In the aftermath of Khaled Meshaal’s emotional visit to Gaza in celebration of Hamas’ 25th anniversary, commentary in Israel and the West has focused on his remarks at a rally as “defiant” and confirming “the true face” of Hamas. Emphasis was particularly placed on his dramatic pledge to recover the whole of historic Palestine, from the Mediterranean to Jordan, “inch by inch”, no matter how long such a process might take. Meshaal also challenged the legitimacy of the Zionist project, and justified Palestinian resistance in whatever form it might assume, although disavowing the intention to attack civilians as such, and denying any complicity by Hamas in the recent November 21, 2012 incident in Israel when a bomb exploded in a Jerusalem bus.

These remarks certainly raise concerns for moderate Israelis who continue to advocate a two-state solution in accordance with UN Security Council Resolution 242, but at the same time, it is important to listen to Hamas fully before reaching firm conclusions about their “true intentions”.

The thrice born ‘world leader’

What Meshaal said in Gaza was at a rally dedicated to reaffirming its fundamental struggle in the immediate aftermath of the recent eight day Israeli attack (code-named “Pillar of Defence”), and by a leader who for the first time in 45 years had openly dared to set foot in his occupied and oppressed homeland. Meshaal is a leader who has lived in exile in several countries throughout the region since he was eleven years old, having been born in the Selwad neighbourhood of Ramallah, then under Jordanian control. He is someone who in 1997 Israel had tried to murder in a notorious incident in Jordan in which only the immediate capture of the Mossad perpetrators induced Israel to supply a life-saving antidote for the poison that had been sprayed into Meshaal’s ear so as to secure the release of these agents from Jordanian captivity and the avoidance of likely criminal charges.

In Meshaal’s imagery, this return to Gaza was his “third birth”, the first being in 1956 when he was born, the second when he survived the Israeli assassination attempt, and the third when he was able to kiss the ground upon entering Gaza. These biographical details seem relevant for an assessment of his public remarks.

The context was also given a heightened reality by the Hamas/Gaza success in enduring the latest Israeli military onslaught that produced a ceasefire that contained some conditions favoring Gaza, including an Israeli commitment to refrain from targeted assassinations in the future. It also was a context shaped by a sequence of painful memories that included the main trigger of the upsurge of violence, which seemed to be the Hamas reaction to the assassination of its military leader and diplomat, Ahmed Jabari. Also, Meshaal made a point of visiting the surviving family member of the disabled spiritual founder of Hamas, Sheikh Ahmed Yassin, who was assassinate on May 22, 2003. It was as a direct consequence of Sheikh Yassin’s death that Meshaal was declared “world leader” of Hamas.

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Khaled Meshaal

An evolving narrative

The most important element of context that needs to be taken into account is the seeming inconsistency between the fiery language used by Meshaal in Gaza and his far more moderate tone in the course of several interviews with Western journalists in recent weeks. In those interviews, Meshaal had clearly indicated a readiness for a long-term hudna (truce), provided that Israel ended its occupation of the West Bank, East Jerusalem, and Gaza, and agreed to uphold Palestinian rights under international law. He made clear that these rights included the right of return belonging to the 4-5 million Palestinians living in refugee camps or exile, and contended that such a right was more deserving of recognition than is the Israeli grant of such a right of return to every Jew worldwide, including those without any prior connection to historic Palestine whatsoever.

Of course, this right asserted on behalf of Palestinian refugees is in its potentiality a threatening claim to Israel, and to Zionism, as it could, at least in theory, threaten the Jewish majority presence in Israel. Whether many Palestinians if given the choice would wish to return to live in Israel so as to reinhabit their ancestral homes seems highly questionable, but the right to do so unquestionably belongs to Palestinians under international law, at least to those who had previously resided in present Israel, and possibly to their direct descendants.

In these interviews, Meshaal consistently affirmed the readiness of Hamas to pursue these national goals nonviolently, without “weapons and blood” if Israel were to accept such a framework for peace. His words to CNN in a November 22 interview are notable in this respect: “We are ready to resort to a peaceful way, purely peaceful way without blood and weapons, as long as we obtain our Palestinian demands.” The extent of “Palestinian demands” was left unspecified, which does create an ambiguity as to whether this meant accommodation or some kind of rearticulation of a unified Palestinian entity. Also unclear as to whether the peaceful path could precede the end of occupation, or must be a sequel to the existence of a sovereign Palestinian state. In the other direction, Meshaal indicated that once Palestinian statehood was fully realised, then the issue of the acceptance of Israeli legitimacy could be placed on the political agenda.

Meshaal’s deputy, Mousa Abu Marzook, in a conversation in Cairo told me in a similar vein that the Hamas Charter pledge to destroy the Zionist state had become “a false issue”. This PhD from Louisiana Tech, an intelligent exponent of current Hamas thinking, echoed Meshaal’s moderate approach, and indicated that as with the US Constitution’s treatment of slavery, the Hamas Charter has evolved with changing circumstances, and its clauses were subject to modification by reinterpretation. Mr Marzook also gave me the impression that Hamas was ready to pursue a diplomatic approach to conflict resolution provided that Israel would send signals of its willingness to do the same, starting with a lifting of the blockade, an end to violent incursions, and an acceptance of Hamas as a political actor with governmental authority.

A wider context

Along similar lines, Meshaal has spoken about Hamas as “realistic” with respect to an appreciation of the balance of forces relative to the conflict, and referred to Arafat’s response of twenty years ago to those who insisted that Israel would be at mortal risk if a Palestinian state were to be established on the West Bank. The former PLO leader had pointed out that any Palestinian move to threaten Israel militarily in such circumstances was unthinkable. It would be sure to produce a devastating attack that would crush Palestinian hopes forever.

Hamas’ Meshaal vows to ‘continue resistance’

There is posed a fundamental question: Is the true voice of Hamas discernable at this point? There seems to be a sharp contrast between the sweeping language of Meshaal’s words spoken at the anniversary demonstration in Gaza and his far calmer, focused, and accommodating tone in interviews and other statements during the last several years.

The more hopeful understanding of the Hamas position would call attention to the gap between the emotional occasion of the speech and the more rational views consistently expressed elsewhere. Such an explanation is the opposite of the Western insistence that only the rally speech gave expression to the authentic outlook of Hama.

In contrast, I would accord greater weight being given to the moderate formulations, at least provisionally, for exploratory purposes. Put differently, in Gaza Meshaal was likely expressing a maximalist version of the Palestinian narrative relating to unchanging sense of the legitimacy of its challenge to the existence of a Zionist state in Palestine, while in more reflective arenas, ever since the entry of Hamas into electoral politics back in 2006, the dominant emphasis has been pragmatic, pursuing a political track that envisioned long-term peaceful co-existence with Israel, a sidestepping of legitimacy claim, at least once the occupation was definitively ended and the rights of Palestinian refugees were recognised in accordance with international law.

It can be asked, “How can Hamas dare to put forward such a claim in view of the steady rain of rockets that has made life treacherous and miserable for the more than a million Israelis living in the southern part of Israel ever since Israel ‘disengaged’ in 2005”? Such a rhetorical question repeated over and over again without reference to the siege or Israeli violence has distorted the Western image of the interaction, suggesting that when Israel massively attacks helpless Gaza it is only exercising its defensive rights, which is the most fundamental entitlement of every sovereign state.

Again the more accurate interpretation depends on a fuller appreciation of the wider context, which would include the revealed American plot to reverse the outcome of the 2006 electoral victory of Hamas by arming Fatah with heavy weapons, the Israeli punitive blockade since mid-2007, and many instances of provocative Israeli violence, including a steady stream of targeted assassinations, deliberate reliance on disproportionate and excessive force, and lethal over-reactions at the Gaza border.

Although not the whole story, the one-sided ratio of deaths as between Israel and Palestine is a good first approximation of comparative responsibility over the period of Hamas ascendancy in Gaza, and it is striking. For instance, between the ceasefire in 2009 and the Israeli attack in November 2012, 271 Palestinians were killed and not a single Israeli. The respected Ha’aretz columnist, Gideon Levy, has pointed out that since the first rockets were launched against Israel in 2001, 59 Israelis have died as compared to 4,717 Palestinians.

The Western media is stunningly oblivious to these complications of perception, almost never disclosing Israeli provocations in reporting on the timelines of the violence of the parties, and fails to acknowledge that it has been the Israelis, not the Palestinians, that have been most often responsible for ending periods of prolonged truce.

There are further confusing elements in the picture, including the presence of some extremist Palestinian militias that launch rockets in defiance of Hamas policy, which in recent years generally has confined rocket launches to retaliatory roles. Among the ironies of the Jabari assassination was that it was evidently his role to restrain these militias on behalf of Hamas, including disciplining those extremists who refused to abide by policies of restricting rocket attacks to retaliatory situations.

Fighting for freedom?

There is no doubt that Hamas’ reliance on rockets fired in the direction of Israeli civilian population centres are violations of international humanitarian law, and should be condemned as such, but even this condemnation is not without its problematic aspects. The Goldstone Report did condemn the reliance of these rockets in a typically decontextualised manner, that is, without reference to the unlawfulness of the occupation, including its pronounced reliance on collective punishment in the form of the blockade as well as frequent and arbitrary violent incursions, routine military overflights, and a terrifying regime of subjugation that imparts on Palestinians a sense of total vulnerability and helplessness.

Stonewalling the Goldstone Report

The Goldstone Report also was silent as to the nature and extent of a Palestinian right of resistance. Such unconditional condemnations of Hamas as “a terrorist organisation” are unreasonably one-sided to the extent that Palestinian moral, political, and legal rights of resistance are ignored and Israel’s unlawful policies are not considered. This issue also reveals a serious deficiency in international humanitarian law, especially, as here, in the context of a prolonged occupation that includes many violations of the most fundamental and inalienable rights of an occupied people. The prerogatives of states are upheld, while those of peoples are overlooked or treated as non-existent.

It is also relevant to take note of the absence of alternative means available to the Palestinians to uphold their rights under international law and to challenge the abuses embedded in Israeli occupation policies. Israel with its drones, Apache helicopters, F-16 fighter aircraft, Iron Dome, and so forth enjoys the luxury of choosing its targets and determining the level of violence at will, but Palestinians have no such option. For them it is either using the primitive and indiscriminate weaponry at their disposal or essentially giving in to an intolerable status quo.

To repeat, this does not make Hamas rockets lawful, but does it make such reliance wrong, given the overall context of violence that includes the absolute impunity of Israel for a pattern of flagrant violations of international criminal law? What are we to do with international law when it is invoked only to control the behaviour of the weaker party?

It gives perspective to imagine the situation being reversed as it was during the Nazi occupation of France or the Netherlands during World War II. Resistance fighters were uniformly perceived in the liberal West as unconditional heroes, and no critical attention was given as to whether the tactics used unduly imperiled innocent civilian lives. Those who lost their lives in such a resistance were honoured as martyrs. Meshaal and other Hamas leaders have made similar arguments on several occasions, in effect asking what are Palestinians supposed to do in the exercise of resistance given their circumstances, which have persisted for so long, given the failures of traditional diplomacy and the UN to secure their rights under international law.

The way forward

In effect, a sensitive appreciation of context is crucial for a proper understanding, which makes self-satisfied condemnations of the views and tactics of Hamas and Khaled Meshaal misleading and, if heeded, condemns the parties to a destiny of perpetual conflict. The Western mainstream media doesn’t help by presenting the rocket attacks as if taking place in a vacuum, and without relevant Israeli provocations. Of course, Israeli supporters will retort that it is easy to make such assessments from a safe distance, but what is a safe distance? “The risks are ours alone,” they will say with a somewhat understandable hostility. But what about the horrible Palestinian anxieties and outstanding grievances, are these not also entitled to redress?

Is there a way out of such tragic dilemmas? In my view, only when the stronger side militarily treats “the other” as having grievances and rights, and recognises that the security of ‘the self’ must be based on mutuality. Only then will sustainable peace have a chance.

In this conflict, the Israelis missed a huge opportunity to move in this direction when the weaker Palestinian side made a historic concession by authoritiatively limiting its political ambition to Occupied Palestine (22 percent of historic Palestine, less than half of what the UN partition plan proposed in 1947) in accordance with the consensus image of a solution embodied in Security Council Resolution 242. Instead of reciprocating, or at least welcoming such Palestinian minimalism, Israel has sought to encroach further and further on the Palestinian remnant of 22 percent by way of its settlements, separation wall, apartheid roads, and annexationist moves, offering the Palestinians no alternative to oppression than resistance.

It is no wonder that even the accommodationist Palestinian Authority supported the recent Hamas anniversary celebrations, and joined in proclaiming an intention to reconcile, reuniting Hamas and Fatah under the umbrella of the Palestine Liberation Organisation.

It is tempting for Israeli supporters to treat the Gaza speech of Khaled Meshaal as the definitive expression of the Hamas creed, but it seems premature and unwise to do so. Instead, it is time to give a balanced diplomacy a belated chance if indeed there is any political space left for the implementation of the two-state consensus, and if there isn’t, then it is time to explore alternatives, including a return to a unified and secular Palestine that is governed in accordance with human rights standards and the rule of law, with respect accorded to international law.

If the two state solution is acknowledged to be a diplomatic dead end as of 2012, then it must be concluded that the overreaching by the Zionist leadership in Israel, especially its insistence on viewing the West Bank and East Jerusalem as integral to biblical Israel, referencing the former as “Judea and Samaria” and the latter as the eternal Jewish capital, has itself irreversibly undermined the political, moral, and legal viability of the Zionist Project.

These alternative options should long ago have been clarified, and now, by taking to heart “the peaceful alternative” depicted by Meshaal, especially in the aftermath of the November 29 General Assembly endorsement of Palestinian statehood and signs of an incipient Palestinian unity, there is one last opportunity to do so. By so doing peace-oriented perspectives on the conflict will be at last taken seriously, and despite prospect of a negotiated solution being now remote, and serve as a guide for our thinking, feelings, and actions.

Richard Falk is the United Nations Special Rapporteur on Palestinian human rights.