Alternatives International

Do Palestinians Have the Legal Right to Resist the Israeli Blockade and Occupation?

Norman Finkelstein — 2014-08-01T18:45:14Z

On July 7, Israel unleashed Operation Protective Edge against Gaza. When it launched a ground invasion on July 18, Israel had already killed 230 Gazan Palestinians — of whom 75% (171) were civilians and 20% (48) children — wounded more than 1,700, and destroyed or rendered uninhabitable hundreds of homes leaving more than 10,000 Gazans without shelter. On the other side, according to daily updates, Palestinian projectiles had killed one Israeli civilian, wounded 18, and damaged three Israeli homes. It is hard to conceive of a more disproportionate balance sheet in an alleged “war.”

Nonetheless, Human Rights Watch (HRW), in its legal reckoning, did not so much even out, as reverse, the balance sheet. It never explicitly accused Israel of committing war crimes, whereas its first press release already accused Hamas of committing them. If in fact HRW accurately interpreted the laws of war, the only rational conclusion would be that these laws are morally bankrupt and deserving of contempt: they would not be distilling but instead grossly distorting the moral realities of war, as they exonerate the major perpetrators of war crimes. But did HRW accurately interpret the laws of war, or did this influential human rights organization give Israel a green light to commit war crimes on a yet more massive scale during the ground invasion? Let us look at the record.

In its first press release on July 9, HRW stated: “Israeli attacks targeting homes may amount to prohibited collective punishment.” In its second press release on July 16, HRW stated: “Israeli air attacks in Gaza … have been targeting apparent civilian structures and killing civilians in violation of the laws of war. Israel should end unlawful attacks that do not target military objectives and may be intended as collective punishment or broadly to destroy civilian property.” It then proceeded to legally define the meaning of war crimes, but artfully avoided accusing Israel of committing them.

In these statements HRW doubly distanced itself from alleging Israeli war crimes. First, it qualified the weight of the incriminating evidence — “appear,” “may,” “apparent,” “may be.” Second, it recoiled from explicitly charging Israel with war crimes and instead settled for lesser or vaguer charges — “collective punishment,” “violation of the laws of war,” “unlawful attacks.” The cautiousness perplexes in light of the evidence assembled by HRW itself.

In conformity with tenets of international law, HRW stated that “indiscriminate or targeted,” “deliberate or reckless,” attacks directed at civilians or civilian structures constituted “war crimes.” If Israel had a declared policy of targeting civilian homes and 75% of casualties were civilians, Israel prima facie committed war crimes. Why did HRW not reach this conclusion?

Although acknowledging that Israel targeted homes of Hamas militants “that do not serve an immediate military purpose,” HRW denounced these targeted attacks on civilian structures as mere “collective punishment.” Contrastingly, in an July 11 press release, Amnesty International forthrightly and unequivocally stated that Israel's targeting of Hamas militants' homes not making an “effective contribution to military action … constitutes a war crime and also amounts to collective punishment against the families.”

HRW investigated four Israeli strikes in Gaza that resulted in civilian casualties. It consistently found “no evidence,” and “the Israeli military has presented no evidence,” that Israel was “attacking lawful military objectives or acted to minimize civilian casualties.” HRW also observed that “Israel has wrongly claimed as a matter of policy that civilian members of Hamas or other political groups who do not have a military role are ‘terrorists' and therefore valid military targets” (emphasis added). “Israel's rhetoric is all about precision attacks,” HRW's Middle East director stated in the second press release, “but attacks with no military target and many civilian deaths can hardly be considered precise.” If, however, Israel's “precision attacks” killed civilians in the absence of any military objective, did these not precisely constitute war crimes?

“Israel launched 1,800 air raids in one of the most densely populated areas of Gaza,” Raji Sourani, the respected human rights lawyer and founder of the Palestinian Center for Human Rights, observed. “It's a shame that Israel and the international community allow this to happen. These are war crimes, just as simple as that.” It really is that simple, and it is worse than a shame that HRW, by its muted legal findings, enables this to happen.

“Palestinian rocket attacks on Israel appear to be indiscriminate or targeted at civilian population centers,” HRW's first press release stated, “which are war crimes.” On this point, Amnesty concurred. But are projectile attacks by Hamas (used here as short-hand for all Palestinian armed groups) war crimes or even illegal? In fact, the law is more ambiguous than often allowed.

International law prohibits an occupying power from using force to suppress a struggle for self-determination, whereas it does not prohibit a people struggling for self-determination from using force. The International Court of Justice (ICJ) stated in its 2004 advisory opinion that the Palestinian people's “rights include the right to self-determination,” and that “Israel is bound to comply with its obligation to respect the right of the Palestinian people to self-determination.” Israel consequently has no legal right to use force to suppress the Palestinian self-determination struggle. Israel also cannot contend that, because this self-determination struggle unfolds within the framework of an occupation, it has the legalright, as the occupying power, to enforce the occupation so long as it endures. In 1971, the ICJ ruled that South Africa's occupation of Namibia had become illegal because it refused to carry out good-faith negotiations to end the occupation. It is beyond dispute that Israel has failed to carry out good-faith negotiations to end the occupation of Palestinian territory. On the Namibia precedent, the Israeli occupation is also illegal. The only “right” Israel can claim is — in the words of the United States at the time of the Namibia debate — “to withdraw its administration … immediately and thus put an end to its occupation.”

Although claiming for itself the right of self-defense against Hamas projectiles, in fact, Israel is claiming the right to maintain the occupation. If Israel ceased using force to suppress the Palestinian struggle for self-determination, the occupation would end and the projectile attacks would cease — if they did not stop, the legal situation would, of course, be different. If it ended the occupation, Israel would not need to use force. The refrain that Israel has the right to self-defense is a red herring: the real question is: Does Israel have the right to use force to maintain an illegal occupation? The answer is no.

It might be said that, even if Israel cannot use force to suppress the Palestinian struggle for self-determination, Hamas' use of indiscriminate projectiles and its targeting of Israeli civilians still constitute war crimes. Here, it is useful to first recall another instance of HRW's egregious double-standard. In 2008, HRW issued a report entitled Flooding South Lebanon: Israel's Use of Cluster Munitions in Lebanon in July and August 2006. The report found that Israel dropped as many as 4.6 million cluster munitions on South Lebanon during the 2006 war. It was, in HRW's words, “The most extensive use of cluster munitions anywhere in the world since the 1991 Gulf war,” while relative to the size of the targeted area the density of the attack was historically unprecedented. Some 90% of these cluster munitions were dropped during the final three days, “when Israel knew a settlement was imminent” (HRW) — the UN ceasefire resolution having already been passed but not yet gone into effect.

But, although finding that Tel Aviv committed “extensive violations” of the laws of war, HRW did not go beyond stating that Israel's massive resort to cluster munitions was “in some locations possibly a war crime.” Yet the evidence HRW itself assembled showed that cluster munitions are indiscriminate weapons; the cluster munitions carriers used by Israel were, on HRW's own terms, indiscriminate; and the cluster munitions were fired indiscriminately and deliberately targeted civilian population centers.

It is not altogether clear what constitutes an indiscriminate weapon. The apparent standard is a relative one set by the available technology. If an existing weapon has a high probability of hitting its target, then any weapons with a significantly lower probability are classified as indiscriminate. But, by this standard, only rich countries, or countries rich enough to purchase high-tech weapons, have a right to defend themselves against high-tech aerial assaults. It is a curious law that would negate the raison d'être of law: the substitution of might by right.

HRW has argued that, even if its civilians are being relentlessly targeted, a people do not have a legal right to carry out “belligerent reprisals” — that is, to deliberately target the civilians of the opposing state until it desists. “Regardless of who started this latest round, attacks targeting civilians violate basic humanitarian norms,” HRW's Deputy Middle East and North Africa Director Joe Stork stated in the first press release. “All attacks, including reprisal attacks, that target or indiscriminately harm civilians are prohibited under the laws of war, period.”

This is not so. International law does not — at any rate, not yet — prohibit belligerent reprisals. The United States and Britain, among others, have staunchly defended the right of a state to use nuclear weapons by way of belligerent reprisal. By this standard, the people of Gaza surely have the right to use makeshift projectiles to end an illegal, merciless seven-year-long Israeli blockade, or to end Israel's criminal bombardment of Gaza's civilian population.

Indeed, in its landmark 1996 advisory opinion on the legality of nuclear weapons, the ICJ ruled that international law is not settled on the right of a state to use nuclear weapons when its “survival” is at stake. But, if a state might have the right to use nuclear weapons when its survival is at stake, then surely people struggling for self-determination have the right to use makeshift projectiles, when they have been subjected to slow death by a protracted blockade, and recurrent massacres by a state determined to maintain its occupation.

One might legitimately question the political prudence of Hamas' strategy. But the law is not unambiguously against it, while the scales of morality weigh in its favor. Israel has imposed a brutal blockade on Gaza. Ninety-five percent of water in Gaza is unfit for human consumption. By all accounts, the Palestinian people now stand behind those engaging in belligerent reprisals against Israel. In the Gaza Strip, they prefer to die resisting than to continue living under an inhuman blockade. Their resistance is mostly notional, as makeshift projectiles cause little damage. So, the ultimate question is: Do Palestinians have the right to symbolically resist slow death punctuated by periodic massacres, or must they lie down and die?

*[This article was originally published by Jadaliyya.]

[The analysis and data in this article refer to the period prior to the Israeli ground invasion.]

A Time to Live, A Time to Die

Norman Finkelstein — 2014-02-02T00:00:00Z

I can't remember my first Pete Seeger concert. But I do vividly recall that in my mid-20s I became a Pete Seeger groupie. I probably went to one of Pete's concerts every month. He was everywhere, at big rallies and (very) small ones. And if he was there, so was I.

I doubt anyone went to a Pete Seeger to hear him perform, although my eldest brother, who's the World's Leading Authority on Pete, tells me that, in his prime, Pete was probably the best banjo player in the world. We went to hear ourselves sing. God endowed me with one of the human race's most egregious voices. (That's what everyone tells me and, on the rare occasions when I do hear myself sing, I am forced to agree.) But, amidst the cacophony of everyone else's voices at Pete's concerts, my own harmonized, or so I would imagine. Anyhow, he did ask me to sing along.

I went to Pete's concerts because he attracted and created a community of beautiful souls.

He represented everything that was pure and good, and he brought out the angel in all of us sitting in the audience. If I had discovered that Pete cheated on his wife, it would probably have devastated me. He embodied all the values of my youth: Taking a side for what's just (“There are no neutrals here”), devoting one's life to a better world, and brimming with the confidence and idealism of youth that this better world was a-coming.

When I was a freshman in college, I hitched a ride to Cornell University to hear Pete. It was the perfect fall night, the crisp air, the stars twinkling in the sky and reflecting off Cayuga lake. I can still feel the exhilaration of being there. I was young, filled with dreams and hopes, ready to conquer the world. And there was everyone else stretched out across the great lawn, who would conquer the world with me. Because it was about us, not just me. Pete once said that Dorothy in the Wizard of Oz got it wrong when she asked, Birds fly over the rainbow, why then, oh, why can't I? “Because it's not just about you,” Pete scolded. “You should have asked, why then, can't you and I?”

Another time I went to a fundraiser at Carnegie Hall for African-American radical Angela Davis. Pete was there of course. (After the concert I purchased a box of Angela Davis Christmas cards that I sent all my friends from high school. Only God knows what they thought.) I still remember the song he sang, Die Gedanken Sind Frei (Thoughts Are Free). It became my credo. My wonderful website master, Sana Kassem, created a video of my life with Pete singing it in the background. It's the only thing about me that I can bear to watch. http://www.youtube.com/watch?v=-3LpWsFMTMs.

Once I went to a commemoration for Julius and Ethel Rosenberg, who were convicted and executed for passing the “secret” of the atomic bomb to Soviet Russia. Only a handful of mostly octogenarian Communist Party members showed up. But Pete was there. I learned a lesson that stayed with me: You're never so important that “little” people don't count. At the end of the concert, as he was exiting, I gave Pete a big hug and kiss. He seemed nonplussed, I was blissed out.

Pete was a Communist, albeit a semi-lapsed one. It meant I was not only on the right (i.e., left) side of History, but that the best that the human race had to offer was there with me. If Pete Seeger and Paul Robeson were Communists, then so was I! I loved listening to union songs (I still know all the verses of Solidarity Forever and Union Maid), even if everyone around me in high school, grooving on Jimi Hendrix and The Vanilla Fudge, thought I was a complete nut and bore. Later in life Pete mused that if he had lived in Stalin's Russia, he would probably have been the first one arrested and shot. I carried that heavy load around with me for a long time.

When Pete entered into his ecology phase, I was of a mixed mind. The sentiments weren't bad when he sang, “One blue sky above us,/ One ocean lapping on our shore,/One Earth so green and round, Who could ask for more?” But then I thought, Hey, Wait a minute. What happened to Class Struggle? (Yes, I was that crass.) But I likedGarbage, especially the lyric that went, “your stocks and bonds, all garbage.” And I remember that at the first Earth Day in 1969, Pete didn't sing an ecology song, but insteadBring Them Home. “If you love your Uncle Sam,/ Bring them home, bring them home.” “Them” being the U.S. troops in Vietnam. Being a Maoist I was also committed to armed struggle, so I relished the song's verse, “There is one thing I must confess,/I am not a pacifist./ If a country invaded this land of mine,/ I'd be the first one on the firing line.” It was actually a backhanded defense of the Vietnamese people's right to used violent force against the American aggressors.

Like most everyone else, but probably more often than most, I dread my mortality and anguish over the purpose and meaning of life. I always wanted to ask Pete the secret of life. I figured if anyone knew, it was Pete. (He was also a voracious reader. He always carried a paperback in his back pocket.) I never did get to ask him. But once Amy Goodman of Democracy Now! did ask Pete what he was most proud of as he marked his 94th birthday, and lived as eventful and fulfilling a life as anyone could hope. Without missing a beat, he replied. “My marriage.” It caused me to think a lot, and still does.