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Palestinian right to fight occupation not only moral, but legal as well

I agree wholeheartedly with Noam Sheizaf’s recent post about the Palestinians’ moral right to resist. But I would like to add that the moral right to resist is also the foundation of the Palestinians’ legal right to resist the illegal Israeli occupation. Considered within that framework, Israel’s suppression of Palestinian protest and resistance becomes even more striking and perverse.

Israeli soldiers surround a Palestinian at Nabi Saleh (photo: flickr/Activestills)

Speaking to +972, Israeli human rights lawyer Lynda Brayer remarks, “When we say moral, we’re talking about the general principle of behavior to promote, sustain, nurture, and help human life… international law reflects, on paper, moral values as we understand them.”

The Palestinian’s legal right to resist occupation—to fight for their ability to promote, sustain, and nurture human life, to fight for their right to grow, to flourish—comes from two documents: the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples and the Fourth Geneva Convention and its subsequent protocols.

Taken together, people have the right to “fight against colonial domination and alien occupation in the exercise of their right to self-determination,” Brayer explained.

Writing in CounterPunch this spring in the wake of Goldstone’s backpedaling, Brayer went into detail:

Above and beyond the basic right of all human beings to resist their being killed and harmed, and a society to take armed actions to protect itself, this document legitimizes also national liberation struggles, including, at this time in history, most particularly, the Palestinian people’s struggle for its own freedom.  It is this right which legitimizes all Palestinian attempts to lift the yoke of Israeli oppression from Palestine, including all the actions taken by the Palestinians during Operation Cast Lead.

And is not the right to resist oppression universal? Does this right not justify the American Revolution and then the French Revolution and the wars of liberation in the 1950′s and 1960′s. Nelson Mandela is a hero because of his resistance to, not because of his subservience to apartheid repression. And the Warsaw Ghetto uprising by the Jewish population against the Nazi repression is a beacon of pride in modern Jewish history.  it is also a fact that Jews who joined the resistance, say in Poland or other places under Nazi occupation, are heroes for the Jewish people. I would contend that one cannot deny that right of resistance to Palestinians which the Jews appropriated to themselves, and which is the right of all peoples living under military occupation and/or colonialist regimes.

Richard Falk, the UN Special Rapporteur on Palestinian human rights, a professor of international law at Princeton University, the author of dozens of books, writes in “International Law and the Al-Aqsa Intifada”:

Though the Israeli government and the US media persist in describing the second Palestinian intifada as a security crisis or a disruption to the ‘peace process,’ in international law, Palestinian resistance to occupation is a legally protected right…Israel’s failures to abide by international law, as a belligerent occupant, amounted to a fundamental denial of the right of self-determination, and more generally of respect for the framework of belligerent occupation — giving rise to a Palestinian right of resistance.

It boils down to this: every time the Israeli military arrests a Palestinian for “stone throwing” or “incitement” or any other bogus, trumped-up charges—and every time Israel holds a protest organizer or a Popular Committee leader prisoner—it is, perversely, detaining Palestinians for exercising their inalienable moral and legal rights to resist an illegal and violent military occupation.

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    1. Richard Witty

      There is an unavoidable quandry with the assertion of an oppressed people’s right to resist.

      On the one hand, how can anyone state that one should passively accept suppression, humiliation.

      On the other real hand, while it may be construed as the legal right to resist by virtue of one’s sense of morality or strained interpretations of international law, a primary responsibility of a temporarily occupying power is to maintain law and order within the area of their occupation.

      That maintenance of law and order is often delegated, and is rarely absolute.

      The settlement construction effort as a state enterprise is clearly a violation of international law, and the temporary nature of the Israeli occupation may be questioned.

      It is still a quandry.

      EVERY party uses the rationalizations of what is justified to exceed what is justified.

      Norman Finkelstein wrote a book with the title “This time we’ve gone too far”. The content of the book almost entirely refers to Israel’s actions, but the actions undertaken in the name of resistance (even rock-throwing) also go too far.

      Too far to the point that the actions are counter-productive, mostly because they stimulate (actively stimulate, maybe even intentionally stimulate) the fear of “what will they do if they are in power?”

      The significance of assiduously moral forms of resistance, non-violent in the meaning of non-harming not just in range of tactic, is that the actions stimulate admiration, rather than anything that could be understood as a rational fear.

      The second intifada and the long history of rocket attacks (Syria in the 60’s, Lebanon in the 70’s and 80’s, Gaza in 90’s and 00’s, Iraq with the prospect of WMD’s in warheads during the first Gulf War), set a BAD precedent, one that is long in duration, difficult to forget without sincere statements of reticence.

      Reply to Comment
    2. Richard Witty

      Another question on the term “occupation”.

      Most Israelis and from what I read most Palestinians speak of the term occupation to functionally apply to the 67/49 armistice, the green line.

      I do.

      I do though encounter more than a few that speak of the 47 UN resolution lines as the occupation.

      Other speak of any Israel, any Zionism, any Jewish self-determination in Israel as occupation.

      Can you clarify what you mean?

      And, can you clarify what your response is when the more maximalist definition of occupation is mingled with the green line definition?

      It comes up often in discussion on the right of return. Even Bernard Avishai, who speaks favorably in ways of the right of return to former specific homes, and titled jurisdiction, is often resented by some solidarity for not applying the maximalist definition of “from anywhere in historic Palestine, to anywhere in historic Palestine” (even ignoring that “historic Palestine” is a moving target – East Bank of the Jordan included or excluded?

      Reply to Comment
    3. Aaron

      Three legal sources are listed in the article.
      .
      The Declaration on the Granting of Independence to Colonial Countries and Peoples was a UN General Assembly resolution. UNGA resolutions are *non-binding*, in contrast to Security Council resolutions.
      .
      If “subsequent protocols” refers to the 1977 Geneva Protocols, they were not ratified by Israel. Therefore, they’re not relevant here either.

      The 1949 Geneva Conventions may be relevant. (I mean besides the question of whether the territory ever legally belonged to a High Contracting Party, because we’ve already heard both sides of that argument.) I’d appreciate it if someone could point out the relevant text. I know that there are no partisan groups among the Palestinians, that is, none fitting the definition of the convention. Could somebody quote the article of the Geneva Conventions that describes which types of resistance are legal and which are illegal? Thanks.

      Reply to Comment
    4. Mya – do you support the Palestinians’ ‘right’ to fire rockets at Israeli cities, as Ms. Brayer does?

      Reply to Comment
    5. Noam Wiener

      That the occupation is objectionable is, to me, as obvious as the sun rising in the East every morning.

      But the legal analysis here is wrong. Not surprisingly, because international law is a creation of sovereign states, there is no right to succession and/or violent resistance in any binding international documents except the right of sovereign nations to self-defense.

      Moreover, from a strict legal stance, the occupation is not illegal – many aspects of it – the construction of the settlements and all the human rights abuse that flows from it are at the root of these illegal actions – but that does not turn the occupation itself into an illegal one.

      There are enough reasons to end the occupation, let’s not get into a spin about legal issues.

      Reply to Comment
    6. Noam Wiener

      Maybe just to clarify on my previous comment – this whole thing goes directly to the paradox of sovereignty.

      The American revolution was not “legal”. Neither was the French revolution.

      That is, until one second after the revolutionaries took power. Then being a monarchist was not legal.

      Reply to Comment
    7. Bosko

      It is not a question of right to resist occupation. It is a question of choice. As I wrote on the other thread, in the case of this conflict, the Palestinian Arabs were given a reasonable choice to end this conflict and thereby the occupation, at least twice, in the last decade. Their leadership chose not to exercise that choice because they insisted and still do insist on the so called right of return. Israel of course has no choice, it cannot grant that right because allowing millions of former enemies to settle within Israel’s borders would mean Israel’s destruction.
      .
      So, Palestinian Arabs made the choice to maintain the occupation by playing a zero sum game. Sure, they have a right to resist, it is everyone’s right to resist. But Israel too then has the right to resist Palestinian resistance. Because it is a lesser of the two choices that Israel was presented by the Palestinian Arabs own choice.

      Reply to Comment
    8. Aaron

      Noam, it’s a commonplace that sovereignty has been receding from international public law over the last century. States are no longer the sole subjects of international public law. Your “paradox of sovereignty” held up through the 19th century – it was actually quite relevant in practice during the American Civil War, when European powers recognized the Confederates as belligerents and the Union protested – but it’s not that applicable anymore, unfortunately.
      .
      The first 1977 Geneva Protocol says the following: “The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.”
      .
      That’s about as anti-sovereignty as you can get. The only problem with citing this Protocol as the author does is that IT WAS NEVER RATIFIED BY ISRAEL and is therefore irrelevant to this conflict.

      Reply to Comment
    9. Noam Wiener

      Thank you Aaron.

      The 1977 protocol deals with what is called ‘jus in bello’ – the rules that refer to the means in which force can be used once a conflict has broken. It says nothing about the right to use force (use ad bellum). The first is indeed a limitation on sovereignty, as any international rule is, the second goes to the very core of sovereignty (and is, subsequently, a lot less developed) – this is also why the Statute of the International Criminal Court has the war crimes, crimes against humanity rules spelled out with quite distinct elements, but the crime of aggression is still very rudimentary in its definition.

      And, if you think the paradox of sovereignty is a thing of the past, read the ICJ advisory opinion on Kosovo and see how the Court twisted, turned, and tried to walk on eggshells when it wrote its very very narrow decision.

      Reply to Comment
    10. directrob

      “…Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,…”
      .
      Noam, given the character of the occupation and the violation of human rights what other recourse than rebellion do the Palestinians have?

      Reply to Comment
    11. Bosko

      Directrob: “given the character of the occupation and the violation of human rights what other recourse than rebellion do the Palestinians have?”
      .
      Simple answer: Stop demanding the impossible. Accept that there will NEVER be a right of return on a large scale to Israel proper. Negotiate a peace deal based on the two state solution, land swaps, shared control of East Jerusalem and compensation for refugees (I hope Jewish refugees too will be remembered) and make peace. Voila, the occupation will end.

      Reply to Comment
    12. directrob

      Bosko,
      I fear your current offer is about the same as the PA position and way to leftist for the Israeli government. We are heading for four mini enclaves.

      Reply to Comment
    13. Richard Witty

      If my memory serves me well (it doesn’t always), the original headline for this was Palestinian right to “resist” occupation, no?

      Reply to Comment
    14. Bosko

      Diretrob
      No. The PA position is still a demand for a full right of return to Israel proper in too large a number.
      .
      Having said that, you are probably right about the current Israeli government too. I doubt that they would be as generous as the Olmert of Barak Governments were in 2008 and 2001 respectively. But we don’t really know because Abbas now refuses to negotiate without preconditions.
      .
      So, once again, in answer to your question, what choice do the Palestinian Arabs have other than resistance?
      .
      ANSWER:
      1. At least sit down and talk with the current Israely government without preconditions.
      .
      2. COMPROMISE, give up the unreasonable demand of right of return.
      .
      If that does not work, then wait till the next elections in Israel. If the Israeli public would perceive a more reasonable PA, they would get rid of a government that does not reciprocate for the sake of peace. Otherwise, the Israeli voters too will continue to be radicalized and react by electing even more intransigent governments of their own. The choice is in the hands of the PA. Be intransigent, radical and resist and Israelis too will elect governments that they think can deal with such radicalism and resistance.

      Reply to Comment
    15. Noam Wiener

      Directrob – that is very heady language, and as I stated before, the moral issue is fairly unassailable in my opinion.

      But, first, that language does not provide a right to rebel, but rather suggests what needs to be done in order to prevent rebellion.

      And second, the Universal Declaration is not, unfortunately, a legally binding document.

      Reply to Comment
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