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International
Law and the al-Aqsa Intifada
Richard Falk
(Richard
Falk Albert G. Milibank Professor of International Law and Practice
at Princeton University and author of Human Rights Horizons
[London: Routledge, 2000])
Though the
Israeli government and the US media persist in describing the second
Palestinian intifada as a security crisis or a disruption
to the "peace process," in international law, Palestinian resistance
to occupation is a legally protected right. For 33 years, Israel
has administered a military occupation of the West Bank, the Gaza
Strip and East Jerusalem in consistent and relentless defiance of
the overwhelming will of the organized international community.
The international consensus has been expressed through widely supported
resolutions passed by the Security Council and the General Assembly
of the United Nations (hereafter UNSC and UNGA). UN Resolutions
242 and 338 affirmed the legal obligation of Israel to withdraw
from Palestinian territories obtained in the 1967 Six Day War. This
must be the end point of any peace process that can bring lasting
peace. Until such time as Israel respects this obligation, the relevant
principles of international law are contained in the Fourth Geneva
Convention concerning the Protection of Civilian Persons in Time
of War (August 12, 1949), in particular those provisions of the
Convention that require an occupying power to protect the status
quo, human rights and prospects for self-determination of the occupied
people, and oblige all signatories to enforce the Convention in
the face of "grave breaches." Since 1967 and during the current
uprising, Israel has refused to accept this framework of legal obligations.
Its refusal has been pronounced, blatant and undisguised. Not onl¥
has Israel failed to withdraw from the Occupied Territories, during
the occupation Israel has "created facts" -- heavily armed
settlements, bypass roads and security zones in the midst of a future
Palestinian state -- that seriously compromise basic Palestinian
rights.
I have argued
before, with Burns Weston, that Israel's failures to abide by international
law, as a belligerent occupant, amounted to a fundamental denial
of the right of self-determination, and more generally of respect
for the framework of belligerent occupation -- giving rise to a
Palestinian right of resistance.(1) In essence, we argued that the
first intifada was a valid expression of this right
of resistance -- not illegal or criminal behavior on the part of
the Palestinians, although specific Palestinian acts were still
subject to applicable standards of international humanitarian law.
We viewed violent acts like throwing stones as symbolic when compared
to the scale and character of the weaponry relied on by the Israel
Defense Forces (IDF). Throughout the occupation and very visibly
during the two uprisings, Israel has reacted to Palestinian resistance
with the excessive use of lethal force, including the targeting
of civilians and children. Both the "creation of facts" and the
use of such force -- greatly escalated during the fall 2000 uprising
-- constitute repeated violations of the Fourth Geneva Convention.
Underlying
Legal Directives
The events
of the Oslo "peace process" do not alter the Palestinian right of
resistance to the occupation, due to the Israeli refusal to implement
the underlying legal directives established by a consensus within
the UN.(2) The UN consensus is particularly persuasive both because
the Palestinian right of self-determination engages the overwhelming
sentiments of every government in the world (aside from those of
Israel and the US), and because Palestine was a mandated territory,
administered as a sacred trust by the United Kingdom, and the site
of a disrupted, tormented and long-delayed process of decolonization.
The UN has made clear the legal rights and duties in the Israeli-Palestinian
conflict in a series of key widely supported resolutions, including
the following:
- UNGA Resolution
181 (II) concerning the Future Government of Palestine (November
29, 1947) establishes the parity of the two peoples with respect
to their respective rights to establish states on the former mandated
territory of Palestine, and the duty of both states to respect
both minorities and the special juridical status of Jerusalem.
- UNGA Resolution
194 (III) (December 11, 1948) affirms the right of Palestinians
to return to their original homes and lands, and to receive compensation
for any losses incurred, as well as the right of resettlement
for those Palestinian refugees choosing not to return, and compensation
for their losses. The UN established the UN Conciliation Commission
to uphold the rights of Palestinian refugees.
- UNSC Resolutions
242 and 338 (November 22, 1967 and October 22, 1973) require Israeli
withdrawal from territory occupied during the 1967 and 1973 wars,
and call for <a just settlement of the refugee problem."
- UNGA Resolution
34/70 (December 6, 1979) asserts the need for any solution of
the conflict to be in accordance with the right of self-determination,
regardless of what the parties might negotiate.
- UNGA Resolution
43/177 (December 15, 1988) acknowledges the 1988 Palestinian proclamation
of a Palestinian state as consistent with UNGA Resolution 181.
- UNSC
Resolutions 476, 480 and 1322 (June 30, 1980, November 12, 1980
and October 7, 2000) reaffirm the basic principle of international
and UN law that it is inadmissible to acquire territory by force
or conquest, as well as the unconditional applicability of the
Fourth Geneva Convention to the civilian population of occupied
territory.
Geneva IV
As long as
Israel maintains its occupation of the West Bank and Gaza, it is
bound to respect the fundamental human rights of the Palestinian
people under the Fourth Geneva Convention (Geneva IV). Geneva IV
imposes an underlying obligation on an occupying power to protect
the civilian population as specified in considerable detail in Articles
47-78. Of particular importance is Article 47 that affirms "the
inviolability of rights" granted to the civilian population
that can in no circumstances be suspended or evaded. Article 49
has been interpreted as prohibiting both forced deportations of
Palestinians and population transfers of the sort associated with
the establishment and continuous expansion of Israeli settlements.
Article 50 imposes a special burden on the occupying power to protect
children from the effects of war and accompanying hardships. The
international community has a duty to take steps, in accordance
with Article 1 of Geneva IV, to secure Israeli compliance with the
relevant provisions of international humanitarian law. The language
of Article 1 is clear: "The High Contracting Parties [that
is, the governments of all major states] undertake to respect and
to ensure respect for the present Convention in all circumstances."
Israel has
contested the application of Geneva IV on the grounds that it has
claims to the Palestinian territories, and that since their legal
status is not fully established, it is not an instance of "belligerent
occupation." As a result, Israel claims not to be formally
bound by international humanitarian law. Although, with considerable
ambiguity, Israeli officials have periodically acknowledged a willingness
to abide by Geneva IV on a discretionary and de facto basis, Israeli
government behavior has failed to exhibit a comparable willingness
and capacity to act in compliance. The UN has consistently refused
to be diverted by this obfuscating tactic. As recently as October
7, 2000 in UNSC Resolution 1322, adopted by a vote of 14-0, with
the US abstaining, the UN "called upon Israel to abide scrupulously
by its legal obligations and its responsibilities" under Geneva
IV.
Violating
the Convention
Given the continued
denial of the fundamental rights of the Palestinian people, Israel
had an overriding duty to use its contested authority in the Occupied
Territories to protect the civilian population during the fall 2000
unrest. Despite the emergence of the Palestinian Authority (PA),
Israel has retained a preponderant security role, augmented the
illegal settlements throughout the so-called "peace process"
and seemed consistently deaf to international public opinion on
such issues as the status of Jerusalem or the right of the Palestinians
to establish their own sovereign state. Ehud Barak's authorization
of Ariel Sharon's visit to the Haram al-Sharif on September 28,
2000 was the match that ignited the still burning forest fire that
has come to be known as the al-Aqsa intifada. At a minimum,
it was incumbent upon Israel to respond with minimum force given
the overall situation and its degree of control. Instead, Israeli
forces, using live ammunition, helicopter gunships and tanks, have
killed (at press time) more than 280 Palestinians and wounded thousands
of demonstrators, often firing from far beyond the range of stone
throwers or light weaponry. This response contrasts with the first
intifada, when far greater efforts were undertaken by the
IDF to avoid Palestinian fatalities, and to rely on responses appropriate
for "riot control." True, in the recent demonstrations
some Palestinians have used light arms, but there is still no justification
for the disproportionate and excessive responses that have resulted
in such heavy losses of life and widespread serious injury.
Corroborated
journalistic and NGO accounts have documented the following more
specific violations of Geneva IV standards: attacks on medical personnel
and their marked vehicles and facilities, killing civilians who
were situated in protected religious areas, reliance on live ammunition
for crowd control and to handle unarmed and lightly armed demonstrators,
numerous instances of "shooting to kill" by Israeli soldiers
as evidenced by wounds in the upper parts of the body and in the
backs of demonstrators and indications of fatalities and injuries
deliberately inflicted on unarmed children by IDF snipers.(3)
The Israeli
response to the challenge of the al-Aqsa intifada is inconsistent
with a minimalist reading of Geneva IV and the overall obligations
of international humanitarian law. The most basic norm of international
customary law, binding whether or not there are relevant treaty
obligations, prohibits the use of excessive force, defined by reference
to "necessity" (the minimum required to sustain security)
and "proportionality" (the level of forcible response
being commensurate with the level of the challenge). It would seem
evident that Israeli patterns of force have exceeded the scope of
what is necessary, and have been consistently disproportionate.
Under such
circumstances, it is urgent that an independent international fact-finding
mechanism be established, as has been the appeal of both the PA
and several respected human rights organizations. Not surprisingly,
Israel has resisted such calls, and has not proposed an alternative
beyond its acceptance of the ill-defined US-led inquiry agreed upon
at Sharm al-Sheikh in mid-October. Given the consistent backing
of Israel by virtually every American mainstream political leader,
unconditionally reiterated in the midst of the current crisis, such
an effort cannot have a scintilla of credibility.
Specific
Wrongs, Abusive Framework
As of now,
the international law challenge has two dimensions, both of which
are urgent, and need to be taken into account in comprehending the
al-Aqsa intifada. First, Israel has failed to rectify the
underlying violation of Palestinian legal rights. The "peace
process" has not been a good faith effort to achieve such results,
including the long-deferred realization of a Palestinian right of
self-determination. Second, Israel has refused to discharge its
role as occupying power in compliance with the basic provisions
of Geneva IV, and the UN and the international community generally
have failed to take the appropriate steps in light of this noncompliance.
With Palestinian civilians dying daily, the importance of upholding
this legal responsibility is self-evident.
In the absence
of the political will to enforce the body of international law on
the Israeli-Palestinian conflict, resolutions and conventions cannot
on their own bring justice to the peoples of Palestine and Israel.
Equally importantly, the flagrant violation of international law
daily accentuates the injustice to the Palestinian people, intensifies
their suffering and cannot be ignored in any approach to conflict
resolution. The severity of these violations, and their persistence
and frequency, also establishes the foundation for an inquiry into
whether an abusive structure of illegal prolonged belligerent occupation
does not itself amount to the commission of crimes against humanity,
beyond the specific wrongs alleged in relation to Geneva IV and
international humanitarian law.
Endnotes
1) Richard
Falk and Burns H. Weston, "The Relevance of International Law
to Palestinian Rights in the West Bank and Gaza: In Legal Defense
of the intifada," Harvard International Law Journal
32/1 (1991). See also Falk and Weston, "The Israeli-Occupied
Territories, International Law and the Boundaries of Scholarly Discourse:
A Reply to Michael Curtis," Harvard International Law Journal
33/1 (1992).
2) For extensive
discussion along these lines with particular reference to the impact
of the Oslo framework on Palestinian rights, see Stephen Bowen,
ed., Human Rights, Self-Determination and Political Change in
the Occupied Palestinian Territories (The Hague: Kluwer Law
International, 1997).
3) On the latter
question, see the Physicians for Human Rights report, accessible
online at: http://www.phrusa.org/research/forensics/israel/Israel_force_2.html.
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