by Lynda Brayer | 19 Nov 2012, first post here: https://criticallegalthinking.com/2012/11/19/palestinian-resistance-the-political-social-and-human-right-of-self-defense/
by Lynda Brayer | 19 Nov 2012
Once again the bombs are falling on the Gaza Strip, a stretch of territory excised from Palestine proper as a result of continuing illegal and illegitimate actions by Israel. In fact, Gaza has become a closed ghetto, first cut off from Palestine in violation of the partition plans and political programs and then turned into a sealed ghetto, following the democratic elections which brought the Islamic Resistance Party — Hamas — into power. Categorized as a terrorist organization in the United States, with some of its leading supporters there imprisoned for over twenty years for sending humanitarian aid to Palestinians in Gaza, it can come as no surprise that the Israeli and Western media accuse Hamas for attacking Israel with rockets, rather than reporting that Hamas sent off the rockets as a response to an Israeli attack!
This method of reporting is part of continued efforts of de-legitimization of the Palestinian struggle for freedom from the yoke of Zionist genocidal oppression and violence. Furthermore, the condemnations have not been accompanied by reference to the historical record: that the Zionist war, both cold and hot, against the Palestinians has not stopped for even one day since 1948, and that it went into relentless high gear since 1967 and continues unabated. This continuous aggression — administrative and military — is never brought into the Western vision or understanding, although a quick perusal of the websites of the Palestine Center for Human Rights located in Gaza City, Mahsom Watch and Betselem provide chilling and detailed information of this continuing quotidian warfare.
For anyone who has not succumbed to Zionist propaganda, it is a known fact that when rockets are fired from Gaza it is always in response to an Israeli attack, especially when this attack is a blatant and pointed act of violence given high visibility by the Israelis. Although Israel had begun pounding Gaza on 13 November 2012, which apparently led to a truce agreement being formulated, the assassination of Ahmed Jabari on 14 November 2012, the head of the Palestinian resistance forces, was executed in order to justify full-scale Israeli warfare. High visibility in this case was the creation of a video of the event uploaded on the websites of the Israeli news outlets so that the viewers could enjoy a repeat performance! The reason for this latest attack is given on the Israel Defense Forces [sic] web blog:
On November 14, the IDF embarked on Operation Pillar of Defense[sic], meant to defend Israel’s civilians from the incessant rocket fire they’ve suffered during the past 12 years, and cripple the terror organizations in the Gaza Strip.
Their English translation of the name of the military operation is inaccurate, and I suspect that this is deliberate. The name in Hebrew is ‘Amud Ashan — Pillar of Smoke — a metaphor created to elicit deliberate comparison in the Israeli mind with the pillar of fire and the pillar of clouds from the biblical story of the Exodus according to which God led the Children of Israel out of their slavery in Egypt on their journey to freedom in the Promised Land! Of necessity, this name and this image brings about an inversion of the roles of the Israelis and the Palestinians: the Israeli aggressor once again becomes the persecuted victim, as per the Exodus story, while the Palestinians, immobilized and strangled in the ghetto-prison of Gaza, enclosed within electrified walls and fences, are transmogrified into the pharaonic terrorists relentlessly and heartlessly persecuting the innocent Israeli victims. This inversion involves more than labels: besides inverting the moral order and the facts of reality, it serves, once again, to reinforce the image of the Palestinian as enemy, as demon, as sub-human, an entity not entitled to any respect or consideration! It is a tried and tested formula for distracting attention and blame from the real perpetrators of death and destruction on to the victims of those acts of aggressions.
Political assassination is the specialty du jour of Israel, a praxis adopted wholeheartedly by President Obama and his own personal drone “kill list”. Using murder to deliberately undermine the political echelon in the hope of weakening it with respect to the possibility of political recuperation after a war is an act which violates the third principle of legitimacy of the laws of war — the principle of chivalry — a principle recognizing the humanity of the enemy. The enemy must be treated with respect in order for normal social life to be commenced or resumed at the end of hostilities.
Clausewitz’ aphorism — that war is a continuation of politics — is not descriptive but prescriptive. Negotiations leading to peace must be the purpose of a legitimate war of defense. It is in this light that one should understand the information released by Gershon Baskin, an Israeli political activist, that the Palestinian leadership in Gaza, including Ahmed Jabari, had received a draft for a truce agreement just hours before his assassination. It is therefore obvious that the assassination was executed for the specific purpose of preventing such a truce. What this indicates, at the very least, is flagrant bad faith on the part of the Israelis, but more importantly, it is another instance of provocative treachery, a subject which deserves a separate analysis.
The right to protect human life is absolute, even if the means used are conditioned. Therefore, according to all human norms, natural law, legal norms and international law and jurisprudence, the Palestinians have a legitimate right of response. It must be remembered however, that the Palestinians have been denied a state and an accompanying army by Israel and the United States. Therefore the response available to the Palestinians in Gaza is extremely limited and is confined to rockets fired into Israel. These rockets are primitive weapons and not extremely accurate which is why they have been defined as fireworks. But that is all that the Palestinians have for their defense. This response is the only avenue open for a society under military attack to try and force the cessation of such an attack when the aggressor will not negotiate with you in good faith.
The Israelis are proud of the fact that their army is the fourth largest in the world, and as far as they are concerned, also the best, the most effective and the most moral! Because of the exponentially huge disproportion in power between Israel and the Palestinians, the Palestinians simply cannot afford to react to each and every attack against them. They have to carefully and prudentially weigh their possibilities of response which is the reason why the Israelis never have to cease their relentless attacks of varying intensity. But it is also the disproportionate attacks by the Israeli army that violate the principle of proportionality underlying legitimate warfare.
The Right of Resistance is the Right of Self-Defense
It can be argued cogently that since the right to self-determination was deliberately and explicitly denied the Palestinian people following the collapse of the Ottoman Empire, with no right or justification whatsoever in the circumstances, the Palestinians are still entitled to demand and fight for such rights. (see endnote).
Instead of freedom, they were faced with a reality of the colonization of Palestine by foreigners against the wishes of the local population, a colonization which ultimately led to an expulsion of nearly 90% of the indigenous Palestinian population creating a long-festering and long-suffering Palestinian refugee problem. A struggle for self-determination is legitimate in international law, as it expresses a struggle for freedom, the basic quality of life necessary in order for human beings to be able to fulfill their potential as individual persons and as social beings. Those who deny such self-determination are guilty of violating that same international law. That this denial of such a right is the case with respect to Palestinians can be found in several letters of correspondence of British ministers. In a letter to the Prime Minister by Lord Arthur Balfour dated 19th February [1919 LB] he states:
… The weak point of our position of course is that in the case of Palestine we deliberately and rightly [sic LB] decline to accept the principle of self-determination. If the present inhabitants were consulted they would unquestionably give an anti-Jewish verdict. Our justification for our policy is that we regard Palestine as being absolutely exceptional; that we consider the question of the Jews outside Palestine as one of world importance and that we conceive the Jews to have an historic claim to a home in their ancient land; provided that home can be given them without either dispossessing or oppressing the present inhabitants…
In a later memorandum addressed to Lord Curzon by Lord Balfour on 11 August 1919 a similar notion is repeated:
… The contradiction between the letters of the Covenant [League of Nations Covenant LB] and the Policy of the Allies is even more flagrant in the case of the ‘independent nation’ of Palestine than in that of the ‘independent nation’ of Syria. For in Palestine we do not propose even to go through the form of consulting the wishes of the present inhabitants of the country, though the American Commission has been going through the form of asking what they are.
The Four Great Powers are committed to Zionism. And Zionism, be it right or wrong, good or bad, is rooted in age-long traditions, in present needs, in future hopes, of far profounder import than the desires and prejudices of the 700,000 Arabs who now inhabit that ancient land.
In my opinion that is right. What I have never been able to understand is how it can be harmonized with the declaration [Anglo-French of November 1918], the Covenant or the instructions to the Commission of Enquiry.
I do not think that Zionism will hurt the Arabs, but they will never say they want it. Whatever be the future of Palestine it is not now an ‘independent nation,’ nor is it yet on the way to become one. Whatever deference should be paid to the views of those living there, the Powers in their selection of a mandatory do not propose, as I understand the matter, to consult them. In short, so far as Palestine is concerned, the Powers have made no declaration of policy which, at least in the letter, they have not always intended to violate…
(Doreen Ingrams, Palestine Papers 1917-1922 Seeds of Conflict [London 1972] pp. 61 and 73).
Despite the Great Powers flagrant denial of Palestinian rights at the time, such denial did not and does not give rise to either their loss or their falling into desuetude. As long as a people wish to realize such rights, they have the right to demand their realization. The Palestinians never relinquished these rights, although they have made innumerable attempts to reach a modus vivendi with the Zionist state. Their accommodation has been rejected for the very reason that a compromise and shared condominium in Palestine is not part of the Zionist program and never was.
We could therefore come to the following conclusion at this point. The Palestinians have the right to resist on several grounds. Firstly in response to the Israeli provocation in the form of the assassination of Ahmed Jabari . (We can imagine an Israeli response to an assassination of Ehud Barak or any other minister). Secondly they have the right of resistance to the actual decades long Israeli genocidal control over Gaza which is bringing about the actual physical demise of the population which exhibits a general level of ill-health attributable directly to the Israeli stranglehold over the territory. Thirdly, they have the right of resistance against the continuing incursions, raids, arrests, imprisonments, and suppression of economic activity in the West Bank/East Jerusalem. And fourthly, the actual fact of their being forcibly denied their political rights justifies resistance.
So why are the Palestinians in general, and Hamas in particular, depicted as Terrorists?
The term ‘terrorist’ is not a legal term and has no legal reference. It has been manufactured in order to bypass the limitations that international law imposes with respect to the manner of dealing with an adversary. It is used to demonize those people who do not agree with the US/Israel/European hegemonic demand and rule of the world and it is especially used in order to deny such people the right of resistance, the right to struggle as freedom fighters. It is this terminology which has created such confusion and discrepancy in the general public’s understanding with respect to the reality in Palestine and the actual state of affairs that prevails there. But we may ask the further question as to why Palestinians are seen in the West as “terrorists” and intransigent murderers, a people who understand only violence and not peace.
In order to understand this conundrum, it is necessary to understand the nature of American society in particular, and its mechanisms of control. The United States is a capitalist society in which power is exercised by the financial-media-military-industrial complex. A main source of capitalist exploitation is the oil deposits in the Middle East, its refinement and distribution to the rest of the world. It is a sine qua non for the controlling capitalist elite that it controls these resources and their disposition. Such control is not in the interests of the local populations of the territories in which the oil is deposited, who are nearly all Muslims.
In order to minimize, if not eliminate, the critics and critiques of capitalist exploitation, the United States uses the media to manipulate the minds of its population, as Professors Noam Chomsky and Edward Herman explained in their book Manufacturing Consent. However, since the second Bush administration, the Department of Homeland Security (DHS) — a title straight out of George Orwell’s 1984 — was formed to exercise further control over the population through the use of policing power. The events of 9/11 have been exploited exponentially by both the media and the DHS towards the demonization of Islam and Muslims, and Palestinians automatically fall into this category. All are deemed to be terrorists or potential terrorists, and therefore they are, by definition, the enemy. The level of propaganda generated by the media branch of this complex, to which the populations in the West are subject, in particular in the United States and Israel, has brainwashed the population into an automatic negative response to all Muslims, Palestinians included.
The Muslims as terrorist, Islam as a religion of violence and hatred, the Jew as eternal victim, the Holocaust as a unique historical event, the uniqueness of which is echoed in the political manifesto of ‘manifest destiny’ and ‘exceptionalism’ of the United States of America, the ‘good guys” of World Wars I and II, constitutes the current propaganda pastiche determining the limits of politically correct discourse. Any criticism against Israel is automatically translated into anti-Semitism and criticism of the United States is unpatriotic or even treason.
The Palestinian political party of Hamas is on the terrorist list in the US and several Muslims have been convicted and imprisoned for extended periods, in one case for more than twenty years, for the crime of aiding and abetting terrorists by sending humanitarian aid to Palestine. Israel has never ceased to refer to Palestinians as terrorists and treats them as such accordingly. As mentioned earlier, it has broken and/or undermined all its agreements with the Palestinians, the most egregious violation being the continuation of the building of Jewish settlements in the West Bank conquered in 1967, becoming a colonizing power, which is in direct violation of international law. In addition, Israel has violated all United Nations Resolutions but is protected by the US veto, thus providing it with a long leash to do what it wants in Palestine. The reality of Israeli force, the reality of its illegalities constitutes a violation of both the moral and the legal order. It is known by both Israel and the US and therefore there is such vicious continuing propaganda against Arabs, Muslims and Palestinians.
There can be little doubt that there is no easy solution for the Palestinians. Despite their rights de iure as well as de facto and their legitimate resistance and struggle and the use of weapons that do not come up to the minimum standards of a modern army, it is only the victimized people of the world who understand their plight together with those coming from the West who are termed radicals. At this juncture in history the people have no power, but it behooves us to continue the struggle for freedom and justice in any way we can, without destroying the planet, as our friends the capitalists are doing. If, however, there is one iron law of life and existence, which must sustain our hope and energy, it is that all institutions, all powers, ultimately collapse because everything is changing and temporary in our contingent world. Situations cannot help but change. When such a change comes in the distribution of power, we should be ready to institute a reign of justice and peace for the well-being of all of mankind.
The entire enterprise of a Jewish state in Palestine is built upon an express rejection of international law. The only legitimate grounds for political sovereignty of an indigenous people are the laws of ius soli or ius sanguine as recognized in international law, which translates into a right of sovereignty based upon habitation in a particular territory or being a descendent of someone in a particular territory. The third option granting a right to sovereignty would be the discovery of a terra nullius that is an uninhabited territory. Palestine was never a terra nullius, and its inhabitants were entitled to a sovereign state in Palestine as part of Greater Syria, if they so chose, according to the ius soli following the demise of the Ottoman Empire at the end of World War I in 1917 and 1918. If their children were out of the country at the time of its establishment at a particular time, then they would be granted citizenship on the grounds of the ius sanguine if they had not been born in Palestine or Greater Syria.
European Jewry did not fulfill either of these qualifications in 1917, when the Balfour Declaration, a document prepared by international Jewish leadership, and addressed by Lord Arthur Balfour, the United Kingdom’s Foreign secretary at the time, to Lord Walter Rothschild, a scion of the leading Jewish banking family in the world, resident in England, was written supporting a Jewish homeland [sic] in Palestine.
The carving up of historical Palestine to excise the bulk of its territory for an imported unequivocally foreign population at the expense of the indigenous society was recognized not to be a politically legitimate action. Its destructive consequences should have been obvious a priori, and history has proved such expectation accurate. Such an excision has harmed the indigenous population in every and all aspects of its life: political, economic, social, educational, cultural, religious, historical and geographical. The destruction of Palestine, the expulsion of the overwhelming majority of its population and the deliberate and continuing genocidal attacks on the remaining population living under Jewish conquest, only highlights the illegitimacy of the Jewish presence and its continuing aggression against the Palestinians.
Lynda Burstein Brayer, a graduate of the Hebrew University of Jerusalem Faculty of Law, is a radical political and legal commentator who practiced human rights law in Palestine/Israel representing Palestinians in their struggles against house demolitions, land theft, and family destruction and in their efforts to obtain travel permits for health, study and family reasons. She lives in Haifa and can be reached at firstname.lastname@example.org