Terrorism and International Law in Palestine

Image Credit: Getty image by Mustafa Hassouna

Israel is once again bombarding Gaza in response to Palestinian protests against the illegal eviction of Palestinians from occupied East Jerusalem and Israeli attacks on the al-Aqsa Mosque. Whenever Israel commits such acts of ethnic cleansing and its genocidal policies makes international news headlines, it is often claimed by Israel’s right-wing supporters, both liberals and conservatives, that Israel has the right to self-defence against terrorist attacks by Hamas and the Palestinian Islamic Jihad. This is a grotesque misuse of these terms. When Hamas, the democratically elected government in Gaza and the offspring of the Israeli Right, fires rockets at Israelis, it is condemned for committing an act of terrorism, even though these rockets are rarely powerful enough to cause any significant number of deaths or property damage. When nuclear armed Israel slaughters the people of Gaza, it is acting in legitimate self-defence, even if it kills thousands of innocent men, women, and children. Joseph Goebbels would not doubt be impressed by such masterly propaganda!

The widespread media coverage of the ethnic cleansing of Palestinians and Israel’s numerous genocidal military campaigns against Gaza has made Hamas, the democratically elected government in Gaza, a household name. Yet it is easy to forget that Hamas, described as an organization with “radical, murderous Islamic roots” and “a pervasive indifference to human life, freedom and democracy” in the corporate mainstream media, which is overwhelmingly pro-Israel, was once encouraged and supported by Israel as a rival to Yasser Arafat’s secular Palestinian Liberation Organization (PLO).

It might seem paradoxical that Israel, a self-proclaimed Jewish state, would support Islamic fundamentalists, especially since Israel is regularly depicted as the victim, not the instigator, of Islamic fundamentalism. But though seemingly paradoxical Islamic fundamentalism fitted neatly with Israel’s expansionist aims in the Middle East. A Middle East dominated by Islamic fundamentalism would give Israel, especially the Israeli Right, a carte blanche to realize a ‘Greater Israel’.[1] As a former Mossad agent recalled, “Supporting radical elements of Muslim fundamentalism sat well with [Israel]’s greater plan for the region. An Arab world run by fundamentalists would not be a party to any negotiations with the West, thus leaving Israel again as the only democratic, rational country in the region. And if [Israel] could arrange for Hamas…to take over the Palestinian streets from the PLO, then the picture would be complete.”[2] Thus Israel supported Islamic fundamentalists on several fronts, including in Gaza and the West Bank, Syria, Afghanistan, and Iran.[3]

When Israel captured Gaza in the Arab-Israeli War (1967), Nasser’s ban on the Muslim Brotherhood was effectively reversed, as Israel allowed, indeed encouraged, Islamic fundamentalists, including the paraplegic founder of Hamas Ahmed Yassin, to operate in Gaza. “Israel’s military-led administration in Gaza,” writes Andrew Higgins, “looked favorably on the paraplegic cleric, who set up a wide network of schools, clinics, a library and kindergartens. Sheikh [Ahmed] Yassin formed the Islamist group Mujama al-Islamiya, which was officially recognized by Israel as a charity and then, in 1979, as an association. Israel also endorsed the establishment of the Islamic University of Gaza, which it now regards as a hotbed of militancy. The university was one of the first targets hit by Israeli warplanes” during Operation Cast Lead (2008-9).[4]

Israeli leaders viewed the Palestinian Muslim Brotherhood as an instrument to weaken the PLO and Arab nationalism, and not without reason. “During most of the 1980s,” writes Robert Dreyfuss, “the Muslim Brotherhood in Gaza and the West Bank did not support resistance to the Israeli occupation. Most of its energy went into fighting the PLO, especially its more left-wing factions, on university campuses.”[5] Consequently, according to historian Zeev Sternell, “Israel thought that it was a smart ploy to push the Islamists against the Palestinian Liberation Organization (PLO).”[6] In fact, so close was Israel to the Palestinian Muslim Brotherhood, which later became Hamas, that while some wealthy Persian Gulf states supported the Palestinian Muslim Brotherhood, Saudi Arabia, the birthplace of Wahhabism, initially refused to do so. The reason for this, according to Charles Freeman, former U.S. Ambassador to Saudi Arabia, was that “Saudi Arabia didn’t want money going to an Israeli front organization.”[7]

When Hamas Charter was issued in 1988, effectively establishing Hamas as an armed resistance movement against Israel, during the First Intifada (1987-93), Israel continued to support Hamas as the successor to the Palestinian Muslim Brotherhood, as documents released by Wikileaks during Gaza War in 2014 reveal. “Many in the West Bank believe that Israel actively supports Hamas, in its effort to split the Palestinian nation and weaken the Intifada,” a document from September 23rd, 1988 reads. In another document, Israeli sources claim that Hamas “serves as a useful counter-force for the secular organizations loyal to PLO”.[8]

Thus, Israel was instrumental in the establishment of Hamas in Gaza, which it classifies as a terrorist organization despite being the democratically elected government in Gaza. This brings us to the second issue in the media portrayal of Israel’s genocidal military campaigns against Gaza: the definition and meaning of the word “terrorism”. From a legal standpoint the word terrorism “is imprecise; it is ambiguous; and above all, it serves no operative legal purpose,” Richard Baxter expressed in 1974.[9] These same attributes make the word terrorism very attractive for political purposes; the very ambiguity of the word leaves it open to interpretation. It is subjectively “used to define reality in order to place one’s own group on a high moral plane, condemn the enemy, rally members around a cause, silence or shape policy debate, and achieve a wide variety of” political and religious goals, wrote Philip Herbst.[10] As if this writing, there is no internationally accepted legal definition of terrorism. It is necessary therefore to examine the various definitions of “terrorism” in its proper context.

The killing of civilians and non-combatants is a common criterion in many definitions of terrorism. Central to the U.S. State Department’s definition of terrorism is “premeditated, politically motivated violence against non-combatant targets.”[11] Boaz Ganor, founder and executive director of the International Institute of Counter-Terrorism, defines terrorism as “the intentional use of, or threat to use, violence against civilians or against civilian targets, in order to attain political aims.”[12]

Evidence of Israeli attacks against Palestinian civilians is overwhelming. In 2014, Amnesty International found that “Israeli forces have carried out attacks that have killed hundreds of civilians, including through the use of precision weaponry such as drone-fired missiles, and attacks using munitions such as artillery, which cannot be precisely targeted, on very densely populated residential areas, such as Shuja’iyya. They have also directly attacked civilian objects.”[13] Indeed, the UN Commissioner for Human Rights stated in 2014 that Israel “has defied international law by attacking civilian areas of Gaza such as schools, hospitals, homes and U.N. facilities.”[14] Moreover, the destruction of Palestinian homes in 2014 — an estimated 7,000 demolished and another 89,000 damaged — killing whole families at once, was condemned by Amnesty International and Human Rights Watch as tantamount to collective punishment, a war crime under international law. A simple comparison of the number of Israeli civilians killed vs. the number of Palestinian civilians killed, including Israeli snipers deliberately targeting Palestinian children and babies (see Murder of Shalhevet Pass), makes Israel the main instigator of terrorism as defined by the Israeli(!) International Institute of Counter-Terrorism.

The unlawful or illegal use of violence to achieve political aims is another criterion common to many definitions of terrorism. The U.S. Defence Department defines terrorism as the “unlawful use of violence or threat of violence, often motivated by religious, political, or other ideological beliefs, to instill fear and coerce governments or societies in pursuit of goals that are usually political.”[15] A very similar definition of terrorism is used by the U.S. Justice Department: “the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.”[16]

This is especially important vis-à-vis Israel’s genocidal military campaigns against Gaza and the West Bank, and the claim that Israel has a right to self-defence against Hamas rockets. As an occupying power Israel does not have the right to defend itself under international law against the very same people living under its occupation. “[T]he right to initiate militarized force in response to an armed attack,” Noura Erakat, a professor of international law at Georgetown University explained, “is not a remedy available to the occupying state…[t]herefore the right of self-defense in international law is, by definition since 1967, not available to Israel with respect to its dealing with real or perceived threats emanating from the West Bank and Gaza Strip population.”[17] Israeli Prime Minister Benjamin Netanyahu’s claim that “there is no Israeli occupation of Gaza”[18] notwithstanding, Gaza can hardly be considered free when, according to Amnesty International, Israel has sole control over Gaza’s airspace, territorial waters and land borders, Gaza’s population registry and supply of food, medicine, electricity, and other necessities, and the movement of goods and people into and out of Gaza.[19] Palestinians living in Gaza find it almost impossible “to meet with their relatives living outside the area, to study abroad, to receive advanced medical treatment, to find employment, to conduct business, to go on vacation, or to visit holy sites” without the approval of Israeli authorities.[20] Illustrative of how much control Israel wields over Gaza, when Hamas won the 2006 Palestinian legislative elections, “widely concerned to be free and fair” according to a U.S. Congressional Research Service report[21], Israel responded by imposing a “starvation diet” on the people of Gaza.[22] (Collective punishment is prohibited under Article 33 of the Geneva Convention[23], and the UN has declared the deliberate withholding of food to be a war crime[24].)

Israel’s microscopic management of the calorie intake of the people of Gaza leaves no doubt that, notwithstanding the termination of the military government and the lack of a permanent military presence, Israel wields “effective control” over Gaza, and thus Gaza is considered occupied under international law and is therefore subject to the laws of occupation.[25] This reality “enjoys an overwhelming international consensus: Namely, that the entirety of the territories captured by Israel in 1967 remain occupied according to international law,” professors and Middle East experts Mark LeVine and Lisa Hajjar explain.[26]

Determining whether or not Gaza is legally recognized as an occupied territory is more than an exercise in semantics. As an occupied territory, the people of Gaza have the right to struggle for independence “by all available means, including armed struggle,” as stated in UN General Assembly Resolution A/RES/3246 (XXIX) adopted November 29th, 1974 [emphasis added]. Four years later the UN again reaffirmed “the legitimacy of the struggle for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation by all available means, particularly armed struggle…” [emphasis added][27] . Protocol I of the Geneva Convention further enshrines the right of people living under colonial domination and foreign occupation as well as racist regimes (Israel has frequently been compared to apartheid South Africa) to use armed force in exercise of their right to self-determination[28].

Thus, if we accept the definitions of terrorism used by the U.S. Defense and Justice departments, it is not Hamas that is committing acts of terrorism, it is Israel. Palestinians living under Israeli occupation — which includes Gaza, the West Bank, and East Jerusalem — have an internationally recognized right to armed struggle against Israeli occupation. This fact is supported by Lynda Brayer, an Israeli-trained human rights lawyer: “This document [UN resolution 37/43] legitimises all 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 legitimises all Palestinian attempts to lift the yoke of Israeli oppression from Palestine, including all the actions taken by the Palestinians during Operation Cast Lead [Israel’s 2008/09 siege of Gaza]”[29]. CJ Werleman best summarizes the importance of the right of Palestinians to armed struggle: “Under international law, Israel’s occupation of the Palestinian territories is illegal, and Palestinians have a right to ‘armed struggle’ against their illegal occupier — Israel — thus ipso facto Palestinians have a right to defend themselves against Israel, but Israel’s right to defend itself against Palestinian resistance is not guaranteed in the same manner.”[30] Since Palestinians are entitled to armed struggle against foreign occupation, it is Israel’s attacks on Palestinians, not Hamas rocket attacks, that meet the U.S. Defense and Justice departments’ definition of terrorism.

All progressive-minded people must stand in solidarity with the Palestinian people’s right to self-determination and resistance against illegal foreign occupation.

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