Palestinians have a right to resist Israeli occupation by all means

A man transfers an injured child after Israeli airstrikes in the southern Gaza Strip city of Khan Younis, Oct. 19, 2023. [Xinhua]

Does Israel have the right to self-defence in the Palestinian-Israeli conflict as asserted by the US and its Western alliance? Do Palestinians have the same right to self-defence which the US and its allies never utter? Does the October 7 attack by Palestinians on Israel constitute a ‘terrorist’ action? And what is the position of United Nations and international law on the matter?

United Nations General Assembly Resolution 37/43 of December 3, 1982, reaffirmed “the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation by all available means, including armed struggle”. It legalised entitlement of occupied people to resist occupying forces "by any and all means". The resolution makes specific references to South Africa, Namibia, Palestine and other territories under occupation at the time.

The resolution “urged all States, competent organisations of the United Nations system, specialised agencies and other international organisations to extend their support to the Palestinian people in its struggle to regain its right to self-determination and independence in accordance with the Charter of the United Nations”.

UNGA Resolution 45/130 of December 1990 reaffirmed the legitimacy of the struggle of the Palestinian people for independence, territorial integrity, national unity and liberation from colonial domination, apartheid and foreign occupation “by all available means, including armed struggle”.

In accordance with international humanitarian law, a war for national liberation is expressly approved through the adoption of Additional Protocol I to the Geneva Conventions of 1949, as a protected and essential right of occupied people everywhere. Furthermore, the Additional Protocol 1 to the Geneva Conventions (1977), to which Palestine acceded in 2014 (joining over 160 countries), in its Article 1(4), classifies conflicts in which peoples are fighting against alien occupation and racist regimes as armed conflicts. Individuals engaging in such “fighting,” if captured, should be afforded the status of prisoners of war, meaning their fighting is legitimate.

The International Court of Jurists (ICJ) stated in 2004 that when an attack emanates from an occupied territory and takes place on the territory of the occupying power, it cannot constitute an “armed attack” within the meaning of Article 51 of the UN Charter. Consequently, in the same advisory opinion by ICJ, the court declared that as an occupying power, Israel cannot invoke the UN Charter’s article on the right to self-defence when acting against threats from occupied territory. Self-defence cannot apply in the context of a military occupation.

Under the ICC Rome Statute, “inhumane acts committed in the context of an institutional regime of systematic oppression and domination by one racial group over another, with the intent to maintain that regime” constitutes the crime against humanity of apartheid. In March 2022, the UN Special Rapporteur on Human Rights report concluded that ‘apartheid is being practiced by Israel in the occupied Palestinian territory for 55 years’ through what he termed a dual legal-political system that privileges Israelis and discriminates against the Palestinians.

The myriad of UN General Assembly resolutions and international laws that explicitly recognise the “legitimacy of the people’s struggle for liberation from colonial and foreign all available means” strengthens the legal basis for their right to resist occupation. Israeli settlers, most who are armed and are military reservists, know the risk of occupying someone else’s country and denying their rights. Sadly, Israel attacks a territory it unlawfully occupies on claims that it is ‘foreign’ and poses a security threat to its existence.

Most military occupations encounter resistance of various types, and such resistance cannot be termed as a violation of the laws of war. Israel and Palestinians are not at war; rather, it is the oppressed and colonised people of Palestine that are exercising the rights under international law to resist the illegal occupation by whatever means possible. Israel forcefully occupied 78 per cent of Palestine in 1948 and displaced millions of Palestinians.

Consequently, all actions by Hamas or any other Palestinian armed resistance groups are lawful and do not constitute terrorism. Hamas is not recognised as a terrorist organisation by UN. An attempt to condemn Hamas for “acts of terror” at the UN in 2008 failed. It is deceptive to treat the oppressor and the oppressed as if they are equal. Clearly, the US maintains a false equivalency between Palestinian rockets and Israeli bombs.

Israel, the occupying power in Palestinian territories, and their Western supporters falsely term the Palestinian armed resistance to be illegal, and “terrorists” organisations in order to suppress their armed struggle and lengthen the occupation. This is similar to what happened in South Africa when the apartheid regime branded ANC actions as ‘terrorist’ actions. Its leader, Nelson Mandela who later became the President in 1994, remained on the US terrorism watch list until 2008 when US President Bush signed a bill removing him.

Israel and the US may argue that Gaza is not under occupation but all international organisations, including the UN, believe it is under effective control of the Israeli military even without the presence of its army. It exercises control of its airspace, territorial waters, border land crossings, utilities such as water, electricity and infrastructure etc.

The right of armed resistance by the Palestinian people is grounded in law, custom and conscience. It is the moral duty of international organisations, governmental or non-governmental, to recognise this right. In the past seven years alone, UN passed 140 resolutions against Israel on the Palestinian issue which are legally binding, all of which it routinely ignores.

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