Palestinian right of armed resistance

Protocol I of the Geneva Conventions is frequently cited to justify Palestinians' right under international law to resist Israeli occupation. "Alien occupation" refers to territory conquered by a state, but not yet annexed and was inhabited by a different ethnic group. While most countries have ratified API, Israel has not. However, if API has the status of customary international law, then all states would remain bound by it, even if they have not ratified it. Whether Article 1(4) has the status of customary international law is disputed: Clayton Swisher argues it has, but Yoram Dinstein says it has not. Jan Hessbruegge writes that while international law is generally neutral in cases of rebellions, the above constitutes an exception that considers a rebellion to be "a lawful exercise of a right to resistance." Yoram Dinstein argues that while international law doesn't prohibit such acts of resistance, it also doesn't prevent the occupying state from penalizing those who resist. In this view, Palestinians who resist don't have protected prisoner of war status. Sahar Francis argues that the right of resistance against occupation is protected by international law, because Article 4 of the Third Geneva Convention grants POW status to "organized resistance movements" who meet certain criteria. == Declaration on Friendly Relations ==

The Declaration on Friendly Relations is considered the most significant achievement for the right of self-determination, as it was adopted unanimously by the UNGA without any opposition. The relevant paragraph of that Declaration states, Richard A. Falk, applies this to the case of Palestinians, arguing that the Palestinian right to armed resistance stems from Israel's denial of Palestinian right of self-determination. Thus, not only does it make Palestinian armed resistance legitimate, but it also legitimizes material support they may receive from third-party governments. Likewise, in 1983 John F. Murphy said the Declaration of Friendly Relations indicated that most UNGA members deemed it permissible to supply arms to Palestinians. This right is affirmed in the context of the right of self-determination of all peoples under foreign and colonial rule. The United Nations General Assembly (UNGA) has expressly affirmed the right of Palestinians to resist Israeli military occupation, including through armed struggle. General Assembly resolution A/RES/38/17 (22/11/1983) stated that it "Reaffirms the legitimacy of the struggle of peoples for their independence, territorial integrity, national unity and liberation from colonial domination, apartheid and foreign occupation by all available means, including armed struggle". Ben Saul argues that armed resistance here is only legitimized if a people's right to self-determination has been forcibly denied. Jan Hessbruegge argues that the definition of "forcible denial of self-determination" is narrow, but does apply to Israel's occupation of Palestinians. Nevertheless, Cassese writes, on two "rare" occasions the UNGA explicitly granted a people "license" to use force: namely the Palestinians (in 1977) and the Namibians (in 1984). == Palestinian right of self-determination ==

The Palestinians' right to self-determination is widely recognized, and has been deemed "unassailable". Many scholars opine that Palestinians may resort to armed resistance to achieve their right to self-determination. The legitimacy of armed resistance for the struggle of self-determination can be seen in the international treaties and UNGA resolutions (see sections above). Some scholars opine that armed struggle is only legitimate after non-violent means of self-determination have failed (see sub-section below). Marco Longobardo opines that the struggle for self-determination can only be invoked by armed groups operating under a national liberation movement recognized by the UNGA. The UNGA recognized the PLO as a representative of Palestinians in a 1974 resolution, and even the UNSC invited it for discussions relating to Palestine/Israel. The UNGA has also determined that the prolonged Israeli occupation is not justified, thus conferring legitimacy upon armed struggle against the occupying power (it also made that determination in case of Namibia and Western Sahara). Traditional jus ad bellum concerns conflict between states, but the struggle for self-determination can confer similar legitimacy to armed resistance movements. Exhaustion of non-violent means Tom Farer argues that the spirit of the UN Charter is that violence must only be attempted as last resort. In his view, Palestinians have exhausted non-violent forms of resistance. He points out that Palestinians have recognized Israel's 1967 borders, and the 2002 Arab Peace Initiative was spurned by Israel. In referring to Palestinian armed resistance to Israel, Robbie Sabel points out that countries often don't allow people to peacefully gain self-determination. For example, only due to the armed resistance in Cyprus and in Kenya did the British finally allow those countries to gain independence. Oslo Accords In 1996, Peter Malanczuk opined that as a result of the Oslo Accords, the PLO no longer has the right of armed resistance against Israel, nor can Israel invoke a right to force (including self-defense) against the PLO. Some Israelis further argue that PLO's renunciation of armed resistance means that right no longer exists for other Palestinian groups either. However, Clayton Swisher argues that the right of armed resistance is non-derogable as it is guaranteed under Protocol I, which has become a part of customary international law (non-derogable rights can't be signed away). Thus many Palestinians believe their right to resist exists in spite of Oslo. Richard Falk argues that by 2000, in spite of the Oslo process, it was clear that Israel would not be allowing for Palestinian right to self-determination; there exists strong consensus at the UN for the Palestinian right to self-determination. Thus, Palestinians maintain their right to armed resistance to achieve self-determination, according to Falk. Tom Farer argued that the "renewal" of violent resistance (in the Second Intifada) was due to continued Israeli occupation and justified in international law. He points out the 33 years of occupation had passed by then and that Palestinians had attempted various non-violent forms of resistance. Shahd Hammouri cited that report to argue in favor of the Palestinian right to resist, in spite of the Oslo Accords. == Palestinian right to self-defense ==

Many scholars have argued that Palestinians also possess the right to use force in defending themselves from the Israeli occupation, the naval blockade of Gaza, and Israeli attacks on Palestinian civilians. However, not all scholars agree with this view. Likewise, Hamas has also characterized its military actions as an act of self-defense, citing Israeli violations of Palestinian human rights, destruction of infrastructure in Gaza etc. The founder of Hamas, Ahmed Yassin, differentiated between Palestinian armed struggle against Israel's occupation vs armed struggle against Israeli attacks on Palestinian civilians. The occupation itself Palestinian professor Yousef Shandi quotes the Nuremberg trials, which upheld the right of self-defense of people against an enemy that "unrightfully" occupies territories. But, Israeli professor Yoram Dinstein says that there is a widespread idea that civilians under military occupation have the right to forcibly resist the Occupying power, but this is a misconception. If the occupied people try to resist the occupation, Dinstein argues, their actions are crimes that can be punished by the Occupying Power at its discretion. Shahd Hammouri argues the wording "collective or individual" leaves open the possibility of individuals and collectives organizing self-defense in response to aggression. Marko Milanovic argues that if one accepts a State of Palestine exists, then it would have the right to self-defense. Milanovic accepts there is no doubt whatsoever that Palestine ought to exist as a state, but despite widespread recognition, many states do not recognize it as a state, most notably Israel. Marco Longobardo argues that while Palestine is widely recognized, the Palestinian Authority has never invoked self-defense despite repeated Israeli attacks on the Gaza Strip. Even countries which have condemned Israeli attacks and recognized Palestinian statehood have not yet affirmed the Palestinian right to self-defense. Self-defense from oppression Jan Arno Hessbruegge writes that International Law, regrettably, does not give non-state groups a right to self-defense, not even from genocide. For example, during the Rwandan Genocide, the UNSC criticized the use of force not just by the Rwandan government (which was committing the genocide) but also the use of force by the Rwandan Patriotic Front (which was trying to stop the genocide). Similarly, the UNSC criticized all parties for violence during the Syrian Civil War, including those who were defending against atrocities. However, in the case of the First Libyan Civil War, the UNSC only condemned Gaddafi, not the rebels fighting against him. Hessbruegge concedes that many writers, nevertheless, do believe a right to resist against a government that commits international crimes or oppression. == Implication for Israeli right to self-defense==

Scholars argue that if Palestinians have the right to self-defense then Israel does not; in corollary, in a situation where Israel has the right to self-defense implies deeming Palestinian resistance to be illegal. This can be restated as: there can be no self-defense against legitimate self-defense. Michael Neumann explains this via two analogies: robbers have no right to defend themselves against bank guards; Saddam's forces occupying Kuwait had no right to defend themselves against attacks by the US-led coalition, and in trying to defend themselves they committed further injustice. Sharon Weill and Valentina Azarova argue that so long as Israel is occupying the Palestinian territories, it may not invoke Article 51 right to self-defence. Yousef Shandi writes that Israel can only claim self-defense if the Palestinian armed attacks continue even after Israel ends its occupation of both the West Bank and Gaza Strip. Sharon Weill and Valentina Azarova write that until Israel ends its occupation, it cannot invoke Article 51 right to self-defense. Even if one agrees the Gaza Strip was not occupied, the West Bank has remained occupied, since Israel retains direct control over Area C, and the IDF is capable of reasserting control over Areas A and B. == Russia–Ukraine analogy ==

Nathan J. Robinson compares Palestinian political violence against the Israeli occupation to the Ukrainian counteroffensives against the Russian occupation. Robinson further compares Palestinian rocket attacks into Israeli territory to Ukrainian attacks that crossed into Russian territory. and by Moustafa Bayoumi, Raji Sourani, Nour Odeh, Mustafa Barghouti, and Shawan Jabarin. == Harming civilians ==

Scholars who support a Palestinian right to resist Israeli occupation, nevertheless agree that this does not in any way justify killing or wounding civilians. David Thompson states Palestinian militants must only attack occupying Israeli forces and refrain from attacking Israeli civilians. "by all means" The language used by supporters of Palestinian right to resist sometimes is written as "Palestinian People have the right to resistance by all means available at their disposal." The "by all means" is meant to be interpreted in a jus ad bellum sense, and not in a jus in bello sense. Azmi Bishara emphasizes that "any means" mean any means consistent with the UN Charter and other laws of war. Shahd Hammouri, for example, emphasizes that the right to resist, like the right to self-defense, must adhere to international humanitarian law. Palestinian diplomatic activities The 1988 Palestinian Declaration of Independence (along the 1967 borders) also proclaimed "the right of peoples to resist foreign occupation" but also rejected "terror in all its forms, including state terror". In 1989, one year after declaring independence, the Palestinian state ratified the Geneva Conventions, recognizing its obligations for warfare under International Humanitarian Law (e.g. not attacking civilians). In 2001, Hamas tried to persuade foreign ministers attending the Organization of the Islamic Conference (OIC) to issue a statement in support for its suicide bombings. In response, the Secretary General of the Arab League upheld the Palestinian right to resistance and self-defense against Israel's occupation, but also said that civilians must be protected. In 2005, Hamas renounced the use of suicide bombings against civilians. == Skepticism ==

Many supporters of Palestinians have lamented international law not being more assertive on the rights of stateless peoples. Yousef Munayyer argues that international law was "crafted by states, and largely for states" and ignored the needs of the stateless. Valentina Capurri writes that the Palestinian right to armed resistance is treated with skepticism by two groups. The first are those who do not believe Israel is oppressing the Palestinians, and the second group are those who argue that Palestinians can only legitimately resist through non-violent means (e.g. many in the BDS movement). == United Nations resolutions ==

A number of resolutions, both in the United Nations Security Council (UNSC) and in the United Nations General Assembly (UNGA), have been interpreted as upholding the right of armed resistance against foreign occupation, especially for the Palestinians. UNSC on Fatah raids (1968) After Israel's occupation of the West Bank in 1967, Fatah began launching raids against Israel from Jordan. While most raids were aimed at military targets, some were aimed at civilians. Israel retaliated by attacking Fatah camps in Jordan, killing large numbers of people, many of them bystanders. Twice in 1968, the UNSC condemned Israeli retaliations against Fatah: UNSC 248 and UNSC 256. During the debates, UNSC non-permanent member Pakistan argued Fatah attacks on Israel were legitimate because their goal was for Palestinians to "return in freedom in their own homeland". Likewise, France rejected Israel's claim to "security of the territory" under its jurisdiction, given that Israel's jurisdiction in the West Bank was established through occupation. France further said Palestinians raids into Israel were the "almost inevitable consequence of military occupation". UNSC on raids on Portuguese colonies (1969) Around the same time as Fatah was attacking Israel from Jordan, guerilla groups seeking independence were attacking Portuguese colonies of Angola, Mozambique, and Guinea-Bissau from neighboring states. Like Israel, Portugal made cross-border reprisal attacks against these guerillas into the neighboring states that were hosting the guerillas. The UNSC condemned Portuguese reprisal attacks into Zambia (UNSC Res 268), Senegal (UNSC Res 273), and Guinea (UNSC Res 290). It rejected Portugal's supposed right to retaliate against guerilla attacks, and instead criticized Portugal for failing to respect the locals' right to self-determination. John Quigley opines that in doing so, the UNSC recognized guerillas' right to attack Portugal as superior to Portugal's right to attack the guerillas. UNGA resolutions The 1971 UNGA resolution 2787 states, The 1979 UNGA resolution 34/44 states, The 1982 UNGA resolution 37/43 states, The 1983 UNGA resolution 38/17 states that it "Reaffirms the legitimacy of the struggle of peoples for their independence, territorial integrity, national unity and liberation from colonial domination, apartheid and foreign occupation by all available means, including armed struggle". == See also ==