51吃瓜

Do Palestinians have the legal right to resist the Israeli blockade and occupation?听[The analysis and data in this article refer to the period prior to the Israeli ground invasion.]

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 鈥� of whom 75% (171) were civilians and 20% (48) children 鈥� wounded more than 1,700, and destroyed or rendered uninhabitable hundreds of homes leaving more than听10,000 Gazans without听.听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 鈥渨ar.鈥�

Nonetheless, Human Rights Watch (HRW), in its legal reckoning, did not so much even out, as听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.

Israel

In its first press release on听,听HRW stated: 鈥淚sraeli attacks targeting homes may amount to prohibited collective punishment.鈥� In its second press release on听, HRW stated: 鈥淚sraeli air attacks in Gaza 鈥� 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.鈥� It then proceeded to legally define the meaning of听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 鈥� 鈥渁ppear,鈥� 鈥渕ay,鈥� 鈥渁pparent,鈥� 鈥渕ay be.鈥� Second, it recoiled from explicitly charging Israel with war crimes and instead settled for lesser or vaguer charges 鈥� 鈥渃ollective punishment,鈥� 鈥渧iolation of the laws of war,鈥� 鈥渦nlawful attacks.鈥� The cautiousness perplexes in light of the evidence assembled by HRW itself.

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听legal听right, as the occupying power, to enforce the occupation so long as it endures.

In conformity with tenets of international law, HRW stated that 鈥渋ndiscriminate or targeted,鈥� 鈥渄eliberate or reckless,鈥� attacks directed at civilians or civilian structures constituted 鈥渨ar crimes.鈥� 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 鈥渢hat do not serve an immediate military purpose,鈥� HRW denounced these targeted attacks on civilian structures as mere 鈥渃ollective punishment.鈥� Contrastingly, in an听听press release, 听Amnesty International forthrightly and unequivocally stated that Israel鈥檚 targeting of Hamas militants鈥� homes not making an 鈥渆ffective contribution to military action 鈥� constitutes a war crime and also amounts to collective punishment against the families.鈥�

HRW investigated four Israeli strikes in Gaza that resulted in civilian casualties. It consistently found 鈥渘o evidence,鈥� and 鈥渢he Israeli military has presented no evidence,鈥� that Israel was 鈥渁ttacking lawful military objectives or acted to minimize civilian casualties.鈥� HRW also observed that 鈥淚srael has wrongly claimed as a听matter of policy听that civilian members of Hamas or other political groups who do not have a military role are 鈥榯errorists鈥� and therefore valid military targets鈥� (emphasis added). 鈥淚srael鈥檚 rhetoric is all about precision attacks,鈥� HRW鈥檚 Middle East director stated in the second press release, 鈥渂ut attacks with no military target and many civilian deaths can hardly be considered precise.鈥� If, however, Israel鈥檚 鈥減recision attacks鈥� killed civilians in the absence of any military objective, did these not precisely constitute war crimes?

鈥淚srael launched 1,800 air raids in one of the most densely populated areas of Gaza,鈥澨齊aji Sourani, the respected human rights lawyer and founder of the Palestinian Center for Human Rights,听. 鈥淚t鈥檚 a shame that Israel and the international community allow this to happen. These are war crimes, just as simple as that.鈥� It really is that simple, and it is worse than a shame that HRW, by its muted legal findings, enables this to happen.

Palestinian Armed Groups

鈥淧alestinian rocket attacks on Israel appear to be indiscriminate or targeted at civilian population centers,鈥� HRW鈥檚听first press 听stated, 鈥渨hich are war crimes.鈥澨齇n this point, Amnesty concurred. But听are听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听not听prohibit a people struggling for self-determination from using force.听The International Court of Justice (ICJ) stated in its听2004 opinion听that the Palestinian people鈥檚 鈥渞ights include the right to self-determination,鈥� and that 鈥淚srael is bound to comply with its obligation to respect the right of the Palestinian people to self-determination.鈥� 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听 right, as the occupying power, to enforce the occupation so long as it endures. In 1971, the ICJ ruled that South Africa鈥檚 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 鈥渞ight鈥� Israel can claim is 鈥� in the words of the United States at the time of the Namibia debate 鈥� 鈥渢o withdraw its administration 鈥� immediately and thus put an end to its occupation.鈥�

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?

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 鈥� 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:听Does Israel have the right to use force to maintain an illegal occupation?听The answer is no.

It might be said that, even if Israel cannot use force to suppress the Palestinian struggle for self-determination, Hamas鈥� 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鈥檚 egregious double-standard. In 2008, HRW issued a听听entitled听Flooding South Lebanon:听Israel鈥檚 Use of Cluster Munitions in Lebanon in July and August 2006.听The听report found that Israel dropped as many as 4.6 million cluster munitions听on South Lebanon during the 2006 war. It was, in HRW鈥檚 words, 鈥淭he most extensive use of听cluster munitions anywhere in the world since the 1991 Gulf war,鈥� while relative听to the size of the targeted area the density of the attack was historically听unprecedented. Some 90% of these cluster munitions were dropped during the final three days, 鈥渨hen听Israel knew a settlement was imminent鈥� (HRW) 鈥� the UN ceasefire resolution having听already been passed but not yet gone into effect.

But, although finding that Tel Aviv committed 鈥渆xtensive violations鈥� of the听laws of war, HRW did not go beyond stating that Israel鈥檚 massive resort听to cluster munitions was 鈥渋n some locations possibly a war crime.鈥� Yet the evidence HRW itself assembled showed听that cluster munitions are indiscriminate weapons; the cluster munitions carriers used by Israel were, on HRW鈥檚 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鈥櫭猼re of law: the substitution of might by right.

Belligerent Reprisals

HRW has argued that, even if its civilians are being relentlessly targeted, a people do not have a legal right to carry out 鈥渂elligerent reprisals鈥� 鈥� that is, to deliberately target the civilians of the opposing state until it desists.听鈥淩egardless of who started this latest round, attacks targeting civilians violate basic humanitarian norms,鈥澨鼿RW鈥檚 Deputy Middle East and North Africa Director Joe Stork听听in the first press release.听鈥淎ll attacks, including reprisal attacks, that target or indiscriminately harm civilians are prohibited under the laws of war, period.鈥�

This is not so. International law does not 鈥� at any rate, not yet 鈥� prohibit belligerent reprisals. The United States and Britain, among others, have staunchly defended the right of a state to use听nuclear听weapons by way of belligerent reprisal.听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鈥檚 criminal bombardment of Gaza鈥檚 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 鈥渟urvival鈥� is at stake. But, if a state might have the right to use nuclear weapons when its survival is at stake, then surely听people听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鈥� 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.听By all , the Palestinian people now stand behind those engaging in belligerent reprisals against Israel.听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 .]

The views expressed听in this article are the author鈥檚 own and do not necessarily reflect听51吃瓜鈥檚听editorial policy.

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