We affirm the Palestinian peoples’ right to resistance against a brutal Israeli occupation, a right they are entitled to under international law. Like other peoples suffering under occupation, the Palestinians are entitled to use force so long as attacks are limited to military objectives. It remains incumbent upon Israel and Palestine to abide by the laws of war and we hope for a resolution in which respect for the principle of self-determination is paramount. A principle the Palestinians have been fighting for since 1948.
We wish to make a few legal points in this short statement.
- There is a right to resist an occupation under international law, a right we have argued for more extensively here. In brief though, General Assembly resolution 37/43 entitles an occupied people to resist occupying forces by all available means, “including armed struggle”. GA Resolution 3070 also recognises the resort to armed force by national liberation movements and calls upon member states to contribute moral and material assistance to peoples struggling for their right to self-determination. Abi-Saab has argued that this means that armed resistance against the forcible denial of self-determination is legitimate. The General Assembly has reaffirmed the inalienable rights of the Palestinian people including their right to self-determination without external interference and their right to national independence and sovereignty. Richard Falk, the former UN Special Rapporteur on Palestinian human rights, stated that “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”.
- Israel does not have the ‘right to self-defence’ in an ongoing armed conflict which is not only an occupation (making it an international armed conflict) but also a non-international armed conflict between Israel and Hamas. The existence of an ongoing occupation has been acknowledged by the International Court of Justice in the Wall Advisory Opinion. The existence of an armed conflict between Israel and Hamas was acknowledged by the Israeli Supreme Court in its Yesh Din judgment. While the Court does not categorise the character of the conflict and has in previous cases held it to be international; given it is between a state and a non-state actor, it can only be a non-international armed conflict sans attribution. As such, in an ongoing parallel occupation and non-international armed conflict, there exists no right to self-defence under the UN Charter. Instead the legality of conduct is determined by the laws of war as per the Geneva Conventions 1949 and customary law. Israel’s vow then to take “mighty revenge” after the Hamas attack can only be looked at as a reprisal under the laws of war, and these are subject to stringent conditions including that civilians/civilian objects cannot be targeted.
- Taking civilians or those hors de combat hostage during an armed conflict is a grave breach of the laws of war and Israel and Hamas would be committing war crimes in taking civilians hostage. Moreover, while discussion continues on whether settlers are civilians or not, the answer is yes, they are civilians and are not targetable unless they take direct part in hostilities (i.e. engage in the conflict in much the same way as a combatant would, by taking up arms, conducting intelligence operations etc). The mere act of residing on settled land (while settlements themselves are war crimes) does not constitute direct participation in hostilities. To argue that it does would stretch the principle of distinction to breaking point and is not a sound argument to make.
- Israel’s declaration that it will completely besiege Gaza is not a violation of the laws of war which do not prohibit sieges. However, its statement that it will be cutting off water, food and power supplies would infringe the law of armed conflict, as this regime prohibits the starvation of civilians as a method of warfare. Moreover, intentionally starving civilians and depriving them of objects indispensable to their survival is a war crime. The Israeli High Court has said the same in a case where it addressed the question of whether Israel, as an occupying power, had the duty to supply water, food, electricity and medical supplies etc to the besieged Gaza Strip. The Court ruled that the IDF had to take the food requirements of locals into account when planning for military operations. While Israel was counting Gazan’s daily calorie needs so they were not malnourished in the blockade it had imposed in 2007, it seems that it may not even do that now, leaving Palestinians entirely at the mercy of a state which aims to collectively punish it for Hamas’ actions, using starvation as a method of war.
- Finally, we urge states, particularly those sympathetic to the Palestinian cause, to submit statements and comments to the International Court of Justice which will be issuing an Advisory Opinion on the legal consequences of Israel’s practices and policies in occupied Palestine. An opinion which is likely to be affected by the current situation. The deadline given by the Court is October 25.
As war rages on, it is likely that states like the US will resist calls for a ceasefire until Israel inflicts an unquestionable victory and militarily destroys Hamas. Our solidarity unequivocally rests with the Palestinians, all those fighting for their right to self-determination, and against subjugation by occupation.