Experts say the question is not about Palestine’s right to resist, but about holding Israel accountable for its crimes.

As the uprising against Israel’s occupation and colonisation of Palestinian land and holy sites continues, many commentators have spent ample time analysing the methods by which some Palestinians choose to resist, rather than discussing the origins of the conflict and potential solutions.

Media coverage surrounding the Palestinian struggle for self-determination in the face of Israeli occupation often frames the narrative by equating the ethics of violence on both sides – but what does international law have to say about the Palestinian right to resistance? Does it fall short of providing an occupied people the tools to resist? What options do Palestinians have? Al Jazeera asked several analysts to weigh in.

HUWAIDA ARRAF

Huwaida Arraf is a Palestinian-American lawyer and human rights activist. She is cofounder of the International Solidarity Movement and former chairperson of the Free Gaza Movement, which organised a dozen sea voyages to challenge Israel’s naval blockade on Gaza.

Huwaida Arraf [Photo courtesy of Huwaida Arraf] It’s easy to feel like a broken record (for those of us who remember those) talking about Israel’s violations of international law. The list of these violations is seemingly endless and their condemnation by Palestinian, international and Israeli human rights organisations abound. Over the years, experts, independent commissions, NGOs, the UN, and even the US State Department have documented the numerous and massive violations of Palestinian human rights committed by Israel; yet the violations continue and, arguably, have become more egregious, with no accountability to the victims and no repercussions for Israel.

This dismaying reality is an inevitable result of perhaps the biggest shortcoming of international law – that adherence to it and its enforceability depend largely on voluntary state consent and compliance. In other words, absent the political will to make state behaviour comport with the law, violations are the norm rather than the exception. In this case, Israel is certainly not interested in sacrificing its colonial agenda to comply with international law, and with the unwavering political and economic support of the United States, thus far it has not had to.

What’s more, even though the UN has repeatedly recognised the right of an occupied people to use legitimate armed force in the struggle for “liberation from colonial and foreign domination”, and has specifically applied this to Palestine, Palestinians have had to endure decades of being labelled as “terrorists”, while the terrorism perpetuated by their occupiers and oppressors has been labelled “self-defence”.

All of this has contributed to a feeling among Palestinians that international law is meaningless when it comes to protecting them, and it is difficult to argue otherwise.

Expanding the legal paradigm will serve to address all of Israel’s crimes against our people, past and present, and not only those committed in the OPT since 1967.

This is not to say that we should turn our backs on international law. Rather, we should understand its limitations and develop a Palestinian national plan to use it effectively. This must include, among other things, using documented Israeli human rights violations to make the case for boycott, divestment and sanctions (BDS).

It must also include expanding the legal paradigm in which Palestine is viewed, from one that goes beyond a focus on international humanitarian law (IHL), to one that addresses colonialism, apartheid and the right to self-determination. The latter was the topic of a conference held at Birzeit University in May 2013, but it has yet to be translated into a broad strategy.

As IHL is the law governing situations of armed conflict and occupations, it is applicable only to the internationally recognised occupied areas of the West Bank, including East Jerusalem, and Gaza (the occupied Palestinian territories, or OPT).

While useful in establishing that certain Israeli practises, such as settlement building, are illegal, an exclusive reliance on IHL is problematic in that it treats Israel’s occupation regime as one that is lawful, focusing only on the legality of Israel’s actions rather on the (il)legitimacy of the occupation itself.

It also grants the occupier a certain set of rights, which Israel has manipulated to justify grossly repressive measures against the occupied civilian population, such as the near hermetic closure of the Gaza Strip, land confiscation, and mass killing.

Perhaps more importantly, an exclusive IHL focus, compounded by the framework created by Oslo, has fragmented our national liberation struggle, excluding from it Palestinians outside of the OPT and ignoring the fundamental rights denied to them by Israel’s colonial, apartheid regime.

Expanding the legal paradigm will serve to address all of Israel’s crimes against our people, past and present – and not only those committed in the OPT since 1967.

While Palestinians demonstrating in the streets today in the West Bank, Gaza, Sakhnin, Nazareth, and in the diaspora are likely not thinking about their actions in the context of international law, they are undoubtedly rising above the fractioning of our struggle to affirm the unity of our fight for freedom, justice and dignity.

The challenge now is to develop a comprehensive legal strategy that utilises all aspects of international law to join BDS and the popular resistance to confront Israel on all fronts towards liberation.

RICHARD FALK

Richard Falk is professor emeritus of international law at Princeton University and served as a United Nations Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel.

Richard Falk [AFP]

As has been widely understood in recent decades, international law was an instrument of colonial rule, as well as serving for several centuries the purposes of a West-centric world order in conflict situations.

The linchpin of this system was upholding the prerogatives of the fully sovereign states as modified by the geopolitical power of the dominant political actors. Under these circumstances, it is hardly surprising that the rights of peoples to resist and national movements were not acknowledged in international law even if conditions of severe repression or tyranny prevailed.

This situation becomes even more clearly grasped if it is remembered that in the formative era of modern international law, most of the leading states were governed as absolute monarchies.

At the same time, it should be taken into account that in this Western tradition, leading political philosophers including Hobbes, Locke, and Rousseau recognised a right of revolution in the face of tyrannical rule. This right is embodied in international morality, but until recently was not explicitly incorporated into international law.

As the anti-colonial movement evolved in the 1960s, extending notions of the fundamental right to self-determination, including the legitimacy of struggles against foreign rule, the UN began validating this development of international law as in General Assembly Resolution 2625 (1970) that authoritatively clarified the evolving law.

The right to self-determination was given added legal weight by being included as common Article 1 in the two human rights covenants adopted in 1966, which meant that this right was so fundamental that it infused all the other rights.

Israel has used the cover of diplomatic negotiations to expand its unlawful settlement archipelago, to engage in a process of gradual ethnic cleansing in East Jerusalem, and to solidify its apartheid regime of administration.

From this point of view, the Palestinian national movement can claim to be resisting as the only available reasonable means to realise its long-deferred right of resistance.

The scope and extent of this right is not specified in either international humanitarian law or the law of war, but its exercise seems consistent with an emergent international customary law consonant with acting reasonably given the circumstances confronting Palestine.

These circumstances suggest two salient features:

(1) Israel has been acting as an occupying power under the Fourth Geneva Convention since 1967, but has persistently and flagrantly violated its fundamental obligation not to alter the basic circumstances affecting an occupied people.

From its outset, Israel defied the international community and its obligations by enlarging the area of Jerusalem and annexing the entire city, by engaging in a major settlement project despite the clear prohibition of Article 49(6), by severe collective punishment forbidden by Article 33, by the imposition of an apartheid regime of administration in the West Bank that the Rome Statute specifies as a crime against humanity, and by the construction and maintenance of the separation wall on occupied Palestinian territory in defiance of the near unanimous 2004 advisory opinion of the International Court of Justice, as endorsed by vote of the General Assembly.

(2) The occupation of Palestine has lasted for more than 48 years and shows no sign of ending. International humanitarian law is defective by its failure to place term limits (of say five years) on a condition of belligerent occupation.

Israel has used the cover of diplomatic negotiations to expand its unlawful settlement archipelago, to engage in a process of gradual ethnic cleansing in East Jerusalem, and to solidify its apartheid regime of administration.

The combination of (1) and (2) establish clearly that the Palestinian people have a reasonable right to resist under contemporary international law as the only practicable means of realising their inalienable right to self-determination.

Again, the rule of reason and public conscience, which international law itself mandates in the absence of treaty guidelines, justifies recourse to resistance by the Palestinian national movement. Such recourse is itself subject to the limitations imposed by international humanitarian law on the use of force, making it unlawful to target civilians.

Whether reliance on retaliatory rocket attacks by Gaza and violence against armed settlers are lawful tactics is a matter that has not been authoritatively resolved.

In essence, international law grants to the Palestinian people a right to resist Israeli occupation that is reinforced by Israel’s failure to withdraw from occupied Palestine as decreed back in 1967 by unanimous vote of the UN Security Council in Resolution 242 and by its own refusals to abide by the limitations imposed on an occupying power by the Geneva Conventions.

YOUSEF MUNAYYER

Yousef Munayyer, a political analyst and writer, is executive director of the US Campaign to End the Israeli Occupation.

Yousef Munayyer [Photo courtesy of Yousef Munayyer]

One of the major shortcomings of the international legal system as it relates to the Palestinian struggle for liberation – or any peoples’ struggle for liberation for that matter – is the very nature of the law and the legal system.

This is, after all, a system that was put together and crafted by states, and largely for states, to regulate inter-state affairs. The stateless were not at the table as these systems were being developed over the years, nor were their interests properly accounted for.

Statelessness creates certain barriers and obstacles to operating within the international legal system and its associated international institutions. There are some organisations, for example, where membership is only available to state parties and, without membership, it is difficult if not impossible to adequately operate within those organisations.

There are elements of international law, however, which do relate to stateless peoples and, in particular, the right of oppressed or colonised peoples to resist, including through the use of armed struggle, against their oppressor.

This is particularly relevant in the case of Palestinians who are living under a belligerent occupation, which has persisted for nearly half a century. Of course, what forms of armed struggle, or more precisely which targets during armed struggle, are legitimate is also governed by international law.

For Palestinians to use armed struggle against military targets of the occupying force is legitimate under the law. Civilian targets are, of course, forbidden.

In the case of Palestine, the problem is not that the laws do not exist to support the cause of Palestinian rights, but that they are not enforced by the powers that be.

Importantly, however, law is only useful if it is enforceable and enforced. In the case of Palestine, the problem is not that the laws do not exist to support the cause of Palestinian rights, but that they are not enforced by the powers that be.

Countless facets of the Israeli occupation are clearly violations of international law. Settlements violate provisions against the transfer of a civilian population into occupied territory. Likewise, resource theft from occupied territory is also forbidden. So too are many of the Israeli policies related to Palestinian prisoners. But who is enforcing these laws? Without enforcement, these laws are not even worth the paper they are written on.

History has shown us that states tend to seek the enforcement of international laws and norms when it suits their interests. At the moment, the US, the key player in this because of its veto in the Security Council and its continued support for Israel and its occupation, has not seen the enforcement of international law as part of its interest in the Middle East. Rather, the US has worked diligently to ensure that the arbitration of the Israeli/Palestinian issue only takes place through US-mediated talks and not in international legal forums.

For these reasons, many pathways for Palestinians are blocked off unless they can generate the leverage necessary to impose the enforcement of law.

This is why the strategy of Boycott, Divestment and Sanctions (BDS) has been one of the few avenues through which Palestinian resistance can thrive at relatively low costs, and with the potential for serious gains.

Grounded in international law, the three demands of the BDS movement, which are sought through non-violent means, should allow Palestinians to channel their energy effectively while not relenting any moral high ground.

Without generating pressure on the Israeli state, however, having all the law in the world on your side will not guarantee justice, unless there is enforcement.

GEORGE BISHARAT

George Bisharat is emeritus professor of law at UC Hastings College of the Law and writes frequently on law and politics in the Middle East.

George Bisharat [Photo courtesy of George Bisharat]

A credible argument can be made that international law currently supports the right of Palestinians to resist Israeli military rule in those parts of Palestine that Israel occupied in 1967.

This claim, however, is not unassailable. Moreover, it is relatively certain that the means of Palestinian resistance must conform to standing principles of international humanitarian law (IHL) – that branch of international law that governs the use, but not the initiation, of force.

Arguably, IHL fails at this time to adequately account for power asymmetries between Israel – a nuclear-armed power with one of the most potent militaries in the region, if not the world – and the Palestinians, who are at best defended by lightly armed security forces and/or militias, and effectively disables the Palestinian right of resistance.

Why is it not possible to simply assert that Palestinians have an unequivocal right of resistance against foreign occupation under international law, no different, for example, than French resistance to Nazi occupation? The problem stems from the nature of international law itself, and its conservative bias in favour of state sovereignty.

The two main sources of international law are treaties (contractual law, binding only on parties to agreements) and custom (what states actually do that other states accept as lawful). In addition, the United Nations Security Council is empowered, under the UN Charter, to issue resolutions that, if not law, at least have the same binding obligatory effects as law.

The right of Palestinian resistance is most clearly supported via the series of UN General Assembly resolutions – beginning with UNGA 1154 of 1960 – that demand an end to colonialism generally, and recognise the right of all colonised peoples, including the Palestinians, to resist foreign domination by any means necessary, including armed struggle.

It may further enforce those resolutions by a variety of means, up to and including the use of force. In contrast, the UN General Assembly (UNGA) is principally an advisory body, and can neither legislate nor mandate actions by the Security Council.

The right of Palestinian resistance is most clearly supported via the series of UN General Assembly resolutions – beginning with UNGA 1154 of 1960 – that demand an end to colonialism generally, and recognise the right of all colonised peoples, including the Palestinians, to resist foreign domination by any means necessary, including armed struggle (such as UNGA 33/24 of 1978).

While the UNGA cannot create international law, it can recognise or articulate existing customary law, and its pronouncements can, over time, morph into customary law through states’ treatment of them as legally binding.

The problem is that the responses of states to a possibly new customary principle of law are typically neither uniform, simultaneous, nor explicit. Until a norm is firmly accepted by a majority of states, its status as law is unclear.

The above-referenced UNGA resolutions were not passed unanimously, and following the global decolonisation process of the 1960s and 1970s, have not truly been tested legally. Their status as law, therefore, is less obvious than our moral instincts might anticipate.

The IHL principle of distinction requires that attacks only be launched against combatants – that is, soldiers or civilians actively engaged in hostilities. Thus, Palestinian attacks on Israeli soldiers or settlers using violence against Palestinians would be justified, while those against civilians not then engaged in combat would be unjustified.

An argument can be made that applying identical standards of distinction to both parties, without recognising Israel’s vast intelligence and military advantages over the Palestinians, is, in fact, unfair and unequal.

Israel can abide by the principle of distinction with relative ease while requiring the same of Palestinians, whose weaponry is crude (and, in the case of rockets, indiscriminate by nature), in effect annuls their right to resist.

There is little question, however, that while such an argument bears weight, it does not enjoy wide international acceptance at this time.

DIANA BUTTU

Diana Buttu is a Canadian-Palestinian human rights lawyer, analyst and commentator based in Palestine. She is a policy adviser for Al-Shabaka: The Palestinian Policy Network.

Diana Buttu [Photo courtesy of Diana Buttu]

For nearly 50 years, Israel has occupied Palestine in defiance of the countless UN resolutions enshrining the Palestinian right to self-determination.

While Israel has long proclaimed that this occupation is “temporary” in nature and has articulated that it does not intend to indefinitely rule over Palestinians, the facts speak for themselves: Over the course of the past 48 years, Israel has undertaken measures to cement its military rule by stealing Palestinian land, demolishing Palestinian homes and erecting settlements that house more than 700,000 illegal Israeli settlers.

And it is not just land that Israel has devastated: Generations of Palestinians have now grown up under the wrath of Israeli military rule or a brutal siege. Nearly 20 percent of the Palestinian population has, at one point in time, been imprisoned by Israel and thousands of Palestinians continue to languish in Israeli prisons.

In the aftermath of Israel’s brutal attack on the Gaza Strip last year, more than 100,000 Palestinian homes and structures, demolished by Israel, remain unconstructed. Israel has long attempted to obscure its military occupation, colonisation of Palestinian land and denial of freedom to Palestinians in order to try to change the rules of international law.

Rather than criticise Palestinians – a stateless, refugee, besieged population – for the mechanisms that they use to resist Israel’s military onslaught, the attention of the international community is better spent holding Israel – a state with extensive diplomatic and military support – accountable under international law for its crimes and aggression against Palestinians.

Israel has attempted to present itself as the victim by trying to portray its military aggression as either a religious conflict or as one of two equal parties. In other words, it attempts to turn things on their head: The occupied, stateless population is supposed to protect its oppressor and occupier.

One key method of obscuring facts is to focus on mainstream media, in the hope that by influencing mainstream media, international legal norms can also be influenced. And while Israel’s attempts to present itself as the victim may resonate in a mainstream media that fails to challenge the Israeli narrative and fails to give any context whatsoever to current events, no amount of Israeli hasbara or propaganda will change the rules of international law and specifically the right to resist colonial domination and defend against foreign invasions.

This right is recognised in numerous international instruments and affirmed by the International Court of Justice in cases that relate both to Palestine and to other countries.

Indeed, logic dictates that this is the case: Just as an individual has a right to protect himself or herself from a home invasion, so too a nation can protect itself and resist invasion by a foreign army.

The problem, however, is not whether Palestinians have a right to resist – they do – but whether the international community will support Palestinians in their quest for self-determination and protecting themselves from a foreign invading army.

To date, the international community remains obsessed with the means used to resist Israel, conveniently ignoring their own histories and revolutions.

But rather than criticise Palestinians – a stateless, refugee, besieged population – for the mechanisms that they use to resist Israel’s military onslaught, the attention of the international community is better spent holding Israel – a state with extensive diplomatic and military support – accountable under international law for its crimes and aggression against Palestinians.

If it continues to fail to do so, we may soon see a further weakened international legal system and, obviously, no end to Israeli oppression or Palestinian resistance to that oppression.