The Knife Intifada from an international law perspective ~ Mahmoud Al-Mubarak, MEMO, Tuesday, 20 October 2015.
If the third Palestinian intifada sparked an internal and international political dispute over what this recent uprising may lead to, then the legal dispute that may arise over the legitimacy of the means used to resist the Israeli occupation may be greater and more dangerous in terms of international law.
Killing Israeli soldiers, the use of knives and hit-and-runs by Palestinians in this intifada have raised controversy regarding the legitimacy of these acts in the eyes of the international law. Before addressing this, it may be beneficial to start with knowing the international law’s view of the Palestinian territories occupied by Israel since 1967, which include the Gaza Strip, West Bank and East Jerusalem.
Status of the occupied territories
When talking about the occupied Palestinian territories, the two famous Security Council resolutions 242 (1967) and 338 (1973) are mentioned. These two resolutions constitute the legal foundations for labelling Israel as an occupying force of Gaza and the West Bank, including East Jerusalem, and they demand that Israel withdraw from the territories it occupied during the 1967 War.
However, there are in fact many Security Council resolutions that confirm that the territories occupied by Israel after the June 1967 War are considered occupied territories under international law. These resolutions urge Israel to withdraw from them, including East Jerusalem.
Such Security Council resolutions include: 237 (1967), 248 (1968), 252 (1968), 258 (1968), 259 (1968), 267 (1969), 271 (1969), 298 (1971), 339 (1973), 368 (1975), 446 (1979), 452 (1979), 465 (1980), 468 (1980), 469 (1980), 471 (1980), 476 (1980), 478 (1980), 484 (1980), 497 (1981), 500 (1982), 592 (1986), 605 (1987), 608 (1988), 636 (1989), 641 (1989), 672 (1990), 673 (1990), 681 (1990), 694 (1991), 726 (1992), 1073 (1996), 1397 (2002), 1515 (2003), 1850 (2008) and 1860 (2009). All of these resolutions stressed that the Arab territories seized by Israel after the 1967 War are occupied territories, including East Jerusalem, and reject the principle of confiscating territory by force.
In the same regard, the UN General Assembly issued a number of similar resolutions, all of which confirm the illegality of the Israel’s occupation of the territories that came under Israeli control after the 1967 War, including: 2253 (ES-V) (1967), 2254 (ES -V) (1967), 3236 (XXIX) (1974), 3237 (XXIX) (1974), 32/5 (1977), 33/113 (1978), ES-7/2 (1980), ES-9/1 (1982), 37/135 (1982), 38/144 (1983), 46/47 (1991), 46/76 (1991), 46/82 (1991), 50/84 ( 1995) and 50/129 (1995).
In addition to this, there are many international judicial and legal resolutions confirming the status of the Israeli occupation of Palestinian territories, which include the Gaza Strip, the West Bank and East Jerusalem. An example of this is the UN Human Rights Council Resolution S-9/1 and the report issued by the UN Fact Finding Mission in 2009, also known as the Goldstone Report.
The International Court of Justice gave an advisory opinion on the legality of Israel’s construction of the Separation Wall in the Palestinian territories occupied in 1967, and it stressed that these territories are considered under Israeli occupation in accordance with international law.
Legality of resistance
The “right of resistance” is considered a form of self-defence under international law according to international conventions and treaties.
Many international conventions have confirmed the legitimacy of the right to resist, such as the Hague Conventions of 1899 and 1907, the Geneva Protocol of 1925, UN Charter in 1945, the Universal Declaration of Human Rights in 1948, the four Geneva Conventions of 1949, Additional Protocols (I and II) of 1977, the Additional Protocols of 1977, the Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960 and many other UN General Assembly resolutions. All of these international conventions and resolutions legally legitimise the right to resist.
Applying the legal resolutions to the current Palestinian situation shows that all forms of resistance exercised by the Palestinians in the areas occupied since 1967 are an indisputable international right, especially if we take into consideration that the current intifada is not an isolated act, but is a reaction to the unjustified Israeli attacks on Al-Aqsa Mosque recently.
Refuting the Israeli logic
The legal perspective adopted by Israel officially is that the killing and imprisonment of Palestinians in the occupied territories exercised by the Israeli authorities goes under the right of self-defence outlined by Article 51 of the UN Charter. They also believe that the Israeli government is doing its duty of protecting its citizens because they are being subject to attacks by Palestinian “terrorists”.
However, what the Israeli authorities are avoiding talking about is the label of illegal “occupation” that is applied to the Palestinian case. This is because the alleged right to self-defence does not apply in the event that a country is occupying land that does not belong to it, rather the right to self-defence in this case is given to those under occupation.
In the advisory opinion made by the International Court of Justice regarding the legality of Israel’s construction of the Separation Wall inside the Palestinian territories occupied in 1967, the court ruled that Israel – as an occupying state – cannot invoke Article 51 of the UN Charter regarding self-defence against any attack from the territories it occupies. Article 51 of the Charter, the court notes, “recognises the existence of an inherent right of self-defence in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State.”
The court also notes that Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory. Therefore, Israel cannot, in any event, claim to exercise the right of self-defence. Consequently, the court concludes that Article 51 of the Charter has no relevance in this case.
Accordingly, the actual translation of the advisory opinion of the International Court of Justice is that the Palestinians, who live under Israeli occupation, are justified in resisting it by all means, including resorting to violence in all its forms and manifestations, whether by killing, stabbing, or hit-and-runs.
What must be done
- The Palestinian Authority and the Arab and Muslim nations are required to focus on three main paths for the moment:
- The international law track: This can be invested in three legal paths:
- The path of the International Court of Justice where the PA, in cooperation with the Arab League, can submit a request for an advisory opinion from the International Court of Justice under Article 65 (1) of the Charter regarding the legitimacy of the Palestinian resistance in the territories occupied by Israel since 1967.
Based on what I have mentioned before, we have what is needed to refute Israeli claims and support the right of resistance as a form of self-defence for those under occupation. If this is done, then the Palestinian resistance can receive the financial and military support it needs and silence those who speak about what they do not understand.
- The path of the International Criminal Court, as the PA and its President Mahmoud Abbas always boast that the country joined the ICC, they cannot overlook or disregard this path. Therefore, the PA must submit the case of the Israeli attacks on the Palestinian people, which may be classified as war crimes, to the ICC Prosecutor.
- The Hashemite Kingdom of Jordan submits a similar request to the ICC Prosecutor’s office to raise the case of the repeated attacks on Al-Aqsa Mosque which, along with the rest of the Awqaf and holy sites in the occupied Palestinian territories, is under Jordanian trusteeship in accordance with the Wadi Araba agreement signed by Israel and Jordan in 1994. Israel’s violations of Al-Aqsa Mosque are considered war crimes in accordance with the Fourth Geneva Convention of 1994.
- The political track: As the Organisation of the Islamic Conference, the Arab League and other international Arab and Islamic organisations must be activated in order to support the Palestinian resistance fighters in the international arenas and organisations. They must also demand putting an end to the Israeli occupation through the UN Security Council and General Assembly. Also in terms of the political track, the Arab countries cannot continue to extend their hands for peace, ever since the Arab League proposed the Arab Peace Initiative in 2002, because this initiative is considered a burden to Israel as it does not and has not paid any attention to this initiative from the moment it was proposed. Therefore, the Arabs must end it in order to preserve whatever is left of the Arab nation’s dignity, which is being belittled by Israel day by day.
While the Western countries see nothing wrong in defending the policies and behaviour of the rogue state which disregards international law and international legitimacy, the Arab governments should help the Palestinians gain their freedom by resorting to their international legal right of “legitimate resistance”, rather than hindering the Palestinian people’s attempts to gain their rights and freedoms. It would be politically clever to use the current Palestinian intifada as a bargaining chip to pressure the US and Western countries and force them to change their positions towards our people whose rights are stolen from them.
- The popular track: As the Arab and Muslim popular uprising should be invested in of support the resistance fighters and the Murabiteen, and to stand by the resistance in the occupied territories in all its forms. Also, the people must raise their voices so that they are heard in the international community.
In this regards, the popular conventions must also be activated, and social media should be used to portray the whole picture to the West, whose governments and media outlets are keen on hiding the facts of Israel’s crimes from them.
Perhaps these three tracks are enough to change the painful reality of the Palestinian cause. However, the most important thing is to continue this intifada, as it is actually costing the Israeli occupation the most. The Palestinian authorities should know that while they may have been able to oppress some Palestinian people for some time, they can never, no matter how powerful they become, supress the will of their entire nation indefinitely.
Translated from Al-Jazeera, 18 October 2015.
A masked Palestinian protestor holds a molotov cocktail during clashes with Israeli forces in Nablus, West Bank.
The world has permitted the growth of a monster in Israel and America has blindly funded its existence. Palestinians have a right under international law to resist their illegal occupation by all means necessary. The brutal occupation of the lands of Historical Palestine by swarms of foreign settlers who willfully ethnically cleansed and genocided the original inhabitants, the Palestinians, is an ongoing crime against humanity that the world has been complicit in. We are all guilty of apathy by allowing this to continue and as happened with apartheid South Africa we must now redeem ourselves by helping the Palestinians help themselves in order to evict the scourge of inhuman and barbaric settler scum who are incapable of being good neighbours – doubtless kicking and screaming.- back to the 1967 borders at least, in order to form their richly deserved and long-overdue own state.