Breaking the silence on Palestinian armed struggle: A call for legal clarity

On 22 February, 2024, China’s Ambassador to The Hague, Zhang Jun, uttered the unexpected. His testimony, like that of a number of others, was meant to help the International Court of Justice (ICJ) formulate a critical and long-overdue legal opinion on the legal consequences of Israel’s occupation of Palestine.

Zhang articulated the Chinese position, which, unlike the American envoy’s testimony, was aligned entirely with international and humanitarian laws. But he delved into a taboo subject; one that even Palestine’s closest allies in the Middle East and Global South dared not touch: the right to resist by any means, “including armed struggle”.

“Palestinian people’s use of force to resist foreign oppression and complete the establishment of an independent state is an inalienable right,” said the Chinese Ambassador. “The struggle waged by peoples for their liberation, right to self-determination, including armed struggle against colonialism, occupation, aggression, domination against foreign forces should not be considered terror acts,” he insisted.

Predictably, Zhang’s comments didn’t reverberate much further.

Neither governments nor intellectuals, including many on the left, used his remarks as an opportunity to explore the matter in greater depth. It’s far more convenient to assign Palestinians the role of the victim or the villain. A Palestinian who resists occupation — one with agency and control over his own fate — is always dangerous territory for honest analysis.

Zhang’s remarks, however, were situated entirely within international law. Thus, Romana Rubeo and I couldn’t forgo the opportunity to discuss the topic in a recent interview we conducted with Professor Richard Falk, a leading scholar in international law and former UN Special Rapporteur for Palestine.

Falk is not merely a legal expert, however accomplished he has been in the field. He is also a profound intellectual and an astute student of history. Although he speaks with great care, he does not hesitate, nor does he mince his words. His ideas may appear “radical”, but only if the term is understood within the limiting intellectual confines of mainstream media and academia. Moreover, he does not speak “common sense”, according to the Gramscian principle, but “good sense”, perfectly rational discourse, albeit often inconsistent with mainstream thinking.

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We asked Prof. Falk specifically about the Palestinian people’s right to defend themselves, and, more specifically, about armed struggle and its consistency (or lack thereof) with international law.

“Yes, I think that’s a correct understanding of international law, one that the West, by and large, doesn’t want to hear about,” said Falk in response to Zhang’s comments at The Hague. “The right of resistance was affirmed during the decolonisation process in the 1980s and 1990s, and this included the right to armed resistance. However, this resistance is subject to compliance with international laws of war.”

Even the preamble to the Universal Declaration of Human Rights states that, “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”

Israel does not comply with international laws of war.

The entire situation in Gaza is one of the most flagrant examples of Israel’s complete disregard, not only for the laws of war, but also for the entire apparatus of international and humanitarian laws.

Palestinians, on the other hand, are in a permanent state of self-defence. They are driven by a different set of values than those held by Israel, and are fully aware of the need to maintain moral legitimacy in their methods of resistance.

Thus, “compliance with the laws of war” would imply a commitment to protect civilians; respect and protect the “wounded and sick… in all circumstances”; “prevent unnecessary suffering” by restricting “the means and methods of warfare”; and conduct “proportionate” attacks, among other principles.

This takes us to the events of 7 October, 2023, Operation Al-Aqsa Flood inside what is known as the Gaza Envelope region in southern Israel.

“To the extent that there is real evidence of atrocities accompanying the 7 October attack, those would constitute violations, but the attack itself is something that, in context, appears entirely justifiable and long overdue,” said Falk.

The above statement is earth-shattering, to say the least. It is one of the clearest distinctions between the operation itself and some allegations — many of which have already been proven false — of what may have taken place during the Palestinian resistance cross-border incursion.

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This is why Israel, the US and their allies in Western governments and media laboured to mischaracterise the events that led to the ongoing genocidal war, and resorted to repeating lies about mass rape, the decapitation of babies and the senseless slaughter of innocent participants in a music festival.

By creating this misleading narrative, Israel succeeded in shifting the conversation away from the events that led to 7 October and placed Palestinians on the defensive, as they stood accused of carrying out unspeakable horrors against innocent civilians.

“One of the tactics used by the West and Israel has been to almost succeed in de-contextualising 7 October so that it appears to have come out of the blue,” explained Falk. “The UN Secretary-General was even defamed as an anti-Semite for merely pointing out the most obvious fact: that there had been a long history of abuse of the Palestinian people leading up to it.” This was a reference to the statement by Antonio Guterres that 7 October “did not happen in a vacuum.”

Richard Falk is an iconic figure and one of the most influential academics and advocates of international law in our time.

His words must inspire an open and honest discussion about Palestinian resistance.

Its history is not a history of armed resistance, per se. The latter is a mere manifestation of a long history of popular resistance that reaches all aspects of societal expression, including among other things culture, spirituality, civil disobedience, general strikes, mass protests and hunger strikes.

However, if Palestinians succeed in placing their armed resistance — as long as it complies with the laws of war — within a legal framework, then attempts to delegitimise the Palestinian struggle, or large sections of Palestinian society, will be challenged and ultimately defeated.

In the meantime, though, Israel continues to enjoy impunity from any meaningful action by international institutions, and it is the Palestinians who continue to stand accused, instead of being supported in their legitimate struggle for freedom, justice and liberation. Only courageous voices like those of Zhang and Falk, among many others, will ultimately correct this skewed discourse.

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The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.