When RIGHTS intersect.

It’s all well and good to subscribe to the human rights paradigm & doctrine, but we can see the veil on its universal applicability dissolving before in jig time. If the last year is anything to go by we are either in for a HUGE reckoning for imperialist powers and the current global geopolitical order (i.e. financial neocolonialism of the Global South). Or.. total anarchy as shared morality and international law evaporates before our very eyes.

“Just war” theory has two core tenets. JUS AD BELLO, which essentially translates as the “right to go to war” – conceptually captures when going to war (mass violence) can be justified (ethical). A contradiction in terms, I hear you ask? Probably. But the idea of just war, in some shape or form dates back to Ancient Egypt. While, JUS IN BELLO –  prescribes (permits) and proscribes (bans) conduct during war. Cursory consideration of the situation across the Occupied Palestinian Territories (OPT) makes it quite clear we have strayed a long way from both of them: just one of the reasons I vehemently reject the expression “war on gaza” (see last week’s musings for more on that).

Now I want to dwell briefly on three rights that are bandied around a lot in discourse on Israel/Palestine. I want to hone-in on these three examples, as they are a clue to understanding who’s right, and whose rights we are even talking about… And they are: the right to return, the right to resist & the right to self-defence.

‘The right to return’

Nakba Day, the 15 May marks the displacement of more than 700,000 Palestinians following the creation of the State of Israel in 1948. More than 70 years later, Israel still denies Palestinian refugees their right to return to their land. There are 7.4 million dispossessed Palestinians outside of the OPT, 6.3 of whom reside elsewhere in the Middle East.

In a 1974 meeting of the Palestinian Liberation Front, they identified 3 key rights in their liberation stuggle:

ONE - Right to self-determine

TWO - Right to an independent state, and

THREE - Right to return.

The right to return has a solid foundation in international law. Article 13(2) of the Universal Declaration of Human Rights (UDHR) states, "Everyone has the right to leave any country, including his own, and to return to his country".

‘The right to resist’

The right of resistance is the supreme assertion, or main function, of the rights of mankind or human rights. It has been used to justify rebellions, since before Magna Carta, and it underlies the right to access to justice. It arises in jury trial from the power of a jury to acquit against the weight of the evidence and against the judge’s direction on the law (Bushell’s Case 1607). The common law right to self-defence includes resistance to an unlawful arrest, and a defence to murder. A right of resistance is also recognised in civil disobedience (Henry Thoreau). It is institutionalised in regular elections and in a loyal political opposition. It was asserted in the Bill of Rights 1689. It is recognised in the French Declaration and the UDHR.

Such a right is derived from Protocol I, Declaration on Friendly Relations, as well as several resolutions of the United Nations Security Council and General Assembly.

United Nations General Assembly (UNGA) has explicitly affirmed the right of Palestinians to resist Israel’s military occupation, including through armed struggle. This right was affirmed in the context of the right to self-determination of all peoples under foreign and colonial rule. Some of the most relevant UN resolutions on this matter include:

- UNGA Resolution 3314 (1974) affirmed the right of self-determination, freedom, and independence for all “peoples under colonial and racist regimes or other forms of alien domination,” and affirmed the “right of these peoples to struggle to that end and to seek and receive support.”

- UNGA Resolution 37/43 (1982) reaffirmed the “inalienable right” of the Palestinian people “and all peoples under foreign and colonial domination” to self-determination. It also reaffirmed the legitimacy of “the struggle of peoples for […] liberation from colonial and foreign domination and foreign occupation by all available means, including armed struggle.”

..and many others. While these resolutions, coming from the General Assembly do not carry the weight of law per se, they do reflect the views of the majority of the world’s sovereign states, which is the basis of customary international law.

The Fourth Geneva Convention (1949) had little to say about the use of force against an occupying power, but did not prohibit it. However, supplementary amendment, in the form of Protocol I (1977) expanded the scope of the law, explicitly confirming that it applies where “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination.” This update to international law gave legal legitimacy to “the resort to arms by national liberation movements, including the PLO,” giving Palestinians a “legal right” to use force against military occupation, similar to that enjoyed by sovereign nations.

This failure to differentiate - to recognise the Palestinian people’s legitimate right to resist the occupation - renders most Israeli reports on “terrorism” extremely misleading because they intentionally and maliciously combine acts of legitimate armed resistance (such as various violent pushbacks by Gazans) as well as unarmed resistance (such as stone throwing) in with actual acts of terrorism and treat them as indistinguishable from each other.

Contrary to the 'conventional wisdom'  being propagated by Israel and its supporters, not all violence is “terrorism” and the Palestinian people have - by weight of customary international law expressed in a myriad of United Nations resolutions - every right to militarily resist their occupation and subjugation by Israel as long as this resistance is properly conducted within the confines of existing international humanitarian law.

‘The right to self-defence’

This right generally has two key necessary ingredients: necesssity & proportionality.

Necessity determines whether IF defensive force may be used to respond to an armed attack and where it must be directed.

Proportionality governs HOW much total force is permissible and prohibits excessive responses. Both requirements are shown to apply on an ongoing basis throughout the duration of an armed conflict prompted by self-defence. Compliance with necessity and proportionality ensures that the purposes of self-defence are met (and nothing more) and that defensive force is not unduly disruptive to third-party interests and to international peace and security. As one commentator notes;

"Israel withdrew from Gaza in 2005, it cannot legally re-enter the territory with military forces unless such renewed territorial control can be based on the exercise of the right to self-defence. What is more, Israel claimed prior to the events on 7 October 2023 that Gaza did not constitute occupied territory. Accordingly, in Israel’s own view, its military operations could not be based on the rights of an occupying power under international humanitarian law.."

The UN Charter Art. 2(4) prohibits the use of force in inter-state relations.

In the Wall case (2004) where the ICJ stated that ‘the principles as to the use of force incorporated in the Charter reflect customary international law’ (para. 87). The Court also noted that ‘the principle of self-determination of peoples has been enshrined in the United Nations Charter and reaffirmed by the General Assembly in resolution 2625 (XXV), according to which “Every State has the duty to refrain from any forcible action which deprives peoples referred to [in that resolution] … of their right to self-determination”.

This means that Israel does not have the right to use force on territory on which the Palestinian people is entitled to exercise its right of self-determination unless Israel can show a specific legal basis to do so. In that regard it is noteworthy that Security Council Resolution 2720 (2023) stressed that ‘the Gaza Strip constitutes an integral part of the territory occupied in 1967’ and the Council was ‘reiterating the vision of the two-State solution, with the Gaza Strip as part of the Palestinian State’.

When you find yourself slipping into despair – no judgment, I keep finding myself there more and more often, just remind yourself that it’s a few narcissistic psychos who are hellbent on obliterating international law. Who want to cast aside unifying moral practices; and shared ethical agreements governing interstate activity.

Now, in terms of it being a “few” I’m not being exaggeratedly optimistic here or anything. It is rather unfortunate that these saddistic lurks happen to be heads of state of course, because they wield a disproportionate amount of influence.

I’m referring to the overwhelming majority of people, within our webbed system of nation states who understand that the formation of one state cannot legitimately be based on the erasure of another. It’s pretty simple. Please refute any attempts to suggest this matter is “complex”.. You may disambiguate it with the following phrase:

“Land you have to kill for probably isn’t yours. 

Land you are willing to die for, probably is.”

Illustrations of the shift of collective consciousness to which I refer, reflected in UN General Assembly votes. Take this image from 2012, which illustrates the willingness of member-states to accept ascension of Palestine to the UN as a “non-member”: