The indictment of Knesset member Azmi Bishara for statements supporting Palestinian resistance activities directly raises the issue of whether the Palestinians enjoy a right of resistance under international law, given the character of Israeli occupation policies. The existence of such a right of resistance has not received much attention, especially the issue of whether the right extends to force and, if so, to what extent. This article affirms a limited such right and argues that its relevance to the Bishara case should lead to the dismissal of criminal charges.
"Accusations made by a well-established society about how a people it is oppressing is breaking the rules to attain its rights do not have much credence." -- Former Israeli FM Shlomo Ben-Ami
RICHARD FALK is Albert G. Milbank Professor of International Law and Practice Emeritus at Princeton University and author, most recently, of Human Rights Horizons (2001) and Religion and Human Global Governance (2001). He would like to thank Asli Bali for her valuable research assistance in preparing at his request the study entitled "Legal Memorandum: The Legal/Political Context of the Second Intifada and the Question of a Palestinian Right of Resistance" (January-February 2001).
THE UNPRECEDENTED REVOCATION on 7 November 2001 of Dr. Azmi Bishara's immunity as a member of the Israeli Knesset opened the way for his criminal indictment on charges that he had violated the Prevention of Terrorism Ordinance (1948) and Regulation 5 of the Emergency Regulations (Exiting the Country; 1948). The essence of the allegations against Bishara was that on two occasions he had made speeches that expressed support for Palestinian resistance in Occupied Palestine and in support of the expulsion of Israeli forces from southern Lebanon. It is clarifying to appreciate that support for "resistance" in its Arabic phrasing is generally understood as support for the intifada and implies no endorsement whatsoever of armed resistance, much less violence against Israeli civilians. It also should be taken into account that Hizballah's reliance on force was directed at Israeli military forces occupying Lebanese territory, and were, in this primordial sense, an instance of self-defense. Bishara was also accused of violating Regulation 5 as a result of his humanitarian role in arranging family visits by elderly Palestinians to their relatives in Syrian refugee camps.
Such a criminal proceeding raises extremely serious questions concerning the free speech of Palestinian citizens of Israel, particularly those who have chosen to participate in Israeli governmental institutions. For the Knesset to remove the parliamentary immunity of Bishara in reaction to his public advocacy so as to pave the way for criminal prosecution is to send a chilling message regarding free speech and democratic debate to members of Israel's Palestinian community and to suggest a discriminatory double standard applicable to members of the Knesset. Israeli extremists are never officially challenged in this severe manner, even if their views on expulsion, reoccupation, and massive military operations favor behavior that flagrantly violates international law and basic human rights standards.
To assess whether the charges brought against Bishara have a valid legal basis, it is relevant to assess whether the Palestinians enjoy a right of resistance under international law, and if so, within what limits. If such a right exists legally and morally, then it seems unreasonable to the point of being abusive to charge Bishara for supporting what is well founded in law. Even if Palestinian resistance were of dubious legality, its endorsement by a political leader in a public forum would not seem to be an appropriate basis for a criminal indictment.
The question of the Palestinians' legitimate rights under current conditions tends to be avoided in almost all discussions of recent phases of the Israeli-Palestinian encounter. The media focus almost exclusively on violence, especially Palestinian violence, without taking into account the highly problematic relationship that has evolved over the years between the occupying state and the occupied people. At issue is the substantive question of the right of a people living for decades under such oppressive circumstances to act in opposition. Equally as important as the right is its scope, specifically whether it extends to the use of force, and if so, within what limits. In the foreground of such concerns is the need to distinguish between permissible and impermissible uses of force and specifically to situate the matter of "terrorism" so as to take account of oppression and resistance....
[The full text is available at <http://www.ipsjps.org/jps/122/falk.html>.] -- Yoshie
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