Someone Should Tell Hamas -- And The UN -- That There Is No Legal Right To Destroy Israel "By All Means Necessary" (Daled Amos)

In its new General Principles and Policies, Hamas proclaims:

Resisting the occupation with all means and methods is a legitimate right guaranteed by divine laws and by international norms and laws. At the heart of these lies armed resistance, which is regarded as the strategic choice for protecting the principles and the rights of the Palestinian people.

This is actually something new for Hamas that is not found in the actual Hamas Covenant.

But the claim that the Palestinian Arabs have a right under international law to "resist" Israel "with all means and methods" -- implying including the targeting of civilians as well, is not specific to Hamas terrorists.

This latitude was already made in a 2004 post on the Electronic Intifada website by John Sigler, Palestine: Legitimate Armed Resistance vs. Terrorism:

However, among these legal forms of violence there is also the right to use force in the struggle for “liberation from colonial and foreign domination”. To quote United Nations General Assembly Resolution A/RES/33/24 of 29 November 1978:

“2. Reaffirms 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, particularly armed struggle;”

Electronic Intifada also notes that the United Nations applies this concept to the Palestinian Arabs, and goes one step further:

This justification for legitimate armed resistance has been specifically applied to the Palestinian struggle repeatedly. To quote General Assembly Resolution A/RES/3246 (XXIX) of 29 November 1974:

3. Reaffirms the legitimacy of the peoples’ struggle for liberation form colonial and foreign domination and alien subjugation by all available means, including armed struggle; [emphasis added]…

7. Strongly condemns all Governments which do not recognize the right to self-determination and independence of peoples under colonial and foreign domination and alien subjugation, notably the peoples of Africa and the Palestinian people;

Sigler does make 2 concessions:

o He admits that General Assembly Resolutions do not have the force of law, though he then goes on to claim, "when they [UNGA resolutions] address legal issues they do accurately reflect the customary international legal opinion among the majority of the world’s sovereign states." (Keep in mind that international law is not decided by a poll of countries)

o Sigler also will agree that civilians are off-limits. (Pity that Hamas do not make that distinction and that most of their targets actually are civilian, not military)

United Nations. Credit: Neptuul, Wikipedia

One problem -- with both Sigler's and the United Nations approach -- is that the language adopted in the resolutions do not apply.

To claim that the Jewish State of Israel constitutes "colonial and foreign domination and foreign occupation" ignores the fact that Jews are indigenous to the land and have been living there uninterruptedly for over 3,000 years. Since when is a people with historical, cultural, and religious ties to the land considered "colonial" or "foreign"? When archaeologists uncover finds that reveal the earlier history of the land, it is the history of the Jews -- not the Arabs. The name "Jew" comes from Judea, while the Arabs come from and are indigenous to Arabia.

But there is another issue here: since when does the United Nations sanction violence?

Article 1 of the United Nations Charter clearly states that its purpose is

To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

Article 33 adds

The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

Nowhere does the charter say that in the event that you just cannot resolve your differences -- go ahead and have at it.

The aftermath of a bus bombing in Haifa in 2003. Credit: Wikipedia, B. Železník

This discrepancy between these language of the UN resolutions and its original charter is the point made by Joshua Muravchik in The UN and Israel: A History of Discrimination. Muravchik sheds light on some of the history behind those UN resolutions that Electronic Intifada quotes. On the UN apparent sanctioning of violence, Muravchik writes:

This stance, which contradicts the UN Charter, originated in the struggles for African independence and then was carried over to the Arab-Israel conflict. In the 1960s, the General Assembly passed several resolutions regarding Portugal’s colonies and the white-ruled states of southern Africa, affirming “the legitimacy of the struggle of the colonial peoples to exercise their right to self-determination and independence” (e.g., Resolution 2548). In 1970, an important modification was added in the phrase “by all the necessary means at their disposal” (Resolution 2708).

The PLO, backed by the Arab states and the Islamic Conference, was to cite this language as sanctioning its deliberate attacks on civilians. In his famous speech to the General Assembly, Arafat claimed that “the difference between the revolutionary and the terrorist lies in the reason for which each fights. Whoever stands by a just cause?.?.?.?cannot possibly be called [a] terrorist.”

Just a week after Arafat’s appearance, the General Assembly affirmed “the right of the Palestinian people to regain its rights by all means” (Resolution 3236). Any ambiguity in this phrase was wiped away in a 1982 resolution that lumped the Palestinian case together with lingering cases of white rule in southern Africa and affirmed “the legitimacy of the struggle of peoples against foreign occupation by all available means, including armed struggle” (Resolution 37/43). Since the Palestinians were engaged neither in conventional nor even, for the most part, guerrilla war with Israel, but rather a campaign of bombings and murders aimed at civilian targets, this is what was meant by “armed struggle.” [emphasis added]

From Portuguese territories to Israel is a slippery slope.

Leave it to the UN to go from UN Resolution 3236 recognizing "the right of the Palestinian people to regain its rights by all means in accordance with the purposes and principles of the Charter of the United Nations" to using all available means, including armed struggle.

The bottom line is that just as there is no unalienable right of the remaining Palestinian Arab refugees to return, neither is there a right under international law to allow Palestinian Arab to violently attack Israelis.

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