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.