Saturday, April 22, 2006

Hamas Legitimises Suicide Bombing: Some Comments


The Hamas reacted to a suicide bombing which killed nine people and wounded 60 others at a Tel Aviv restaurant on Monday by calling it a ‘legitimate act of self-defense’.

Khaled Abu Helal, a spokesman for the Hamas-led Interior Ministry of the Palestinian Authority said in an interview with Associated Press that: ‘We think that this operation (…) is a direct result of the policy of the occupation and the brutal aggression and siege committed against our people’
(see this very useful Boston Globe article at boston.com).

These statements from members of Hamas have a new quality after the party won the legislative elections in January and took control of the Palestinian Authority last month, as now the official representatives of the Palestinian people are speaking, making it necessary to say some things on the legal situation.

There are many legal problems concerning the applicability and application of international humanitarian law in the Occupied Palestinian Territory. In a previous post I inter alia talked about the question whether there is a state of occupation according to international humanitarian law making at least some norms applicable and (admittedly in an update of said post where I had to correct myself to some degree) about the possibility of a new conflict that has arisen between Israel and the Palestinian people. Taking up my thoughts from that post I want to accept the applicability of international humanitarian law for the purpose of this post.

What I don’t want to do is to talk about the question whether Israel or the Palestinians are fighting a legally acceptable fight or not, I only want to talk about the legality of suicide attacks, especially against civilians, under international humanitarian law.

Concerning suicide attacks it has to be said that they, as such, are not prohibited under international humanitarian law; they are, in particular, not some sort of prohibited treachery or perfidy. Such tactics have been employed, for example, by the Japanese at the end of World War II, especially with the Kamikaze attacks of aircrafts on Allied warships, and it seems impossible to differentiate between suicide attacks (that some possibly want to prohibit) and other situations occurring in wartime situations, for example with soldiers sacrificing themselves for their comrades.

But one thing is totally clear:

From the position of international humanitarian law there is nothing legitimate in attacking civilians, in no conflict whatsoever.

Any intended attack on the civilian population, civilians not participating in hostilities or civilian objects is clearly prohibited under international humanitarian law. This fundamental principle of humanitarian law today is explicitly laid down in Arts. 48, 51 para. 2, 52 para. 2  First Additional Protocol of 1977, but it was already the foundation for many earlier norms (see for example Art. 25 of the Hague Regulations of 1907) and therefore without a doubt has to be seen as part of customary international humanitarian law. (See Jean-Marie Henckaerts/Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, Cambridge 2005, p. 3 et seq.)

Such attacks on civilians and statements like that given by the Hamas are unbearable, morally as well as legally.
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6 Comments:

Anonymous Patrick S. O'Donnell said...

I perhaps would not go so far as to say such actions are 'morally unbearable' to the extent that one understands the utter desperation that drives individuals to resort to such tactics. Of course this is not a moral excuse, but it suggests we make a sincere attempt to understand the motley conditions that sometimes prompt individuals and groups to resort to the killing of civilians. Perhaps when I have more time I'll weigh in with a more thorough discussion of such matters. Secondly, our moral indignation is troubling inasmuch as it does not apply equally to the killing of civilians by the Israeli military prior to the recent restaurant bombing. Press reports typically do not accord equal attention to the killing of Palestinian civilians, the implicit premise usually being that the lives of innocent Palestinians count less than their Israeli counterparts. Of course everyone will deny that this is the case, but just read the reporting and the pundits' self-righteous expressions of opprobrium. From the vantage point of moral psychology, one wonders how many individuals have truly imagined what it would be like to live in the Occupied Territories on a day-to-day basis, to have experienced the commplace unemployment, poverty, social chaos, intermittent rule of law, structural and political violence, humiliation and degradation, and so forth and so on. If as much energy was spent in addressing the resolution of the political conflict as is spent in condemning acts of terrorism, we might begin to emerge out of the current state of political inertia and moral morass in the direction of realizing the democratic goals and human rights principles we profess belief in....

26 April, 2006 15:58  
Anonymous Patrick S. O'Donnell said...

One other matter by way of keeping perspective: self-righteous moral pronouncements and proclamations suffused with indignation, as well as legal citations of international humanitarian law directed at the use of suicide bombers in the Israeli-Palestinian conflict, risk falling on deaf ears. We would do well to recall such things as the Allied bombing of Dresden, the use of nuclear weapons at Hiroshima and Nagasaki, the covert bombing of Cambodia during the Vietnam war, the 'collateral damage' caused by air strikes in Iraq, etc. Again, this is not by way of a moral justification, only by way of keeping a proper perspective.

In addition, and apropos the Israeli-Palestinian conflict, consider the following from Henry Siegman's recent article on Hamas in the New York Review of Books (April 27, 2006): 'Indeed, according to the historian Benny Morris, it is the Irgun that established the precedent of systematically targeting civilians. In his book Righteous Victims, Morris writes that "the upsurge of Arab terrorism in 1937 triggered a wave of Irgun bombings against Arab crowds and buses, introducing a new dimension to the conflict." While, in the past, Arabs had "sniped at cars and pedestrians and occasionally lobbed a grenade, often killing or injuring a few bystanders or passengers," now "for the first time, massive bombs were placed in crowded Arab centers, and dozens of people were indiscriminately murdered and maimed." Morris notes that "this 'innovation' soon found Arab imitators."[13]

So far as I know, neither Olmert nor Livni have criticized or repudiated the Irgun's terror activity, which gives their condemnation of Hamas a certain whiff of hypocrisy. This is not to suggest that Hamas's suicide bombings have been anything less than barbaric (as was the Irgun's targeting of Arab civilians); and if such terrorist acts are not discontinued this would be a sufficient cause to quarantine the Hamas government and bring it down. It is to say that the Likud's own history argues that terrorists can transform themselves if they have reason to believe that legitimate national goals can be achieved by political means.'

It's a slogan, yes, and as such can obscure as much as clarify, but it still rings true: 'No justice, no peace.'

27 April, 2006 01:34  
Blogger Nicki Boldt said...

Patrick (if I may), thank you for your very interesting comments.

I think I first of all have to defend myself to some degree. You are right in saying that there are many facets in the Israel – Palestinian Conflict and you are also right in saying that all of them have to be considered, including the attacks by Israel hurting civilians and the difficulties for Palestinians to manage even their daily life, which is to some (and not a small) degree due to Israel’s policy and actions. I think it is hard to keep track of all the events but one should try in order to have a well-founded opinion on aspects of the conflict.

As I was, however, posting about the new situation that occurred with this first terrorist bombing with a Hamas government in charge of Palestinian affairs, I think it’s okay to concentrate on that part of the conflict for the moment. I think one has to, in order to avoid getting lost in all the aspects of the conflict.

But here I have to say that I do not completely understand your position, as I read it out of your argumentation. You said yourself that one has to see the background that forces people to commit such acts, but that this is not a moral excuse and that is right. I have to see it, and I do, but the act remains unbearable, especially because it only aims at killing civilians.

I have to say that I have some sympathy for the Israeli wall or fence (or whatever it should be called) policy but that I don’t have much sympathy for the way it is implemented; it’s horrible to separate Palestinians from their fields, their schools and even their hospitals. I also have no sympathy for Israeli attacks that will not or cannot differentiate enough between the actual target and civilians and I even have no sympathy for the policy of killing the fundamentalist leaders in the way the Israeli military does (they should be brought to justice for supporting or ordering the terrorist attacks under the applicable law, if we have a situation of occupation, or because of the grave violation of international humanitarian law they are responsible for).

But morally and legally there is a difference between an intentional killing of civilians and an unintentional one; it may sometimes be a slight one, but it exists
(and if the Israelis are intentionally killing civilians, not as a collateral damage but as the goal, then this may be even more unbearable at a moral level, as here a state is acting that rightly is proud of its status as the only stable democracy in the region).

Also, if one starts taking into account the background of the whole conflict while judging on such an incident, on has to go further. There are factors that have to be taken into account on the Israeli side also, that may be reasons behind the sometimes too tough position of Israel’s military. The constant threat of suicide attacks, the feeling of living in a state under siege – and the comments of the President of Iran are of no help here, either. I think this conflict got more complicated through every of the last 61 years or so, and it’s impossible to sum up. Legally, it’s impossible, and morally, it seems questionable. Most importantly, it seems useless in every attempt to solve the problems, and there are more than anyone could count.

You were right in arguing that more energy must be spent on solving the problem, but I think that condemning acts of terrorism is a necessary part of the process. There can be no peace without condemning every terrorist act that happens, judging upon every wall (or fence) the Israelis are building (as the ICJ did, even if that was an advisory opinion not a judgment) and making clear what is acceptable and what is not. It’s not useful to sum up, that’s for sure, but it is necessary to address every act that happens to make the positions clear, and then sit down and talk about what to do to make these things stop, to solve the situation.
Such is, in my opinion, particularly the task of international lawyers. We may not be terribly well-qualified to judge all the moral and political implications of any given conflict (not to mention one that has been going on for so long), but the law does have a role to play in identifying particular acts which must be condemned, so that work on their elimination for the future can begin in earnest and with all the appropriate information.
In fact, this may be one illustration of what Professor Malcolm Shaw meant when he wrote that one of the purposes of international law was to give the actors on the international scene ‘a common frame of reference’ and ‘a common language’ (Malcolm N. Shaw, International Law, 5th ed., 2003, p. 7). It may only be one element leading to such a common understanding, but it is one.

And by the way, the statement of Hamas I was posting about shows that the Hamas isn’t spending too much energy addressing the resolution of the political conflict, which to some degree was what I was getting at in my post. (okay, that was not totally qualified, sorry, but I have to come to an end and I really hope that I can further outline my thoughts in replying to an answer of yours).

What made your comment even more interesting to me is your position on the question whether there is balanced media coverage on Palestinian and Israeli actions or not. I talked to Tobias and we both had the impression that, in Germany, in general there possibly seems to be an even higher degree of coverage on questionable actions by Israel than by the Palestinians.
I cannot say if this is true for the latest period of the conflict and I doubt that it is true for the incident I talked about (as there was the factor being the first suicide bombing with Hamas in charge) and the related reaction by Israel. But I remember the issue of building the wall (or fence), where the tone of the German press was to a great extent negative. The same seems to be true for the media reaction on the beginning of the Intifada related targeted killing policy, which I remember not that well. I think that for some time the news on suicide bombings were barely news at all, only on page 3 or so, until the cases of children used as suicide bombers came up; I remember a marked change in the position of Germany’s media on that occasion.
Admittedly these are only personal impressions but possibly there is a difference between German media coverage and the one in the US?

Thanks again for your comment, answering was fun and helped me a lot sorting my thoughts and position on the conflict as a whole.

27 April, 2006 12:12  
Anonymous Patrick S. O'Donnell said...

'I was...posting about the new situation that occurred with this first terrorist bombing with a Hamas government in charge of Palestinian affairs....' Response: I understand, and you did make the following comment: 'I only want to talk about the legality of suicide attacks, especially against civilians, under international humanitarian law.' I was suggesting that this singular focus on the 'legality of suicide attacks' was not helpful: It is rarely argued that such attacks are in any way 'legal,' and we've heard for some time now the chorus of legal and moral denunciation, thus there's nothing new here; i.e., you're speaking to the converted. The chorus of condemnation with regard to the Israeli killing of innocents is conspicuous by its virtual silence. A close examination of the historical record will clearly demonstrate the Israeli military's utter disregard for civilian casualties and thus its ritual invocation of 'regret' here rings hollow: its intentions are inferred from its actions, which make plain that its killing of civilians can frequently come under the description of 'intentional.'

I can hardly disagree more with the assertion that 'Hamas isn’t spending too much energy addressing the resolution of the political conflict.' First, one must take into consideration the fact that expected funding for the government has been withdrawn and Hamas has been working hard to simply acquire the funds it needs to govern; not an auspicious beginning. Secondly, it's clear that there are various voices within Hamas and its lack of a strong centralized authority means it has a difficult time speaking with one, unambiguous voice whereby relevant parties can clearly discern its political positions and proposed policies. That situation may change with time. In any case, it seems obvious that one can hardly assess Hamas with regards to its attempts to address the political conflict, given the very brief time it's had to govern.

It has long been clear what Israel could do to end suicide attacks: for instance, return to the pre-1967 borders, negotiate with the government toward the recognition of a Palestinian state, accord equal rights to Arabs within the state of Israel (on this topic, read the disturbing article by Ilan Pappe on Israel's 'demographic problem' in the 20 April issue of the London Review of Books), cease all targeted killings/assassinations, etc., etc. The government led by Hamas has little or no control over suicide bombers: recall that Israel systematically destroyed the incipient state infrastructure with regard to policing and security under Arafat. Israel has long sown the seeds of 'divide and conquer' strategies among the Palestinians, leading in part to the 'radicalization' of the populace and further exacerbating differences among Palestinian political factions. All to say that if Israel claims to be living under a 'sense of siege,' it is responsible for the actions that led to such a state. Moreover, vis-a-vis the Palestinians, one can hardly give much credence to such claims. Consider, for instance, the comments made by a senior member of Hamas' political committee made to Henry Siegman:

§ 'Members of Hamas's political directorate do not preclude significant changes over time in their policies toward Israel and in their founding charter, including recognition of Israel, and even mutual minor border adjustments. Such changes depend on Israel's recognition of Palestinian rights. Hamas will settle for nothing less than full reciprocity.
§ Hamas is not opposed to negotiations with Israel, provided negotiations are based on the provision that neither party may act unilaterally to change the situation that prevailed before the 1967 war, and that negotiations, when they are resumed, will take the pre-1967 border as their starting point.
§ Hamas will not renounce its religious belief that Palestine is a waqf, or religious endowment, assigned by God to Muslims for all time. However, this theological belief does not preclude accommodation to temporal realities and international law, including Israel's statehood.[6]
§ Hamas is prepared to abide by a long-term hudna, or cease-fire, which would end all violence. Here again, complete reciprocity must prevail, and Israel must end all attacks on Palestinians. If Israel agrees to the cease-fire, Hamas will take responsibility for preventing and punishing Palestinian violations, whether committed by Islamic Jihad, the al-Aqsa Intifada, or its own people. Hamas understands that it cannot demand recognition as the legitimate government of Palestine if it is not prepared to enforce such a cease-fire, in the context of its responsibility for law and order.
§ Hamas's first priority will be to revitalize Palestinian society by strengthening the rule of law, the independence of the judiciary, the separation of powers between various branches of government, and the professionalizing and accountability of the security services. It will aim to end corruption in government and implement new economic and social initiatives that are appropriate to the Palestinians' present circumstances. (My Hamas informant told me that well before the recent legislative elections, Hamas had commissioned teams of experts to prepare detailed plans for the economic and social recovery of Palestinian society; he said that the implementation of these plans would be Hamas's highest priority, but he did not discuss their content.)
§ Hamas will not seek to impose standards of religious behavior and piety on the Palestinian population, such as the wearing of the veil or the abaya, although Hamas believes that certain standards of public modesty— but not of religious observance— should be followed by everyone.'

You can rest assured the U.S. and the Israeli government know such things but why aren't they acknowledged and discussed in official and public fora? As Siegman further states, 'These views are exceptional only in their comprehensiveness. Similar views have been expressed for some time by other Hamas moderates as well. Ismail Abu Shanab (assassinated by Israel) said that Hamas would halt its armed struggle if "the Israelis are willing to fully withdraw from the 1967 occupied territories and present a timetable for doing so."'

Instead, we hear the repeated denunciations of suicide bombing, denunciations everyone has heard before and seem only to re-affirm our condesceding and patronizing sense of moral superiority but, again, in no manner serve to contribute in any concrete way toward resolution of the conflict, revealing as they do an utter lack of comprehension as to the reasons that led to such desperate acts in the first place. The condemnations have been repeated ad nauseum, that's my point, your uttering them once more here is simply and plainly not helpful.

Incidentally, however lamentable the utterances of Iran's president, Mahmoud Ahmadinejad, Israel can hardly feel under threat when IT is the country that possesses oodles of nuclear weapons, and has for some time now, an open secret that clearly has contributed to the 'destabilization' of the Middle East. Why did not the US condemn Israel for its nuclear arms build-up? Why hasn't Israel signed the Nuclear Non-Proliferation Treaty? Don't you think Iran and other nations in the Middle East are acutley aware of the double standard here and the hypocrisy that follows therefrom? What is more, what's being done about the US proceeding to upgrade its nuclear weapons arsenal? The US is in clear violation of the spirit if not letter of tne Non-Proliferation Treaty, so the fact that it takes charge of denouncing Iran, which has yet to develop any nuclear weapons, invaribaly has 'blowback' effects in the international arena that hamper the goals of conflict resolution in the region. Iran has stated again and again that it wants and has a right to nuclear energy. Moreover, its historical experience with imperialism makes it that less prone to 'persuasion' by 'bullying' and hardball tactics on the international stage, a fact both China and Russia appear to recognize. The following from Christopher de Bellaigue in a recent NYRB (27 April) article is apropos:

'Having agreed that the Security Council discuss Iran's behavior, Russia and China, however, have indicated that they oppose putting heavy political pressure on the Iranians. In the Security Council they will most likely insist that the IAEA must have the main responsibility for dealing with Iran's program, and that other UN action be delayed, if it is taken at all. Russia and China have large interests in Iran. The Chinese recently agreed to purchase a large amount of Iranian oil and gas during the next three decades. Russia considers the Islamic Republic an ally in its efforts to counter America's influence in the Middle East. It has also sold Iran civilian nuclear technology, a new air defense system, and civilian aircraft.

It is true that Russian officials were irritated by Iran's policy of prevarication while responding to their proposal that it transfer uranium-enrichment activities to Russian soil.[3] Nonetheless, they maintain that excessive pressure on Iran may impel it to opt out of the Nuclear Non-Proliferation Treaty (NPT) altogether, and end even the much-reduced access that inspectors now have to Iranian sites. The Iranians have not discouraged such speculation. Russia and China seem unlikely to join in the policy of sanctions against Iran that the US, Britain, and France hope that a coalition of countries will adopt should Iran refuse to comply with a putative resolution demanding that it stop its uranium enrichment program and accept more intrusive inspections.[4]

To judge from his comments during a press conference on March 8, it seems that Mohamed ElBaradei, the IAEA's director general, has some sympathy for the Russian and Chinese positions. He called on the parties to avoid an "escalation" and engage in more talks. ElBaradei is said by diplomats to be deeply disappointed that after three years of intensive inspections and correspondence with the Iranian authorities, he can't say that the Iranian program is peaceful.[5] In his most recent report, on February 27, he acknowledged that the IAEA has not seen in Iran "any diversion of nuclear material to nuclear weapons or other nuclear explosive devices." But he was troubled that Iran had provided inadequate information about its program to develop centrifuges to enrich uranium. He was, he said, concerned about the ambiguous "role of the military" in the program. He mentioned a document sent to the Iranians from a supplier of nuclear technology described as suitable for the "fabrication of nuclear weapons components." The Iranians said the document was unsolicited.'

I'm not surprised at the difference in media coverage between the US and Europe, as that has been the case for some time now. When the Palestinian ambassador to the US, Afif Safieh, recently spoke at a conference broadcast on C-SPAN here, he addressed this topic (i.e., balanced media coverage) with some eloquence (and I might have quoted from if I had the transcript).

Best wishes,
Patrick

27 April, 2006 15:15  
Anonymous Patrick S. O'Donnell said...

Please pardon the couple of typos in my last letter, as I had yet to finish my morning cup of tea!

27 April, 2006 15:19  
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31 July, 2010 06:34  

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