American response to victory in Japan and Germany. Both countries were aided substantially. Reperations as after WW I were seen as counterproductive. In this sense, there was a largely nonviolent reply to the misery of war, without retribution, overall.

        Reply to Comment
        • XYZ

          Just a historical correction-The Allies got far MORE reparations from Germany after the Second World War than after the First, the difference was the Western Allies decided to get Germany on her feet quickly after WW2 whereas after the WW1 Germany was treated as a pariah for years, until the Locarno Pact of 1926 (IIRC).

          Reply to Comment
          • You are right that the Marshal Plan credits were just that–credits payable. At no point was West Germany asked to pay back beyond its present means. Nor was Japan punished for its destruction of the Pacific. The point we are avoiding here is collective punishment, which was foresworn by the US–to marvelous result.

            Reply to Comment
    6. Oscar

      “Force is all-conquering, but its victories are short-lived.”

      I don’t know. Look at what a couple of nukes accomplished for Americans. It saved maybe a couple of hundred thousand yankee soldiers and Japan has been at peace with America ever since.

      Just saying. I am not advocating that Israel too should use nukes.

      Reply to Comment
      • I worry that radioactive fallout from a strike on Iran would harm Israelis. We have evolved the capacity to take actions which haunt our victory. Perhaps there is a parable for One/Two States there.

        Reply to Comment
        • Oscar

          “I worry that radioactive fallout from a strike on Iran would harm Israelis. We have evolved the capacity to take actions which haunt our victory. Perhaps there is a parable for One/Two States there.”

          Sigh …

          I specifically said that I don’t advocate the use of nukes by Israel. Alas, some people read but see only preconceived notions.

          What can one do?
          :(

          Reply to Comment
          • No, Oscar, I saw exactly what you were saying. What I was saying is that some tools may create their own impotence. I neither allowed my preconeptions to misread you nor sought you harm.

            Reply to Comment
    7. I see self determination not as a right but inescapable fact. Resistence will generally always appear for reasons not necessarily related to human rights but control. This will force the occupier into increasingly draconian steps which do repress human rights; and this changes the character of both occupied and occupier over time. Self determination can be a frustrated opt out, as in some of British colonial Africa. It may take generations for human rights to appear after self determination; it is no panacea.

      And occupation may actually protect human rights. Southern blacks entered the US Congress during the Federal occupation of the South; when that occupation ended, these blacks were gone and Jim Crow evolved.

      As Chapter 22 of the League of Nations Covenent implies, self determination is an outcome of knowing how occupation will eventually evolve. One may fantasize slave societies were slaves have nice pensions and health care; but the institution attracts abuse. So too does occupation. Self determination is a turning away of what the occupier will become, not an enabler of the occupied as such. Perhaps a precondition. One State as outcome might be a new test upon the world; just what Jewish Israelis need–another test, God or otherwise, you decide.

      Reply to Comment
    8. Boxthorn

      I assume then that Sheizaf is a supporter of Kim Jong Un’s attempts to end the American occupation of part of Korea.

      To say nothing of whatsisname’s opposition to the occupations of the Saarland, the Rhineland and the Danzig corridor…

      Reply to Comment
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